Renewable Energy Modernization Rule, 5968-6052 [2023-00668]
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DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
30 CFR Part 585
[Docket No. BOEM–2023–0005]
RIN 1010–AE04
Renewable Energy Modernization Rule
Bureau of Ocean Energy
Management (BOEM), Interior.
ACTION: Notice of proposed rulemaking.
AGENCY:
The first Outer Continental
Shelf (OCS) renewable energy
regulations were promulgated in 2009
by BOEM’s predecessor, the Minerals
Management Service (MMS). BOEM’s
renewable energy program has matured
over the past 13 years, during which
time BOEM conducted eleven auctions
and issued and managed 27 active
commercial leases. Based on this
experience, the Department has
identified opportunities to modernize
its regulations to facilitate the
development of offshore wind energy
resources to meet U.S. climate and
renewable energy objectives. This
proposed rule contains reforms
identified by the Department and
recommended by industry since 2010,
including proposals for incremental
funding of decommissioning accounts;
more flexible geophysical and
geotechnical survey submission
requirements; streamlined approval of
meteorological (met) buoys; revised
project verification procedures; reform
of BOEM’s renewable energy auction
process; and greater clarity regarding
safety requirements. This proposed rule
would advance the Department of the
Interior’s (DOI) energy policies in a safe
and environmentally sound manner that
would provide a fair return to the U.S.
taxpayer.
DATES: Submit comments regarding the
substance of this proposed rule to
BOEM on or before March 31, 2023.
Submit comments regarding the
information collection burden of this
proposed rule to the Office of
Management and Budget (OMB) and to
BOEM on or before March 1, 2023.
Comments received after these dates
might not be considered.
ADDRESSES: You may send comments
regarding the substance of this proposed
rule, identified by docket number
BOEM–2022–0019 and regulation
identifier number (RIN) 1010–AE04,
using any of the following methods:
• Federal e-rulemaking portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
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SUMMARY:
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Helpful search terms are ‘‘RIN 1010–
AE04’’ or ‘‘BOEM–2022–0019.’’
• U.S. Postal Service or other mail
delivery service: Address comments to
Office of Regulations, Bureau of Ocean
Energy Management, Department of the
Interior, Attention: Georgeann Smale,
45600 Woodland Road, Mailstop: DIR–
BOEM, Sterling, VA 20166.
• Information Collection Addresses:
Written comments and
recommendations for this particular
proposed information collection should
be submitted within 30 days of this
notice’s publication to https://
www.reginfo.gov/public/do/PRAMain.
From this main web page, you can find
and submit comments on this particular
information collection by proceeding to
the boldface heading ‘‘Currently under
Review,’’ selecting ‘‘Department of the
Interior’’ in the ‘‘Select Agency’’ pull
down menu, clicking ‘‘Submit,’’ then,
checking the box ‘‘Only Show ICR for
Public Comment’’ on the next web page,
scrolling to OMB Control Number 1010–
0176, and clicking ‘‘Comment’’ button at
the right margin. Or, you may use the
search function on the main web page.
Please provide a copy of your comments
to the Information Collection Clearance
Officer, Office of Regulations, Bureau of
Ocean Energy Management, Attention:
Anna Atkinson, 45600 Woodland Road,
Sterling, VA 20166; or by email to
anna.atkinson@boem.gov. Please
reference OMB Control Number 1010–
0176 in the subject line of your
comments.
Instructions: All comments submitted
regarding this proposed rule and its
information collection requirements
should reference the docket number
BOEM–2022–0019 or RIN 1010–AE04.
All comments received by BOEM will
be reviewed and may be posted to
https://www.regulations.gov, including
any personal information provided with
the submission. For further instructions
on submitting comments and protecting
personally identifiable information, see
‘‘What Should I Consider as I Prepare
My Comments?’’ in section II.A under
the SUPPLEMENTARY INFORMATION section
of this document.
Docket: To access this proposed rule’s
docket to read related documents and
public comments, visit https://
www.regulations.gov and enter the
docket number BOEM–2020–0033 into
the search engine.
FOR FURTHER INFORMATION CONTACT:
Georgeann Smale, Renewable Energy
Modernization Rule Lead, Office of
Regulations, BOEM, at telephone
number 703–544–9246 or email address
Georgeann.Smale@boem.gov; or Karen
Thundiyil, Chief, Office of Regulations,
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BOEM, at telephone number 202–742–
0970, or email address
Karen.Thundiyil@boem.gov.
To obtain a copy of the information
collection supporting statement,
contact: Information Collection
Clearance Officer, Office of Regulations,
Bureau of Ocean Energy Management,
Attention: Anna Atkinson, 45600
Woodland Road, Sterling, VA 20166.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Executive Summary
II. General Information
A. What should I consider as I prepare my
comments?
1. Contact Information
2. Public Availability of Comments
3. Information Collection Comments
4. Scope of Comments
5. Suggestions for Preparing Your
Comments
III. Preamble Glossary of Abbreviations,
Terms, and Acronyms
IV. Background
A. Statutory Authority
B. Existing Regulatory Framework
1. Conducting Renewable Energy Activities
on the Outer Continental Shelf
2. Issuing Competitive Leases and Grants
3. Administration of Leases and Grants
4. Payments and Financial Assurance
5. Plan Submittal and Review
6. Design, Fabrication, and Installation of
Facilities
7. Facility Operations
8. Decommissioning
C. Need for Rulemaking
V. Analytical Overview of the Proposed Rule
A. Site Assessment Facilities
1. Existing Regulations
2. Why the Existing Regulations Should Be
Updated
3. Proposed Changes
B. Project Design Envelope
C. Geophysical and Geotechnical Surveys
1. Existing Regulations
2. Why the Existing Regulations Should Be
Updated
3. Proposed Changes
4. Solicitation of Comments Concerning a
Potential New Permit Requirement for
Conducting Geological and Geophysical
Surveys for Renewable Energy Activities
D. Certified Verification Agent and
Engineering Reports
1. Existing Regulations
2. Why the Existing Regulations Should Be
Updated
3. Proposed Changes
E. Renewable Energy Leasing Schedule
1. Existing Regulations
2. Why the Existing Regulations Should Be
Updated
3. Proposed Changes
F. Lease Issuance Procedures
1. Existing Regulations
2. Why the Existing Regulations Should Be
Updated
3. Proposed Changes
G. Risk Management and Financial
Assurance
1. Existing Regulations
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2. Why the Existing Regulations Should Be
Updated
3. Proposed Changes
H. Safety Management Systems
1. Existing Regulations
2. Why the Existing Regulations Should Be
Updated
3. Proposed Changes
I. Inspections
1. Existing Regulations
2. Why the Existing Regulations Should Be
Updated
3. Proposed Changes
J. Other Proposed Changes
1. Lease Structure
2. Lease Segregation and Consolidation
3. Civil Penalties
4. Standardize Annual Rental Rates for
Grants
5. Technical Corrections and Clarifications
K. Potential Revisions to Regulations
Governing Research Activities
L. Potential Revisions to Regulations
Governing Transmission
VI. Section-by-Section Analysis of Proposed
Rule
A. 30 CFR Part 585, Subpart A—General
Provisions
B. 30 CFR Part 585, Subpart B—The
Renewable Energy Leasing Schedule
C. 30 CFR Part 585, Subpart C—Issuance of
OCS Renewable Energy Leases
D. 30 CFR Part 585, Subpart D—Rights-ofWay Grants and Rights-of-Use and
Easement Grants for Renewable Energy
Activities
E. 30 CFR Part 585, Subpart E—Lease and
Grant Administration
F. 30 CFR Part 585, Subpart F—Payments
and Financial Assurance Requirements
G. 30 CFR Part 585, Subpart G—Plans and
Information Requirements
H. 30 CFR Part 585, Subpart H—Facility
Design, Fabrication, and Installation
I. 30 CFR Part 585, Subpart I—
Environmental and Safety Management,
Inspections, and Facility Assessments for
Activities Conducted Under SAPs, COPs,
and GAPs
J. 30 CFR Part 585, Subpart J—
Decommissioning
K. 30 CFR Part 585, Subpart K—Rights-ofUse and Easement for Energy- and
Marine-Related Activities Using Existing
OCS Facilities
VII. Procedural Matters
A. Statutes
1. National Environmental Policy Act of
1969
2. Paperwork Reduction Act of 1995
3. Regulatory Flexibility Act
4. Small Business Regulatory Enforcement
Fairness Act
5. Unfunded Mandates Reform Act of 1995
6. Congressional Review Act
B. Executive Orders
1. Executive Order 12630—Takings
Implication Assessment
2. Executive Order 12866—Regulatory
Planning and Review; and Executive
Order 13563—Improving Regulation and
Regulatory Review
3. Executive Order 12988—Civil Justice
Reform
4. Executive Order 13132—Federalism
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5. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
6. Executive Order 13211—Effects on the
Nation’s Energy Supply
7. Presidential Memorandum of June 1,
1998, on Regulation Clarity
I. Executive Summary
This proposed rule would facilitate
the development of OCS renewable
energy and would promote U.S. climate
and renewable energy objectives in a
safe and environmentally sound manner
while providing a fair return to the U.S.
taxpayer. These important goals would
be accomplished by modernizing
regulations, streamlining overly
complex and burdensome processes,
clarifying ambiguous provisions,
enhancing compliance provisions, and
correcting technical errors and
inconsistencies. Through these changes,
the Department aims to reduce
administrative burdens for both
developers and the Department’s staff,
reduce developer 1 costs and
uncertainty, and introduce greater
regulatory flexibility in a rapidly
changing industry to foster the supply of
OCS renewable energy to meet
increasing demand, while maintaining
environmental safeguards. This
proposed rule is a major modernization
of the regulations, reflects lessons
learned from the past 13 years, and is
projected to save the renewable energy
industry $1 billion over 20 years.2
These updates are necessary to ensure
a durable and appropriate process is in
place to advance renewable energy on
the OCS.
The proposed rule contains eight
major components:
1. Eliminating unnecessary
requirements for the deployment of
meteorological (met) buoys.
1 As used in this preamble, the term ‘‘developer’’
includes those interested in constructing, operating,
and maintaining OCS facilities to produce,
transport, or support the generation of energy from
renewable resources. Developers may include
applicants seeking noncompetitive leases and
grants, bidders in competitive auctions, holders of
BOEM-issued leases (lessees) and grants (grant
holders), and operators of facilities and support
contractors.
2 For the supporting economic analyses, see
section VII.B.2 of this preamble, including the
associated tables, that summarizes BOEM’s
estimated 20-year compliance cost savings as well
as the initial regulatory impact analysis available in
this proposed rule’s docket at https://
www.regulations.gov/docket?D=BOEM-2020-0033.
The estimated cost reduction is expressed in net
present value of 2022 dollars estimated over a 20year period at a 7 percent discount rate. The
estimated annualized cost reduction at the 7
percent discount rate is about $95 million. At a 3
percent discount rate, the estimated cost reduction
over a 20-year period is about $1.4 billion in net
present value of 2022 dollars. The estimated
annualized cost reduction at the 3 percent discount
rate is about $93 million.
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BOEM requires a site assessment plan
(SAP) for data collection activities that
measure met conditions and that aid the
siting and design of an offshore
renewable energy project. Such
activities include the use of met towers
and buoys. BOEM first formulated the
SAP requirement in 2009, when the
offshore wind industry gathered
meteorological data primarily from
towers fixed in place by foundations
pile-driven into the seafloor. The
industry has since transitioned to buoys
anchored to the seafloor that gather the
same data at lower cost and with less
environmental impact.
The U.S. Army Corps of Engineers
(USACE) permits scientific
measurement devices used for a variety
of purposes deployed in U.S. navigable
waters and on the OCS, including met
towers and met buoys. The USACE
permitting process is tailored to buoys
and is subject to the same Federal
environmental laws 3 as BOEM’s SAP
process. BOEM’s existing SAP process is
well suited for the complexities
involved with installing met towers but
has proven to be unreasonably
burdensome for simply anchoring met
buoys on the seafloor and redundant
with USACE’s process.
This proposed rule would eliminate
both the SAP requirement for met buoys
and the limited lease requirement for
installing off-lease met towers and met
buoys.4 Off-lease met towers and met
buoys would continue to require
USACE permits, given that agency’s
jurisdiction over obstructions deployed
in U.S. navigable waters under section
10 of the Rivers and Harbors Act.
2. Increasing survey flexibility.
Before constructing an offshore
renewable energy project, lessees and
grant holders must conduct
geotechnical, geophysical, and
archaeological surveys. The primary
purposes of these surveys are to ensure
the site is suitable for construction,
avoid seafloor hazards, and identify
historic and cultural resources.
Currently, BOEM requires detailed
geotechnical survey data for each
proposed wind turbine location in the
construction and operations plan (COP)
submitted by the lessee before project
construction is authorized. However,
the Department has learned that the
precise location of each wind turbine
3 E.g., National Environmental Policy Act,
Endangered Species Act, and National Historic
Preservation Act.
4 As used throughout this notice, ‘‘off-lease’’
means activities occurring on the OCS that are
conducted outside the leasehold of a commercial
lease issued by BOEM. ‘‘On-lease’’ means activities
occurring on the OCS within the boundaries of a
commercial lease issued by BOEM.
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may be uncertain at the COP submittal
stage, and geotechnical data collected
primarily for engineering purposes are
more relevant to the review process after
COP approval. Consequently, lessees
have requested permission to submit
geotechnical data for each turbine
location after COP approval, but before
construction.
This proposed rule would defer
certain geotechnical survey
requirements, such as engineering sitespecific surveys (e.g., boreholes,
vibracores, grab samplers, cone
penetrometer tests and other penetrative
methods). This proposed change would
allow more time to complete the
required surveys and would provide
greater flexibility in designing projects.
BOEM’s guidelines for geotechnical
surveys are available online.5
3. Improving the project design and
installation verification process.
A certified verification agent (CVA)
provides independent third-party
review of a project’s design, fabrication,
and installation. The proposed rule
would expand the CVA’s role to include
verification of the design and
commissioning of the critical safety
systems to assist the Department in
meeting requirements of the Outer
Continental Shelf Lands Act (OCS
Lands Act; 43 U.S.C. 1331 et seq.), and
its implementing regulations at 30 CFR
585.102(a), to ensure that any activities
authorized by BOEM are carried out
safely. BOEM’s regulations require
CVAs to ‘‘certify’’ projects, but CVAs
have informed BOEM that the proper
industry standard is ‘‘verification.’’ This
proposed rule would change the
regulatory language defining the CVA’s
role from ‘‘certify’’ and ‘‘certification’’ to
‘‘verify’’ and ‘‘verification.’’ This
proposed change likely would
encourage additional firms to
participate in offshore renewable energy
projects as CVAs. Industry also has
suggested changes that would enable
BOEM to approve CVA nominations
before COP submittal and would allow
separate facility design reports (FDRs)
and fabrication and installation reports
(FIRs) for major project components.
These changes would encourage
developers to seek CVA review
throughout their project design process
and would permit the use of specialized
CVAs to verify specific project
components.
4. Establishing a Public Renewable
Energy Leasing Schedule.
This proposed rule would introduce a
new commitment by the Secretary of the
Interior (Secretary) to publish a
5 https://www.boem.gov/sites/default/files/
documents/about-boem/GG-Guidelines.pdf.
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schedule of anticipated lease sales that
BOEM intends to hold in the subsequent
5 years. This provision is intended to
provide advance notice to stakeholders
of areas being considered for future
lease sales. The proposed schedule for
leasing would provide increased
certainty and enhanced transparency.
This is intended to facilitate planning
by industry, the States, and other
stakeholders. Comments on the timing
and scope of a scheduled lease sale can
be made during the public comment
opportunities afforded by BOEM during
the planning process for each particular
lease sale scheduled (e.g., Request for
Interest, Call for Information and
Nominations, etc.). The proposed
schedule would be updated at least once
every 2 years to reflect any changes.
This proposed schedule would include
a general description of the area of each
proposed lease sale, the anticipated
quarter of each sale, and reasons for
changes made to the previously issued
leasing schedule, if any.
5. Reforming BOEM’s renewable
energy auction regulations.
In response to lessons learned from
eleven auctions, BOEM proposes to
reorganize and clarify its pre- and postauction procedures. These changes
would also address the use of bidding
credits, deter potential bidder collusion,
and more clearly outline auction
processes and requirements. They also
would specify actions to be taken if a
provisional winner fails to meet its
obligations, or if an existing lease is
relinquished, contracted, or cancelled.
The proposed rule would preserve the
option to use multiple factor auctions.
6. Tailoring financial assurance
requirements and instruments.
BOEM requires financial assurances
from lessees and grant holders to protect
the U.S. taxpayer against potential
liabilities arising from any default on
lessee or grant holder regulatory
obligations. The proposed rule would
tailor the financial assurance
requirements to better align those
requirements with actual risk by
allowing incremental funding of
decommissioning accounts in
accordance with a BOEM-approved
schedule during the lease term and by
expanding the acceptable categories of
financial assurance instruments.
7. Clarifying safety management
system regulations.
The proposed rule would clarify the
information requirements for safety
management systems and would add
two safety reporting requirements. The
proposed rule would incentivize lessees
and grant holders to obtain a safety
management certification from an
accredited conformity assessment body
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(CAB) as a means to reduce the
frequency and intensity of regulatory
oversight activities.
8. Revising other provisions and
making technical corrections.
The proposed rule contains numerous
additional provisions that do not fit
within the categories described above.
The most significant of these provisions
would: restructure commercial lease
terms into four periods tied to activities
required to develop the lease; explicitly
allow regulatory departures before and
after a lease or grant is issued or made;
authorize civil penalties without either
notice or a time period for corrective
action when violations cause or threaten
to cause serious, irreparable, or
immediate harm or damage; add specific
procedures regarding lease segregation
and consolidation; and standardize the
annual rental rate per acre across most
grants. The proposed rule would correct
technical errors in the existing
regulations and would make corrections
to ensure consistency between the
proposed changes and existing practice.
The Department has authority to
promulgate OCS renewable energy
regulations under the OCS Lands Act.
The proposed rule would be consistent
with and would advance DOI’s energy
policies as outlined in various executive
orders.
II. General Information
A. What should I consider as I prepare
my comments?
1. Contact Information
Please include your name, address,
and telephone number or email address
so BOEM can contact you with any
questions regarding your submission.
BOEM will not consider anonymous
comments.
2. Public Availability of Comments
Responses will be posted on https://
www.regulations.gov. Your entire
comment will become publicly available
after submission, including your name,
address, phone number, email address,
and any other personally identifiable
information (PII) in your comment.
If you wish to protect the
confidentiality of your comments,
clearly mark the relevant sections and
request that BOEM treat them as
confidential. In order for BOEM to
withhold from disclosure your PII, you
must identify any information contained
in your comments that, if released,
would constitute a clearly unwarranted
invasion of your privacy. You must also
briefly describe any possible harmful
consequences of the disclosure of
information, such as embarrassment,
injury, or other harm.
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Please label privileged or confidential
information as ‘‘Contains Confidential
Information,’’ and consider submitting
such information as a separate
attachment. Information that is not
labeled as privileged or confidential
may be regarded by BOEM as suitable
for public release.
While you can request that your PII be
withheld from public view, BOEM
cannot guarantee that it will be able to
do so.
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3. Information Collection Comments
OMB is required to provide its
comments concerning the information
collection in this proposed rule 30–60
days after publication of this document
in the Federal Register. Therefore, a
comment to OMB is best assured of
being fully considered if OMB receives
it by March 1, 2023. This does not affect
the deadline for public comments to
BOEM on the proposed rule. To review
a copy of the information collection
request submitted to OMB, go to https://
www.reginfo.gov, select ‘‘Information
Collection Review.’’ Under the heading
‘‘Currently Under Review,’’ select
‘‘Department of the Interior’’ from the
pull-down menu; click ‘‘submit;’’ check
the box ‘‘Only Show ICR for Public
Comment’’ on the next web page; scroll
to OMB Control Number 1010–0176;
and click ‘‘Comment’’ button at the right
margin. You may obtain a copy of the
supporting statement for this proposed
information collection by contacting
BOEM’s information collection
clearance officer at (703) 787–1025.
4. Scope of Comments
BOEM seeks public comments on the
changes in regulatory text and
interpretation contained in this
proposed rule. As part of this
rulemaking, BOEM will consider
whether this proposed rule or any
additional modifications would
improve, clarify, or streamline its OCS
renewable regulations. BOEM also seeks
comment on several specific areas of
inquiry for which it is not proposing
regulatory text. Based on comments
received and its experience in
administering the OCS renewable
energy programs, BOEM may include in
the final rule revisions to any provisions
in part 585 that are a logical outgrowth
of this proposed rule, consistent with
the Administrative Procedure Act.
5. Suggestions for Preparing Your
Comments
(a) Label your comments on this
proposed rule with RIN 1010–AE04 or
docket number BOEM–2020–0033.
(b) Organize your comments
sequentially by the preamble section
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heading or by the proposed rule section
number when addressing specific rule
sections.
(c) Explain why you agree or disagree
with specific provisions; suggest
alternative provisions or provide
substitute language.
(d) Describe your assumptions,
information, and data used in
formulating your comments.
(e) Provide specific examples to
illustrate your concerns and suggested
alternatives.
(f) Explain your views clearly and
succinctly.
(g) Ensure your comments are
submitted by the deadline.
III. Preamble Glossary of
Abbreviations, Terms, and Acronyms
The following abbreviations, terms,
and acronyms are used in the preamble:
ANCSA Alaska Native Claims Settlement
Act
BOEM Bureau of Ocean Energy
Management
BSEE Bureau of Safety and Environmental
Enforcement
CAA Clean Air Act
CAB Conformity Assessment Body
Call Call for Information and Nominations
CFR Code of Federal Regulations
COP Construction and Operations Plan
CVA Certified Verification Agent
CZMA Coastal Zone Management Act
DNCI Determination of No Competitive
Interest
DOE Department of Energy
DOI Department of the Interior
E.O. Executive Order
ESA Endangered Species Act
FDR Facility Design Report
FERC Federal Energy Regulatory
Commission
FIR Fabrication and Installation Report
FR Federal Register
FSN Final Sale Notice
GAP General Activities Plan
Met Meteorological
MSA Magnuson-Stevens Act
MMPA Marine Mammal Protection Act
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NMFS National Marine Fisheries Service
NOAA National Oceanic and Atmospheric
Administration
NWP 5 U.S. Corps of Engineers Nationwide
Permit 5
OCS Outer Continental Shelf
OCS Lands Act Outer Continental Shelf
Lands Act
OIRA Office of Information and Regulatory
Affairs
OMB Office of Management and Budget
ONRR Office of Natural Resources Revenue
OSHA Occupational Safety and Health
Administration
PDE Project Design Envelope
PPA Power Purchase Agreement
PRA Paperwork Reduction Act
PSN Proposed Sale Notice
RIN Regulation Identifier Number
ROW Right-of-Way Grant
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RUE Right-of-Use and Easement Grant
SAP Site Assessment Plan
Secretary Secretary of the Interior
SMS Safety Management System
USACE United States Army Corps of
Engineers
U.S.C. United States Code
USCG United States Coast Guard
USEPA United States Environmental
Protection Agency
IV. Background
A. Statutory Authority
Congress authorized the Secretary to
grant OCS leases for renewable energy
activities when it enacted the Energy
Policy Act of 2005, which amended the
OCS Lands Act by adding a new
subsection 8(p).6 OCS Lands Act
subsection 8(p) authorizes the Secretary
to award OCS leases, right-of-way grants
(ROWs), and right-of-use and easement
grants (RUEs) for activities not
authorized by other applicable laws that
produce, or that support the production,
transportation, or transmission of,
energy from sources other than oil and
gas. Subsection 8(p) requires the
Secretary to competitively award such
leases, ROWs, and RUEs unless the
Secretary determines following public
notice that competitive interest does not
exist. Subsection 8(p) also authorizes
the Secretary to issue regulations to
carry out the subsection’s grant of
authority. The Secretary first delegated
that authority to BOEM’s predecessor,
MMS.
On April 29, 2009, MMS promulgated
regulations for leasing and managing
OCS renewable energy activities. On
May 19, 2010, the Secretary signed
Secretary’s Order 3299, dividing MMS
into three separate agencies: BOEM, the
Bureau of Safety and Environmental
Enforcement (BSEE), and the Office of
Natural Resources Revenue (ONRR).
Amendment 2 of Secretary’s Order 3299
assigned BOEM all renewable energyrelated management functions—
including resource evaluation, planning,
leasing, and safety and environmental
enforcement functions—until the
‘‘Assistant Secretary—Land and
Minerals Management determines that
an increase in activity justifies
transferring the inspection and
enforcement functions to [BSEE].’’ 7 On
October 18, 2011, BOEM’s regulations
were codified at 30 CFR chapter V, and
its renewable energy regulations were,
6 Codified
at 43 U.S.C. 1337(p).
Order 3299, Amendment No. 2,
August 29, 2011, https://www.doi.gov/sites/doi.gov/
files/elips/documents/3299a2-establishment_of_
the_bureau_of_ocean_energy_management_the_
bureau_of_safety_and_environmental_
enforcement_and_the_office_of_natural_resources_
revenue.pdf (last visited Mar. 6, 2019).
7 Secretary’s
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and remain, located in 30 CFR part
585.8
B. Existing Regulatory Framework
This section provides an overview of
BOEM’s existing renewable energy
regulatory framework.
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1. Conducting Renewable Energy
Activities on the Outer Continental
Shelf
BOEM’s regulations specify that a
lease, ROW, or RUE is required before
a person may construct, operate, or
maintain a renewable energy facility on
the OCS. A lease authorizes the lessee
to propose a plan for development.
Following review of the development
plans and associated consultations,
BOEM may authorize installation and
operation of a renewable energy facility
on a designated portion of the OCS. A
lease also confers the right to one or
more project easements necessary for
the use of the lease, which in most cases
is a corridor from the facility to shore
for one or more transmission cables.
BOEM may issue a commercial lease
or a non-commercial (or limited) lease
for renewable energy activities, subject
to obtaining the necessary approvals. A
commercial lease specifies the terms
and conditions for activities that
generate, store, or transmit renewable
energy on the OCS for distribution, sale,
or other commercial use. These
activities include facility construction
and project decommissioning.
A limited lease specifies the terms
and conditions for activities that
support the production of energy on the
OCS, but do not produce energy for sale,
distribution, or other commercial use
exceeding a limit specified in the lease.
In addition to commercial and limited
leases, a lease may be issued to a
Federal agency or a State for research
activities supporting future renewable
energy development.
A ROW authorizes the installation
and maintenance of cables, pipelines,
and associated facilities on the OCS that
involve the transportation or
transmission of any energy product from
renewable energy projects. A RUE
authorizes the operation of facilities or
other installations on the OCS that
support the production, transportation,
or transmission of electricity or other
energy product from any renewable
energy source, including shared
transmission solutions. The term ‘grant,’
as used in this document, refers to
ROWs or RUEs issued pursuant to the
regulations of part 585.
8 Reorganization of Title 30: Bureaus of Safety
and Environmental Enforcement and Ocean Energy
Management, 76 FR 64432 (October 18, 2011).
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BOEM makes leases, ROWs, and RUEs
available on a competitive basis, unless
BOEM determines that there is no
competitive interest. When competitive
interest is absent, BOEM may issue
leases, ROWs, and RUEs
noncompetitively.
BOEM has discretion to issue
departures from its regulations. BOEM
may approve departures if they are
documented in writing; are consistent
with the requirements of the OCS Lands
Act; protect the environment, public
health, and safety; protect the rights of
third parties; and are necessary to
facilitate activities on a lease or grant,
conserve natural resources, or protect
life, property, the environment, or
archaeological resources.
2. Issuing Competitive Leases and
Grants
Subpart B of 30 CFR part 585
describes the process for issuing a
renewable energy lease. BOEM may
begin the leasing process by publishing
a request for interest to assess interest in
leasing all or part of a region of the OCS
for renewable energy activities. The
request for interest is typically followed
by a call for information and
nominations (Call) in the Federal
Register. The Call requests that
respondents nominate OCS areas for
commercial renewable energy
development. BOEM uses the feedback
from the request for interest and the Call
to assess competitive interest in
specified OCS areas.
BOEM also will consider unsolicited
requests for a lease on a case-by-case
basis. If BOEM determines that
competitive interest exists for an area
nominated through an unsolicited
request, BOEM will use the competitive
process if it decides that a lease in that
area is appropriate.
After potential OCS renewable energy
development areas are identified, BOEM
evaluates the potential impacts of
leasing those areas on the human,
marine, and coastal environments under
the OCS Lands Act and consults with
Federal agencies and affected States
regarding the requirements of other
potentially applicable Federal statutes,
including the National Environmental
Policy Act (NEPA), Coastal Zone
Management Act (CZMA), Endangered
Species Act (ESA), Magnuson-Stevens
Act (MSA), Marine Mammal Protection
Act (MMPA), and National Historic
Preservation Act (NHPA), National
Marine Sanctuaries Act (NMSA), and
Native American Graves Protection and
Repatriation Act (NAGPRA).
Under the competitive process, BOEM
initiates a sale by publishing a proposed
sale notice (PSN) in the Federal Register
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detailing the areas proposed for leasing
and the competitive leasing process for
those areas, including auction
procedures and lease provisions and
conditions. The PSN also invites public
comment on the areas and proposed
auction procedures. BOEM assesses the
comments received in response to the
PSN and may incorporate changes in the
final sale notice (FSN) in response to
these comments. The FSN is published
in the Federal Register at least 30calendar days before the auction date.
The FSN finalizes the areas offered for
lease, auction procedures, and lease
provisions based on the PSN. The FSN
also provides details regarding a mock
auction, which is an optional practice
auction intended to familiarize bidders
with auction procedures.
BOEM may end the competitive
process for a specific lease area at any
time before the FSN if it believes
competitive interest no longer exists.
BOEM does so by issuing a notice and
considering the responsive comments to
reassess competitive interest.
If BOEM concludes that competitive
interest is absent in a lease area, BOEM
may publish a determination of no
competitive interest (DNCI) in the
Federal Register. BOEM then may offer
a noncompetitive lease to the sole
interested developer, if one exists, after
consulting potentially affected Federal
agencies, State and local governments,
and federally recognized Tribes (Tribes),
and, if applicable, Alaska Native Claims
Settlement Act (ANCSA) corporations,
and after the interested developer
submits the requisite certifications,
information, and payments.
If BOEM concludes that competitive
interest exists, BOEM may proceed with
an auction on the date specified in the
FSN. Existing regulations specify four
auction types and six bidding systems
from which BOEM may choose to
conduct its auctions. The auction format
and bidding system for a specific
auction are specified in the FSN. Among
the auction types is multiple factor
bidding, in which BOEM may allow
bids with a non-monetary component
based on certain beneficial attributes
identified in the FSN, including
technical merit, financing and
economics, and compatibility with State
and local needs.
BOEM conducts an auction for the
relevant lease areas in accordance with
the FSN. At the end of the auction,
BOEM determines the winning bidder
for each area to be leased. BOEM may
reject any bid if it determines that the
bid was inadequate, illegal, or the result
of anti-competitive behavior,
administrative error, or the presence of
unusual bidding patterns.
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Once a winning bidder has been
identified, BOEM implements a
statutorily mandated 30-day antitrust
review by the Department of Justice and
Federal Trade Commission. If the
antitrust review does not raise concerns
and no appeals of the auction result are
pending, BOEM typically accepts the
winning bid within 90-calendar days of
the auction and sends three unsigned
copies of the lease to the winning
bidder. The winning bidder has 10business days from date of receipt to
sign these copies, return them to BOEM,
provide financial assurance, and pay the
balance due on its bid. BOEM may
extend the deadline for good cause. The
winner must pay a sum equal to the first
12 months’ rent within 45-calendar days
of receiving the unsigned copies of the
lease. After receiving the signed copies,
BOEM executes the lease on behalf of
the United States, and sends one fully
executed copy to the winning bidder.
BOEM reserves the right to withdraw an
OCS area at any time prior to lease
execution, whereupon BOEM would
refund the bid deposit.
A bidder may appeal to the BOEM
Director within 15-business days of bid
rejection to seek reconsideration. BOEM
will send a response either affirming or
reversing the final bid decision.
Subpart C of 30 CFR part 585
describes the process for issuing ROWs
and RUEs. BOEM conducts the
competitive process for awarding a
ROW or RUE using procedures similar
to those for a lease. This would involve
publishing a public notice, describing
the parameters of the project in order to
give affected and interested parties an
opportunity to comment on the
proposed ROW grant or RUE grant area.
If such interest exists, BOEM would
conduct a competitive auction for
issuing the ROW grant or RUE grant.
The auction process for ROW grants and
RUE grants, following the same process
for leases set forth in §§ 585.211 through
585.225.
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3. Administration of Leases and Grants
Subpart D of 30 CFR part 585
describes the various processes that
BOEM can use to enforce the terms of
its leases and grants once they have
been issued. This subpart also describes
the requirements for transferring
ownership interests and modifying the
duration of a lease or grant.
BOEM has broad enforcement
discretion under this subpart and may
act whenever a lessee or grant holder
has violated a term or condition of a
lease or grant, an order or approval, or
a regulation. BOEM’s potential remedies
include corrective actions, a cessation
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order, civil penalties, and lease or grant
termination.
Lessees and grant holders are allowed
to designate an operator to act on their
behalf to perform activities on a lease or
grant. Whenever the regulations in part
585 require the lessee or grant holder to
conduct an activity in a prescribed
manner, the lessee or grant holder and
the operator are jointly and severally
responsible for complying with the
regulations. Lessees and grant holders
may assign all or part of their lease or
grant interests using procedures set
forth in this subpart; assignors remain
jointly and severally liable for liabilities
that accrued before BOEM approves the
assignment. An assignee must be
legally, technically, and financially
qualified to hold the lease or grant
under 30 CFR part 585.
BOEM’s regulations contain several
mechanisms for extending the lease
duration. The term of a lease or grant
can be suspended through request by a
lessee or grant holder that is approved
by BOEM, through a BOEM order, or
when necessary to comply with a
judicial decree, avoid an imminent
threat of irreparable harm, or for reasons
of national security. A suspension has
the effect of pausing the running of the
term of a lease, thereby extending the
termination date by the same length as
the pause. In BOEM’s discretion, a
suspension of the lease may also
suspend lease payments. BOEM also
may approve the renewal of a lease or
grant term requested by a lessee or grant
holder based on an enumerated set of
criteria.
There are numerous means by which
a lease or grant may be terminated in
whole or in part. First, it may be
terminated through expiration of the
lease or grant term without a renewal.
Second, BOEM may cancel a lease or
grant for reasons enumerated in the
regulations, including proof that the
lease or grant was obtained
fraudulently. Third, BOEM may require
a partial cancellation of a lease by
reducing the area of the leasehold.
Fourth, a lessee or grant holder may
voluntarily relinquish some or all of its
lease or grant, subject to BOEM
approval.
4. Payments and Financial Assurance
Lessees and grant holders are required
to make regular payments to the U.S.
Treasury in exchange for use of their
leases and grants. Under the OCS Lands
Act, BOEM is required to ensure that
U.S. taxpayers obtain a fair return from
OCS renewable energy leases, ROWs,
and RUEs.9 Lessees and grant holders
9 43
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5973
also must provide financial assurance—
in the form of a bond or other qualifying
instrument—in an amount sufficient to
guarantee compliance with terms and
conditions of their leases and grants.
Subpart E of BOEM’s regulations detail
these respective obligations.
Before an entity may bid to acquire a
lease or grant competitively, it must
submit a bid deposit that is applied to
the winning bid and refunded to
unsuccessful bidders. Obtaining a lease
(but not a grant) noncompetitively
requires the payment of an acquisition
fee. Lessees and grant holders must
make annual rental payments that are
calculated according to the acreage of
the lease or grant. Rental payments for
ROWs are based on the length of the
right-of-way as well as the acreage.
Under a commercial lease, an operating
fee replaces rental payments when
commercial operations begin. The
operating fee is calculated using a
formula set forth in the regulations. The
regulations provide a mechanism for
lessees and grant holders to request a
reduction or waiver of their payments.
Under OCS Lands Act section 8(g),
BOEM will distribute offshore
renewable energy revenue among
eligible coastal States for OCS projects
that are wholly or partially located
within three miles seaward of a State’s
submerged lands.
Financial assurance must be provided
at various stages in the commercial
development process. A lessee must
provide financial assurance in the
amount of $100,000 before acquiring a
commercial lease and supplemental
financial assurance before approval of a
site assessment plan (SAP) and a
construction and operations plan (COP),
and before commencement of
construction. BOEM bases its financial
assurance requirements on calculations
of the lessee’s cumulative liabilities and
obligations, including payments due the
following year, and the cost of
decommissioning facilities on the lease.
Financial assurance requirements for
limited leases and grants are calculated
in a similar fashion, although the initial
financial assurance requirement is
$300,000.
BOEM imposes several general
requirements that must be met by any
financial assurance and provides
guidance on acceptable financial
instruments. Such instruments include
surety bonds, Treasury securities, AAArated securities, insurance, selfinsurance, third-party guaranties, and
decommissioning accounts funded on a
schedule approved by BOEM. Subpart E
also sets forth procedures to follow if a
lessee’s or grant holder’s financial
assurance lapses or reduces in value or
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if a surety prematurely terminates a
lessee’s or a grant holder’s financial
assurance. This subpart also explains
when and how BOEM will call for
forfeiture of financial assurance. BOEM
requires the maintenance of financial
assurance until no less than 7 years after
a lease or grant ends.
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5. Plan Submittal and Review
Once a lease has been issued, a lessee
may, but is not required to, conduct site
assessment activities to assess the
energy potential of a commercial
renewable energy project in the lease
area and site characterization surveys to
inform project design and the
preparation of plans. Site assessment
activities include the installation and
use of meteorological towers and buoys
to gather oceanographic and
meteorological information. A lessee
planning to install site assessment
facilities must submit a SAP to BOEM.
The SAP must include general
structural, design, fabrication, and
installation information for each type of
facility associated with the proposed
site assessment activities, and must also
include information about the
environment gathered from geological
and geophysical surveys, hazard
surveys, baseline environmental
surveys, and archaeological surveys that
the lessee must conduct.
The lessee must submit its SAP or a
combined SAP/COP no later than 12
months after the date of lease issuance.
BOEM may approve or disapprove the
SAP or may approve it with
modifications. A commercial lease has a
term of five years for the lessee to
conduct site assessment activities and to
submit a COP; the five-year site
assessment term begins upon approval
of the SAP. BOEM will determine if the
proposed facilities described in the SAP
are complex or significant. If BOEM
determines that they are not complex or
significant, the lessee may begin its
proposed site assessment activities
when BOEM approves the SAP. If
BOEM determines the facilities are
complex or significant, the lessee must
comply with additional requirements in
subpart G of 30 CFR part 585 before
beginning its proposed site assessment
activities. Implementation of activities
described in the SAP, whether or not
deemed complex or significant, is
required to follow a safety management
system (SMS) that accounts for and
mitigates risks to personnel and the
environment associated with such
activities. SAP approval does not
authorize the lessee to build and install
facilities for commercial energy
production.
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Before fabricating and installing any
facility for commercial operations, a
lessee must submit a COP for BOEM
review and approval. The COP must be
submitted at least 6 months before the
five-year site assessment term expires.
The COP must describe the facilities
that a lessee will construct or use for its
commercial operations, including any
project easements and associated
onshore and support facilities. The COP
also must describe all proposed
activities the lessee intends to conduct
on its lease, including construction,
commercial operations, and
decommissioning. The COP must
include general structural and project
design, fabrication, and installation
information for each type of structure
associated with the project, as well as
the results of geological, geotechnical,
biological, and archaeological surveys
undertaken in support of the project.
BOEM may approve or disapprove the
lessee’s COP or may approve it with
modifications.
Activities conducted under a limited
lease, ROW, or RUE must be approved
by BOEM under a general activities plan
(GAP). Like a SAP, the GAP must be
submitted no later than 12 months after
the date of lease or grant issuance. The
GAP must describe the facilities that a
lessee or grant holder will construct or
use for its proposed activities, including
any project easements and any
associated onshore and support
facilities. The GAP must describe the
design, fabrication, construction, use,
and decommissioning of those facilities.
The GAP also must include the results
of geological, geotechnical, biological,
and archaeological surveys undertaken
in support of the proposed activities.
BOEM may approve or disapprove the
lessee’s GAP or may approve it with
modifications. BOEM also will
determine if the proposed facilities
described in the GAP are complex or
significant. If BOEM determines that
they are not complex or significant, the
proposed activities may begin when
BOEM approves the GAP. If BOEM
determines the facilities are complex or
significant, the lessee must comply with
additional requirements in subpart G of
30 CFR part 585 before beginning the
proposed activities.
6. Design, Fabrication, and Installation
of Facilities
Subpart G requires detailed design,
fabrication, and installation information
for each complex or significant facility
that a lessee or grant holder proposes to
operate.10 The purpose of subpart G is
10 By definition, all facilities proposed in a COP
are complex or significant. BOEM makes a case-by-
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to ensure that facilities operate in a safe
manner using accepted engineering
practices in conformance with approved
plans.
The regulations achieve this objective
primarily by requiring an independent
assessment of a facility’s design,
fabrication, and installation by one or
more outside experts called certified
verification agents (CVAs). The CVA
should be ‘‘experienced in the design,
fabrication, and installation of offshore
marine facilities or structures, [and] will
conduct specified third-party reviews,
inspections, and verifications.’’ 11
Although hired by a lessee or grant
holder, the CVA reports directly to
BOEM. The CVA must not act in a
capacity that creates a conflict of
interest or the appearance of a conflict
of interest. Subpart G outlines the
circumstances necessitating a CVA, the
CVA nomination and waiver processes,
and the duties of the CVA. BOEM
regulations contemplate that BOEM will
approve or disapprove the CVA
nomination or waiver request during its
review of the SAP, COP, and GAP. If the
CVA requirement is waived, the lessee’s
or grant holder’s project engineer must
perform the same duties and
responsibilities as the CVA, except that
the project engineer would not be acting
as an independent third-party reviewer.
After obtaining BOEM’s approval of
the SAP, COP, or GAP, a lessee or grant
holder must submit an FDR to BOEM
describing the final design of all
proposed facilities. The CVA must
certify that the facilities are designed to
withstand the environmental and
functional load conditions appropriate
for the intended service life at the
proposed location. The CVA must also
use good engineering judgment and
practice in conducting independent
assessments of the commissioning of
critical safety systems.
Before any fabrication (e.g., assembly)
or installation of facility components
takes place on the OCS, a lessee or grant
holder must submit an FIR to BOEM
describing how the facilities will be
fabricated and installed consistent with
accepted industry standards, the
approved SAP, COP, or GAP, and the
FDR. The FIR must also describe how
fabrication of facility components that
took place outside of the OCS (e.g.,
manufacturing) is consistent with
accepted industry standards, the
approved SAP, COP, or GAP, and the
FDR. However, fabrication of facility
components outside of the OCS does not
case determination about whether facilities
proposed in a SAP or GAP are complex or
significant.
11 30 CFR 585.112.
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require the submittal of an FDR and FIR.
The CVA must certify that the facilities
were fabricated and installed in such a
manner. The lessee or grant holder may
begin approved activities 30-calendar
days after BOEM deems submitted the
fabrication and installation certification
from the CVA, unless BOEM objects in
the interim. If BOEM objects to the CVA
verification report, the lessee or grant
holder must resolve those objections to
BOEM’s satisfaction before commencing
approved activities.
7. Facility Operations
The conduct of lease or grant
activities under an approved plan is
covered by subpart H. BOEM requires
that approved activities be conducted in
a way that ensures safety, prevents
undue harm or damage to natural
resources, uses trained personnel, and
complies with approved plans.
Activities must comply with the various
wildlife protection statutes—
particularly the MMPA and ESA.
Lessees and grant holders also must
follow prescribed procedures if they
encounter potential archaeological
resources while conducting approved
activities. This subpart contains
numerous operational requirements,
including safety management systems,
incident reporting, inspections, and selfinspections.
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8. Decommissioning
Except when otherwise authorized by
BOEM, lessees and grant holders must
decommission (i.e., remove) all facilities
and clear the seafloor of all obstructions
created by their activities within 2 years
following termination of their lease or
grant or earlier if BOEM determines a
facility is no longer useful for
operations. Subpart I sets forth BOEM’s
decommissioning requirements and
process.
C. Need for Rulemaking
The existing regulations were
finalized in 2009, when the OCS
renewable energy industry in the United
States was in its infancy. In response to
Executive Order (E.O.) 13610, the
Department determined that aspects of
BOEM’s renewable energy regulations
could be made less burdensome and
costly while clarifying ambiguities and
filling gaps that have become apparent
during the past 13 years. Through its
experience and engagement with
industry and other stakeholders, the
Department has identified opportunities
for reducing burdens, making
regulations more efficient, clarifying
ambiguities, and correcting errors. E.O.
14008, ‘‘Tackling the Climate Crisis at
Home and Abroad,’’ states that it is the
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policy of the U.S. ‘‘to organize and
deploy the full capacity of its agencies
to combat the climate crisis to
implement a Government-wide
approach that reduces climate pollution
in every sector of the economy;
increases resilience to the impacts of
climate change; protects public health;
conserves our lands, waters, and
biodiversity; delivers environmental
justice; and spurs well-paying union
jobs and economic growth, especially
through innovation, commercialization,
and deployment of clean energy
technologies and infrastructure.’’ In
furtherance of the goals of E.O. 14008,
the Departments of the Interior, Energy,
and Commerce established a target to
deploy 30 gigawatts (30,000 megawatts)
of offshore wind by 2030, creating
nearly 80,000 jobs.
These proposed revisions to BOEM’s
regulations would facilitate safe and
environmentally sound renewable
energy production in offshore waters
and help the Biden-Harris
Administration meet its offshore wind
energy commitment. This proposed
rulemaking would implement reforms
identified by BOEM and BSEE or
suggested by industry, align regulations
to practices that have evolved since
2009, and reduce regulatory uncertainty.
The proposed regulations are estimated
to save lessees and grant holders about
$1 billion over a 20-year period.12 The
proposed changes would continue to
protect environmental and cultural
resources and to ensure that U.S.
taxpayers receive a fair return from OCS
renewable energy activities.
The Department also plans to issue
another rule related to its OCS
renewable energy program. That rule
would reorganize the current renewable
energy regulations between BOEM and
BSEE consistent with Secretary’s Order
3299, as amended, and the
Departmental Manual. Specifically, that
rule would move regulations pertaining
to safety, environmental oversight, and
enforcement from BOEM to BSEE under
30 CFR part 285. Following that
rulemaking, any future OCS renewable
energy rulemaking, including any rule
that finalizes the provisions of this
proposed rule, would reflect the
reorganized regulations. The
Department will continue to work
closely with both BOEM and BSEE in
finalizing provisions of this proposed
rule within their respective delegated
authorities.
12 See
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5975
V. Analytical Overview of the Proposed
Rule
The proposed rule contains seven
main components that would
accomplish the following: (1) eliminate
site assessment plan requirements for
met buoys; (2) adopt a flexible and
performance-based approach to
geophysical and geotechnical surveying;
(3) conform the CVA review standard to
industry practice and provide flexibility
in the CVA nomination and engineering
report submittal process; (4) clarify
auction procedures; (5) align financial
assurances with the risk to U.S.
taxpayers and permit incremental
funding of decommissioning accounts;
(6) clarify and enhance safety
management requirements; and (7) make
other revisions and technical
corrections that would improve BOEM’s
OCS renewable regulatory program and
fix technical errors and inconsistencies.
These components are analyzed below.
A. Site Assessment Facilities
1. Existing Regulations
In its regulations and guidance
documents, BOEM uses the term ‘‘site
assessment’’ to describe the activities
used to estimate the OCS renewable
energy resource and baseline ocean
conditions before any potential
development occurs. BOEM’s
regulations currently contemplate that a
lessee will deploy at least one facility,
typically a met tower or buoy, to
conduct site assessment activities before
submitting a COP. Data from these met
buoys and towers are used to design the
offshore renewable energy project (e.g.,
the turbine array for a wind project) for
a particular OCS area, calculate its
energy generation potential, estimate its
revenue potential, and obtain project
financing. At the time BOEM
promulgated its regulations in 2009, the
industry standard for site assessment
activities was fixed-bottom met towers
pile-driven into the seabed. BOEM
crafted its requirements for the approval
of site assessment activities under the
assumption that most lessees would
continue to install met towers.
Since 2009, the offshore wind
industry has transitioned to met buoys,
which are both less costly and less
environmentally impactful than fixed
bottom structures. Met buoys are
typically between 6 and 12 meters in
length, attached to the seabed with a
chain and mooring anchor, and
deployed for no more than 5 years. Met
buoys include different types of
instrumentation to collect a variety of
data, including wind speed and
direction; air and water temperature;
wave height; water currents; ambient
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noise; and the presence of benthic
communities, fish, marine mammals,
birds, and bats.13 Scientific devices
similar to met buoys are used widely for
research and commercial applications
and by other Federal agencies (e.g.,
National Oceanic and Atmospheric
Administration and the Department of
Energy (DOE)).
Before installing any facilities for site
assessment activities on its commercial
lease, a lessee must submit a SAP for
BOEM approval.14 The SAP ‘‘describes
the activities (e.g., installation of [met]
towers, [met] buoys) [the lessee] plan[s]
to perform for the characterization of
[its] commercial lease, including [its]
project easement, or to test technology
devices.’’ 15 The SAP must include the
information required by 30 CFR 585.610
through 585.611.16 BOEM may request
additional information during its review
and may specify terms and conditions
that must be incorporated into the SAP
before approval. In BOEM’s experience,
a lessee invests substantial time
preparing the SAP and awaiting BOEM’s
approval. BOEM requires SAP facilities
to be decommissioned under subpart I
of the current part 585 and requires
financial assurance to cover the cost of
their decommissioning.17
If a developer wants to conduct site
assessment activities at a particular OCS
location without a commercial lease, a
limited lease may be required. BOEM’s
regulations require a lease, easement, or
ROW for activities that ‘‘support
generation of electricity or other energy
product derived from a renewable
energy resource on any part of the
OCS.’’ 18 BOEM has the discretion to
determine whether an activity ‘‘supports
generation’’ of electricity and, therefore,
requires a lease.19 BOEM issued leases
for site assessment activities early in the
OCS renewable energy program, but has
not received a formal request for a
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13 Dep’t
of Energy & Dep’t Of Interior, National
Offshore Wind Strategy (2016) [hereinafter Offshore
Wind Strategy], https://www.boem.gov/NationalOffshore-Wind-Strategy. At this time, met buoys
deployed for this purpose use Light Detection and
Ranging (LIDAR) technology, which is capable of
collecting measurements to the same height as a
typical met tower and the hub height of proposed
wind turbines.
14 30 CFR 585.600(a).
15 30 CFR 585.605(a).
16 To improve readability and avoid any
confusion, all further regulatory section references
in the main body of this notice are to 30 CFR part
585 unless otherwise specified. Footnotes will
contain the complete citation.
17 30 CFR 585.516(a)(2).
18 30 CFR 585.104.
19 Office of Renewable Energy Programs, Bureau
of Ocean Energy Mgmt., Guidelines for Activities
Requiring Authorization for Renewable Energy
Development on the Outer Continental Shelf
Pursuant to 30 CFR part 585 (2020), available at
https://www.boem.gov/guidance.
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limited lease for site assessment
activities since its regulations took effect
in 2009.
If a limited lease is required, a
developer must first notify BOEM that it
is requesting a lease for a specific
portion of the OCS.20 BOEM then issues
a public notice in the Federal Register
to determine whether competitive
interest exists in the requested area. If
there is no such interest, BOEM may
negotiate a limited lease with the
developer.21 If BOEM and the developer
agree to terms, the developer has 12
months to submit a GAP under
§§ 585.640 through 585.647 for BOEM’s
review and approval. BOEM may
request additional information during
its review and may specify terms and
conditions that must be incorporated
into the GAP before approval.22
Although BOEM has yet to issue a
limited lease, BOEM estimates that it
could take 3 years between the
submission of a limited lease
application and authorization to
conduct activities on the lease.
2. Why the Existing Regulations Should
Be Updated
BOEM has determined that its
regulations are overly burdensome for
authorizing met buoys for site
assessment activities for the reasons
outlined below.
(a) Minimal Environmental Impacts of
Meteorological Buoys
After 10 years of analyzing the
environmental impacts of deployment,
operation, and removal of met buoys,
BOEM has concluded that, when
properly sited, these buoys cause
minimal harm to the marine, coastal,
and human environments.23 Given a
met buoy’s surficial seabed disturbance
during a limited deployment time and
20 30
CFR 585.230.
CFR 585.231.
22 30 CFR 585.648.
23 See, e.g., Office of Renewable Energy Programs,
Bureau of Ocean Energy Mgmt., Commercial Wind
Lease Issuance and Site Assessment Activities on
the Atlantic Outer Continental Shelf Offshore New
Jersey, Delaware, Maryland, and Virginia, Final
Environmental Assessment (2012), available at
https://www.boem.gov/uploadedFiles/BOEM/
Renewable_Energy_Program/Smart_from_the_Start/
Mid-Atlantic_Final_EA_012012.pdf; Office of
Renewable Energy Programs, Bureau of Ocean
Energy Mgmt., Commercial Wind Lease Issuance
and Site Assessment Activities on the Atlantic
Outer Continental Shelf Offshore Massachusetts,
Revised Environmental Assessment (2014),
available at https://www.boem.gov/Revised-MA-EA2014/); and Office of Renewable Energy Programs,
Bureau of Ocean Energy Mgmt., Commercial Wind
Lease Issuance and Site Assessment Activities on
the Atlantic Outer Continental Shelf Offshore New
York, Revised Environmental Assessment (2016),
available at https://www.boem.gov/NY-EA-FONSI2016/.
21 30
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BOEM’s repeated analysis of these
devices, BOEM has concluded that their
potential environmental effects are
short-term and minimal, assuming
sensitive benthic habitat and
archaeological sites are avoided.24
Proper deployment will be ensured
through the USACE Nationwide Permit
5 (NWP 5), which is reasonably tailored
to buoys and is subject to the same
applicable Federal environmental laws
as BOEM’s authorization of met buoys.
USACE’s NWP 5 procedures may
require a pre-construction notification
under the general conditions for
permits, depending on the presence of
certain resources, e.g., listed species,
critical habitat, or essential fish habitat.
These procedures are the same for vast
majority of buoys installed offshore; it is
only the renewable energy met buoys
that require a SAP under the current
BOEM regulations.
BOEM determined in 2016 that met
buoys meet the criteria for a
nondestructive data collection
categorical exclusion from the potential
requirement to prepare an
environmental impact statement under
NEPA.25 Consequently, BOEM’s existing
SAP (§§ 585.605 through 585.618) and
GAP (§§ 585.640 through 585.657)
requirements governing on-lease and
off-lease site assessment activities,
respectively, are disproportionate to the
potential environmental impacts caused
by met buoys.
(b) Duplicative Regulations
BOEM’s regulation of site assessment
activities is duplicative of the USACE’s
permitting requirements under section
10 of the Rivers and Harbors Act, which
applies to obstructions in U.S. navigable
waters, including the OCS.26 The
USACE typically authorizes data
collection buoys under its NWP 5 for
scientific measurement devices, or its
equivalent, depending on the
geographic district in which the buoy is
proposed. NWP 5 addresses the most
critical impacts of met buoys—
environmental resources, archaeological
resources, safety, and navigation—while
also requiring that such devices be
removed ‘‘to the maximum extent
practicable and the site restored to preconstruction elevations.’’ 27 The
24 See supra note 22; see also Offshore Wind
Strategy, supra note 12, at 31. Another concern is
the potential for marine mammal entanglement in
anchor chains. However, the Army Corps of
Engineers will require mitigation of such risks
pursuant to its consultations with NMFS, regardless
of any BOEM permit.
25 See 43 CFR 46.210(e).
26 33 U.S.C. 403.
27 U.S. Army Corps of Engineers, Nationwide
Permit 5—Scientific Measurement Devices (2017),
available at https://www.swt.usace.army.mil/
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USACE’s permitting process is subject
to the same Federal laws concerning
environmental analyses and interagency consultations that govern
BOEM’s authorization of met buoys—
including NEPA, ESA, MMPA, MSA,
NMSA, and NHPA. To date, USACE has
participated in BOEM’s environmental
reviews as a cooperating agency under
40 CFR 1501.6.
The deployment of a met buoy or
tower to collect data for potential OCS
renewable energy development is
subject to two regulatory regimes—
BOEM’s and USACE’s—that largely
analyze the same environmental
impacts. However, the same type of
buoy or tower is subject to only
USACE’s regime if deployed for other
purposes. As discussed below, the
proposed rule would resolve this
duplication of regulatory compliance by
eliminating BOEM’s SAP requirement
for met buoys.
(c) Requirement for Air Permits for
Meteorological Buoys
Under the Clean Air Act (CAA), a
party proposing to construct a source of
air pollution on the OCS that meets the
CAA definition of an ‘‘OCS source’’ is
required to apply for an air permit
before construction. The CAA definition
of an ‘‘OCS source’’ of air pollution
includes those sources that have the
potential to emit air pollutants, are
deployed on the OCS, and are regulated
or authorized under the OCS Lands
Act.28 Met buoys to support renewable
energy development, authorized by
BOEM, are currently included as OCS
sources because some contain backup
diesel generators that emit air
pollutants. These met buoys frequently
are required to have a CAA permit when
deployed in OCS areas under U.S.
Environmental Protection Agency
(USEPA) jurisdiction, specifically
offshore the U.S. Atlantic and Pacific
coasts. While emissions from buoy
backup generators are minimal due to
their limited use, the CAA has no de
minimis exception to the air permit
requirement.
In some instances, obtaining OCS air
quality permit for a met buoy can take
longer than obtaining SAP approval
from BOEM. Under the proposed rule,
met buoys deployed in OCS areas solely
under USEPA’s jurisdiction reasonably
and appropriately would no longer
require CAA permits since they would
neither be regulated nor authorized
under the OCS Lands Act and,
Portals/41/docs/missions/regulatory/
NationwidePermits/Nationwide%20
Permit%2005%20-%20Scientific%20Measurement
%20Devices.pdf?ver=2017-03-31-150714-880).
28 42 U.S.C. 7627(a)(4)(C).
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consequently, would not meet the
definition of an ‘‘OCS source.’’ This
conclusion also takes into consideration
that these buoys are anticipated to have
minimal emissions, there is a significant
time and cost associated with obtaining
a CAA permit, and similar buoys
authorized under other statutes do not
require a CAA permit (e.g., scientific
measurement devices permitted under
NWP 5).
(d) European Practice
BOEM is aware that European
countries with mature offshore wind
industries and permitting regimes have
more streamlined permitting processes
for site assessment activities. In several
European countries, including Denmark
and The Netherlands, the government
will typically undertake the site
characterization and site assessment
work as part of its ‘‘pre-development’’
efforts before a tender offering (i.e., lease
sale in the U.S. model). In the U.K.
model, which shares similarities with
the U.S. regulatory framework, the
developer is responsible for undertaking
this work. Pre-construction site
assessment activities, including the
deployment of met towers and buoys,
are described in a separate submission
to the U.K. Marine Management
Organization following the developer’s
receipt of governmental approval.
Recent met buoy case files show that
these site assessment applications are
typically approved in roughly 30calendar days. BOEM has received
multiple comments from industry
criticizing the length of its present met
buoy authorization process and urging
BOEM to learn from the European
practice. The proposed rule would move
the United States closer to Europe’s
more efficient approach to site
assessment activities.
(e) Lack of Off-Lease Site Assessment
BOEM believes that public and
private entities alike should be
encouraged to collect OCS
meteorological and oceanographic data
for potential renewable energy
development in areas not yet leased
commercially. BOEM is aware of only
four met buoys (and no met towers) that
have been deployed on the OCS for such
purposes: two off the east coast and two
research buoys managed by the DOE off
the coast of California. BOEM is
concerned that the perceived difficulty
of obtaining a limited lease and
subsequent GAP approval is deterring
off-lease site assessment activities.
3. Proposed Changes
The proposed rule would eliminate
BOEM’s duplicative authorizations for
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5977
on-lease site assessment facilities
without an engineered foundation
(primarily met buoys) and all off-lease
site assessment facilities. BOEM
proposes to retain its SAP process for
facilities installed on a commercial lease
using an engineered foundation, such as
met towers.
(a) On-Lease Meteorological Buoys
The proposed rule would eliminate
SAPs for site assessment activities that
do not use an engineered foundation,
defined as a met tower or other facility
installed using a fixed-bottom
foundation.29 Met buoys would be
exempt from the SAP requirement
unless deployed with an engineered
foundation, which BOEM expects will
occur rarely. A SAP would still be
required for met towers and other site
assessment facilities with engineered
foundations. BOEM would also
recommend that lessees consult with
BOEM and other Federal agencies with
jurisdiction over submerged lands in off
lease areas before deploying site
assessment facilities with novel
anchoring technologies absent a BOEMapproved SAP. Independent of the need
to submit a SAP for approval, all site
assessment activities are required to be
performed under an SMS that accounts
for and mitigates risks to personnel and
the environment associated with the
assessment activities. In any case where
an NMSA permit may be required,
NOAA may require certain financial
assurances for infrastructure removal
activities potentially required under
permit.
The proposed rule also would amend
the decommissioning regulations in the
proposed subpart J to ensure that lessees
are not subject to duplicative or
conflicting requirements for the removal
of met buoys. Under the proposed rule,
a lessee would decommission its met
buoys according to USACE
requirements in lieu of submitting a
decommissioning plan for BOEM’s
approval. In the unlikely event that
USACE did not require site clearance,
BOEM would retain the authority to
require decommissioning of the buoys
under proposed § 585.900(c) pursuant to
OCS Lands Act subsection 8(p)(6)(C) so
that the United States can fulfill its
international treaty obligation to restore
the lease area.30 BOEM also would no
29 Unlike a simple anchor, a fixed-bottom
foundation generally requires professional
engineering design and assessment of sediment,
meteorological, and oceanographic conditions.
Examples of fixed bottom foundations are
monopiles, jackets with driven piles or suction
buckets, and gravity-based foundations.
30 See 43 U.S.C. 1337(p)(6)(C) and article 5.5 of
the Convention on the Continental Shelf, T U.N.
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longer routinely require supplemental
financial assurance for
decommissioning of met buoys. In most
cases, the buoys are authorized and
installed pursuant to USACE regulations
and USACE would assume
responsibility for ensuring that any
required removal takes place; in these
circumstances, the USACE would be
responsible for obtaining any financial
assurance necessary.
These changes should allow lessees to
deploy met buoys in substantially less
time and at a reduced cost because a
SAP would no longer be required.
Instead, lessees would deploy a met
buoy under the authorization of a
USACE NWP 5 scientific device permit
or the USACE district equivalent. BOEM
estimates one buoy would be permitted
annually, and this permitting change
would save approximately $1.1 million
of compliance costs in each instance.31
BOEM also anticipates that this change
could eliminate the need for lessees to
obtain a CAA air quality permit from the
USEPA for on-lease met buoys with
backup diesel generators because these
buoys would fall outside the CAA
definition of an ‘‘OCS source.’’ BOEM is
not including the potential savings for a
CAA permit in its economic analysis
because the underlying burden arises
from another Federal agency’s
regulatory requirements (appropriately,
USEPA could claim any CAA burden
reduction).
This approach likely would result in
regulatory relief from the SAP
requirement for nearly all future
development of OCS renewable
resources. Most current lessees have
proposed conducting site assessments
with met buoys. BOEM expects that
pattern to continue for the foreseeable
future. Off-lease site assessment
activities would fall outside BOEM’s
control, though remain within USACE’s,
and should they occur within a national
marine sanctuary or in the vicinity of a
national marine sanctuary, activities
may require NMSA permits or
consultations.
BOEM proposes several conforming
ancillary regulatory changes to
accommodate the SAP changes outlined
in this section. These changes include
merging the preliminary and site
assessment periods of the lease (see the
analysis of proposed changes to
§ 585.235 in section VI.C.), eliminating
deadlines for SAP submittals,
decoupling the requirement to operate
Doc. A/CONF. 13/L.55, T.I.A.S. 5578 and 15 U.S.T.
471. Any installations which are abandoned or
disused must be entirely removed [emphasis
added].
31 See infra part VII.B.2 for overview of this
proposed rule’s economic analysis.
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under an SMS from SAP submission
(i.e., all site assessment activities must
be conducted under an SMS, regardless
of whether a SAP is required), and
removing references to terminology that
relates primarily to buoys (e.g., anchors,
chains, mooring) in the SAP regulations.
For several reasons, this approach
would not increase environmental
impacts and would be subject to the
same environmental review and
consultations currently performed by
BOEM. First, BOEM will prepare
environmental analysis under NEPA
and will consult under the ESA prior to
a lease sale. That environmental
analysis will include potential impacts
from activities that are expected to
occur following lease issuance after the
sale (e.g., site characterization and site
assessment activities). Second, NWP 5
complies with current Federal
environmental laws and governs
deployment of other scientific
measurement devices that result in no
more than minimal individual and
cumulative adverse environmental
impacts. Lessees must ensure that the
placement of met buoys and towers
conforms with NWP 5. The USACE
general conditions for nationwide
permits require interagency
consultations if warranted by the
location and activities proposed.
USACE considers cumulative impacts in
the re-issuance of the nationwide
permits every 5 years. Third, based on
BOEM’s experience in approving SAPs
to date, BOEM has already documented
the environmental impacts of met buoys
to be minimal. Fourth, those who are
conducting site assessment activities are
still required to conduct all such
activities under an SMS that accounts
for and mitigates risks to personnel and
the environment. Fifth, BOEM would
not disclaim all oversight of site
assessment activities. As noted above,
the potential environmental impacts of
met towers and facilities with
engineered foundations are both more
variable and more significant for certain
marine resources. Therefore, BOEM
would continue to require SAPs for
such facilities. Finally, BOEM may
consider adding stipulations to future
leases relating to site assessment
activities not covered by a SAP. BOEM
anticipates that such stipulations would
ensure BOEM is aware of activities
conducted on its lease and that such
activities are required to be performed
in accordance with any applicable
USACE requirements and best industry
practices.
BOEM notes that the proposed rule
likely would require revisions to
BOEM’s programmatic agreements with
consulting parties under the NHPA.
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Most of BOEM’s existing agreements
anticipate that it would review and
approve plans relating to all site
assessment activities.
BOEM completed an informal
programmatic section 7 consultation
under the Endangered Species Act with
the National Marine Fisheries Service
(NMFS) in 2021. This informal
consultation covered leasing, site
characterization, and site assessment
activities. It is expected to cover most,
if not all, USACE NWP 5 permits issued
for on-lease met buoys in the three
Atlantic Renewable Energy Regions
(North Atlantic Planning Area, MidAtlantic Planning Area, and South
Atlantic Planning Area). This
consultation concluded that the
activities considered are not likely to
adversely affect any ESA-listed species
or critical habitat.32 Activities are
considered not likely to adversely affect
as long as they are within the scope of
what was analyzed in the consultation,
meet the stated project design criteria
and apply the prescribed conservation
measures. BOEM is conducting similar
ESA consultations for the Pacific and
Gulf of Mexico regions.
(b) Off-Lease Meteorological Buoys
The proposed rule would clarify that
off-lease site assessment facilities do not
require a limited lease. BOEM proposes
to accomplish this by amending
§ 585.104 to add a statement that, for
purposes of that section, site assessment
activities neither produce, transport, nor
support the generation of any energy
products.
In so doing, BOEM would cease its
existing policy of making case-by-case
determinations about whether off-lease
site assessment activities require a
lease.33 BOEM does not believe off-lease
site assessment activities support the
production of energy within the
meaning of 43 U.S.C. 1337(p)(1)(C)
because the nexus between such
activities and the commercial
production of energy is too speculative
(e.g., the entity conducting site
assessment may determine the energy
potential is insufficient for commercial
operations, may not seek a commercial
lease for other reasons, or may not be
the winning bidder in a lease auction).34
32 See https://www.boem.gov/sites/default/files/
documents/renewable-energy/OSW-surveys-NLAAprogrammatic.pdf.
33 See supra note 18.
34 In contrast, site assessment activities conducted
on a commercial lease are not subject to the same
jurisdictional analysis despite the proposed change
to § 585.104. BOEM may determine by regulation
which on-lease activities do and do not require a
separate BOEM approval. In the proposed rule,
BOEM would determine that site assessment
activities under a commercial lease involving an
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BOEM believes this change will
substantially decrease the time and
expense required to obtain authorization
to deploy a site assessment facility on
the OCS that is not tethered to a
commercial renewable energy lease. As
a result, BOEM anticipates that more
developers, research institutions, and
governmental entities may be interested
in collecting renewable energy resource
data on the OCS—likely through
deployment of met buoys. Such
increased data collection could, in turn,
aid in determining which areas are most
suitable for future OCS renewable
energy leasing.
This clarification of BOEM’s authority
over off-lease site assessment activities
applies to both met buoys and met
towers. Although met towers have
greater environmental impacts than met
buoys, BOEM does not believe this
proposed regulatory change would
increase environmental risk. First,
USACE would continue to permit
facilities associated with off-lease site
assessment. USACE has already
permitted an off-lease met tower in
connection with the Cape Wind project
in Nantucket Sound offshore
Massachusetts. Second, BOEM believes
it is highly unlikely that anyone would
undertake the considerable expense of
constructing a met tower absent the
exclusive development rights afforded
by a commercial lease, particularly
because met buoys have become
commonplace as the more cost-effective
site assessment alternative. Finally, this
regulatory change would not have an
environmental impact because it would
not substantially alter BOEM’s existing
practice. BOEM presently has the
authority not to require limited leases
for off-lease site assessment activities
based on a case-by-case determination
that such activities do not support the
production of energy.
B. Project Design Envelope
The proposed rule would codify the
use of project design envelopes (PDE)—
i.e., proposing a range of design
parameters and construction and
operation activities—in COP
submissions. The use of PDEs was first
introduced by BOEM in draft guidance
in 2016 and is now being codified in the
regulations.
The proposed rule would add
language throughout the proposed
subpart G that would clarify the ability
of lessees and grant holders to submit
plans using a PDE. The PDE is a proven
approach to provide lessees and grant
holders with flexibility throughout the
engineered foundation require a SAP given the
likely environmental impacts.
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permitting process while still complying
with NEPA and other statutory and
regulatory obligations. As detailed in
BOEM’s draft guidance,35 the PDE is ‘‘a
permitting approach that allows a
project proponent the option to submit
a reasonable range of design parameters
within its permit application, allows a
permitting agency to then analyze the
maximum impacts that could occur
from the range of design parameters,
and may result in the approval of a
project that is constructed within that
range.’’ 36 BOEM recognizes that a PDE
should not be overly broad to avoid not
defining the project well enough for
meaningful analysis. BOEM’s NEPA
analysis will continue to include
reasonable alternatives that meet the
purpose and need of the project. As a
result, the NEPA analysis would be
sufficient to avoid a delay in review by
BOEM or other agencies.
Here is an illustrative example:
• Lessee X has determined that jacket
and monopile foundations are both
technically feasible options for its
project. Its ultimate foundation choice
could depend on several factors that are
not typically known at the time of COP
submittal, such as the cost of steel at the
time of procurement, contract
negotiations with foundation
fabricators, and the availability of novel
pile-driving technologies.
• Lessee X proposes in its COP that
it will use a foundation PDE consisting
of three scenarios: all jacket
foundations, all monopile foundations,
and half each.
• In its environmental analysis,
BOEM will assume the maximum
design scenario (i.e., the scenario with
the greatest impacts) for each affected
resource. For benthic habitat, BOEM
could analyze 100 percent use of jacket
foundations because that scenario
disturbs the most seabed.
• BOEM may ultimately approve the
full PDE for foundations, meaning
Lessee X would have the flexibility to
construct its project using either or both
foundations. Alternatively, BOEM could
find that the environmental impacts of
one foundation type are unacceptable
and approve the use of only the other
foundation type, meaning Lessee X
could only construct its project using
the approved foundation type.
In its draft PDE guidance, BOEM set
out ‘‘its support of, and preliminary
recommendations for the voluntary use
5979
of the PDE in the submission and review
of COPs for offshore wind energy
facilities.’’ 37 In preparing to issue its
draft guidance, BOEM contracted a
yearlong study of PDE use in the United
Kingdom and its potential use in the
United States.38
BOEM has concluded that use of the
PDE would be beneficial to OCS
renewable energy development because
that approach provides reasonable
latitude to make site-specific design and
engineering decisions after plan
approval without having to reopen the
permitting review process.
Though BOEM’s existing regulations
allow a PDE, BOEM believes that it can
clarify the process for lessees and other
stakeholders by explicitly integrating
PDE principles into its regulatory text—
primarily by referencing ‘‘ranges’’ of
design parameters or locations. It should
be noted, however, that the range of
parameters in a PDE could involve nondesign attributes, such as installation
methods or mitigation measures. BOEM
believes these proposed changes (and
other related modifications described in
the part VI section-by-section analysis of
the proposed rule) would not
substantively alter its existing regulatory
framework, or its required consultations
with other agencies, but would be
helpful to lessees and the general
public.
C. Geophysical and Geotechnical
Surveys
1. Existing Regulations
BOEM regulations require a lessee’s
COP to include, among other things,
survey data characterizing the seabed
and sub-seabed that would be disturbed
by the proposed project. BOEM uses this
information to inform its environmental
analysis of the project, its related
consultations (particularly involving
historical resources and essential fish
habitat), and its review of the project’s
technical feasibility. These data are
derived from surveys that are typically
divided into two categories: geophysical
surveys that use acoustic and magnetic
sensing techniques to map and model
the composition of the seafloor where
ground-disturbing activities will take
place, and to identify natural and
manmade hazards as well as potential
archaeological resources; and
geotechnical surveys that use boreholes,
vibracores, grab samplers, and other
37 Id.
35 See
‘‘Draft Guidance Regarding The Use Of A
Project Design Envelope In A Construction And
Operations Plan,’’ (January 12, 2018), U.S.
Department of the Interior, Bureau of Ocean Energy
Management, Office of Renewable Energy Programs,
available at https://www.boem.gov/guidance.
36 Id. at 1.
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38 Office of Renewable Energy, Bureau of Ocean
Energy Mgmt., Phased Approaches to Offshore
Wind Developments and Use of Project Design
Envelope, Final Technical Report (2017), https://
www.boem.gov/Phased-Approaches-to-OffshoreWind-Developments-and-Use-of-Project-DesignEnvelope/.
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penetrative methods to determine the
actual geological composition of the
subsurface and, in certain cases, identify
potential archaeological resources.
BOEM’s regulations require a
commercial lessee to submit a COP with
geotechnical survey data that include
the results of a testing program used to
investigate the stratigraphic and
engineering properties of the sediment
that may affect foundations or anchoring
systems; in situ testing, boring, and
sampling at each foundation location;
and at least one deep boring (with soil
sampling and testing) at each edge of the
project area and within the project area
as needed to determine the vertical and
lateral variation in seabed conditions.39
Thus, lessees are currently obligated to
conduct their full suite of geotechnical
surveys before COP submittal.
The FDR, which is submitted
following COP approval, requires the
submittal of a ‘‘summary of
environmental data used for design’’ as
well as a ‘‘summary of the engineering
design data,’’ 40 both of which could
include additional geotechnical surveys.
Lessees must apply for a regulatory
departure under § 585.103 if they wish
to defer in situ testing, boring, and
sampling at each foundation location
until the FDR stage.
A lessee’s COP also is required to
include ‘‘[t]he results of the
archaeological resource survey with
supporting data.’’ 41 BOEM, therefore,
requires the results of all archaeological
surveys to be submitted with the COP.
lotter on DSK11XQN23PROD with PROPOSALS2
2. Why the Existing Regulations Should
Be Updated
BOEM has learned that its existing
COP data submittal regulations lack
sufficient flexibility to accommodate
both the lessees’ needs and BOEM’s
statutory and regulatory mandate. The
amount and type of data that BOEM
needs from lessees in order to conduct
its environmental and technical reviews
and reach a decision on a COP may vary
depending on the size and design of the
project as well as site conditions in the
proposed project area. Lessees may use
various techniques to gather this data,
depending on the intended use of the
data. The surveys are costly (generally
in the tens of millions of dollars,
depending on the size of the area and
the desired resolution); time-consuming
(individual surveys can each take
several months to complete); and
challenging to schedule due to
limitations on the availability of survey
39 30
CFR 585.626(a)(4).
CFR 585.701(a)(5)–(6).
41 30 CFR 585.626(a)(5).
40 30
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vessels and equipment, weather, and
seasonal restrictions.
(a) Existing Survey Requirements
The current regulations at 30 CFR
585.626(a)(1)–(3), (5), and (6) require
robust information on shallow hazard,
geological survey results, biological
survey results, archeological resources,
and an overall site investigation before
COP submission. The current
regulations also require geotechnical
surveys and borings of all locations
where foundations are expected to be
installed in order to inform the
engineering properties of the sediment.
Frequently, the exact locations of
foundations change between the time of
COP submission and installation,
requiring the lessee to repeat the same
survey and boring work at new
locations.
The geophysical and geotechnical
survey requirements in BOEM’s
renewable regulations are largely built
upon the framework for offshore oil and
gas energy facilities, which have a
smaller footprint and different geologic
data needs than OCS renewable energy
projects. The detailed engineering
survey data that BOEM’s offshore
renewable regulations require early in
the authorization process do not align
with existing renewable industry
practices. Requiring geotechnical
sampling at each turbine location and
engineering-specific geophysical survey
data—several years before the turbines
are procured and before the final layout
is known—is unnecessary for BOEM’s
review of the COP. Equally important,
this data requirement for COP
submissions creates major logistical
difficulties for lessees, hinders their
ability to modify the project design
during and after COP review, and is the
subject of frequent industry criticism
and regulatory departure requests under
§ 585.103. This information can instead
be reviewed with the FDR once siting
has been finalized.
Offshore wind projects are complex
and have a development timeline that
may last as much as 7 years from lease
issuance to commencement of
construction. During that time,
technologies likely will evolve. The
collection of geotechnical and, to a
lesser extent, geophysical data is more
logically performed in stages as the
process evolves from planning and
permitting to preliminary and final
designs, with the appropriate level of
survey data provided at each stage. This
staged data collection and design
process allows lessees to take advantage
of the newest technologies and to make
project modifications responsive to
BOEM and stakeholder concerns, rather
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than locking the project into a detailed
design years in advance of completion.
The current lack of flexibility is also
at odds with the development and use
of PDE discussed above in section V.B,
entitled ‘‘Project Design Envelope.’’ The
PDE’s benefits cannot be fully realized
without additional flexibility regarding
the timing of engineering survey data
submittal. If a lessee is required to
conduct all of its engineering surveys
(and potentially its most detailed
archaeological surveys) before COP
submittal, it may be constrained from
adjusting the project design based on
the availability of new technologies,
stakeholder input, or other emergent
factors. Likewise, a lack of flexibility in
data submittal requirements could
indirectly constrain BOEM’s ability to
consider NEPA alternatives that might
modify the proposed project design.
Such design changes might result in
additional survey costs and project
delays that may, in turn, jeopardize
electricity offtake agreements or
otherwise render the project nonviable.
Revising the geophysical and
geotechnical survey timing and data
submittal requirements would codify
and increase the utility of the PDE.
(b) European and Industry Practices
Based on BOEM’s conversations with
various European regulators of offshore
wind energy projects, many European
governments that have authorized
offshore wind development allow for
the final engineering-related surveys to
occur after project approval given the
widespread use of design envelopes,
which are discussed in section V.B.
Performing geotechnical investigations
in phases is a common approach for
offshore wind projects in Europe and for
most large and complex land-based
developments. Experienced offshore
wind developers and consultants are
accustomed to this approach and have
informed BOEM of its advantages.42
Moreover, this staged method of data
submittal has been recommended by
experienced geotechnical consultants in
various publications and in geotechnical
guidelines published by offshore wind
classification societies.
Based on BOEM’s experience and
stakeholder feedback, the Department
has concluded that allowing the
submittal of certain geophysical and
geotechnical data and analysis in stages
would not adversely affect our ability to
42 See, e.g., Soc’y for Underwater Tech., Guidance
Notes for the Planning and Execution of
Geophysical and Geotechnical Ground
Investigations for Offshore Renewable Energy
Developments 12 (Mick Cook ed., 2014), https://
www.sut.org/wp-content/uploads/2014/07/OSIGGuidance-Notes-2014_web.pdf.
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execute the statutory mandate to
provide for environmental protection
and safety on the OCS. We have learned
that the precise location of each wind
turbine may be uncertain at the COP
submittal stage and that the
geotechnical survey data, in particular,
collected primarily for engineering
purposes, are more relevant to the
facility design and review process,
which follows COP approval.
The Department and BOEM
acknowledge that the level of data
required for fulfilling its statutory
mandate may be different than the level
of data required to satisfy the mandates
of other agencies. Under the proposed
rule, the COP must still contain
information sufficient to define the
baseline geological conditions of the
seabed, develop a geologic model,43
assess geologic hazards, and determine
the feasibility of the proposed site for
the proposed facility. At the COP review
stage, lessees would still be required to
provide the data necessary to conduct
the required consultations.
The non-geotechnical survey data
included in the COP submittal are more
than adequate to assess impacts to the
human, marine, and coastal
environment, to conduct necessary
statutory consultations, and to show
technical feasibility of all proposed
foundation types. BOEM’s oil and gas
program takes a similar approach. Nongeotechnical survey data are used to
assess plans, and geotechnical surveys
occur after plan approval. Over the last
10 years, over 2,600 oil and gas plans
have been approved; in none of these
cases have subsequent geotechnical
surveys identified any potential impact
that required supplementation of an EIS
or reinitiation of consultation. Because
of this, we are confident that the
proposed change is unlikely to
undermine the environmental review
done as part of the COP approval
process. Even if a geotechnical survey
after COP approval caused a change in
the approved action or environmental
assessment, we would expeditiously
analyze the requisite changes and
update the environmental assessment
and record of decision.
The information from the deferred
geotechnical surveys is not necessary to
perform the requisite environmental
reviews and consultations for COP
approval or CZMA consistency reviews.
Instead, the detailed information is
necessary for engineering specifications
associated with the design of the
project. Furthermore, to ensure BOEM
43 The geologic model brings together bathymetric
data, surficial data imagery, sub-bottom data
imagery, and sediment samples.
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has sufficient information for its
requisite technical reviews,
environmental analysis, and interagency
consultations, BOEM conducts a
sufficiency review after receipt of a COP
and notifies the lessee of any
information shortfalls that must be filled
before the COP review is complete.
3. Proposed Changes
(a) COP Data Requirements
The proposed rule would address the
concerns with the existing regulations
primarily by providing more flexibility
(and clarifying existing flexibility) in the
COP requirements.44 For clarity, the
proposed rule would reorganize the data
requirements by topic. The first
proposed topic, ‘‘geological and
geotechnical,’’ would encompass the
types of surveys required in existing
§ 585.626(a)(1), (2), (4), and (6). The
survey and data collection requirements
would shift from the largely prescriptive
standards in the existing regulation to
performance-based standards. These
performance-based standards would
give lessees the leeway to demonstrate
that their selected combination of
geotechnical and geophysical surveys
provide BOEM the data that it needs at
the COP review stage to determine
whether the project as designed can be
constructed safely in the proposed range
of locations—assuming industry
standard engineering practices are used
at subsequent phases. Lessees could
strike their own balance between
geotechnical and geophysical surveys at
the COP stage, so long as BOEM deems
that data sufficient for BOEM’s review
as well as the required consultations or
authorizations of other agencies. BOEM
would still ensure that the COP contains
information sufficient to complete its
environmental review and required
consultations, through a COP
sufficiency determination. BOEM has
issued guidelines elaborating its
recommended best practices for such
surveys.45 These guidelines will be
revised as needed based on the
regulatory text of the final rule. BOEM
could recommend, as a best practice,
that developers coordinate early with
relevant agencies on applicable site
characterization plans, before surveys
occur.
44 See
30 CFR 585.626(a).
Office of Renewable Energy, Bureau of
Ocean Energy Mgmt., Guidelines for Providing
Geophysical, Geotechnical, and Geohazard
Information Pursuant to 30 CFR part 585 (2020),
available at https://www.boem.gov/guidance. See
also Bureau of Ocean Energy Mgmt., Data Gathering
Process: Geotechnical Departures for Offshore Wind
Energy (2018), https://www.boem.gov/DataGathering-Process/.
45 See
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5981
The proposed rule would no longer
require that COPs contain the results of
in situ boring and sampling at each
foundation location. Instead, the
proposed rule would allow submission
of geotechnical data for an engineering
assessment of the proposed turbine
foundations with a lessee’s FDR.
The proposed rule also would grant
the Department the flexibility to allow
a lessee to submit certain subsea
archaeological surveys with the FDR on
a case-by-case basis, subject to terms
and conditions of COP approval. We
recognize that deferring subsea
archaeological data submission until
after COP submittal could introduce
some degree of uncertainty and risk into
a project by extending the timeline for
BOEM’s review and consultations under
section 106 of the NHPA and its
implementing regulations. This could
delay a lessee’s clearance to commence
construction. This risk may be reduced,
however, through the development of
programmatic agreements or
memoranda of agreement among the
section 106 consulting parties that could
establish procedures for avoiding or
mitigating impacts discovered after COP
approval.
BOEM estimates that a geotechnical
investigation costs on average $200,000
per turbine location and assumes that
deferring survey work by 2 years would
result in time value of money savings to
a lessee. BOEM also estimates a 10
percent reduction in the number of
geotechnical investigations by adding
flexibility to the existing requirement of
a core analysis at each individual
turbine location.46
It is important to consider what these
proposed rule changes would not do.
First, the proposed rule would not
prevent BOEM from obtaining COP data
sufficient for an adequate impact
analysis of a proposed project under the
OCS Lands Act, NEPA, and other
statutory authorities. The COP
sufficiency review will ensure the
necessary data is submitted to complete
BOEM’s and other agencies’ analyses.
The COP must still have the information
sufficient to define the baseline
geological conditions of the seabed and
provide sufficient data to develop a
geologic model, assess geologic hazards,
and determine the feasibility of the
proposed site. Changing when lessees
must submit data from each foundationspecific boring does not impact the
sufficiency review that BOEM uses to
ensure that a COP has sufficient detail
to support all consultations that
accompany BOEM’s environmental
46 See infra Part VII.B.2 for overview of this
proposed rule’s economic analysis.
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review under NEPA. The vast majority
of the data that would be deferred to the
FDR and FIR stage is used solely for
engineering purposes. Any deferred data
would be subject to terms and
conditions of COP approval that would
allow the Department to halt or require
modifications to further activities if the
data is inconsistent with the analysis
upon which BOEM based its COP
approval. If the COP needs to be
modified as a result of information
gathered from the deferred surveys,
such as if the deferred survey data
reveals likely effects that were not
considered previously, the Department
would require the lessee to revise the
COP under the regulations at § 585.634.
The Department also retains the
authority to halt or require
modifications to the deferred surveys
themselves, if necessary, through the
lease suspension authority at
§ 585.417(a)(2). The Department
believes the flexibility attained by these
proposed changes would enhance the
Department’s (and lessees’) ability to
respond to environmental and ocean
user concerns raised during its
environmental reviews by modifying the
project design.
Second, the proposed rule would not
prevent the Department from obtaining
engineering-related survey data
sufficient to analyze the safety and
feasibility of the final design before the
lessee installs facilities, as provided in
§ 585.701. Such data would instead be
reviewed at the FDR and FIR stage
rather than the COP stage. Put
differently, the Department would be
able to obtain the same data under the
proposed rule as it obtains now before
the commencement of construction.
Therefore, the Department anticipates
that this element of the proposed rule
would have no environmental and
safety impacts, and no socioeconomic
impacts beyond the potential cost
savings to lessees.
lotter on DSK11XQN23PROD with PROPOSALS2
(b) Limited Leases and Grants
Extending the reasoning articulated
above in sections V.B, entitled ‘‘Project
Design Envelope,’’ and V.C.3(a), entitled
‘‘COP Data Requirements,’’ the proposed
rule would make similar changes to the
GAP requirements for limited leases and
grants.
4. Solicitation of Comments Concerning
a Potential New Permit Requirement for
Conducting Geological and Geophysical
Surveys for Renewable Energy Activities
Section 11 of OCSLA (43 U.S.C. 1340)
addresses exploration for minerals
(which include oil and gas) and
subsection (g) requires that any
exploration permit ‘‘will not be unduly
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harmful to aquatic life in the area, result
in pollution, create hazardous or unsafe
conditions, unreasonably interfere with
other uses of the area, or disturb any
site, structure, or object of historical or
archeological significance.’’ However,
geological and geophysical exploration
permits for minerals, including oil and
gas, are required only for off-lease
surveys, i.e., on unleased lands or on
lands under lease to a third party.47 Onlease surveys are governed by separate
regulations and require only that the
lessee notify BOEM at least 30 days
prior to conducting such activities.48
BOEM reviews such notices to ensure
the activities described do not cause
undue or serious harm or damage to the
human, marine, or coastal environment.
BOEM’s existing renewable energy
regulations do not expressly govern
survey activities. However, subsection
8(p) of OCSLA, which authorizes BOEM
to ‘‘issue any necessary regulations to
carry out this subsection,’’ also requires
that activities authorized under this
subsection be carried out in a manner
that provides for ‘‘safety . . . protection
of the environment . . . [and]
consideration of . . . any other use of
the area, including use for a fishery
. . . .’’ OCSLA 8(p)(4).
Although BOEM requires a lessee to
submit the results of certain surveys to
BOEM in order to obtain approval of its
COP, those regulations do not require
BOEM’s approval of a permit for such
surveys. Instead, BOEM has provided
guidance on conducting such surveys 49
and also includes terms and conditions
in renewable energy leases that require
lessees to submit survey plans to BOEM
for review in advance of their survey
activities.50 BOEM’s review of the plans,
while not an approval process, does
provide BOEM an opportunity to
communicate with lessees to ensure the
lessees’ survey results will meet
BOEM’s information needs and to
ensure certain environmental conditions
are met in conducting the surveys.
BOEM is considering whether there is
a need for a future rulemaking intended
to regulate surveys associated with OCS
renewable energy activities. To that
47 See
30 CFR 551.4
30 CFR 550.207 through 550.210.
49 Guidelines for Providing Information on
Fisheries Social and Economic Conditions for
Renewable Energy Development on the Atlantic
Outer Continental Shelf Pursuant to 30 CFR part
585 (2020) available at https://www.boem.gov/sites/
default/files/documents/about-boem/Social%20%
26amp%3B%20Econ%20Fishing%20
Guidelines.pdf.
50 Refer to stipulation 3.1.2.1 in Addendum C of
commercial leases auctioned by BOEM in recent
lease sales (e.g., available at https://www.boem.gov/
sites/default/files/documents/renewable-energy/
state-activities/Lease%20OCS-A%200537_0.pdf.
48 See
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effect, BOEM is soliciting comments on
the following questions:
• What additional protections might
be gained through rulemaking that
cannot be achieved by way of the lease
stipulations?
• Should BOEM establish a permitbased mechanism to regulate how, when
(pre-lease, post-lease), and where (onand off-lease) surveys are conducted?
And to what extent, if any, should that
permit program differ from the permit
requirements of the oil and gas program
and marine minerals program?
• Is there another method, other than
a permit-based mechanism, that could
aid in the confirmation of any damage
to fishing gear as well as the
identification of responsible parties for
any such damage from survey activities?
• To what extent should BOEM
require additional public reporting and
notice of any anticipated OCS survey
activities, beyond the current lease
stipulation requirements of two weeks’
advance notice to applicable ocean
users of lessee geological and
geophysical surveys? Is there a greater
need for specific advance notice
requirements, extending beyond
geological and geophysical surveys, to
include the location, dates, and times in
which other OCS surveys will be
conducted?
• To what extent should BOEM
identify and track OCS survey activities
related to renewable energy program
activities?
• How can BOEM improve the
current procedures for reporting by and
reimbursement of any party that is
harmed as a result of the activities of a
company engaged in renewable energy
survey activities? Can these
improvements replace the need to
promulgate regulations governing OCS
surveys for renewable energy projects?
• Should BOEM require advance
coordination of survey activities with
other lessees operating on the OCS?
• Are there other policies or
requirements that BOEM should
consider in order to minimize the
adverse interaction between other users
of the OCS and those conducting
surveys that support renewable energy
activities on the OCS?
Please see the ADDRESSES caption at
the beginning of this notice to send
responses to these questions and any
other comments that you have. If you
have any data or information that could
be used to evaluate the extent of this
problem, or potential costs or benefits of
instituting additional procedures to
address it, please provide that
information as well. Please see the FOR
FURTHER INFORMATION CONTACT caption
at the beginning of this notice if you
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have questions or comments regarding
this topic.
D. Certified Verification Agent and
Engineering Reports
1. Existing Regulations
As discussed above, the current
subpart G of BOEM’s regulations
governs the design, fabrication, and
installation of offshore wind facilities
following plan approval—as well as the
process by which independent thirdparty CVAs are nominated, selected,
and tasked with duties for project
engineering review.
2. Why the Existing Regulations Should
Be Updated
The existing regulations use
terminology to describe the role of the
CVA that is not consistent with industry
practices. They also are inexplicit
regarding the flexibility that lessees or
grant holders are afforded in the timing
and composition of their FDRs and FIRs,
and ambiguous regarding what
procurement and fabrication activities
lessees or grant holders can carry out
before BOEM’s review of these reports.
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3. Proposed Changes
(a) Certified Verification Agent Roles
and Flexibility
BOEM and the Bureau of Safety and
Environmental Enforcement (BSEE),
concurrently review reports for design
and construction of the facilities.
However, rather than relying solely on
agency engineering expertise, the
bureaus also require lessees to use a
CVA to provide independent third-party
review of a project’s FDR and FIR. The
CVA plays an integral role in BOEM’s
determination that a proposed OCS
renewable energy facility will be
designed and constructed safely using
best engineering practices in accordance
with § 585.700(a)(1). The CVA also is
expected to monitor fabrication and
installation activities and to submit a
final report to BOEM before the start of
commercial operations or other
approved activities in accordance with
§ 585.700(a)(2). So that the Department
is able to ‘‘ensure that any activities . . .
are carried out in a manner that
provides for safety’’ as required by
§ 585.102(a), the Department proposes
to add a requirement that the CVA
verify the facility’s design, taking
human safety into appropriate
consideration. In addition, the CVA
would be required to evaluate the
commissioning of any critical safety
systems. Critical safety systems would
be defined as safety systems and
equipment designed to prevent or
ameliorate major accidents that could
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result in harm to health, safety, or the
environment associated with facilities.
The Department proposes to change
all ‘‘certification’’ references in the
proposed subpart H to ‘‘verification.’’
This modification would align the
regulations with industry standards.51
The proposed rule also would add
flexibility to the CVA nomination
process. Currently, a lessee or a grant
holder must submit its CVA
nominations with its SAP, COP, or
GAP.52 BOEM approves or disapproves
CVA nominations as part of its plan
review.53 Multiple lessees have
expressed a desire to have approved
CVAs in place before COP submittal so
the CVA may provide third-party review
of design concepts in the COPs. This
reasoning also supports CVA review of
SAPs and GAPs before submittal. The
Department believes that integrating
CVA review into the earliest stages of
the design and permitting process is
consistent with its policy goals of
encouraging safety and best engineering
practices. We also recognize that a
lessee or a grant holder may need to
nominate new CVAs as the project
progresses (for instance, if a design
parameter changes at a late stage) or to
request the replacement of an approved
CVA if that CVA is ineffective or can no
longer perform its duties. As a result,
the proposed rule would provide
flexibility for the Department, lessees,
and grant holders by decoupling the
CVA nomination and approval process
from plan submittal and approval. The
proposed rule also clarifies that a lessee
or a grant holder may nominate separate
CVAs to review different components of
a project.
51 Panel on Certification of Offshore Structures,
National Research Council, Verification of Fixed
Offshore Oil and Gas Platforms 8–9 (1977), https://
www.nap.edu/read/18431/chapter/1 (opining that
‘‘verification’’ is the preferred description of the
procedure assuring stakeholders that appropriate
environmental and operating factors have been duly
considered in the design, construction, and
installation of offshore oil and gas platforms); see
also Transportation Research Board, Nat’l
Academies of Sciences, Engineering, and Medicine,
Structural Integrity of Offshore Wind Turbines,
Oversight of Design, Fabrication, and Installation
96–108 (2011) (discussing role of third party
oversight and certified verification agents in the
offshore wind industry).
52 For COP requirements, see 30 CFR
585.626(b)(20), 706(a). For SAP and GAP
requirements, see 30 CFR 585.610(a)(9) and
585.645(c)(5), respectively. CVA nominations are
required in a SAP and a GAP if BOEM determines
the facilities proposed in those plans require an
FDR and FIR because they are complex and
significant. See 30 CFR 585.700(a), 705, 706(a).
53 30 CFR 585.706(e).
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(b) Staged Submittal of the Facility
Design Report and Fabrication and
Installation Report
The Department recognizes that the
construction of an offshore renewable
energy facility is complex and that the
procurement and installation of
components depends on a wide range of
project-specific factors that may change
over time. These factors include
availability of port facilities and
installation vessels, weather conditions,
seasonal construction restrictions,
project financing, and approval of
permits and authorizations. Requiring a
lessee or a grant holder to submit only
one FDR and FIR ignores that timedependent complexity and could lead to
unnecessary inefficiencies and delays.
Indeed, lessees have already requested
permission to submit separate, staged
reports for discrete major project
components. If the Department approves
such requests, those lessees could begin
fabricating and installing certain
components while other components
are being verified by a CVA. We
acknowledge that some major project
components may require analysis
upfront to ensure safety and adherence
to best engineering practices but
believes that more flexibility is
warranted in the timing of component
review.
The Department believes that
allowing staged submittal of FDRs and
FIRs addresses this complexity and
provides appropriate flexibility without
compromising its project review.
Though BOEM’s existing regulations
permit staged FDR and FIR submittal,
this proposed rule would clarify that
authority and would better define the
circumstances under which staged
submittal would be allowed.
Importantly, staged submittals would be
allowed only if the lessee or grant
holder could explain how the
constituent major components would
function together in an integrated
manner and could demonstrate that a
CVA has verified such integration. The
Department believes these two
qualifications would minimize the risk
that a lessee or grant holder would have
to modify completed fabrications or
installations based on any subsequent
Department or CVA objections to laterreviewed components of the project.
(c) Definition of ‘‘Fabrication,’’ and
Early Fabrication of Facility
Components
Because of the long lead times for the
procurement or fabrication of some
components for offshore wind energy
facilities, numerous lessees have
expressed interest in the procurement or
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fabrication of facility components before
submittal of their COPs, FDRs, and FIRs.
This ‘‘early fabrication of facility
components’’ would take place outside
of the OCS (e.g., onshore
manufacturing).
The existing regulations provide that
a lessee or a grant holder may begin to
fabricate and install approved facilities
only after BOEM notifies the lessee or
grant holder that it has received the FDR
and FIR and has no objections.54 BOEM
has previously read this provision
conservatively and required lessees to
obtain departures before they ‘‘begin’’
any fabrication prior to BOEM’s
notification that it has no objection to
their FDR and FIR, even if the
fabrication, i.e., manufacture, does not
occur on the OCS. Lessees have asked
BOEM to clarify what constitutes
‘‘fabrication’’ because they want to
accelerate timelines by proceeding with
procurement or fabrication activities
outside of the OCS prior to receiving
BOEM’s non-objection to the FDR and
FIR or the end of BOEM’s 60-day review
of the FDR and FIR without objections.
The Department has determined that
the term ‘‘fabrication,’’ as used in the
current subpart G, is arguably
ambiguous and, therefore, further
clarifying this term would be useful for
the regulated community. BOEM has
granted departures from the
requirements of § 585.700(b) on a caseby-case basis,55 provided that the
departure request meets the
requirements in BOEM’s regulations and
the lessee or grant holder assumes all
business risk associated with fabrication
activities that occur as a result of the
departure. Whenever granting a
departure for early fabrication, BOEM
reserved the right to object to the
fabrication methodologies described in
the submitted FDR and FIR before the
lessee began installation of facility
components on the OCS. The
Department has now concluded that the
regulation in question prohibits only the
fabrication and installation of facility
components that take place on the OCS
(e.g., assembly, construction, or
installation). Therefore, the fabrication
of facility components that does not take
place on the OCS may be carried out
prior to the submittal of an FDR, FIR, or
any plans under the regulations, and
such activities do not require the prior
issuance of a departure. However, the
fact that fabrication activities outside
the OCS can commence prior to the
54 30 CFR 585.700(b). BOEM is also ‘‘deemed’’ to
have no objections if BOEM does not object within
60 days of receiving the reports.
55 See BOEM’s record of departure requests at
https://www.boem.gov/departure-request.
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submittal of an FDR, FIR, or any plans
does not prevent the Department from
objecting to the installation of such
components on the OCS if their
fabrication is inconsistent with accepted
industry or engineering standards, the
approved SAP, COP, or GAP, or the FDR
or FIR, or regulations. To codify this
policy, the Department proposes to
amend the existing regulations to
remove any doubt that only fabrication
activities that take place on the OCS are
prohibited prior to the Department nonobjection of the FDR and FIR or the end
of the 60-day review period without
objections.
The Department also proposes to
include in 585.112 a definition for the
term ‘‘fabrication,’’ which would be
defined as ‘‘cutting, fitting, welding or
other assembly of project elements of a
custom design conforming to projectspecific requirements,’’ and would
exclude from this definition the
procurement of discrete parts of the
project that are commercially available
in standardized form (such as electrical
components, magnets, and gears) and
type-certified components (such as
nacelles and blades).56
Consequently, the proposed rule
would reduce the number of
components that are considered
‘‘fabricated’’ through the definition. The
proposed rule would clarify that
fabrication activities that do not take
place on the OCS can commence before
the submittal of the FDR, FIR, or any
plans required under regulations. This
proposed change would not in any way
limit BOEM’s ability to conduct a robust
environmental review during the plan
approval process; BOEM’s consideration
of alternatives and mitigations would be
unaffected. The rule would also clarify
that all facility components procured or
fabricated (regardless of where they
were fabricated) would be subject to
CVA verification. This requirement
would reduce the risk of a lessee or
grant holder seeking short-term cost
savings to the detriment of safety and
accepted engineering practices. The
lessee or grant holder assumes any
business risk associated with the
procurement or fabrication of facility
components prior to plan approval or
the Department non-objection to the
FDR and FIR or the end of the 60-day
review period without objections. In
order to avoid the business risk of
56 Component type-certification (for type-certified
components) provides independent proof that
critical main components of a wind turbine meet
relevant international standards and codes for
performance and safety. Component typecertification differs from project certification, which
assesses the performance of a group of wind
turbines on a specific project site.
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objections to the fabrication of facility
components prior to installation,
developers can always opt not to
fabricate until their FDR and FIR have
gone through the 60-day review period
without objections or received a nonobjection to the FDR and FIR. Although
such procurement and fabrication
activities are not prohibited by the
regulations, the proposed rule would
clarify that the Department reserves the
right, during its FDR and FIR reviews,
to object to the installation of previously
procured or fabricated facility
components if said components are
inconsistent, or were not fabricated in
accordance with, accepted industry or
engineering standards, the approved
SAP, COP, or GAP, or the FDR or FIR,
or BOEM’s regulations.
Clarifying that the regulations do not
prohibit all procurement or fabrication
activities prior to the submittal of the
FDR and FIR provides maximum
flexibility to the industry, while still
allowing the goals of the regulation to be
met (i.e., to prevent the installation of
facility components on the OCS if the
Department has objections to their
fabrication or the installation
methodologies proposed in the FIR).
E. The Renewable Energy Leasing
Schedule
1. Existing Regulations
The existing regulations do not
address the preparation of a renewable
energy leasing schedule. Under the
existing regulations, BOEM announces
lease sales individually as each is
scheduled.
2. Why the Existing Regulations Should
Be Updated
BOEM proposes to add a new section
to the regulations, entitled ‘The
Renewable Energy Leasing Schedule’ to
indicate BOEM’s intent to publish a
proposed five-year leasing schedule for
the OCS renewable energy program.
This would provide greater
transparency to the leasing process by
giving stakeholders as much advance
notice as possible of proposed lease
sales.
The Secretary provided a preview of
such a schedule on October 13, 2021, by
announcing plans for BOEM to
potentially hold up to 7 new offshore
lease sales by 2025 in the Gulf of Maine,
New York Bight, Central Atlantic, and
Gulf of Mexico, as well as offshore the
Carolinas, California, and Oregon. The
proposed regulation would require a
proposed leasing schedule and periodic
updates to the schedule. Through a
proposed schedule, BOEM would
provide increased certainty and
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enhanced transparency, and facilitate
planning by industry, the States, and
other stakeholders. With this change,
DOI can lay out an ambitious roadmap
to confront climate change, create goodpaying jobs, and accelerate the nation’s
transition to a cleaner energy future.
3. Proposed Changes
The proposed rule would include a
new section describing the renewable
energy leasing schedule. This proposed
schedule would include a list of
locations under consideration for
leasing and a leasing schedule that
BOEM intends to follow in announcing
its future renewable energy lease sales.
According to this proposal, at least once
every two years, the Secretary would
publish a schedule of proposed lease
sales. As a proposed schedule, it would
not obligate BOEM to offer all sales on
the schedule; BOEM would adjust the
schedule as necessary through the
scheduled updates. The first published
schedule would be issued for the fiveyear period following the effective date
of this rulemaking, and subsequent
schedules will cover the five-year
period after each update. This schedule
would include a general description of
the area of each proposed lease sale, the
calendar year in which each lease sale
is projected to occur, and the reasons for
any changes made to the previous
schedule. Every time the schedule is
updated, BOEM would identify those
lease sales that are being considered for
the following 5-year period.
The Inflation Reduction Act (IRA),
Public Law 117–169, requires that,
during the 10-year period beginning on
August 16, 2022, BOEM may not issue
an OCS wind lease unless an OCS oil
and gas lease sale has been held during
the 1-year period ending on the date of
the issuance of the wind lease and the
sum total of acres offered for lease in
OCS oil and gas lease sales during that
1-year period is at least 60 million acres.
BOEM will comply with the
requirements of the IRA.
This Renewable Energy Leasing
Schedule would differ substantially
from the Five Year Oil and Gas Leasing
Program, described in the oil and gas
regulations in 30 CFR part 556.
Compared to the Five Year Oil and Gas
Leasing Program, which is mandated
under section 18(a) of the OCS Lands
Act, the proposed Renewable Energy
Leasing Schedule would be much less
complicated and would not constitute a
final action enforceable or challengeable
administratively or in the courts. The
proposed regulations would not have
requirements for public meetings,
comment periods, or iterative proposals,
and would not include a list of factors
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that must be considered other than
those already enumerated in § 585.102.
Any proposed lease sale covered by the
schedule would be subject to all
applicable regulations, including area
identification, coordination with
relevant parties, and applicable
environmental reviews.
BOEM seeks comment on its proposal
to publish a proposed Renewable
Energy Leasing Schedule and what
information should be provided as part
of this schedule. BOEM is soliciting
comments specifically on the content
and the timing of the schedule updates,
as well as generally on how best to
provide a schedule to improve
transparency of renewable energy
development on the OCS.
F. Lease Issuance Procedures
1. Existing Regulations
During the past 10 years, the existing
lease issuance procedures have been
criticized for being too prescriptive in
some aspects and unclear in others. The
existing procedures constrain flexibility
by prescribing auction formats,
processes, systems, and variables.
BOEM has determined that the lease
issuance process requires added
flexibility, transparency, and clarity and
that its regulations should address
possible consequences when the
provisional winner fails to execute a
lease, a lessee relinquishes a lease, or
BOEM contracts or cancels a lease.
2. Why the Existing Regulations Should
Be Updated
BOEM proposes to revise several
aspects of its lease issuance procedures
primarily for simplification,
clarification, and conformance with
existing agency practice.
3. Proposed Changes
(a) Pre- and Post-Auction Procedures
This proposed rule would reorganize,
simplify, and clarify the sections of
BOEM’s regulations that detail the steps
leading to an OCS renewable energy
auction. The proposed rule would
introduce a new term, ‘‘provisional
winner,’’ to describe the bidder that
BOEM determines has submitted the
winning bid at the close of the auction,
pending completion of the government’s
post-auction reviews and the lease
award reconsideration process. The
provisional winner becomes the
winning bidder upon favorable
completion of these reviews and
appeals. The proposed rule would
consolidate the reconsideration and
appeal provisions into a single section
while retaining separate processes for
seeking the review of a decision
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5985
selecting a provisional winner and for
appealing all other final decisions under
this part. The proposed rule would
simplify and clarify post-auction
procedures by outlining what BOEM
and a provisional winner must do
between the auction and lease
execution. The proposed rule would
eliminate the term ‘‘request for interest’’
and replace it with the broader term
‘‘request for information.’’ Finally, the
proposed rule would change the due
date for payment of the first 12 months’
rent to 45-calendar days after the
winning bidder receives a copy of the
executed lease.
(b) Auction Processes and Rules
BOEM recognizes that the auction
formats and bidding systems described
in the existing §§ 585.220 and 585.221
are difficult to understand and overly
prescriptive, although they allow for
customization of each auction. This
proposed rule would simplify and
clarify the auction regulations, replacing
the currently enumerated auction
formats, bid systems, and bid variables
with a more flexible process to better
accommodate an emerging industry
while allowing for auctions to be
customized based on circumstances.
The proposed rule would meet the
fundamental policy objectives to have a
process that is objective, fair,
reasonable, and competitive; awards
leases to the highest bidder; and
provides a fair return to the U.S.
taxpayer. Consistent with BOEM’s
existing practice, the PSN would
propose the specific format and
procedures for an upcoming auction,
and the public would have an
opportunity to submit comments that
would inform BOEM’s final decisions
regarding format and procedures. BOEM
would publish the final auction format
and procedures in the FSN. This
proposed rule would allow BOEM
greater flexibility to tailor each auction
to fit the particular circumstances.
(c) Multiple Factor Auctions and
Bidding Credits
BOEM proposes to continue to
implement multiple factor auctions,
through the use of bidding credits, to
allow the competitive lease award
process to take into consideration
various priorities, such as advancing a
domestic supply chain or requiring
workforce development agreements,
relating to orderly development of OCS
renewable energy resources. The
multiple factor auction format ascribes a
value, expressed in monetary terms, to
the factors or actions demonstrated or
committed to by a bidder at a lease
auction during the competitive lease
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award process. In each round of the
auction, a bid may have a non-monetary
component represented by the bidding
credit as well as a monetary (cash)
component.
A multiple factor auction using
bidding credits would be expected to
proceed along the lines of the following
example. We assume there are three
qualified bidders in an ascending bid
clock auction, which is the same
auction format traditionally used for
BOEM’s wind energy lease sales. Bidder
A has met the requirements for a
bidding credit of 10 percent of the cash
component by having obtained a power
purchase agreement (PPA); Bidder B has
met the requirements for a bidding
credit of 20 percent of the cash
component by having committed to
appropriate workforce or supply chain
development agreements; and Bidder C
has not earned or made the requisite
commitments to earn a credit.
The auction begins with an opening
bid of $100 with subsequent $10
bidding increments per round. The
auction continues for seven rounds.
Bidder C submitted an exit bid in Round
6 and is ineligible to continue bidding.
The auction concludes when Bidder B
bids the asking price in Round 7 and
Bidder A submits an exit bid less than
the asking price. Bidder B wins the
auction with its lower cash bid
combined with its commitment to
workforce training and supply chain
development. The example bidding
results are shown in the following table.
TABLE—OFFSHORE WIND AUCTION EXAMPLE
Bidding
round
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1
2
3
4
5
6
7
.............
.............
.............
.............
.............
.............
.............
BOEM’s
asking price
(combined bid)
$100
$110
$120
$130
$140
$150
$160
Bidder A
(10 percent credit)
Bidder B
(20 percent credit)
$90.90 cash + $9.10 credit ......................
$100 cash + $10 credit ............................
$109.09 cash + $10.91 credit ..................
$118.18 cash + $11.82 credit ..................
$127.27 cash + $12.73 credit ..................
$136.36 cash + $13.64 credit ..................
Exit bid of $140 cash + $14 credit =
$154.00.
$83.30 cash + $16.70 credit ....................
$91.67 cash + $18.33 credit ....................
$100 cash + $20 credit ............................
$108.33 cash + $21.67 credit ..................
$116.67 cash + $23.33 credit ..................
$125 cash + $25 credit ............................
$133.33 cash + $26.67 credit = $160.00
(winner).
Before the auction, BOEM will
determine each bidder’s eligibility for
bidding credits in accordance with the
specifications of the FSN; however,
such eligibility may be established
either for actions that the bidder has
already undertaken or for actions which
it has committed to undertake in the
future, provided that BOEM has agreed
to the terms by which such a
commitment will be made. Eligibility
for bidding credits would be tied to
specific actions defined in the FSN that
facilitate OCS renewable energy
development by increasing the
likelihood or pace of development—for
instance, a PPA—or by advancing other
public policy goals reflected in the OCS
Lands Act. The FSN would contain the
rules governing the eligibility of parties
to obtain bidding credits, as well as the
application process, use, and value of
bidding credits in a specific auction. As
it has done in the past, BOEM would
consider the enforceability of
commitments made by bidders during
the design of the auction credits to be
offered in specific lease sales. In the
past, this was not much of a concern
because BOEM mostly offered credits
for commitments and achievements
previously made. This proposed rule
would clarify that a bidder may be
eligible for bidding credits based on
actions the bidder has already
undertaken or for commitments to
future actions. However, in proposed 30
CFR 585.225, this rule would also
provide that, in the event that a lessee
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does not meet the commitments it made
to obtain any bidding credits, the lessee
would be required to repay the value of
the bidding credits that it received,
adjusted for inflation. BOEM would also
reserve the right to impose civil
penalties pursuant to the provisions of
subpart N of 30 CFR 550 for failure to
comply with the terms or provisions of
a lease, easement, or right-of-way.
According to the provisions of this
proposed rule, a multiple factor auction
may take one or more non-monetary
factors into consideration, including: (1)
power purchase agreements; (2)
eligibility for, or applicability of,
renewable energy credits or subsidies;
(3) development agreements by a
potential lessee that facilitate shared
transmission solutions and grid
interconnection; (4) technical merit,
timeliness, financing and economics,
environmental considerations, public
benefits, or compatibility with State and
local needs; (5) agreements or
commitments by the developer that
would facilitate OCS renewable energy
development or other OCS Lands Act
goals; or (6) any other factor or criteria
to further development of offshore
renewable energy in a sustainable and
environmentally sound manner, as
identified by BOEM in the PSN and
FSN.
(d) Solicitation of Comments
BOEM seeks comments on the use of
bidding credits and multiple factor
auctions as a method of advancing
important priorities, such as promoting
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Bidder C
(no credit)
$100.00.
$110.00.
$120.00.
$130.00.
$140.00.
$145.00 (exit bid).
[ineligible to bid].
workforce development or supply chain
enhancement, consistent with the goals
of the OCS Lands Act. It is BOEM’s goal
to ensure that there is adequate
flexibility to the leasing process to
achieve public policy goals and any
comments or suggestions as to how
BOEM could best achieve this objective
would be welcome. Specifically, BOEM
is interested in obtaining comments on
how bidding credits or factors might be
tailored to mitigate possible adverse,
project-related impacts. For example,
BOEM is interested in receiving
comment on what impacts a project
could have on underserved
communities and how bidding credits
or multiple factor auctions can be used
to promote mechanisms such as
community benefit agreements that
could address those impacts and
provide benefits to the underserved
communities. Comments on alternative
means to achieve public policy goals,
such as through lease stipulations, are
also sought.
(e) Improper or Inappropriate Bidder
Communications
The proposed rule would explicitly
prohibit a bidder from disclosing its
auction strategies and economic
valuations of a lease area to other
bidders in a particular auction in any
manner that might prevent the United
States from obtaining a fair return on a
prospective lease. Such practices have
been prohibited in recent FSNs.
This proposal would outline the rules
applicable to all auctions and the
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processes BOEM would use to
disqualify a bidder that no longer meets
qualification requirements or who
engages in specified improper conduct.
The proposed rule would specify how a
disqualified bidder might seek to be requalified as a bidder.
2. Why the Existing Regulations Should
Be Updated
(f) Provisional Winner Obligations
This proposed rule would revise
BOEM’s risk management and financial
assurance requirements in the proposed
subpart F. The revisions are intended to
facilitate OCS renewable energy
development while continuing to
protect the U.S. taxpayer against risks of
default. The proposed rule would
accomplish both goals through four key
changes. Other minor proposed changes
are addressed in section VI.F. BOEM
also seeks comment on additional
potential changes that would better
align financial assurances to risk
discussed in subsection 3(e) below.
This proposed rule would define the
term ‘‘provisional winner’’ and would
outline consequences if a provisional
winner fails to sign the lease agreement,
provide the requisite amount of
financial assurance, or tender the
outstanding bid balance. The proposed
rule would provide a list of actions that
BOEM is authorized to take if a
provisional winner fails to fulfill its
obligations. In addition, because the
proposed rule would allow a
provisional winner to become a lessee
before it has completed all obligations
for which it obtained bidding credits, an
additional provision has been added to
proposed § 585.225, specifying that a
lessee that has obtained bidding credits
for prospective performance obligations
that were not fulfilled at the time of the
lease award, are subject to repayment in
the event that those performance
obligations are not ultimately met prior
to a specified deadline or event. BOEM
would also reserve the right to impose
civil penalties pursuant to the
provisions of subpart N of 30 CFR 550
for failure to comply with the terms or
provisions of a lease, easement, or rightof-way.
(g) Re-Offering Leases at Auction or
When a Lease Area Is Relinquished,
Contracted or Cancelled
The proposed rule would provide
clear authority for BOEM to offer a lease
to the next highest bidder if a
provisional winner of a lease auction
fails to fulfill its obligations before lease
execution or is otherwise unable to
execute a lease. Similarly, if a lessee
relinquishes its lease or BOEM contracts
or cancels a lease in whole or in part,
BOEM may re-offer the area previously
covered by the lease.
G. Risk Management and Financial
Assurance
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As discussed above, under the current
subpart E of part 585, BOEM requires
lessees and grant holders to provide
financial assurance, in the form of a
bond or other instrument, in an amount
sufficient to guarantee compliance with
terms and conditions of their leases and
grants.
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3. Proposed Changes
(a) Elimination of COP Approval
Financial Assurance Requirement
The proposed rule would eliminate
the supplemental financial assurance
currently required before COP
approval.57 This requirement was
intended to protect the U.S. taxpayer
against liability from defaulted lease
obligations that accrue after COP
approval.58 However, decommissioning
liabilities do not accrue from COP
approval; such liabilities accrue only
with the commencement of approved
activities on the OCS.59 BOEM’s
regulations require—and this proposed
rule would continue to require—
supplemental financial assurance before
OCS installation starts in order to cover
those liabilities, i.e., anticipated
decommissioning costs. Therefore,
BOEM proposes to eliminate as
unnecessary the requirement for
supplemental financial assurance before
COP approval. In the unforeseen event
that a COP approval does, by itself,
cause the accrual of new obligations,
BOEM retains the authority to assess
supplemental financial assurance on a
case-by-case basis under § 585.517.60
57 30
CFR 585.516(a)(3).
Renewable Energy and Alternate Uses of
Existing Facilities on the Outer Continental Shelf
Final Rule, 74 FR 19637 (Apr. 29, 2009), available
at https://www.boem.gov/Renewable-EnergyProgram/FinalRenewableEnergyRule-pdf.aspx.
59 Under both the existing regulations and the
proposed rule, OCS installation of approved
facilities may begin only after the lessee addressed
all CVA and BOEM concerns raised during their
FDR and FIR reviews to their satisfaction.
60 Where a permit under the National Marine
Sanctuaries Act may be required, NOAA’s Office of
National Marine Sanctuaries may require certain
financial assurances for infrastructure removal
activities potentially required under the permit.
58 See
1. Existing Regulations
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The existing financial assurance
regulations lack flexibility and clarity in
several key areas, as explained below.
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5987
(b) Revision of Lease-Specific Financial
Assurance Amount
The proposed rule would simplify the
requirements for financial assurance
during the early stages of a commercial
lease. Currently, before BOEM will
execute a commercial lease, the lessee is
required to provide lease-specific
financial assurance in the amount of
$100,000 to guarantee compliance with
the lease terms and conditions. BOEM
recognizes, however, that annual rental
payment is the only financial obligation
accrued at lease execution and before
installation activities on the OCS are
authorized. BOEM currently assesses
financial assurance for 12 months of
rent when it makes its first request for
supplemental financial assurance—
typically during SAP review.61 This
practice leaves BOEM under-bonded for
the preliminary term of a lease if annual
rent exceeds $100,000, which it
generally does.
BOEM, therefore, proposes to replace
the $100,000 lease-specific financial
assurance with financial assurance in
the amount of 12 months’ rent, due
before lease execution. This amendment
would ensure that BOEM and U.S.
taxpayers are adequately bonded
throughout the early stages of the lease.
Combined with the proposed
elimination of financial assurance for
met buoy decommissioning, this
amendment would simplify financial
assurance by eliminating the need for
supplemental financial assurance in
addition to 12 months’ rent before
installation of BOEM-approved facilities
on the OCS. The amendment is not
expected to have a financial impact on
lessees.62
Additionally, BOEM’s regulations
allow periodic adjustments to the
$100,000 lease-specific financial
assurance based on the Consumer Price
Index-All Urban Consumers or
equivalent index. With the proposed
replacement of the $100,000 leasespecific financial assurance, BOEM
proposes to eliminate these adjustment
provisions as obsolete. BOEM seeks
comments on the extent to which
additional modifications or
enhancements to the financial assurance
might be appropriate.
Extending the reasoning in this
section, the proposed rule also would
change the financial assurance
requirement prior to issuance of limited
leases and grants from $300,000 to an
amount equal to 12 months’ rent.
61 30
CFR 585.516(a)(2).
discussed in section V.A above, BOEM
proposes to eliminate SAPs for met buoys, which
have become the predominate facilities for OCS site
assessment activities.
62 As
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(c) Additional Authorized Financial
Assurance Instruments
The proposed rule would provide
greater flexibility regarding the financial
assurance instruments that BOEM
would accept. While BOEM’s
regulations list types of acceptable
financial assurance instruments,
BOEM’s regulations permit it to accept
other instruments that meet the general
requirements for financial assurance in
30 CFR 585.525. Several lessees have
expressed an interest in using letters of
credit, which are accepted as financial
assurance across a range of industries.
The proposed rule explicitly would
allow letters of credit as permissible
financial assurance instruments and
would set forth evaluation criteria for
their use. The proposed rule would add
catch-all provisions clarifying that
BOEM may accept instruments not
explicitly listed as well as combinations
of different instruments; however, these
instruments would need to meet
BOEM’s general requirements for
financial assurance as noted above.
These changes would provide greater
flexibility to a lessee and a grant holder,
but still protect the United States
against default.
The proposed rule also would provide
lessees and grant holders with greater
flexibility when using a third-party
guaranty by allowing guarantors to cap
their liability. BOEM’s existing
regulations require a third-party
guaranty to cover the full amount of all
lease and grant obligations. The
proposed rule would grant BOEM the
discretion to approve a third-party
guaranty for a specific amount. This
modification would provide lessees and
grant holders with the flexibility to use
a third-party guaranty up to a certain
dollar amount and to satisfy the
remainder of their financial assurance
obligations through other acceptable
instruments. Given that BOEM would
retain the ability to approve all
proposed financial assurance
instruments and that the criteria for
such instruments would remain
unchanged, BOEM believes these
changes would not increase the risk to
U.S. taxpayers.
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(d) Staged Funding of Decommissioning
Accounts
The proposed rule would allow staged
funding of decommissioning accounts
during the operations period of a lease
or grant to satisfy financial assurance
requirements for decommissioning.
BOEM’s existing regulations require full
funding of a decommissioning account
for each renewable energy facility, such
as a wind turbine generator, before its
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installation on the OCS. This places a
significant upfront capital burden on a
lessee or a grant holder.
BOEM strives to develop a financial
assurance framework for the renewable
energy sector that accomplishes the
same goal of protecting the taxpayer as
does the financial assurance framework
governing the oil and gas sector. BOEM
also recognizes that there are key
differences between the renewable
energy and oil and gas sector that
necessitate different approaches.
Notably, offshore renewable energy is
projected to maintain consistent levels
of power production over the life of a
project, as opposed to production
decline curves associated with oil and
gas production from offshore wells. In
addition, the risk that predicted levels
of oil and gas reserves may be overstated
is also not a concern with offshore
renewable energy projects. Additionally,
renewable energy projects often have
legally binding PPAs, which ensure an
ongoing revenue source over a
significant time horizon and eliminate
another major risk factor faced by the oil
and gas sector: commodity price
volatility. This relatively consistent
production, combined with PPAs that
often guarantee a market for power at
predictable prices over 15 to 20 years,
allows BOEM to receive revenue and
make profitability projections with a
much greater degree of certainty than for
conventional energy assets.
BOEM’s proposal to set a scheduled
and staged implementation of a
decommissioning trust account or other
financial assurance funding mechanism
is also appropriate given that the
funding schedule is established at the
beginning of the operations period,
significantly before decommissioning is
scheduled to occur, as opposed to after
the assets have been operating for years
and may be approaching or past
scheduled end-of-life. The proposed
rule would allow BOEM to approve a
schedule for funding decommissioning
accounts during a lease’s or grant’s
operations period on a case-by-case
basis.63 In all instances, the
decommissioning account would be
required to be fully funded by the time
a lessee or grant holder is obligated to
decommission the applicable facility.
This proposed change would align
BOEM’s financial assurance regulations
with common European practices.
BOEM believes the risk of this
proposed change to U.S. taxpayers is
negligible. First, the proposed rule
would not commit BOEM to allowing
63 The operations period for a commercial lease
is defined at § 585.235(a)(4); for a limited lease,
§ 585.236(a)(2); and for a grant, § 585.303(b).
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staged funding of a decommissioning
account in all instances. If BOEM
believes that a particular project poses
a high financial risk, BOEM could
require full funding of the
decommissioning account before OCS
installation. Second, the European
industry has a strong history of solvency
that BOEM believes would extend to the
U.S. industry because the lessees and
projects share many of the same
characteristics. Third, BOEM anticipates
that even if a lessee became insolvent
during its commercial operations
period, it would likely be able to
transfer a functioning OCS renewable
energy facility to a solvent entity
because the revenues would be expected
to exceed operating costs.
(e) Other Financial Assurance
Provisions
BOEM is considering additional
changes to its existing financial
assurance framework. In December
2015, the Government Accountability
Office highlighted risks in BOEM’s
financial assurance procedures
applicable to the offshore oil and gas
industry and recommended that BOEM
complete its planned financial
assurance revisions ‘‘including the use
of alternative measures of financial
strength.’’ 64 Subsequently, BOEM is
considering a new rulemaking to revise
the financial assurance regulations for
its offshore oil and gas program while
continuing to protect U.S. taxpayers
against defaulted obligations incurred
by lessees and grant holders.65
The oil and gas rulemaking initiative
could consider reliance on credit ratings
with a specific regulatory credit rating
threshold for BOEM’s evaluation of the
financial strength and reliability of a
lessee, grant holder, or third-party
guarantor. In all cases, BOEM could
retain the discretion to require
supplemental financial assurance in
situations where it is warranted.
Similarly, in its renewable energy
program, BOEM is considering use of a
minimum credit threshold rating to help
determine the necessity for financial
assurance. BOEM is not proposing
regulatory text implementing this
concept and is not specifying a credit
rating threshold in this rulemaking.
BOEM does seek comments on the
merits of this concept for potential
inclusion in the final rule for the
renewable energy program. Regulatory
64 Government Accountability Office, GAO–16–
40, Offshore Oil and Gas Resources, Action Needed
to Better Protect Against Billions of Dollars in
Federal Exposure to Decommissioning Liabilities 34
(2015), https://www.gao.gov/products/GAO-16-40.
65 Risk Management, Financial Assurance and
Loss Prevention, 85 FR 65904 (Oct. 16, 2020).
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text implementing this proposal likely
would result in BOEM replacing many
of the factors that currently guide
BOEM’s determination of a lessee’s or
grant holder’s financial strength in the
existing § 585.527, or adding provisions
outlining additional methods for
determining financial strength.
(i) Credit Ratings
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Currently, BOEM requires a
commercial lessee to provide
supplemental financial assurance before
installing facilities included in the
approved COP.66 Under existing
regulations, BOEM may allow a lessee
or grant holder to use its financial
strength and reliability to cover its
financial assurance based on an
evaluation of audited financial
statements; business stability;
reliability; and a record of compliance
with laws, regulations, and contracts.67
Based on a similar evaluation of a
guarantor, BOEM also may allow a
lessee or grant holder to use a thirdparty guarantee to meet its financial
assurance requirements.68
These factors primarily assess past
performance as a proxy for future
financial strength and reliability. In
dynamic electricity markets, however,
such backward-looking factors may lead
to inaccurate and inconsistent
assessments of financial strength and
reliability.
A forward-looking assessment would
be more reliable because the financial
situation of a lessee, grant holder, or
third-party guarantor can worsen
quickly despite its past performance.
Credit ratings provide such forwardlooking assessments by taking into
account relevant factors, such as cash
flow, debt-to-income ratios, and debt-tofunds from operation.
BOEM seeks comment on whether it
should alter its assessment of financial
strength and reliability by replacing the
use of several current factors with a
credit rating from a nationally
recognized statistical rating organization
(NRSRO), as identified by the U.S.
Securities and Exchange Commission
under the Credit Rating Agency Reform
Act of 2006 and its implementing
regulations,69 or a proxy credit rating
determined by BOEM using audited
financial statements. Based on BOEM’s
66 30 CFR 585.516(a)(4). BOEM may adjust the
amount of the supplemental financial assurance as
cumulative obligations increase or decrease during
the lease. 30 CFR 585.517(c). On a grant or limited
lease, BOEM may require supplemental financial
assurance as activities progress and obligations
accrue. 30 CFR 585.521(a).
67 30 CFR 585.527(a).
68 30 CFR 585.528(b).
69 See 17 CFR parts 240 and 249.
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experience in the oil and gas industry,
BOEM has concluded credit ratings are
the most reliable predictor of future
ability to meet obligations.70 The use of
credit ratings would align BOEM’s
assessment with widely accepted risk
evaluation methods within the banking
and financial industry.
BOEM believes that an NRSRO credit
rating greater than or equal to
investment grade from Standard &
Poor’s Ratings Service (S&P) or from
Moody’s Investor Service would be a
sufficient indicator of future reliability
to allow a lessee or grant holder to use
its financial strength to meet its
requisite financial assurances. BOEM
also proposes to use the same credit
rating criteria to evaluate the financial
strength and reliability of a lessee’s or
grant holder’s proposed third-party
guarantor. If a lessee, grant holder, or
guarantor lacks an NRSRO credit rating,
it would be allowed to submit audited
financial statements—which generally
include an income statement, balance
sheet, statement of cash flows, and
auditor’s certificate—prepared in
accordance with generally accepted
accounting principles. Based on these
audited financial statements, BOEM
then would determine a proxy credit
rating using the S&P Credit Analytics
credit model or a similar widely
accepted credit rating model. BOEM has
concluded that such a model, used in
conjunction with audited financial
statements, can generate a proxy credit
rating comparable to that of an NRSRO.
(ii) Joint and Several Liability
Currently, co-lessees and co-grant
holders are jointly and severally liable
for lease or grant obligations accruing
during their tenancy, including
decommissioning.71 When a lease or
grant is assigned, the assignor remains
liable for unmet obligations that accrued
before BOEM’s approval of the
assignment.72 The assignee is liable for
obligations that accrued before and after
BOEM’s approval of the assignment.73
Moreover, the assignee is required to
provide requisite financial assurance.74
This joint and several liability
significantly reduces the risk of nonperformance if any liable party has
adequate financial strength and
reliability.
BOEM seeks comment on whether it
should explicitly rely on the financial
strength and reliability of these other
70 Credit ratings are part of current reliability
criteria discussed in existing § 585.527(a)(3).
71 30 CFR 585.406(a).
72 30 CFR 585.410.
73 30 CFR 585.411(b).
74 30 CFR 585.408(b)(8).
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5989
liable parties, including any current or
predecessor lessees and grant holders,
when determining the need for, and
amount of, financial assurance
necessary to cover all accrued lease or
grant obligations.
H. Safety Management Systems
An SMS is a combination of policies,
procedures, and control mechanisms
designed to meet an organization’s
safety objectives in a disciplined and
continually improving manner. BOEM
regulations require a lessee or a grant
holder to develop an SMS for COPapproved renewable energy facilities
and for SAP- and GAP-approved
facilities that BOEM deems complex
and significant. The SMS must be
functional when a lessee or grant holder
begins its approved activities and
throughout the project.
1. Existing Regulations
BOEM’s existing SMS regulations are
brief and general, having been
promulgated in 2009 when construction
and operation activities were years in
the future. The regulations require a
lessee or a grant holder to submit a
general description of safety measures
and capabilities, emergency procedures,
and testing protocols. Multiple Federal
statutes authorize various safety
oversight activities by different agencies
for facilities on the OCS, including
renewable energy facilities. BOEM
recognizes that duplicative enforcement
of similar statutes by multiple agencies
is likely to be confusing and cause
unneeded cost and delay. Consequently,
BOEM and BSEE have coordinated with
the Occupational Safety and Health
Administration (OSHA) and the United
States Coast Guard (USCG)—the Federal
agencies primarily responsible for OCS
facility safety management—to assure
coordination and consistency with the
safety management responsibility of
these agencies for OCS facilities.
BOEM’s SMS requirements will become
the primary tool to ensure human and
environmental safety with respect to
renewable energy development on the
OCS. This rule is intended to clarify the
expectations of the SMS for the
regulated community. It is also designed
to clarify the expected content of an
SMS and support the assessment by
other Federal regulators that an SMS
performance-based approach to risk
management will establish a reasonable
regulatory framework.
2. Why the Existing Regulations Should
Be Updated
With construction and operation
activities expected to commence soon,
OCS wind lessees and contractors have
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informally asked BOEM to clarify its
expectations regarding SMS standards.
The proposed rule would address those
inquiries, incentivize SMS certification
from a recognized accreditation
organization, add two safety reporting
requirements, and clarify that lessees
and grant holders would be required to
have and use an SMS for all OCS
activities undertaken pursuant to a
lease, from site assessment through
decommissioning.
Additionally, the proposed changes
would reflect the recent DOI policy
statement clarifying that 30 CFR part
585 contains the primary workplace
health and safety regulations for OCS
renewable energy operations.75
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3. Proposed Changes
The Department proposes a
performance-based approach that would
promote flexibility in determining the
best way to ensure personnel safety on
and near OCS renewable energy
facilities during activities covered by
the SMS. The proposed SMS changes
are consistent with industry’s safety
management best practices. The
proposed amendments would allow a
lessee or grant holder to adopt U.S. and
international workplace health and
safety standards as its SMS framework.
Under the proposed rule, upon SMS
receipt, the Department would engage
with the lessee or grant holder to
understand the risks the safety system
was designed to mitigate and how the
system would function. The proposed
rule would provide transparency
regarding the types of information that
the Department considers necessary in a
satisfactory SMS and would clarify that
the Department expects the lessee or
grant holder to design, implement, and
maintain the SMS according to widely
accepted standard practices. This
clarification would help prospective
OCS renewable energy developers
understand the Department’s SMS
expectations.
The proposed rule would provide
incentives for a lessee or grant holder to
obtain certification of its SMS from a
recognized safety and environmental
management system CAB. A lessee or
grant holder whose SMS has been
certified would be eligible for
streamlined oversight in recognition of
the increased rigor in the development
and implementation of its SMS. While
such certifications would not be
required and cannot guarantee
streamlined oversight in all instances,
BOEM anticipates that most lessees and
75 Notification of policy statement, 84 FR 55861
(Oct. 18, 2019).
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grant holders would pursue certification
as a best practice.
The proposed rule would add two
reporting requirements. One report
would require an annual summary of
how the SMS performed, normalized to
work hours and energy generation. This
report would allow the Department to
verify SMS functionality and track
continual improvements.76 The second
would be a triannual report
summarizing the results of the most
recent SMS audit, the corrective actions
implemented, and a description of any
changes made to the SMS since the
prior report. Data from these reports
could be used to generate annual
industry-wide comparisons of safety
performance.
Finally, the proposed rule would
provide that a lessee must have a
functional SMS before beginning any
activity on the OCS pursuant to a lease,
and must use its SMS for all such
activities, including site assessment
work. This would clarify the
Department’s expectations regarding the
stages at which an SMS must be
functional and used, including prior to
the SAP, COP, or GAP.
lessee conduct annual onsite selfinspections. The lessee would also be
required to maintain records of its selfinspections and to provide these records
to the Department upon request. This
would make the lessee accountable for
ensuring safety and protection of the
environment. In addition, the
Department would retain the ability to
conduct inspections at any time.
This update would allow for DOI to
focus resources on conducting
inspections, both scheduled and
unscheduled, based on designated
criteria, such as operational risk severity
and risk probability, industry trends,
incident data, analytical data, safety
management system implementation
and audits, and other observations.
This proposal would also reduce
logistical and human resource burdens
on the operators by allowing them to
schedule the annual self-inspections
with maximum efficiency by
incorporating the inspections into
scheduled onsite activities.
I. Inspections
The proposed rule would revise
BOEM’s requirement ‘‘to conduct’’ an
inspection on OCS facilities or any
vessels engaged in renewable activities
to state that BOEM ‘‘may conduct’’ an
inspection on an OCS facility or any
vessel engaged in renewable activities.
1. Existing Regulations
Existing regulations state that BOEM
will inspect facilities and vessels
engaged in renewable energy activities
to verify compliance with applicable
terms, conditions, laws and regulations,
and to determine whether safety
equipment has been properly installed
and operated. The existing regulations
that require the lessee to conduct selfinspections are limited to inspections of
structures, mooring systems, and
monitoring of corrosion protection.
2. Why the Existing Regulations Should
Be Updated
OCS Lands Act section 1834(c)
requires the Department to promulgate
regulations to provide for scheduled
onsite inspection, at least once a year,
of each facility on the outer Continental
Shelf. As currently written, BOEM’s
regulations require BOEM to perform a
scheduled on-site inspection of all
renewable energy facilities on the OCS
and inspect all safety equipment
designed to prevent or ameliorate fires,
spills, or other major accidents.
To ensure that the OCS Lands Act
mandate of an annual onsite inspection
is met, the Department proposes to
update its regulations to require the
76 This report also would close a known reporting
gap between BOEM and OSHA, which requires
annual reporting of workplace injury and illness
data.
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3. Proposed Changes
(a) BOEM Inspection Requirement
(b) Self-Inspection Requirements
The proposed rule would require that,
once a facility has commenced
commercial operations, the lessee
would conduct an onsite inspection of
its facility at least annually, including
all safety equipment designed to prevent
or ameliorate fires, spillages, or other
major accidents, to satisfy the annual
onsite inspection requirement of the
OCS Lands Act. The proposed rule
would also require the lessee to
maintain records of the facility
inspections, summarize the results of
those inspections and provide the
records and the summary of the results
to BOEM upon request.
J. Other Proposed Changes
The Department proposes other
regulatory changes that fall outside the
eight categories previously discussed.
The most significant of these proposed
changes are summarized here. Other
changes correct technical errors or
clarify inconsistencies arising from this
proposed rule. All these proposed
changes and their rationales are
discussed further in section VI.
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1. Lease Structure
The proposed rule would change the
default lease terms in § 585.235 by
merging the existing preliminary and
site assessment terms into one
preliminary period; establishing new
lease periods for COP review and for
design and construction that can vary in
length based on the duration of the COP
review and the design and construction
process; and converting the existing 25year operations term that commences at
COP approval into a 30-year operations
period commencing at the commercial
operations date. These proposed
changes recognize most lessees will not
submit SAPs, account for the time
required for permit review and
construction, and provide certainty to a
lessee regarding the operations period of
its renewable energy project.
2. Lease Segregation and Consolidation
BOEM has received requests from
lessees to segregate single leases into
multiple leases, held by different
subsidiaries, as well as to consolidate
multiple adjacent leases into a single
lease. BOEM regulations allow such
segregations and consolidations, and the
proposed rule would clarify the existing
regulations by establishing specific
procedures.
3. Civil Penalties
BOEM’s renewable energy regulations
do not explicitly provide for assessing
immediate civil penalties for violations
that constitute(d) a threat of serious,
irreparable, or immediate harm or
damage to life, property, or the marine,
coastal, or human environment, without
notice and an opportunity to correct.
However, the authority for doing so is
set forth in the OCS Lands Act. This
proposed rule would amend the
Department’s regulations to ensure that
its civil penalty regulations are
coextensive with its statutory authority.
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4. Standardize Annual Rental Rates for
Grants
The proposed rule would standardize
the annual rental rate for most grants.
Under the proposed rule, BOEM would
apply a $5 per acre annual rental rate for
both ROWs and RUEs.
5. Technical Corrections and
Clarifications
Finally, the proposed rule would
make numerous minor technical
changes. These technical revisions
maintain consistency with proposed
changes elsewhere in the regulations,
clarify ambiguities, correct technical
errors, and improve organization.
Examples of proposed changes in this
category include:
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• Clarifying that under 30 CFR
585.103(a)(1), regulatory departures may
be granted when necessary to facilitate
programmatic activities before, during
and after lease termination.
• Replacing reference to the
Immigration and Naturalization Service,
which no longer exists, with
‘‘appropriate Federal immigration
authority.’’
• Eliminating the paper copy
submission requirement for plans,
applications, reports, and notices to
modernize procedures and to promote
responsible stewardship of resources.
• Replacing ‘‘BOEM’’ with ‘‘ONRR’’
in certain provisions to reflect that
ONRR is the correct payee for all lease
and grant payments.
• Revising the cross-reference to
BSEE’s 30 CFR part 254 regulations in
BOEM’s oil spill response plan
requirement for COPs, because the
majority of 30 CFR part 254 does not
apply to offshore renewable energy.
• Modifying the air quality provisions
to reflect Congress’ 2011 amendments to
the CAA.
K. Potential Revisions to Regulations
Governing Research Activities
BOEM requests public comments on
whether the lease process for research
activities in existing § 585.238 warrants
amendment. This proposed rule does
not contain changes to this section, but
BOEM is interested in receiving
comments on the following: whether it
should create a specific regulatory
framework for research leases and
planning; whether it should expand the
criteria for who can hold research
leases; whether the DNCI requirement
can or should be relaxed for research
activities; and whether any other
aspects of this section deter OCS
renewable energy research. Note that for
one of the two leases issued under this
section to date, BOEM used its
discretion to require the submittal of a
Research Activities Plan containing
information substantially the same as
what is required to be included in a
COP.77
L. Potential Revisions to Regulations
Governing Transmission
BOEM recognizes a need to minimize
impacts to the environment and natural
and cultural resources and maximize
the utility of land-based points of
interconnection. BOEM is continuing
efforts to explore a coordinated
approach to transmission, which could
include the shared use of cable corridors
77 See letter from Bureau of Ocean Energy Mgmt.
to John Warren, Dir., Va. Dep’t Mines, Minerals &
Energy (Mar. 23, 2016), https://www.boem.gov/
Approval-of-VOWTAP-Research-Activities-Plan/.
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5991
or other shared transmission solutions,
such as regional transmission systems,
meshed systems, and the development
of an offshore grid. Accordingly, BOEM
seeks comment on the types of
regulatory changes that would be
appropriate to better accommodate these
options and to minimize impacts to
environmental, natural, and cultural
resources. For example, should 30 CFR
585.200(b) be modified to allow BOEM
to encourage or require use of such
options where they are available and
allow for full enjoyment of the lease?
What approaches or options should
BOEM consider advancing in 30 CFR
585.200(b) to facilitate interconnection
for lessees, while minimize impacts to
important resources?
VI. Section-by-Section Analysis of
Proposed Rule
A. 30 CFR Part 585, Subpart A—General
Provisions
§ 585.102 What are BOEM’s
responsibilities under this part?
Section 585.102(a) specifies that
BOEM will authorize renewable energy
activities in accordance with OCS Lands
Act subsection 8(p)(4), as enumerated in
§ 585.102(a)(1) through (12). BOEM is
amending this regulation to clarify that
none of the enumerated requirements is
intended to outweigh or supplant any
other. The purpose of this change is to
clarify that BOEM takes all of these
relevant factors into consideration in
planning its renewable energy program
and that no one factor or consideration,
by itself, should outweigh the other
relevant considerations.
§ 585.103 When may BOEM prescribe
or approve departures from the
regulations in this part?
Section 585.103 was promulgated to
allow BOEM to maintain programmatic
flexibility while adapting to a new and
changing industry by approving
departures from regulatory requirements
under certain limited circumstances.78
The proposed rule would modify
§ 585.103(a) introductory text and (a)(1)
to specify that BOEM may prescribe or
approve a departure from the
regulations when BOEM deems the
departure necessary because the
applicable provision(s) as applied to a
specific circumstance are impractical or
unduly burdensome and the departure
is necessary to achieve the intended
objectives of the renewable energy
program. In this way BOEM would
maintain flexibility to adapt the
regulations to the unique circumstances
of this new and evolving industry while
78 See
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retaining the consistency and integrity
of the regulations as a whole.
The existing departure provisions of
this section are limited in scope to those
regulatory provisions that apply to
existing lease and grant holders.
However, BOEM has applied departures
not only to activities ‘‘on a lease or
grant,’’ but also to activities that occur
before lease issuance (e.g., BOEM’s
planning and lease sale processes) and
after lease termination (e.g.,
decommissioning, release of financial
assurance). The proposed changes
would allow for such departures.
Minor updates to the provisions
paragraphs (a)(2) through (4) were made
for consistency with the new language
in § 585.103(a). No changes are
proposed to § 585.103(b) which lists the
requirements that an approved
departure and its rationale must be
consistent with subsection 8(p) of the
OCS Lands Act, protect the environment
and public health and safety, not impair
the rights of third parties, and be
documented in writing.
§ 585.104 Do I need a BOEM lease or
other authorization to produce or
support the production of electricity or
other energy product from a renewable
energy resource on the OCS?
Section 585.104 traces the statutory
language of the OCS Lands Act in
establishing that a lease, ROW, or RUE
issued under this part is required in
order to construct, operate, or maintain
facilities that ‘‘produce or support
production, transportation, or
transmission of energy from sources
other than oil and gas.’’ 79 The proposed
rule would clarify that for purposes of
this section, site assessment activities
are not considered to produce,
transport, or support the generation of
any energy products; and, therefore,
such activities do not, by themselves,
require a lease, easement or ROW. As
discussed above in section V.A of this
preamble, this revision is intended to
clarify that an entity does not require a
lease from BOEM to deploy a met buoy
or tower for site assessment activities
that are not located on an existing
commercial lease. Under the proposed
rule, BOEM would not require a
separate lease for the deployment of
such facilities.80 The USACE would be
the lead Federal permitting agency for
such facilities under its existing legal
authority, though other agencies may
also have permitting or consultation
79 43
U.S.C. 1337(p)(1)(C).
would nonetheless require a commercial
lessee, that seeks to install a met tower, to submit
a SAP in addition to the USACE permit, given the
potential impacts that might be caused by such
towers.
80 BOEM
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requirements, such as NOAA under the
NMSA (for any off-lease site assessment
activities that may occur within a
national marine sanctuary or in the
vicinity of a national marine sanctuary).
§ 585.105 What are my responsibilities
under this part?
BOEM is proposing a minor
modification to strengthen the
requirement for lessees to comply with
all applicable laws, regulations, other
requirements, the terms of the lease or
grant under this part, reports, notices,
approved plans, and any conditions
imposed by BOEM. This would expand,
strengthen, and clarify the language
found in current § 585.105(d), requiring
compliance only with the ‘‘terms,
conditions, and provisions of all reports
and notices submitted to BOEM, and of
all plans, revisions, and other BOEM
approvals, as provided in this part.’’
§ 585.106 Who can acquire or hold a
lease or grant under this part?
BOEM proposes several changes to its
qualification requirements.
First, the proposed rule would replace
the word ‘‘hold’’ with ‘‘acquire or hold’’
throughout this section to clarify that
the qualification requirements of
§ 585.106 are intended to apply both to
the acquisition and retention of both
OCS lease and grant interests. BOEM
does not require automatic forfeiture of
a party’s existing lease and grant
interests if the lessee or grant holder no
longer meets the criteria in this section;
rather, the cancellation provisions at
§ 585.437 would be the appropriate
vehicle for revoking a lease.
Second, the proposed rule would
correct § 585.106(a) to list the
citizenship qualifications in the
disjunctive and not the conjunctive by
substituting ‘‘or’’ for ‘‘and’’ in
§ 585.106(a)(6).
Third, the proposed rule would add
criteria that may disqualify a party from
acquiring a lease or grant interest under
this part and, consequently, from
participation in the lease and grant
issuance processes. The proposed rule
would prevent a party that has been
disqualified from acquiring a lease or
grant interest (because it either lacks the
basic regulatory qualifications or has
engaged in certain enumerated
misconduct) from participating in any
lease or grant issuance processes under
this part. This provision closes a
loophole by prohibiting a party
disqualified from acquiring a lease or
grant interest from entering into
commercial agreements to participate in
the lease or grant issuance processes on
behalf of a third party. This provision
also would clarify BOEM’s authority to
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disqualify a party from an auction,
which is not explicitly set forth in the
existing regulations. These proposed
provisions are intended primarily to
deter current and potential lessees and
grant holders from engaging in conduct
that is illegal or detrimental to BOEM’s
renewable energy program and to the
fair conduct of its auctions.
A party under consideration for
disqualification would receive written
notice from BOEM of the basis for the
disqualification and would be provided
an opportunity to be heard before BOEM
issues a final, appealable decision.
BOEM also may instruct that party
regarding what remedial actions, if any,
would restore its qualification. Until
such remedial actions are completed to
BOEM’s satisfaction or until
qualification is otherwise restored, a
disqualified party would be ineligible to
acquire a lease or grant under this part
or to otherwise participate in BOEM’s
competitive and noncompetitive lease
or grant issuance processes.
§ 585.107 How do I show that I am
qualified to be a lessee or grant holder?
BOEM proposes a technical correction
to paragraph (b) to reflect that the
Immigration and Naturalization Service
no longer exists and to avoid the need
for future technical corrections in the
event of another change in the name of
the relevant Federal immigration
authority.
§ 585.110 How do I submit plans,
applications, reports, or notices required
by this part?
BOEM proposes to eliminate its paper
copy requirement and rely primarily on
electronic submissions. The paper
requirement has proven unwieldy for
voluminous plan submittals that contain
multiple appendices and may be subject
to multiple revisions before they are
finalized.
BOEM proposes to reserve the
authority to require paper copies of
certain documents (such as maps and
charts) if necessary.81 The proposed rule
also would eliminate the specific BOEM
mailing address to avoid the need for
future technical corrections if BOEM’s
mailing address changes again. Instead,
the mailing addresses for BOEM
submissions would be listed for the
appropriate contacts on BOEM’s
website.
§ 585.112 Definitions
The proposed rule would add a new
definition for ‘‘bidding credits.’’ Bidding
81 BOEM proposes to retain the paper copy
requirement for assignment applications given the
importance of having an original signed version.
See discussion infra VI.E § 585.408.
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credits are defined as the value assigned
by BOEM, expressed in monetary terms,
to the factors or actions demonstrated,
or committed to, by a bidder at a BOEM
lease auction during the competitive
lease award process. The regulations
further specify that the types and values
of any bidding credits awarded to any
given bidder will be set forth in the
FSN.
The proposed rule would modify the
definition of ‘‘commercial activities’’ to
state that such activities are conducted
‘‘under’’ leases and grants. This
modification would maintain
consistency with the proposed revisions
to § 585.104 by clarifying that site
assessment activities that are not
conducted on a commercial lease (and
thus do not require a lease) are excluded
from the definition of ‘‘commercial
activities.’’
The proposed rule would modify the
definition of ‘‘commercial operations’’
to state that the term means the
generation of electricity or other energy
product for commercial use, sale, and
distribution on a commercial lease, but
does not mean either generation needed
to prepare a final FIR or generation for
testing purposes, provided the
electricity generated for such testing is
not sold on a commercial basis.
The proposed rule would add a new
definition for ‘‘Critical Safety System’’
to mean safety systems and equipment
designed to prevent or ameliorate major
accidents that could result in harm to
health, safety, or the environment
associated with the lessee’s or grant
holder’s facilities. This modification
would clarify new requirements in
§§ 585.705, 585.707, 585.708, 585.710,
585.712, and 585.637 for the CVA to
verify the commissioning of critical
safety systems.
The proposed rule would add a
definition for the term ‘‘engineered
foundation,’’ which would mean any
structure installed on the seabed using
a fixed-bottom foundation constructed
according to a professional engineering
design (based on an assessment of
sedimentary, meteorological, or
oceanographic conditions). Comments
are solicited on the appropriateness of
the definition of this term, as used in
the proposed rule.
The proposed rule would also add a
definition for the term ‘‘fabrication’’
which would mean the cutting, fitting,
welding, or other assembly of project
elements of a custom design conforming
to project-specific requirements.
Fabrication does not include the
procurement of discrete parts of the
project that are commercially available
in standardized form and type-certified
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The proposed rule would also add
definitions for the terms ‘‘lease area’’
and ‘‘provisional winner’’ to provide
clarity in the regulatory text. Lease area
is an OCS area identified by BOEM for
potential development of renewable
energy resources. The provisional
winner is the bidder that BOEM
determines at the conclusion of the
auction to have submitted the highest
bid. The provisional winner would
become the winning bidder upon
favorable completion of the
government’s post-auction reviews.
The proposed rule would also add a
new definition of ‘‘multiple factor
auction,’’ which would be defined to
mean an auction that involves the use
of bidding credits to incentivize goals or
actions that support public policy
objectives or maximize public benefits
through the competitive leasing auction
process. In all multiple factor auctions,
BOEM would add the monetary value of
the bidding credits to the value of the
cash bid to determine the highest
bidder.
The proposed rule also would define
‘‘receipt’’ of a document as having been
deemed to take place, in the absence of
documentation to the contrary, (a) 5business days after the document was
given to a mail or delivery service with
the proper address and postage; or (b)
on the date the document was sent
electronically. This proposed definition
borrows from the Interior Board of Land
Appeals regulation on service of
documents at 43 CFR 4.401(c)(7), but
acknowledges that most documents will
be transmitted instantaneously through
electronic means. In the absence of
documentation evincing actual receipt,
the presumption of constructive receipt
in this definition would be overcome by
evidence demonstrating that a
document was either not received or
received in more or less time than the
default timeframes set forth. The
definition of ‘‘receipt’’ would apply to
variants of that word, including variants
of ‘‘receive,’’ and would apply only
where those terms are used in the
regulations to describe the receipt of a
document when the timing of receipt
triggers a regulatory time period or
consequence.
Finally, BOEM proposes a technical
correction to the definition of ‘‘site
assessment activities’’ to avoid possible
confusion with site characterization
activities.
§ 585.113 How will data and
information obtained by BOEM under
this part be disclosed to the public?
BOEM proposes a technical change,
substituting the word ‘‘operations’’ for
‘‘generation’’ in paragraph (b)(1), so that
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BOEM’s review of the data and
information will be done ‘‘3 years after
the initiation of commercial operations
. . .,’’ to provide greater consistency
with the remainder of BOEM’s offshore
renewable regulations.
§ 585.114 Paperwork Reduction Act
Statements—Information Collection
BOEM proposes to update the table in
this section to align with proposed
regulations.
§ 585.116 Requests for Information
The existing regulations reference two
public information requests that share
the same acronym: requests for interest
(RFI) under §§ 585.210 and 585.231, and
requests for information (RFI) under
§ 585.116. The proposed rule would
combine all such notices in a revised
§ 585.116 and call them requests for
information. The request for interest is
an optional step in the leasing process
that assists BOEM in collecting
information in advance of initiating a
new leasing process. BOEM used the
request for interest in this way several
times, especially early in the program.
However, more recently, the practice
has been to initiate the leasing process
with the next, mandatory step in the
leasing process, publishing a Call. The
proposed rule suggests eliminating the
request for interest as a step in the
leasing process. In the event that BOEM
would like to start the leasing process
with a solicitation of information from
the public, the more general request for
information under § 585.116 is available
to serve that need.
§ 585.118 What are my appeal rights?
BOEM’s existing renewable energy
regulations discuss appeal rights in two
sections—§§ 585.118 and 585.225.
Section 585.118 describes appeals of
BOEM final decisions made under part
585. Section 585.225 provides that a
bidder may request the Director to
reconsider its bid rejection. To simplify
and clarify the administrative review
provisions, the proposed rule would
combine these two sections by locating
all procedures for review of BOEM
renewable energy final decisions or
orders in a revised § 585.118. This
revised section would maintain the
existing distinction between requesting
reconsideration of rejected bids and
appeals of other final decisions made
under part 585, but will now
characterize challenges to decisions
selecting provisional winners as appeals
to the Director, rather than requests for
reconsideration.
The proposed section would provide
appeal rights to any adversely affected
bidder of a provisional winner selection
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decision. Currently, § 585.225(b) limits
requests for reconsideration to those
with rejected bids. The proposed section
would also provide provisional winners
an opportunity to appeal if they believe
there have been any errors or omissions
in the selection decision, such as
miscalculated or unapplied bidding
credits.
This proposed section would specify
that BOEM must receive written appeals
of a decision selecting the provisional
winner within 15-business days after a
bidder receives notice of the decision.
This is consistent with the existing
regulations at § 585.225(b) and clarifies
the existing language at § 585.118(c)(1).
This section would adopt the rules
found in the appeal procedures at 30
CFR 590.3 of this chapter for
determining when a selection decision
is received.
Finally, the proposed section would
clarify two points regarding an appeal of
a decision selecting the provisional
winner. First, the provisional winner
would have an opportunity to be heard
before the BOEM Director reverses a
selection decision. Second, the
Director’s decision would not be
appealable administratively to the
Interior Board of Land Appeals.
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B. 30 CFR Part 585, Subpart B—The
Renewable Energy Leasing Schedule
§ 585.150 What Is the Renewable
Energy Leasing Schedule?
BOEM is proposing to add a new
subpart and section to the regulations
that would define a proposed leasing
schedule for the renewable energy
program. BOEM determined that a new
subpart is appropriate given the nature
of this change and the potentially
significant benefit to stakeholders. This
proposed schedule would include a list
of locations under consideration for
leasing and a schedule that BOEM
would follow in holding its future
renewable energy lease sales. According
to this proposal, at least once every 2
years, the Secretary would publish this
schedule of proposed lease sales. The
first published schedule would be
issued for the 5-year period following
the effective date of this rulemaking and
subsequent schedules will cover the 5year period after the update. This
schedule would include a general
description of the area of each proposed
lease sale, the calendar year in which
each lease sale will occur, and the
reasons for any changes made to the
previous schedule. BOEM is soliciting
comments from stakeholders regarding
this provision. Any proposed leasing
would be subject to all applicable
regulations, including area
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identification, coordination with
relevant parties, and applicable
environmental reviews.
C. 30 CFR Part 585, Subpart C—
Issuance of OCS Renewable Energy
Leases
General Lease Information
Subpart B, Issuance of OCS
Renewable Energy Leases, is being
redesignated as subpart C to
accommodate the addition of a new
subpart B, as noted above. The
individual section numbers in subpart C
and in subsequent subparts have not
been changed.
§ 585.202 What types of leases will
BOEM issue?
BOEM proposes a technical revision
to this section to make it consistent with
subsection 8(p) of the OCS Lands Act
and the proposed revisions to § 585.104,
as well as to add a reference to leases
issued for research activities under
§ 585.238.
§ 585.203 With whom will BOEM
consult before issuance of leases?
BOEM proposes to make a technical
correction to the penultimate sentence
of this section by removing the word
‘‘including’’ and replacing it with
‘‘include.’’
Competitive Lease Award Process—PreAuction Provisions
§ 585.210 What are the steps in
BOEM’s competitive lease award
process?
Proposed § 585.210 would provide an
overview of the competitive leasing
process and effectively would merge
existing §§ 585.210 and 585.211. The
proposed rule would replace the request
for interest in the existing § 585.210
with a request for information in the
revised § 585.116. The revised § 585.210
would provide an overview of the entire
competitive leasing process by
including two steps that are not
currently mentioned in this section of
the existing regulations: the auction and
lease award.
§ 585.211
What is the Call?
Proposed § 585.211 would consolidate
the existing §§ 585.211(a), 585.213, and
585.214, which describe the information
requested by the Call, the information a
respondent should include in its
response if it wishes to nominate one or
more areas for a commercial renewable
energy lease within the preliminarily
identified leasing areas, and BOEM’s
handling and processing of the
information received. The primary
purpose of this proposed change is
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reorganization; no substantive changes
would be made to BOEM’s existing
regulations and practice. BOEM
proposes to remove the reference to
withholding privileged and confidential
information as redundant of the
protections already described in
§ 585.113.
§ 585.212 What is area identification?
Proposed § 585.212 would provide
more clarity regarding BOEM’s area
identification process, thus expanding
the description of this step in the
existing § 585.211(b). This section
would make no substantive change to
the existing process.
This section would clarify that BOEM
balances potential OCS renewable
energy development with competing
uses and environmental concerns
during area identification and attempts
to resolve foreseeable issues. Consistent
with the existing regulations and
practice, BOEM would determine
during area identification whether
specific OCS areas are suitable for
further consideration for renewable
energy development with appropriate
mitigation.
BOEM would consider any factors
that it determines relevant during this
process. These factors may include, but
would not be limited to, other uses in
and around the area, applicable
environmental analysis, formal and
informal stakeholder comments,
industry nominations, and the area’s
feasibility for development.
Consideration of the area’s feasibility for
development could include, but would
not be limited to, analysis of the area’s
size and other relevant physical
conditions, potential electrical
generation capacity, pertinent technical
data, and applicable electricity market
and offtake information. For example,
BOEM may incorporate a high-level
assessment of an area’s characteristics
that would be relevant to potential
development, such as bathymetry,
distance to shore, and wind resources,
and may consider an adjacent State’s
offshore wind energy offtake or
incentive programs.
BOEM would retain the flexibility to
modify the selection of parcels offered
for leasing after area identification and
before the auction. Also consistent with
existing regulations, BOEM would use
the area identification process to inform
its NEPA review and associated
interagency consultations to evaluate
the potential effects of activities that are
expected to take place after lease
issuance on the human, marine, and
coastal environments and on other
environmental requirements. For
example, the National Marine
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Sanctuaries Act may apply to any
actions that may injure sanctuary
resources or that may require permits
for placement of equipment or
disturbance of covered submerged
lands. In any case where a NMSA
permit may be required, NOAA may
require certain financial assurances for
infrastructure removal activities
potentially required under permit.
BOEM may develop lease stipulations or
other measures as part of its NEPA
review to mitigate potential adverse
impacts and may hold public hearings
regarding its environmental analyses
after potential lease areas have been
identified.
follows if it has reason to believe
competitive interest no longer exists
before the FSN is issued. Proposed
§ 585.215 would maintain essentially
the same process for determining
whether competitive interest remains
and then acting on that determination.
This section would clarify, however,
that BOEM may engage this process any
time before the auction when it has
reason to believe competitive interest is
absent. The competitive lease issuance
process is the ‘‘default’’ under the OCS
Lands Act,82 so BOEM may proceed
with an auction regardless of the result
of its competitive interest inquiry under
this section.
§ 585.213 What information is
included in the PSN?
The analyses of the proposed sections
on the PSN and the FSN, §§ 585.213 and
585.214 respectively, emphasize the
close interrelationship between the
notices, and enhance understanding.
The PSN and FSN are closely related
but distinct notices published in the
Federal Register that detail the auction
procedures and lease provisions
relevant to a particular lease sale.
Currently, the PSN proposes procedures
and provisions and invites public
comment on them; the FSN establishes
the final procedures and provisions.
BOEM uses the public comments
received in response to the PSN to
inform its decisions regarding the final
procedures and provisions in the FSN.
Proposed §§ 585.213 and 585.214
would replace § 585.216 of the existing
regulations. These proposed sections
would not change substantially the
nature, scope, or content of the PSN and
FSN from BOEM’s existing regulations
and practice. However, the proposed
sections would clarify BOEM’s existing
authority to set a maximum number of
lease areas that an individual party may
bid on or acquire in an auction. The
proposed rule would separate the PSN
and FSN regulations into individual
sections because, although the notices
are closely related, each notice
represents a distinct step in the leasing
process. The PSN and FSN would
continue to serve as the primary sources
of information for prospective bidders
on the lease areas, auction procedures,
and lease provisions. Also, proposed
§ 585.223 would outline supplemental
auction information that may be
contained in the PSN and FSN.
§ 585.216 How are bidding credits
awarded and used?
§ 585.215 What may BOEM do to
assess whether competitive interest for
a lease area still exists before the
auction?
BOEM’s existing regulation at
§ 585.212 explains the process BOEM
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Proposed § 585.216 would allow the
provisional winner’s bid to include the
value of bidding credits awarded if the
provisional winner has made certain
demonstrable commitments that
facilitate OCS renewable energy
development and that reflect a
developmental advantage, or advance
public policy—for instance, a power
purchase agreement. The PSN and FSN
would prescribe the use of bidding
credits in a particular auction, including
eligibility requirements, application
procedures, and the types and values of
available credits. BOEM would retain
discretion not to offer bidding credits in
a given auction.
A bidder would be awarded bidding
credits before the auction under the FSN
if it timely submits a bidding credit
application with the requisite
commitments and meets eligibility
requirements. Depending on the FSN
provisions, a bidder might be eligible for
multiple bidding credits if the bidder
meets the criteria for each credit. The
FSN could provide for bidding credits
that are stackable or non-stackable.
Stackable credits are those where the
total value of a bidder’s bidding credits
would be the sum of all the credits for
which the bidder was eligible.
Alternatively, the FSN may limit the
bidding credits to non-stackable credits,
where the total value of a bidder’s
bidding credits would be limited to the
value of the largest bidding credit for
which the bidder was eligible. Stackable
credits would incentivize bidders to
meet the criteria for as many of the
available bidding credits as they can.
Alternatively, using non-stackable
credits would limit the total value of the
non-monetary component of the bid.
Bidding credits may be denominated as
either a fixed dollar amount or a
82 43
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percentage of the cash bid, as specified
in the FSN.
The FSN would specify the
procedures, timing, and eligibility
requirements for bidding credits. BOEM
would inform bidders before the auction
of the value of each bidding credit for
which they are eligible. A provisional
winner who received bidding credits
would pay its bonus as the amount of
the cash component of its winning bid
less the bid deposit, as prescribed in the
FSN. The regulation text would further
specify that qualification to obtain
bidding credits must be done in advance
of any lease auction, in accordance with
the specifications of the FSN; however,
such qualifications may be obtained
either for actions that the bidder has
already undertaken or for actions which
it has committed to undertake in the
future, provided that BOEM has agreed
to the terms by which such a
commitment will be made. If a bidder
receives a bidding credit for a
commitment to future action,
acceptance of the lease would constitute
an obligation to undertake those actions,
and failure to do so would constitute
noncompliance with the lease.
BOEM is soliciting comments on
whether the regulations should codify
its past practice of imposing a cap on
the value of bidding credits that any
bidder can earn, measured as either an
absolute dollar amount or as a
percentage of the bid amount. Bidding
credit limits in past auctions ranged
from 10 to 25 percent of the high bid.
If implemented, this cap would be
intended to ensure that BOEM obtains a
fair return on the prospective lease.
BOEM is also requesting comment on
what factors in proposed § 585.216(b)
should qualify for credits, particularly
the policy-based factors described in
§ 585.216(b)(5), and how such factors
could best be quantified for the purpose
of calculating their value as part of the
auction process.
Competitive Lease Award Process
§ 585.220 How will BOEM award
leases competitively?
BOEM proposes to continue to
implement multiple factor auctions,
through the use of bidding credits, to
allow the competitive lease award
process to take into consideration
various priority actions, such as
advancing a domestic supply chain and
providing workforce development
agreements, consistent with the goals of
the OCS Lands Act. As noted
previously, bidding credits represent a
monetary value assigned by BOEM to
the actions or factors demonstrated or
committed to by a bidder at a BOEM
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lease auction during the competitive
lease award process. The value of the
bidding credits would be added to the
value of the cash bid to determine who
is the highest bidder.
The existing regulations at §§ 585.220
through 585.222 set forth options that
BOEM can use for auction formats,
bidding systems, and bid acceptance
criteria for both commercial and limited
leases. As discussed in section V.E
above, entitled ‘‘Lease Issuance
Procedures,’’ these regulations are
overly prescriptive and require
clarification and modification to
provide BOEM with flexibility to adopt
new and innovative auction processes
and procedures. Proposed § 585.220
would replace these sections with a
simplified and flexible approach that
would allow BOEM to use any auction
process, including multiple factor, and
any procedure that is objective, fair,
reasonable, and competitive; awards a
lease based upon the highest total bid;
and provides a fair return to the United
States. This section also would clarify
that the specific process for each
auction would be noticed in the PSN
and, subject to revisions, finalized in the
FSN.
BOEM is soliciting comments on the
various alternatives that could be used
to incorporate incentives and
preferences into the competitive leasing
process.
§ 585.221 What general provisions
apply to all auctions?
This is a newly proposed section that
would set forth the provisions and rules
applicable to all auctions. This
proposed section would codify the
existing practice whereby BOEM
conducts an auction if it determines
after the Call that competitive interest
exists for renewable energy
development on parcels of the OCS and
decides to issue leases within those
areas. Proposed § 585.221 would codify
the use of the FSN to prescribe the
detailed process for any auction.
Proposed § 585.221(d) would add
details to outline the circumstances
under which BOEM may delay,
suspend, cancel, and restart an auction
due to a natural or man-made disaster,
technical malfunction, security breach,
unlawful bidding activity,
administrative necessity, or any other
reason that BOEM determines may
adversely affect the fair and efficient
conduct of the auction. The proposed
§ 585.221(d) would also add a provision
that BOEM may restart the auction at
whatever point it deems appropriate,
reasonable, fair, and efficient for all
participants; or, alternatively, BOEM
may cancel the auction in its entirety.
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§ 585.222 What other auction rules
must bidders follow?
Proposed § 585.222 would establish a
set of procedures and rules of conduct
for bidders. This section would be
consistent with BOEM’s existing
practices and would include
requirements that bidders submit bid
deposits in accordance with § 585.501,
and meet §§ 585.106 and 585.107
qualification requirements. If the
awarded lease is executed by an agent
acting on behalf of the bidder, the
bidder must submit, along with the
executed lease, written evidence that
the agent is authorized to act on behalf
of the bidder, as is already required
under existing § 585.224(g). Notably,
this section would explicitly prohibit
bidders from disclosing their auction
strategies and economic valuations of
the lease area to other bidders listed in
the FSN in such a way as to adversely
affect the ability of the United States to
obtain a fair return from the auction.
This prohibition is aimed at deterring
pre-auction communications among
bidders regarding their preferred lease
areas or the maximum amount they are
willing to bid, which could constitute
an explicit or tacit agreement that has
the effect of reducing competition for a
particular lease. Such communications
between bidders may undermine an
auction’s competitiveness and adversely
affect the ability of the United States to
obtain a fair return from the auction.
This proposed provision would not
impede commercial speech by bidders
regarding their participation in the
auction. For example, public
announcements regarding a bidder’s
intent to participate in an upcoming
OCS renewable energy auction would
not be prohibited by the proposed rule.
BOEM nonetheless seeks comment on
whether the proposed language
constitutes an appropriate and effective
means of preventing anti-competitive
bidder behavior and on whether there
are alternative means of achieving this
goal.
§ 585.223 What supplemental
information will BOEM provide in a
PSN and FSN?
Proposed § 585.223 would contain a
non-exhaustive list of supplemental
auction details likely to be contained in
a PSN and FSN. Although this section
lacks an analogue in the existing
regulations, the supplemental details
listed in this section generally are
consistent with the information that
BOEM has provided in recent FSNs.
This section would clarify the concept
of the next highest bidder and would
describe the process to determine the
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next best bid if the provisional winner
fails to meet its obligations or is
otherwise unable to acquire the lease.
The next best bidder criteria would be
detailed in the PSN and FSN.
Competitive Lease Award Process—
Post-Auction Provisions
§ 585.224
auction?
What will BOEM do after the
Proposed § 585.224 would outline the
steps that BOEM would take following
the end of an auction. This section
would make explicit existing practices
that are consistent with the OCS Lands
Act and that have proven effective in
BOEM’s auctions thus far. Proposed
§ 585.224 would retain BOEM’s existing
authority in §§ 585.222(a)(2) and
585.224(f) to reject and accept bids and
to withdraw lease areas between auction
completion and lease execution. Finally,
if an auction results in unsold lease
areas, proposed § 585.224 would clarify
that BOEM has the discretion to reauction those unsold areas after the
auction by restarting the competitive
leasing process at any reasonable and
appropriate step in that process.
§ 585.225 What happens if BOEM
accepts a bid?
Proposed § 585.225 would set forth
the steps BOEM and the provisional
winner would take after the auction.
This section would function similarly to
the existing regulations at § 585.224(a),
(b), (c), and (e), but contains several new
proposed provisions. First, this
proposed section would provide that
BOEM will refund without interest any
portion of the provisional winner’s bid
deposit that exceeds the amount due
from the winning bid. Second, this
proposed section would permit BOEM
to extend the 10-business-day deadline
for the completion of the provisional
winner’s obligations to allow greater
flexibility in addressing unforeseen
situations, such as a Federal
Government shutdown or pandemic.
This proposed section would require
payment of the first 12 months’ rent
within 45-calendar days after the
provisional winner receives the
executed lease from BOEM as opposed
to 45-calendar days after receiving the
three unexecuted lease copies as
provided under the existing regulations.
Finally, under this proposed section, the
provisional winner would become the
winning bidder when BOEM executes
the lease after any properly filed appeals
under proposed § 585.118(c) have been
resolved. The effective date of the lease
would continue to be governed by
§ 585.237.
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§ 585.226 What happens if the
provisional winner fails to meet its
obligations?
The existing regulations at
§ 585.224(d) state that a winning bidder
will forfeit its bid deposit if it fails to
execute and return the lease within 10business days or otherwise fails to
comply with applicable regulations or
terms of the FSN. While no winning
bidder has failed to meet its postauction obligations thus far, BOEM
recognizes the potential for such a
situation and seeks to provide flexibility
in its response to such a possibility.
Proposed § 585.226 would specify
that, if BOEM determines that a
provisional winner has failed to meet its
obligations under § 585.225(b) or
§ 585.316, or has otherwise failed to
comply with applicable laws,
regulations, BOEM may require
forfeiture of the bid deposit. In the event
the bid deposit exceeds the winning bid,
BOEM would limit the required
forfeiture amount to the lower value,
that of the winning bid.
Proposed § 585.226 would also set
forth the additional actions BOEM could
take if a provisional winner fails to meet
its obligations. These possible actions
would include refusal to award other
leases won by the provisional winner in
the auction and referral to DOI’s
Administrative Remedies Division for
suspension or debarment review
pursuant to 2 CFR part 180 as
implemented at 2 CFR part 1400. This
section also would specify that if the
provisional winner fails to meet its
obligations or is otherwise unable to
execute a lease, BOEM could select a
new provisional winner by either
repeating the auction, selecting the next
best bid, or using other criteria specified
in the FSN.
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Noncompetitive Lease Award Process
§ 585.231 Will BOEM issue leases
noncompetitively?
BOEM proposes several
modifications, both significant and
minor, to its noncompetitive leasing
process. First, this proposed rule would
clarify paragraph (a) to re-affirm that
BOEM will only use the noncompetitive
process if it ‘‘determines after public
notice of a proposed lease, easement, or
right-of-way that there is no competitive
interest.’’ 83
Second, in the event that a company
submits a request for BOEM to issue a
lease and submits the required
acquisition fee, BOEM may issue a
request for information in the Federal
Register to determine whether any other
83 43
U.S.C. 1337(p)(3).
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companies also have an interest in that
area. In the event that BOEM issues
such a request for information and no
responses are received, BOEM may
issue a lease noncompetitively. The
proposed rule would revise paragraph
(b) to clarify that BOEM has discretion
to determine whether an unsolicited
lease request should be the subject of a
request for information. BOEM
occasionally receives unsolicited
requests for areas that it may deem
inappropriate for leasing without
seeking public input (e.g., previously
leased areas or areas that straddle a
USCG traffic separation scheme). In the
event that BOEM elects not to issue a
request for information in response to
the unsolicited lease request, BOEM
would not issue a lease
noncompetitively and will refund the
acquisition fee. BOEM occasionally
receives unsolicited requests for areas
that it may deem inappropriate for
leasing without seeking public input
(e.g., previously leased areas or areas
that straddle a USCG traffic separation
scheme).
Third, the proposed rule would add a
timeline and sunset provision to
BOEM’s noncompetitive leasing
processes. The existing regulations
establish neither an expiration date for
a DNCI nor deadlines for the
noncompetitive leasing process. If
BOEM were to leave the regulations in
the current form, this could allow a
company to obtain a noncompetitive
lease in situations where there may
potentially be other interested lessees in
the future (due to changes in
circumstances). Accordingly, proposed
paragraphs (d) and (e) would create the
following milestones for the
noncompetitive leasing process:
• After publication of the DNCI,
BOEM would prepare and provide the
beneficiary with a written estimate of
the fees for conducting an
environmental review of lease issuance.
• The beneficiary has 90-calendar
days from receipt of the fee estimate to
pay the fee.
• The DNCI would expire within 2
years of publication, unless BOEM
determines, on a case-by-case basis, that
this timeframe should be extended.
BOEM specifically seeks comment on
the reasonableness of its proposed
schedule and timeframes for a DNCI.
Fourth, the proposed rule in
paragraph (d)(3) would clarify that
BOEM would conduct an environmental
review of a noncompetitive lease
request that it determined had no
competitive interest and which BOEM
intends to process. Fifth, the proposed
rule would specify that BOEM will
make a decision whether to issue a
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noncompetitive lease after the
completion of its environmental review
and other reviews required by Federal
law (e.g., CZMA). BOEM, in
§ 585.231(f), clarifies that for
noncompetitive leases, CZMA
concurrences would be processed
pursuant to 15 CFR part 930 subpart D.
Based on current experience, BOEM
expects this to be a rare occurrence.
Finally, the proposed rule would
make several miscellaneous technical
corrections and clarifications to this
section. The proposed rule would revise
the existing section heading to more
accurately reflect the scope of this
section. The proposed rule would
replace the ‘‘request for interest’’
referenced in § 585.231(b) with a request
for information consistent with the
proposed revisions to § 585.116. The
proposed rule would make
administrative changes to
§ 585.231(c)(1) and (g)(1)(ii) to reflect
updated cross-references in the
proposed rule. This proposed rule also
would revise the payment due date for
the first 12 months’ rent on a lease
consistent with proposed changes to
§§ 585.225 and 585.503. The remainder
of the noncompetitive lease issuance
process would remain substantially the
same as in the existing regulations.
§ 585.232 May I acquire a lease
noncompetitively after responding to a
request for information or a Call for
Information and Nominations?
The proposed rule would revise the
existing section heading of § 585.232 to
reflect the change in nomenclature in
proposed § 585.116 from ‘‘request for
interest’’ to ‘‘request for information.’’ It
would also revise paragraph (c) to
incorporate changes to the crossreferenced provisions associated with
the proposed rule.
Commercial and Limited Lease Periods
§ 585.235 What are the lease periods
for a commercial lease?
BOEM proposes to overhaul the
organization and duration of its
commercial leases as well as the triggers
that move a lease from one period of a
lease to another. These changes are
responsive to industry comments,
reflect BOEM’s experience
administering its leasing program, and
arise from other aspects of this proposed
rulemaking—particularly the
elimination of the SAP for met buoys.
Under the existing regulations,
BOEM’s commercial leases comprise
three ‘‘terms’’:
• A preliminary term of 12 months,
starting at lease execution and typically
ending with the submission of a SAP.
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• A site assessment term of 5 years,
starting at SAP approval and ending
with the submission of a COP.
• An operations term of 25 years,
typically starting at COP approval.
BOEM automatically tolls the
preliminary and site assessment terms
during its review of submitted plans; a
lessee may request additional time
extensions if it does not timely file a
plan.
The proposed rule would make
numerous changes to the text and
structure of § 585.235(a). First, BOEM
proposes to rename its lease ‘‘terms’’ as
lease ‘‘periods’’ to more appropriately
describe the progression of its
commercial leases. This change in
nomenclature is intended to more
accurately distinguish between the lease
term (which is the entire duration of the
lease) and its constituent parts.
Next, BOEM proposes to merge the
preliminary and site assessment terms
into one 5-year preliminary period that
commences at the lease effective date
and ends either with the submittal of a
COP to BOEM for its review or 5 years
after the lease effective date. This
change flows directly from BOEM’s
proposal to eliminate the SAP
requirement for met buoys.84 Given that
most lessees are not expected to submit
a SAP if the proposed rule is finalized,
BOEM believes it would no longer make
sense for a lease to contain a deadline
for SAP submittal—much less to use
that deadline to trigger a new phase of
the lease. (As discussed in the sectionby-section analysis of § 585.601 in
section VI.G. below, BOEM also
proposes to remove all deadlines for
SAP submittal.)
The proposed rule also would create
two new lease periods between the
submission of the COP and the
commencement of operations: the COP
review period, which starts at COP
submittal and ends upon BOEM’s
decision on whether to approve or
disapprove the COP, or approve the
COP with modifications; and the design
and construction period, which starts at
COP approval and ends at the
commercial operations start date or at
the expiration of the period set forth in
the approved COP as modified. BOEM
does not propose a fixed length for the
COP review period in order to preserve
regulatory flexibility and to allow for
harmonization with recent governmentwide permit review streamlining
initiatives (e.g., FAST–41).85 The
approved COP will include a timeline
84 See supra section V.A, entitled ‘‘Site
Assessment Facilities,’’ for complete discussion.
85 Fixing America’s Surface Transportation Act
Title 41, 42 U.S.C. 4370m et seq.
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for the design and construction period,
subject to modification as mutually
agreed to by BOEM and the lessee.
BOEM also proposes to set a 1-year
time limit on a lessee after its initial
COP submission to resolve issues
identified by BOEM and to finalize its
COP in order to incentivize lessees to
submit properly completed COPs that
are ready for BOEM review and to
encourage lessees to make COP
revisions diligently in response to
BOEM comments.
BOEM seeks public comment
regarding the need and means to set
specific regulatory timelines while
preserving sufficient flexibility within
the COP review period and the design
and construction period.
Lastly, BOEM proposes that the
operations period commence at the
commercial operations start date and
remain in effect for 30 years. Presently,
the 25-year operations term includes the
time required for a lessee to prepare and
BOEM to review its FDR and FIR plus
the time required to construct the
project—both of which significantly
subtract from the time available for
commercial operations. BOEM believes
that its proposed revision would create
certainty and facilitate project financing
by providing a fixed period of time in
the lease dedicated to commercial
operations. BOEM also proposes to
extend the operations period to 30 years
based on industry comments that this
timeframe better reflects the design life
of an offshore wind facility.
BOEM recognizes that if this rule is
finalized as proposed, existing lessees
may request modification of their leases
to conform to the new lease periods.
BOEM intends to address these requests
on a case-by-case basis but understands
that these new lease periods might be
advantageous to current lessees and that
there are administrative benefits to
standardizing lease terms. BOEM seeks
comment on whether the final rule
should contain a provision setting forth
a process by which existing lessees can
request lease amendments to conform
their leases to the structure proposed in
the amended § 585.235 and, potentially,
to other regulatory changes in this
proposed rule.
In addition to revamping the structure
of its commercial leases, BOEM
proposes several provisions aimed at
granting a lessee more flexibility
throughout the development process.
First, BOEM proposes expanding the
criteria in § 585.235(b) for granting
extensions of lease periods. Currently,
the only enumerated basis for extending
the preliminary term or the site
assessment term is if a lessee submits a
plan late. BOEM proposes to clarify that
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it has discretion to extend any lease
period for good cause. Second, BOEM
proposes a new § 585.235(c) clarifying
that a lessee may propose an alternative
lease period schedule if it chooses to
develop its lease in phases. Numerous
lessees have expressed interest in
phased development of their leases, but
the existing regulations do not explicitly
set forth a process for modifying the
default lease schedule if a lessee intends
to defer development on portions of its
lease area. Third and relatedly, BOEM
proposes a new § 585.235(d) providing
that a lessee may seek modification of
the default lease schedule in its
application to segregate its lease or
consolidate two adjacent leases. As
discussed in the section-by-section
analyses of §§ 585.410 and 585.413 in
section VI.E. below, BOEM previously
has approved lease segregation and
consolidation requests and anticipates
more such requests in the future.
However, the existing regulations do not
explicitly address the effects these
actions might have on lease schedules.
§ 585.236 If I have a limited lease, how
long will my lease remain in effect?
BOEM proposes to substitute the
word ‘‘period’’ for ‘‘term’’ to ensure
consistency with its proposed changes
to § 585.235. Additionally, because
limited leases may allow a wide range
of activities, the proposed rule would
replace the existing 5-year operations
term with an operations period of a
duration determined by BOEM prior to
auction (if the lease is issued
competitively) or negotiated with the
applicant (if the lease is issued
noncompetitively). In either case, the
length of the term will depend on the
intended use of the lease. The existing
regulations specify that extensions of
the preliminary term if the GAP for the
limited lease was not submitted in a
timely manner and was submitted late
without specifying any reason. BOEM
proposes to allow extensions of a
limited lease’s preliminary period only
if the requested extension can be
justified for ‘‘good cause,’’ consistent
with its proposed changes to § 585.235,
BOEM also proposes to allow extensions
of a limited lease’s operations period if
the requested extension can be justified
for ‘‘good cause.’’
D. 30 CFR Part 585, Subpart D—Rightsof-Way Grants and Right-of-Use and
Easement Grants for Renewable Energy
Activities
Subpart C, Rights-of-Way Grants and
Right-of-Use and Easement Grants for
Renewable Energy Activities, is being
redesignated as subpart D to
accommodate the addition of a new
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subpart B, as noted in section VI.B
above.
ROW Grants and RUE Grants
§ 585.301 What do ROW grants and
RUE grants include?
BOEM proposes to remove the
prescribed width of ROWs, in order to
implement the PDE approach discussed
above in sections V.B, entitled ‘‘Project
Design Envelope,’’ and V.C., entitled
‘‘Geophysical and Geotechnical
Surveys,’’ and to maintain consistency
with BOEM’s proposed revisions to
§ 585.628(g) for project easements.
BOEM also proposes a technical change
to clarify that a subsea cable ROW may
need to accommodate multiple
associated facilities.
lotter on DSK11XQN23PROD with PROPOSALS2
§ 585.302 What are the general
requirements for ROW grant and RUE
grant holders?
BOEM proposes a technical correction
to update the cross references in this
section, reflecting that an applicant
must meet the qualifications set forth in
§§ 585.106 and 585.107 in order to
acquire a ROW or RUE.
§ 585.303 How long will my ROW
grant or RUE grant remain in effect?
BOEM proposes to substitute the
word ‘‘period’’ for ‘‘term’’ to ensure
consistency with its proposed changes
to § 585.235. By renaming the
preliminary term of a ROW and RUE as
the preliminary period, BOEM intends
to more accurately distinguish between
the entire term of a ROW and RUE and
its constituent parts. As with proposed
§ 585.235, BOEM also anticipates that
this proposed revision would clarify
whether and when a grant holder has
control of its ROW or RUE. BOEM also
proposes to provide the same flexibility
for the operations period of its grants as
it has with the operations period for its
limited leases in proposed
§ 585.236(a)(2), both in terms of start
date and duration. Finally, BOEM
proposes to allow extensions of either
grant period, consistent with its
proposed changes to § 585.235. The
existing regulations specify that the
GAP must be submitted no later than
the end of the preliminary period in
order for the grant to remain in effect.
BOEM proposes that the preliminary
period may be extended if the requested
extension can be justified for ‘‘good
cause.’’
Current regulations specify that the
ROW grant or RUE grant will remain in
effect for as long as it is being used for
the purpose for which it was granted.
This proposed rule would modify that
provision by introducing an operations
period as set by BOEM (if the grant is
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E. 30 CFR Part 585, Subpart E—Lease
and Grant Administration
Subpart D, Lease and Grant
Administration, is being redesignated as
subpart E to accommodate the addition
of a new subpart B, as noted in section
VI.B above.
remedy the violation of a regulation,
lease, or permit condition, as well as for
a violation that threatens ‘‘serious,
irreparable, or immediate harm or
damage to life (including fish and other
aquatic life), property . . . or the
marine, coastal, or human
environment.’’ 86
Section 585.400(f) currently states
that BOEM may assess civil penalties
‘‘as authorized by section 24 of the OCS
Lands Act, if you fail to comply with
any provision of this part or any term
of a lease, grant, or order issued under
the authority of this part, after notice of
such failure and expiration of any
reasonable period allowed for corrective
action.’’ This section also states that
‘‘[c]ivil penalties will be determined
and assessed in accordance with the
procedures set forth in 30 CFR part 550,
subpart N.’’ Located in BOEM’s OCS
minerals regulations, subpart N permits
BOEM to assess civil penalties on
‘‘[v]iolations that you do not correct
within the period BOEM grants’’ and
‘‘[v]iolations of the oil spill financial
responsibility requirements at 30 CFR
part 553.’’ 87
BOEM’s existing renewable energy
regulations do not explicitly authorize
assessment of civil penalties for the full
range of violations envisioned under the
OCS Lands Act, such as those for which
notice of the violation and an
opportunity to correct is not required.
BSEE’s OCS oil, gas, and sulfur
regulations, on the other hand, allow
immediate civil penalties for violations
that ‘‘constitute, or constituted, a threat
of serious, irreparable, or immediate
harm or damage to life . . ., property,
any mineral deposit, or the marine,
coastal, or human environment’’ or that
‘‘cause serious, irreparable, or
immediate harm’’ to the same.88 BOEM
is proposing to add a new paragraph
(f)(2) to cover these situations and to
allow BOEM to take appropriate action
by assessing civil penalties in the event
that a lessee or operator commits such
failures.
Noncompliance and Cessation Orders
Designation of Operator
§ 585.400 What happens if I fail to
comply with this part?
BOEM proposes to amend this section
to ensure that its civil penalty authority
for OCS renewable energy activities
addresses a more complete range of
violations and is coextensive with the
authority that Congress granted it in the
OCS Lands Act. Section 24 of the OCS
Lands Act authorizes the Secretary to
assess civil penalties for failure to
§ 585.405
operator?
issued competitively) or negotiated by
the parties (if the grant is issued
noncompetitively). The duration of the
operations period will depend on the
intended use of the grant. BOEM also
proposes to allow extensions of a ROW
grant or RUE grant operations period if
the requested extension can be justified
for ‘‘good cause’’ as determined by
BOEM.
Obtaining ROW Grants and RUE Grants
§ 585.305 How do I request a ROW
grant or RUE grant?
BOEM proposes to eliminate the
paper copy requirement, consistent with
its proposed changes to § 585.110.
§ 585.306 What action will BOEM take
on my request?
Proposed § 585.306 would add the
two provisions to paragraph (b) from the
existing § 585.309 and would remove
the existing § 585.309. This
consolidation would simplify and
clarify this subpart. The remaining
proposed changes are editorial in
nature.
§ 585.309 When will BOEM issue a
noncompetitive ROW grant or RUE
grant?
This section would be removed by the
proposed rule as redundant (see
analysis of § 585.306).
§ 585.310 What is the effective date of
a ROW grant or RUE grant?
This section would be re-numbered in
the proposed rule as § 585.309. The
substance of this section would remain
unchanged.
§ 585.316 What payments are required
for ROW grants or RUE grants?
BOEM proposes a technical correction
to reflect that ONRR is the appropriate
payee.
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How do I designate an
BOEM proposes technical edits to this
section to maintain consistency with
proposed changes in the organization of
§§ 585.626 and 585.645.
86 43
U.S.C. 1350(b).
CFR 550.1404.
88 30 CFR 250.1404(b)–(c).
87 30
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Lease or Grant Assignment, Segregation,
and Consolidation
§ 585.408 May I assign my lease or
grant interest?
BOEM proposes to eliminate specific
elements of the regulatory requirements
for an assignment application in
paragraph (b) that are already provided
in the form that is currently on the
BOEM website for leases (Form BOEM–
0003) and grants (Form BOEM–0002).
BOEM proposes to retain the paper copy
requirement for assignment
applications. The proposed rule would
also clarify that paragraph (e) refers to
business mergers and not to lease
consolidations that are discussed in
proposed § 585.413.
Lease or Grant Assignment
The proposed rule would add a new
section 585.410 to explain when an
assignment would result in a segregated
lease. Sections 585.410 and 585.411
would be renumbered to §§ 585.411 and
585.412, respectively.
§ 585.410 When will my assignment
result in a segregated lease?
BOEM’s existing regulations authorize
approval of requests to segregate its
leases into multiple smaller leases
under § 585.408(a), which allows lessees
to ‘‘assign all or part of your lease or
grant interest . . . subject to BOEM
approval under this subpart.’’ BOEM
previously has approved lease
segregation and anticipates receiving
more requests as some lessees may
decide to develop their leases in a
phased fashion. Accordingly, BOEM
proposes to clarify the process for
segregating leases by adopting language
from the lease segregation provision in
its OCS mineral resources regulations at
30 CFR 556.702.
§ 585.411 How does an assignment
affect the assignor’s liability?
This section is re-numbered to reflect
addition of the proposed § 585.410
regarding lease segregation.
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§ 585.412 How does an assignment
affect the assignee’s liability?
This section is re-numbered to reflect
addition of the proposed § 585.410
regarding lease segregation. The
proposed rule would correct the extent
of an assignee’s regulatory liability by
replacing ‘‘subchapter’’ with ‘‘part’’ in
the first sentence of paragraph (b).
§ 585.413 How do I consolidate leases
or grants?
BOEM proposes to add procedures for
consolidating two or more adjacent
leases or grants. BOEM currently has the
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authority to approve lease
consolidations by mutual agreement
under the terms of its existing leases
(and has already done so once), but no
regulatory provision directly addresses
such requests. Proposed § 585.413
would codify BOEM’s existing practices
in the regulations by establishing a
procedure for requesting and approving
consolidations of leases and grants.
BOEM notes that adjacent leases or
grants may have different terms and be
at differing stages of development.
BOEM proposes to harmonize such
differences as explained below. If the
time remaining in the relevant lease
periods differs between the leases or
grants to be consolidated, BOEM will
default to the shorter remaining periods
in the new lease or grant. The lessee or
grant holder may request an extension
pursuant to the proposed § 585.235(b). If
other terms and conditions differ
between the leases or grants to be
consolidated, BOEM will default to the
most recently issued terms and
conditions contained in the leases or
grants to be consolidated. The lessee or
grant holder may request modifications
to such terms and conditions. BOEM
will consider and, in its discretion,
approve such requests on a case-by-case
basis for good cause. BOEM also
proposes to assess the need to modify
existing financial assurances before
approving a proposed consolidation and
to terminate any lease or grant that has
been consolidated fully into a new
lease.
regulation, consistent with its proposed
changes to § 585.110.
Lease or Grant Suspension
§ 585.427
§ 585.415 What is a lease or grant
suspension?
BOEM proposes technical changes to
conform to its proposed changes to
§ 585.235 by changing the word ‘‘term’’
to ‘‘period’’ wherever it appears.
BOEM proposes to change the word
‘‘term’’ to ‘‘period’’ in light of its
proposed changes to § 585.235. This
change would not alter the substance of
this section.
§ 585.416 How do I request a lease or
grant suspension?
BOEM proposes several technical
corrections and clarifications to this
section. First, BOEM has reorganized
the contents of a suspension application
for clarity and added a catch-all
category to provide BOEM with
additional flexibility. Second, BOEM
proposes to add a new paragraph (b) to
be consistent with its proposed
revisions to § 585.235(b). Other
proposed changes are for editorial
clarity.
§ 585.417 When may BOEM order a
suspension?
BOEM proposes to eliminate the
paper copy requirement for this
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§ 585.420 What effect does a
suspension order have on my payments?
BOEM proposes technical edits to this
section to combine paragraphs (b) and
(c), and would modify the requirement
that directed suspensions would always
be accompanied by a fee suspension. As
a result, all payment suspensions would
be at the discretion of BOEM. BOEM
also proposes to clarify that regardless
of whether a lease or grant suspension
is approved or ordered, BOEM has
discretion to ‘‘waive or defer’’ (rather
than ‘‘suspend’’) payments while the
lease or grant is suspended. BOEM
believes that more flexibility is needed
than its existing regulations provide
regarding its treatment of such
payments, given the wide range of
potential justifications for a suspension.
Lease or Grant Renewal
§ 585.425 May I obtain a renewal of
my lease or grant before it terminates?
BOEM proposes a technical change to
conform to its proposed changes to
§ 585.235 by changing the word ‘‘term’’
to ‘‘period’’ wherever it appears.
§ 585.426 When must I submit my
request for renewal?
BOEM proposes a technical change to
conform to its proposed changes to
§ 585.235 by changing the word ‘‘term’’
to ‘‘period’’ wherever it appears.
How long is a renewal?
§ 585.429 What criteria will BOEM
consider in deciding whether to renew
a lease or grant?
BOEM proposes adding a catch-all
provision to the list of criteria in this
section that it will use in determining
whether to renew a lease or grant.
BOEM’s discretion to consider relevant
factors that may not be enumerated is
particularly important, given the
difficulty of foreseeing what issues may
arise in the future when BOEM begins
to receive lease renewal requests.
Lease or Grant Termination
§ 585.432 When does my lease or grant
terminate?
BOEM proposes technical changes to
conform to its proposed changes to
§ 585.235 by changing the word ‘‘term’’
to ‘‘period’’ wherever it appears.
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Lease or Grant Relinquishment,
Contraction, or Cancellation
BOEM proposes to consolidate the
three undesignated subheaders in the
existing regulations into one, for clarity
and efficiency. The existing separate
undesignated subheaders denote lease
or grant relinquishment, lease or grant
contraction, and lease or grant
cancellation.
§ 585.435 How can I relinquish a lease
or a grant or parts of a lease or grant?
The proposed rule would make a
lease or grant relinquishment effective
on the date BOEM receives a properly
completed relinquishment form. Under
the existing § 585.435(a), a lease or grant
relinquishment is effective on the date
BOEM approves a relinquishment
application. This change would conform
with BOEM’s approach to mineral
resource lease relinquishments in 30
CFR 556.1101, under which a
relinquishment takes effect as soon as
the lessee or grant holder files the
necessary information with BOEM in a
form available on BOEM’s website.
Relinquishment would no longer
require BOEM approval. As in the
existing regulations, relinquishment of a
lease or grant would have no impact on
a lessee’s or grant holder’s obligations
accrued under those instruments before
relinquishment. After BOEM receives
the properly completed relinquishment
form, ONRR will bill the lessee or grant
holder the amount due on any
outstanding obligations that accrued
under the relinquished lease or grant.
lotter on DSK11XQN23PROD with PROPOSALS2
§ 585.438 What happens to leases or
grants (or portions thereof) that have
been relinquished, contracted, or
cancelled?
The existing regulations do not
provide a process by which BOEM can
reissue a lease or grant for an area (or
portions thereof) previously covered by
a lease or grant that has been
relinquished under § 585.435,
contracted under § 585.436, or cancelled
under § 585.437. Proposed § 585.438
would allow BOEM to restart the
competitive leasing process at any point
it deems reasonable after a lease or grant
(or portion thereof) is relinquished,
contracted, or cancelled. In such
situations under the proposed rule,
BOEM would be obligated to engage in
additional environmental analysis and
consultation, if necessary, due to
elapsed time or changed conditions. The
proposed rule also would allow BOEM
to reoffer the lease or grant to the next
best bidder if a competitively issued
lease or grant (or portion thereof) is
relinquished or cancelled within 6
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months of the auction. BOEM believes
that within 6 months, the next best bid
may still be deemed sufficient to
constitute fair return under 43 U.S.C.
1337(p)(2)(A).
F. 30 CFR Part 585, Subpart F—
Payments and Financial Assurance
Requirements
Subpart E, Payments and Financial
Assurance Requirements, is being
redesignated as subpart F to
accommodate the addition of a new
subpart B, as noted in section VI.B
above.
Payments
§ 585.500 How do I make payments
under this part?
The proposed rule would replace the
due date in paragraph (c)(1) for the
bonus balance payment on a
competitively issued lease from ‘‘[l]ease
issuance’’ to ‘‘[w]ithin 10-business days
of receiving the unsigned lease’’ and
would add the section reference. The
proposed rule also would replace the
word ‘‘issuance’’ with ‘‘execution’’ in
the ‘‘Due date’’ column of (c)(3) and
(c)(8). These changes would provide
clarity and would give a lessee or a
grant holder more time to make the
required payments. The proposed rule
also would substitute the word ‘‘period’’
for ‘‘term’’ in paragraphs (a) and (c) to
ensure consistency with proposed
changes to § 585.235. The proposed rule
also would replace the annual ROW rent
of $70 per mile with an annual rent of
$5 per acre as determined by proposed
§ 585.301(a). This change would provide
BOEM consistency in pricing OCS usage
for RUEs and ROWs. See further
discussion below in the section-bysection analysis of § 585.508. Finally,
the proposed rule would eliminate the
word ‘‘statute’’ in the phrase ‘‘statute
mile’’ in the ‘‘Amount’’ column of (c)(8)
because ‘‘miles’’ is defined as nautical
miles in § 585.112.
§ 585.501 What deposits must I submit
for a competitively issued lease, ROW
grant, or RUE grant?
Existing § 585.501 describes the
deposit a bidder must submit to
participate in specific types of auctions
for a lease, RUE, or ROW. Proposed
§ 585.501 would eliminate provisions
specifying deposits by auction type and
would provide BOEM with discretion to
establish bid deposit requirements in
the FSN. This proposal would ensure
consistency with proposed § 585.220.
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§ 585.503 What are the rent and
operating fee requirements for a
commercial lease?
Proposed § 585.503 would revise the
payment due date for the first 12
months’ rent on a commercial lease. The
winning bidder would have to pay the
rent no later than 45-calendar days after
receiving a copy of the executed lease
from BOEM. The existing regulations
state that the rent payment is due no
later than 45-calendar days after BOEM
sends the unsigned copies of the lease
to the provisional winner. This
proposed section effectively would give
lessees slightly more time to pay the
first 12 months’ rent.
BOEM also proposes several technical
corrections to conform to the definition
of ‘‘commercial operations’’ in § 585.112
and BOEM’s proposed changes to
§ 585.235 as well as to provide more
specificity regarding the regulations that
govern payments to ONRR.
§ 585.504 How are my payments
affected if I develop my lease in phases?
BOEM proposes a technical change to
provide a more specific citation to the
regulations that govern payments to
ONRR.
§ 585.505 What are the rent and
operating fee requirements for a limited
lease?
BOEM proposes technical changes to
provide a more specific citation to the
regulations that govern payments to
ONRR and to conform to the proposed
nomenclature change from ‘‘term’’ to
‘‘period’’ in § 585.235.
§ 585.506 What operating fees must I
pay on a commercial lease?
BOEM proposes to amend the
introductory paragraph to clarify that
operating fees are triggered at the start
of commercial operations as defined in
§ 585.112, rather than at the start of
energy generation. Under the current
regulations, generation of electricity
during testing would be subject to
operating fees. This rule would exempt
electricity generated for testing
purposed from operating fees. BOEM
typically does not consider energy
generated during testing periods, prior
to final project verification under
§ 585.708(a)(5), to constitute commercial
operations. BOEM also proposes
technical changes to provide a more
specific citation to the regulations that
govern payments to ONRR; to conform
to the definition of ‘‘commercial
operations’’ in § 585.112; to identify
ONRR as the correct payee for operating
fees; and to define ‘‘DOE.’’
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§ 585.507 What rent payments must I
pay on a project easement?
replacing ‘‘BOEM’’ with ‘‘ONRR’’ as the
correct payee.
BOEM proposes technical changes to
provide a more specific citation to the
regulations that govern payments to
ONRR and to conform to proposed
changes to §§ 585.235 and 585.628(g).
§ 585.510 May BOEM defer, reduce, or
waive my lease or grant payments?
BOEM proposes to change the
regulations to allow that BOEM may
grant requests for deferral of rental and
operating fee payments, in addition to
reductions or waivers. BOEM seeks to
avoid confusion by explicitly including
this authority in the proposed rule.
BOEM also proposes a technical change
to conform to BOEM’s proposed changes
to § 585.235.
§ 585.508 What rent payments must I
pay on ROW grants or RUE grants
associated with renewable energy
projects?
BOEM proposes technical changes to
provide a more specific citation to the
regulations that govern payments to
ONRR; to remove the word ‘‘nautical’’
as redundant given the definition of
‘‘miles’’ in § 585.112; and to make minor
editorial adjustments that enhance
readability. BOEM also proposes to
simplify ROW rental payments to reflect
that, under the proposed rule, ROW
corridors would have sufficient width to
accommodate all planned grant
activities. BOEM believes that most
grant holders would prefer an initially
wider corridor that would encompass
all areas of actual seabed disturbance,
rather than the existing regulations
limiting corridors to a 200-foot width
with a subsequent determination of the
‘‘affected area’’ outside that corridor.
Grant holders would be able to
relinquish unused portions of the rightof-way corridor after construction, as set
forth in proposed § 585.301, and would
be relieved of their obligation to pay
rent subsequently for those relinquished
areas.
To promote consistency in BOEM’s
valuation of OCS rental pricing across
RUEs and ROWs, the proposed rule also
would replace the annual ROW rent of
$70 per mile with an annual rent of $5
per acre as determined by the proposed
§ 585.301(a). This change would
streamline BOEM’s existing rental fee
calculations and ensure consistent
valuation of all OCS acreage for grants.
Under existing regulations, a ROW grant
holder pays an annual rent of about
$2.89 per acre and a RUE grant holder,
$5 per acre.89 BOEM has determined
that no compelling reason supports this
differential between RUE and ROW
annual rental rates.
lotter on DSK11XQN23PROD with PROPOSALS2
§ 585.509 Who is responsible for
submitting lease or grant payments to
ONRR?
The proposed rule makes a technical
correction to the section heading by
89 An annual ROW rent of $2.89 per acre for a
one-mile, 200-foot-wide corridor is derived as
follows: A 1-mile, 200-foot-wide corridor has an
area equivalent to 1,056,000 square feet or 24.24
acres (43,560 square feet per acre); $70 divided by
24.24 acres is $2.89 per acre.
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§ 585.515 What financial assurance
must I provide when I obtain my
commercial lease?
This section is removed in the
proposed rule as explained in the
analysis of § 585.516.
Financial Assurance Requirements for
Commercial Leases
§ 585.516 What are the financial
assurance requirements for each stage of
my commercial lease?
The proposed rule would amend
several key aspects of this section. As
discussed in section V.G.3(b) above,
entitled ‘‘Revision of Lease-Specific
Financial Assurance Amount,’’ BOEM
proposes to replace the existing
$100,000 lease-specific bond required
before BOEM will execute a commercial
lease or approve an assignment of an
existing commercial lease with a bond
or other authorized financial assurance
in the amount of 12 months’ rent to
ensure BOEM and the U.S. taxpayers are
not under-bonded during the
preliminary term of a lease if annual
rent exceeds $100,000, which it often
does. BOEM proposes to remove the
existing § 585.515 as surplusage in light
of this proposed change, as that section
relates to a ‘‘flat-fee’’ bond that would
no longer be required. Section 585.515
currently subjects the minimum base
bond to adjustment every 5 years based
on changes to the Consumer Price
Index—All Urban Consumers, but such
adjustment is no longer necessary if the
initial bond is tied to the annual rent for
the lease. Under the proposed rule,
§ 585.515 would be reserved.
Second, BOEM proposes to amend the
timing of the SAP decommissioning
bond in paragraph (a)(2) so that it is due
before the installation of SAP facilities,
rather than at the time of SAP approval.
This change is proposed in recognition
of the fact that liability for SAP facilities
does not accrue until installation.
Third, BOEM proposes to eliminate
the bond or other financial assurance
that is presently due before COP
approval, for the reasons set forth in
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section V.G.3(a) above, entitled
‘‘Elimination of COP Approval
Financial Assurance Requirement.’’
Fourth, BOEM proposes several
revisions to the decommissioning
financial assurance requirement. Most
importantly, the proposed rule would
establish that a lessee may propose—
and BOEM may approve or
disapprove—incremental funding of a
financial assurance instrument that
satisfies this requirement. This proposal
would allow BOEM to approve the
incremental provision of financial
assurance during the operation of the
facility for the reasons set forth in
section V.G.3(d) above, entitled ‘‘Staged
Funding of Decommissioning
Accounts.’’ The proposed rule would
provide more flexibility than BOEM’s
existing regulatory authority, which
allows decommissioning financial
assurance to be provided ‘‘in accordance
with the number of facilities installed or
being installed.’’ 90
The remaining proposed changes to
this section are intended for
clarification and organizational
purposes. For instance, BOEM proposes
to adopt the term ‘‘supplemental’’ to
describe all financial assurance for
obligations other than the first 12
months’ rent. BOEM also would remove
language in paragraph (b) regarding a
lessee’s ability to increase its financial
assurance. The text is redundant of
§ 585.517 requirements that a lessee
must provide financial assurance to
cover all lease obligations and that
BOEM may require additional financial
assurance at any time during the lease
after providing a lessee notice and an
opportunity to be heard. BOEM also
proposes to change the timing for
providing supplemental financial
assurance for marine hydrokinetic
projects in paragraph (c) in recognition
that obtaining a Federal Energy
Regulatory Commission (FERC) license,
like the approval of a COP, may not
itself result in the accrual of obligations.
The additional flexibility regarding the
timing of financial assurance will assist
BOEM in coordinating with FERC.
§ 585.517 How will BOEM determine
the amounts of the supplemental
financial assurance requirements
associated with commercial leases?
This section describes BOEM’s
general requirements for assessing
supplemental financial assurance.
BOEM proposes several technical
revisions to streamline the processes set
forth in this section and to maintain
consistency with other proposed
changes. First, the proposed rule would
90 30
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CFR 585.516(a)(4).
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simplify terminology by renaming as
‘‘supplemental financial assurance’’
every type of financial assurance
required after the initial financial
assurance is provided. BOEM also
proposes to combine paragraphs (a) and
(b). Under the new paragraph (a), BOEM
proposes to clarify that the obligation to
maintain supplemental financial
assurance for 12 months of rent applies
only to the extent the rent is not covered
in the initial financial assurance
provided under § 585.516(a)(1). This
language would ensure that BOEM does
not require a lessee to provide more
financial assurance than necessary to
secure the rent obligation. Additionally,
BOEM proposes to eliminate most of the
existing paragraph (c)(2) as duplicative
of the proposed paragraph (a); BOEM
would simply cross-reference to the list
of obligations that must be bonded in
proposed paragraph (a).
lotter on DSK11XQN23PROD with PROPOSALS2
§ 585.520 What financial assurance
must I provide when I obtain my limited
lease, ROW grant, or RUE grant?
BOEM proposes to adopt an approach
to calculate the initial financial
assurance for limited leases, ROWs, and
RUEs that is analogous to the proposed
approach for commercial leases in
§ 585.516. Instead of the existing fixed
dollar amount ($300,000), the proposed
rule would require financial assurance
in an amount equal to 12 months’ rent
before BOEM will execute the limited
lease, ROW, or RUE. The rationale for
this proposed change is that unpaid
rental payments are the only liability
that a limited lessee 91 or grant holder
accrues at that stage of development. As
with the proposed elimination of
§ 585.515, inflationary (or deflationary)
adjustments would be obsolete if the
minimum bond is based only on rental
obligations. BOEM believes this rule
change will decrease the initial cost
burden on limited lessees and grant
holders in most instances because 12
months of rent for these areas is likely
to be less than $300,000. At all times,
financial assurance would still be
required to be sufficient to cover a
limited lessee’s obligations pursuant to
§ 585.521.
§ 585.521 Do my financial assurance
requirements change as activities
progress on my limited lease or grant?
BOEM proposes revisions to better
align limited lease and grant financial
assurance requirements with those
proposed for a commercial lease.
Proposed language in paragraph (a)
clarifies that BOEM may increase or
91 Throughout section VI, the term ‘‘limited
lessee’’ means a holder of a limited lease.
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decrease the amount of a limited
lessee’s or a grant holder’s financial
assurance depending on the estimated
costs to meet its accrued obligations.
The proposed rule would clarify that the
amount of financial assurance provided
must be no less than the amount
required to meet a limited lessee’s or a
grant holder’s obligations. Additionally,
BOEM would revise this section to
clarify that payments are due to the
‘‘United States’’ rather than the
‘‘Government.’’ This section includes
new language providing for notice and
opportunity to object if BOEM proposes
to adjust the financial assurance
requirements on a limited lease or grant.
The proposed rule would allow a
limited lessee or a grant holder to
request reduction of its financial
assurance requirement if the amount
assured continues to be greater than the
sum of the accrued obligations. Under
the proposed rule, BOEM would have
sole discretion to approve such a
request. BOEM proposes to substitute
‘‘supplemental financial assurance’’ for
‘‘decommissioning bond’’ consistent
with the proposed terminology changes
discussed in the § 585.516 analysis.
Finally, the proposed rule would add a
provision to the effect that a limited
lessee or a grant holder may fund its
financial assurance incrementally. In its
discretion, BOEM would approve or
disapprove such a request and the
schedule for providing the financial
assurance. The added provision for
incremental funding of the financial
assurance is intended to reduce the
costs associated with building and
developing the lease or grant in
situations where the amount of financial
assurance provided would be delayed
until it became necessary.
BOEM would require financial
assurance prior to the net present value
of the project turning negative when
factoring in decommissioning costs.
This calculation would change based
upon actual operating efficiency of the
project (both at start-up and throughout
its lifecycle) and realized prices
obtained through the PPA based upon
the local market. BOEM would require
an annual re-evaluation of the financial
condition of the project and would
adjust the timing of required financial
assurance accordingly.
Requirements for Financial Assurance
Instruments
§ 585.526 What instruments other than
a surety bond may I use to meet the
financial assurance requirement?
BOEM proposes to revise this section
to clarify that a lessee and a grant holder
have choices in proposing alternative
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6003
instruments to satisfy their financial
assurance obligations. As discussed in
section V.G.3(c) above, entitled
‘‘Additional Authorized Financial
Assurance Instruments,’’ BOEM reads
the existing section as allowing a lessee
and a grant holder to propose financial
assurance instruments that are not
specifically enumerated in the
regulations. The proposed rule would
explicitly authorize BOEM to approve
non-listed instruments or combinations
of instruments. Responding to recent
requests by several lessees, the proposed
rule specifically would identify letters
of credit as acceptable financial
assurance instruments but would
condition their use. The proposed
conditions for letters of credit would
include a minimum credit rating, a
minimum term of 1 year, automatic
renewal in the absence of a notice of
cancellation to BOEM, and a venue
provision requiring adjudication of any
dispute in U.S. district court. These
conditions would ensure that letters of
credit provide protection to the U.S.
taxpayer to the same extent as a surety
bond. Additionally, the proposed rule
would remove the provision in
paragraph (a)(2) stating that cash
financial assurance is to be deposited
and maintained in the U.S. Treasury by
BOEM.
§ 585.528 May I use a third-party
guaranty to meet the financial assurance
requirement for lease or grant activities?
The proposed rule would grant BOEM
the authority to allow a third-party
guarantor to cap its liability on a
guaranty provided to meet lessee and
grant holder financial assurance
obligations. As discussed in section
V.G.3(c) above, entitled ‘‘Additional
Authorized Financial Assurance
Instruments,’’ BOEM’s existing
regulations require a third-party
guaranty to cover all obligations. BOEM
believes that lessees and grant holders
would benefit if a third-party guarantor
could cap its liability. BOEM proposes
to allow this increased flexibility by
adding language in paragraph (a) stating
that a third-party guaranty may be ‘‘in
an amount determined by BOEM’’ and
by stating in paragraph (c)(5) that a
guarantor must either take corrective
action or provide, within 7-calendar
days or other agreed upon time period,
sufficient funds ‘‘up to the value of the
guaranty’’ to enable BOEM to remedy
the violation. BOEM also proposes to
clarify that a guarantor must satisfy only
the legal and financial aspects of
§§ 585.106 and 585.107; because a
guarantor only provides financial
assurance, it does not need to be
technically qualified. Additionally,
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BOEM proposes a technical correction
to remove the term ‘‘operating rights
owner,’’ a legal status that exists in the
offshore oil and gas regulatory
framework but not in the legal
framework for OCS renewable energy.
§ 585.529 Can I use a lease- or grantspecific decommissioning account to
meet the financial assurance
requirements related to
decommissioning?
As discussed further in section
V.G.3(d) above, entitled ‘‘Staged
Funding of Decommissioning
Accounts,’’ BOEM proposes to allow a
lessee or grant holder to fund a
decommissioning account in stages over
the term of a lease or grant. This
authority would be set forth in a revised
paragraph (a)(2) stating that a lessee or
grant holder ‘‘must fund the account in
the amount determined by and
according to the funding schedule
approved by BOEM’’ and in a new
paragraph (a)(3) stating that a
decommissioning account ‘‘may be
funded in whole or in part during the
operations period of a lease or grant.’’ A
proposed funding schedule would be
subject to BOEM’s approval (and
potential modification) after BOEM
conducts the appropriate risk analysis.
Changes in Financial Assurance
lotter on DSK11XQN23PROD with PROPOSALS2
§ 585.532 What happens if my surety
wants to terminate the period of liability
of my financial assurance?
In the section heading and paragraph
(a), BOEM proposes to substitute the
term ‘‘financial assurance’’ for ‘‘bond’’
because financial assurance is inclusive
of all types of security—including, but
not limited to, surety bonds—that
BOEM allows under this subpart. To be
responsive to the question posed in the
section heading, BOEM also proposes to
remove ‘‘a’’ and add ‘‘your’’ before
‘‘financial assurance’’ in paragraph (a).
BOEM also proposes to revise
paragraph (b) by introducing a time
constraint for when your surety must
submit to BOEM its request to terminate
the period of liability under its financial
assurance and notify you of that request.
The time constraint proposed in this
rule is no less than 90 days before the
proposed termination date. BOEM
requests comment on whether the 90day time frame is appropriate. BOEM
also proposes to remove the clause ‘‘or
have not met all obligations of your
lease or grant,’’ and to add the words
‘‘on your lease or grant’’ to recognize
that the surety continues to be
responsible for obligations and
liabilities that accrued during the period
of liability and before the date on which
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BOEM terminated the period of liability.
Therefore, the lessee or grant holder
must provide replacement financial
assurance only if it intends to continue
activities on its lease or grant.
§ 585.533 How does my surety obtain
cancellation of my financial assurance?
BOEM proposes to substitute the term
‘‘financial assurance’’ for ‘‘bond’’ in the
section heading for the reasons set forth
in the analysis of § 585.532 and to use
‘‘cancel’’ throughout this section to
avoid confusion arising from the use of
‘‘release.’’ In addition, BOEM proposes
to revise this section by replacing the
‘‘only if’’ conditional at the end of the
existing paragraph (a), which limits the
cancellation of a financial assurance
whose period of liability has terminated
to two situations, with a timing clause
stating when cancellation would occur
and by adding two additional situations
when cancellation would be
appropriate. The first added situation
would cover the circumstance when the
period of liability is terminated for
financial assurance, but the provider of
replacement financial assurance does
not agree to assume the liabilities of the
terminated period of liability. In such a
situation, the proposed rule would
provide that the financial assurance
would be cancelled 7 years after the
termination of the period of liability.
The second situation would cover the
circumstance when the financial
assurance obligations are the subject of
an appeal or judicial litigation. In such
a situation, the proposed rule would
provide that the financial assurance
would be cancelled upon completion of
the appeals process or judicial litigation.
BOEM also proposes to streamline
this section by removing surplusage in
the existing paragraph (b) that is
redundant with the requirements and
procedures set forth in proposed
§ 585.534.
§ 585.534 When may BOEM cancel my
financial assurance?
BOEM proposes significant
organizational and substantive revisions
to this section. First, BOEM proposes to
substitute ‘‘financial assurance’’ for
‘‘bond’’ and ‘‘pledged security’’ for the
reasons set forth in the analysis of
§ 585.532 and to use ‘‘cancel’’
throughout this section to avoid
confusion arising from the use of
‘‘release.’’
Second, the proposed rule would
amend the first column of the chart
(which would be part of a new
paragraph (a)) to collapse the distinction
between different types of financial
assurance for commercial leases,
supplemental or decommissioning
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obligations, limited leases, and grants.
BOEM has concluded that the
cancellation of financial assurance for
different types of leases and grants
should be subject to the same regulatory
requirements.
Third, the proposed rule would
remove the existing second column of
the chart referring to the ‘‘period of
liability’’ associated with BOEM’s
financial assurance cancellation; this
column is unnecessary because the final
column contains all needed information
regarding when BOEM may cancel
lessees’ and grant holders’ financial
assurance. Termination of the period of
liability is addressed adequately in
§ 585.532.
Fourth, BOEM would revise the first
sentence of the third column in the
existing paragraph (a) to provide that
financial assurance will not be
cancelled until 7 years after all
operations and activities under the lease
or grant cease, including
decommissioning and site clearance, or
a longer period as necessary to complete
any appeals or judicial litigation related
to a surety’s financial assurance
obligation. This change recognizes the
statutes of limitations on claims after all
operations and activities cease under
the lease or grant, including
decommissioning and site clearance.
BOEM also proposes to introduce more
flexibility to cancel financial assurance
under certain circumstances not covered
under existing regulations. For example,
the proposed rule would give BOEM
additional flexibility to cancel financial
assurance before the termination of a
lease or grant when the assurance is no
longer needed, the operations for which
the supplemental financial assurance
was provided ceased prior to accrual of
any decommissioning obligation, or
BOEM determines that the assurance
was erroneously assessed. BOEM
proposes this change in response to
requests from lessees to depart from
BOEM’s existing requirement that
lessees hold financial assurance for 7
years after a lease ends. BOEM believes
the proposed language would provide
needed flexibility to release a lessee’s or
a grant holder’s financial assurance
whenever BOEM determines that it is no
longer needed.
Finally, BOEM proposes to further
protect the U.S. taxpayer against certain
risks by adapting language from the
equivalent oil and gas regulations at 30
CFR 556.906(e). The proposed rule
would allow BOEM to require
reinstatement of a financial assurance
instrument as if no cancellation
occurred if an obligor’s payment under
a lease or grant is rescinded due to
insolvency or bankruptcy, or if the
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responsible party represents to BOEM
that it has discharged its obligations
under the lease or grant, and the
representation was materially false
when the bond was cancelled.
§ 585.535 Why might BOEM call for
forfeiture of my financial assurance?
For the reasons set forth in the
section-by-section analysis of § 585.532
above, BOEM proposes a technical
correction to substitute the phrase
‘‘financial assurance’’ for the word
‘‘bond.’’
Revenue Sharing With States
§ 585.541 What is a qualified project
for revenue sharing purposes?
BOEM proposes a technical correction
to remove the word ‘‘nautical’’ as
redundant given the definition of
‘‘miles’’ in § 585.112.
§ 585.542 What makes a State eligible
for payment of revenues?
BOEM proposes a technical correction
to remove the word ‘‘nautical’’ as
redundant given the definition of
‘‘miles’’ in § 585.112.
G. 30 CFR Part 585, Subpart G—Plans
and Information Requirements
Subpart F, Plans and Information
Requirements, is being redesignated as
subpart G to accommodate the addition
of a new subpart B, as noted in section
VI.B above.
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§ 585.600 What plans and information
must I submit to BOEM before I conduct
activities on my lease or grant?
The existing regulations require
lessees to submit a SAP for BOEM
approval before conducting any site
assessment activities on their
commercial leases. Under proposed
§ 585.600(a)(1), SAPs would be required
only for site assessment activities
involving an engineered foundation.
This change is intended to exempt
floating site assessment facilities, such
as met buoys, from the SAP
requirement, and is being proposed for
the reasons set forth in section V.A.
above, entitled ‘‘Site Assessment
Facilities.’’ Changes to these regulatory
provisions would not affect the
applicability of other agencies’ statutory
and regulatory requirements. The term
‘‘engineered foundation’’ would be
defined in this section to include met
towers or other structures that are
installed using a fixed-bottom
foundation requiring professional
engineering design and assessment of
sediment, meteorological, and
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oceanographic condition.92 A lessee
planning to install an industry-standard
met buoy using a gravity anchor for site
assessment would not require a SAP. If
a lessee is uncertain whether its
proposed site assessment facility had an
engineered foundation that would
trigger SAP requirements, it would be
encouraged to consult with BOEM at the
earliest opportunity. BOEM seeks public
comment on whether the definition of
‘‘engineered foundation’’ is appropriate
(and, if not, what that definition should
be) or whether a different term should
be used to determine whether a facility
requires a SAP.
BOEM also proposes to add language
that would allow it the discretion to
waive certain information or analysis
requirements in a proposed plan if the
applicant can demonstrate that, among
other things, the information or analysis
is known to BOEM, the relevant
resource is not present or affected, or
the information is not needed or
required by a State’s coastal
management program. The language in
this provision is modeled on BOEM’s oil
and gas regulations at 30 CFR 550.201(c)
and would grant BOEM more flexibility
to tailor its plan requirements to unique
elements of a specific proposal without
needing to issue regulatory departures
under § 585.103.
§ 585.601 When must I submit my
plans to BOEM?
The existing regulation requires
submittal of any SAPs either before or
within 12 months after the date of lease
or grant issuance. BOEM sees no
persuasive reason for this requirement
and removing it could give useful
flexibility to lessees and grant holders
without any notable downside. Some
lessees have chosen to file a COP prior
to a SAP, and there may be other
instances where additional data
collection methods that would require a
SAP are undertaken after the filing of
the COP. Additionally, BOEM expects
that the requirement would have little
application if SAPs are no longer
required for met buoys as proposed,
because nearly all SAPs submitted to
date have been for met buoys. BOEM,
therefore, proposes to allow a lessee or
grant holder to submit a SAP anytime
during the life of its lease or grant, but
would continue to require a lessee or
grant holder to submit a SAP before
conducting any activities that require a
SAP.
BOEM also proposes revising the
timing for COP submittal to be
consistent with proposed changes to the
92 See
supra note 28 for additional discussion of
engineered foundations.
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6005
lease periods in § 585.235. Under the
proposed rule, a COP is due within 5
years of the lease effective date. BOEM
proposes to clarify that the 12-month
period for GAP submittal starts at the
effective date of the limited lease or
grant consistent with the existing
§ 585.236 and the proposed § 585.303(a).
The remaining proposed changes to this
section are edits for clarity.
§ 585.602 What records must I
maintain?
The proposed rule would expand the
recordkeeping requirements, which
currently only refer to data and
information related to plan compliance.
Under the proposed rule, lessees and
grant holders would also be required to
retain records relating to lease or grant
compliance, including SMS
requirement. This change is proposed to
ensure a fuller compliance record is
available to monitor trends and to
ensure safety and SMS effectiveness.
Site Assessment Plan and Information
Requirements for Commercial Leases
§ 585.605 What is a Site Assessment
Plan (SAP)?
BOEM proposes revising § 585.605(a)
to be consistent with its proposed
changes to § 585.600(a)(1) and to delete
text that it views as duplicative of the
requirements set forth in proposed
§§ 585.606 through 585.613 (describing
the SAP submittal and review process).
BOEM’s proposed changes to the
renumbered paragraphs (b) and (c) are
editorial in nature and intended to
clarify the existing text.
§ 585.606
my SAP?
What must I demonstrate in
BOEM proposes to delete the
requirement that a lessee demonstrate
that its site assessment activities will
collect the necessary information and
data required for a COP as covered in
§ 585.626. BOEM has determined that
this requirement is unnecessary because
it is not BOEM’s responsibility to
ascertain at this stage if site assessment
data will be sufficient to meet the needs
of the COP review; rather, BOEM
intends to focus its review on the
potential environmental impacts of the
site assessment facility itself. Other
edits in this section are technical
corrections or are intended to further
clarify the text.
§ 585.607
How do I submit my SAP?
BOEM proposes to eliminate the
paper copy requirement, consistent with
its proposed changes to § 585.110.
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Contents of the Site Assessment Plan
§ 585.610 What must I include in my
SAP?
BOEM proposes to clarify and
streamline the data requirements for
SAP submission. Most of these
proposed changes are driven by
proposed changes to the COP
requirements (as discussed in section
V.C. above, entitled ‘‘Geophysical and
Geotechnical Surveys’’); BOEM
proposes making similar changes across
the corresponding SAP and GAP
regulations for purposes of consistency.
A more detailed description of the
rationale for these proposed revisions
can be found in section V.C. and the
analysis of proposed § 585.626.
First, the proposed rule would add
language in paragraph (a) intended to
clarify that a lessee may use a PDE in
its SAP (see section V.B). The
introductory language in proposed
paragraph (a) 93 would clarify that
project specific information may be
provided as a range of parameters.
While BOEM is not specifying in this
proposed rule what that range should
be, BOEM’s requirement cannot be met
without providing both a minimum and
a maximum value. For example, a lessee
would not satisfy this requirement by
saying, for example, that at least 200
turbines would be installed. For
example, a lessee could propose two
types of met tower foundations in its
SAP, but would need to describe which
foundation type is expected to have the
greatest impact on each affected
resource. Paragraph (a)(5) would
include language clarifying that a lessee
can propose a range of potential
locations for its site assessment facility
as well as an indicative layout (i.e., a
less detailed design) as an alternative to
a location plat. Paragraph (a)(6) would
clarify that only preliminary design
information is required. Such drawings
would be submitted with the FDR under
§ 585.701 if the project is deemed
complex and significant under
§ 585.613(a).
Second, BOEM proposes to eliminate
the existing requirement in paragraph
(a)(9) that a CVA nomination (if
necessary under § 585.613(a)) be
included with the SAP; instead, a lessee
would be able to nominate a CVA before
or after SAP submittal under proposed
§ 585.706. As described further in
93 For clarity, BOEM proposes standardizing the
presentation of the required content for a SAP, COP,
and GAP so that paragraph (a) outlines the general
informational requirements and paragraph (b)
outlines the survey and investigations data
requirements. The equivalent COP and GAP
sections would be re-arranged under the proposed
rule consistent with this approach.
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section V.D.3(a) above, entitled
‘‘Certified Verification Agent Roles and
Flexibility,’’ the intent of delinking the
CVA nomination from the SAP, COP, or
GAP is to allow a lessee or grant holder
to obtain the benefits of CVA review at
the earliest feasible opportunity. In lieu
of a CVA nomination, a lessee would
need only to describe its project
verification strategy for proposed
activities that would require a SAP. For
a SAP, this would include an analysis
of whether a lessee believes the project
should be considered complex or
significant, thereby triggering the
design, fabrication, and installation
requirements in proposed subpart H.
Under the proposed rule, in the event
that a lessee or a grant holder under
proposed § 585.645(c)(4) recommends
that its project be designated complex or
significant, the lessee or grant holder
would include a general description of
its strategy for complying with the
requirements of the proposed subpart H.
Third, BOEM proposes clarifying and
technical edits to several other
informational requirements in
paragraph (a), including adopting
language from the existing COP
informational requirements (§ 585.626)
regarding decommissioning; documents
incorporated by reference; and lists of
Federal, State, and local permits.
Fourth, the proposed rule would
rewrite the SAP data requirements in
paragraph (b) to mirror its proposed
changes to the COP and GAP
regulations. The reasons for these
changes are described in more detail in
section V.C. above, entitled
‘‘Geophysical and Geotechnical
Surveys,’’ and in the description of
proposed § 585.626(b). Note that the
detail and thoroughness of these data
requirements would be commensurate
with the scope and complexity of the
proposed activities. Under proposed
§ 585.600(b), lessees could seek waivers
of certain data requirements by
providing their rationale for why that
data is unnecessary.
Finally, BOEM proposes deleting the
existing paragraph (c), which concerns
the simultaneous submittal of a SAP
and either a COP or (for a marine
hydrokinetic project) FERC license
application. BOEM believes that
paragraph (c) is unnecessary because
such simultaneous submittals still
would be permitted under other
provisions of this subpart in the
proposed rule and because much of this
paragraph is repetitive of proposed
§ 585.601(b).
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§ 585.611 What information and
certifications must I submit with my
SAP to assist BOEM in complying with
NEPA and other applicable laws?
BOEM proposes clarifications to the
following informational requirements in
this section. These proposed
clarifications are consistent with
BOEM’s present expectations for SAP
submittals and, therefore, should not
create additional burdens on lessees:
• Water quality information would
explicitly include impacts from vessel
discharges, as is already required under
the Clean Water Act.
• Archaeological resources
information would explicitly include
information on all types of historic
properties, as is already required under
the NHPA.
• Coastal and marine uses
information would explicitly include
assessments of fisheries and
navigational safety risk. Lessees would
be required to submit the latter
assessment to the USCG.
Additionally, in the section heading
and regulatory text, the more
appropriate phrase ‘‘applicable laws’’
would replace ‘‘relevant laws.’’ The
remaining proposed changes to this
section are edits for improved
organization, clarity, or consistency,
including moving most of the language
from the existing paragraph (b) into a
new paragraph (c).
§ 585.612 How will my SAP be
processed for Federal consistency under
the Coastal Zone Management Act?
BOEM proposes to modify paragraph
(a) to add that the submittal to BOEM
must conform with the requirements of
§ 585.110. BOEM proposes to clarify in
paragraph (b) that lessees need to
submit a consistency certification for
their SAPs under 15 CFR part 930,
subpart E, only if BOEM has not
previously submitted a consistency
determination to that State under 15
CFR part 930, subpart C, that covered
the proposed site assessment activities,
as opposed to always providing the
submittal as described in the current
regulations. The existing regulations
require lessees to submit a consistency
certification in all cases.
BOEM, in consultation with NOAA,
finds that implementation of the OCS
renewable energy program thus far
shows that there are three potential
CZMA Federal consistency reviews
under BOEM’s actions: (1) when BOEM
conducts a lease sale and awards a
lease, ROW, or RUE and provides a
State or States with a CZMA consistency
determination under 15 CFR part 930,
subpart C; (2) when an applicant
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submits a CZMA consistency
certification to BOEM for a COP, if
required by 15 CFR part 930, subpart E;
and (3) when the activity is located
outside a geographic location described
in the State’s coastal management
program pursuant to 15 CFR 930.52, and
an applicant, on its own accord, submits
a consistency certification to a State or
States through BOEM under 15 CFR part
930, subpart E. For the lease sales held
so far, States have reviewed associated
SAP or GAP activities through the
review of BOEM’s consistency
determination under 15 CFR part 930,
subpart C. BOEM and NOAA expect that
this will continue and that it should be
the rare case where a separate CZMA
consistency review is required for a SAP
or GAP.
§ 585.613 How will BOEM process my
SAP?
BOEM proposes to harmonize the
existing language in paragraph (e)(2)
with the equivalent provision in
§ 585.628(f)(2) regarding actions lessees
may take in the event of COP
disapproval. BOEM also proposes to
clarify that SAP resubmission must
occur within a reasonable time and
proposes to make analogous changes to
the equivalent COP and GAP
requirements in §§ 585.628 and 585.648.
Activities Under an Approved SAP
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§ 585.614 When may I begin
conducting activities under my
approved SAP?
BOEM proposes a minor edit to
paragraph (b) by adding the word
‘‘description’’ after Safety Management
System to clarify that it is a description
of the Safety Management System that
must be submitted, in conformance with
the requirements outlined in § 585.810.
§ 585.617 What activities require a
revision to my SAP, and when will
BOEM approve the revision?
The proposed changes include the
addition of a new paragraph (b) to
clarify that revisions to a lessee’s SAP
may trigger a reassessment of the
significance and complexity of the
proposed activities. The proposed
revisions under paragraph (d) would
eliminate unnecessary verbiage in the
list of changes or modifications that
could trigger the revision of an
approved SAP by merging the substance
of existing paragraphs (c)(4), (5), and (6)
into revised paragraphs (d)(2) and (3).
BOEM also proposes to align this
section with the PDE concept as
described in section V.B. above, entitled
‘‘Project Design Envelope,’’ and to
ensure consistency with the proposed
§ 585.610(a)(5). The proposed rule
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would make minor editorial changes to
improve clarity and readability.
§ 585.618 What must I do upon
completion of approved site assessment
activities?
BOEM proposes technical edits in
paragraph (a) to ensure consistency with
proposed changes to § 585.235
eliminating the site assessment term of
a commercial lease. The proposed
paragraph (a) would apply only if site
assessment facilities are installed before
COP submittal.
Paragraph (e) of the existing
regulation states that ‘‘you must initiate
the decommissioning process [for your
site assessment activities] . . . upon
termination of your lease.’’ However,
the proposed subpart J of the regulations
contemplates that lessees will initiate
the decommissioning process by
submitting a decommissioning
application as much as 2 years before
the lease expires. BOEM proposes to
revise this section for clarity and
consistency with §§ 585.905 and
585.906.
Construction and Operations Plan for
Commercial Leases
§ 585.621
my COP?
What must I demonstrate in
The proposed changes are technical
edits to ensure consistency with certain
proposed changes to § 585.606 for SAPs.
§ 585.622
How do I submit my COP?
BOEM proposes to eliminate the
paper copy requirement, consistent with
its proposed changes to § 585.110.
Contents of the Construction and
Operations Plan
§ 585.626
COP?
What must I include in my
BOEM proposes to clarify and
streamline the data requirements for
COP submission in several key respects.
First, the proposed rule would add
language in paragraph (a) intended to
clarify that a lessee may use a PDE in
its COP, as further discussed above in
section V.B, entitled ‘‘Project Design
Envelope,’’ section V.C., entitled
‘‘Geophysical and Geotechnical
Surveys,’’ and the analysis of § 585.610.
Second, BOEM proposes replacing the
existing obligation in paragraph (a)(18)
to submit a CVA nomination with the
COP with a requirement to submit a
‘‘project verification strategy’’
describing the lessee’s plan for
complying with the CVA regulations at
§§ 585.705 through 585.714. As
discussed further in section V.D.3(a)
above, entitled ‘‘Certified Verification
Agent Roles and Flexibility,’’ this
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6007
proposed amendment is intended to
provide lessees with the flexibility to
nominate (and for BOEM to approve) a
CVA either before or after COP
submittal.
Third, the proposed rule would make
both clarifying and substantive changes
to the data submittal requirements in
this section. Most of the proposed
changes relate to nomenclature and
organization and are intended to more
precisely reflect BOEM’s expectations
for a lessee’s COP surveys. For instance,
BOEM proposes to merge the existing
‘‘shallow hazards,’’ ‘‘geological,’’
‘‘geotechnical,’’ and ‘‘site investigation’’
survey requirements in paragraphs
(a)(1), (2), (4), and (6) into ‘‘geological
and geotechnical’’ survey requirements
set forth in a new § 585.626(b)(1). BOEM
believes this change would clarify any
stakeholder confusion and would
reduce redundancy. The shallow
hazards survey is part of both geological
and geotechnical surveys (and thus does
not actually constitute an independent
survey), geological and geotechnical
surveys have overlapping purposes, and
the ‘‘site investigation’’ is effectively an
amalgam of the above-described
surveys.
BOEM intends the proposed
geological and geophysical survey
provisions in § 585.626(b)(1) to replace
the existing prescriptive requirements
with performance-based standards
focused on the sufficiency of
information regarding geological site
conditions that BOEM needs in order to
adequately review a COP. In particular,
BOEM proposes to eliminate the
requirements in the existing
§ 585.626(a)(1) regarding shallow hazard
surveys as well as the requirements in
the existing § 585.626(a)(4) that lessees
submit ‘‘[t]he results of adequate in situ
testing, boring, and sampling at each
foundation location’’ and ‘‘[t]he results
of a minimum of one deep boring (with
soil sampling and testing) at each edge
of the project area.’’ Instead, BOEM
proposes to require geophysical data
sufficient to ‘‘define the geological
conditions of the site’s seabed that
could impact, or be impacted by, the
proposed project’’ and geotechnical data
sufficient to ‘‘ground truth the
geophysical surveys; support
development of a geological model;
assess potential geological hazards that
could impact the proposed project; and
provide geotechnical data for
preliminary design of the facility,
including type and approximate
dimensions of the foundation.’’
BOEM believes that these new
standards will provide it with flexibility
to tailor its data requirements to siteand project-specific conditions without
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needing to issue regulatory departures
under § 585.103. To ensure BOEM will
continue to have sufficient information
to conduct an environmental analysis
and the necessary interagency
consultations, BOEM will continue
performing a sufficiency review after
receipt of a COP and notifying the lessee
of any additional outstanding
information requirements prior to
completing the COP review. More
importantly, the elimination of the in
situ boring requirement will address the
concerns raised by lessees and
described in detail in section V.C. As
discussed in section V.C., the proposed
rule would not reduce the quality of
geotechnical data that BOEM will
review before the start of construction.
Geophysical surveys would still need to
identify all relevant shallow hazards,
and the results of certain detailed
geotechnical surveys to inform
engineering decisions would now need
to be submitted with the FDR as set
forth in proposed § 585.701.
BOEM also proposes to add flexibility
to the timing for when the required
archaeological surveys as currently set
forth in § 585.626(a)(5) are submitted.
Under the existing regulations, a lessee
must submit archaeological survey data
at the same time it submits a COP.
BOEM proposes to allow a lessee to
submit the results of certain detailed
subsea archaeological surveys with the
FDR under the proposed
§ 585.701(a)(11). BOEM would allow the
deferral of these surveys on a case-bycase basis. As discussed further in
section V.C., the purpose of this
proposed amendment is to facilitate
additional flexibility in finalizing
project design, recognizing that the
flexibility could result in a lessee
assuming additional permitting and
business risk. As in its proposed
changes to § 585.610, BOEM also
proposes to clarify that required reports
under paragraph (b)(3) of this section
include information on all historic
properties listed or eligible for listing on
the National Register of Historic Places
in accordance with the NHPA and its
implementing regulations.
The proposed rule also would add
§ 585.626(b)(4), clarifying BOEM’s need
for desktop data on oceanographic and
meteorological conditions sufficient to
‘‘support preliminary design of the
facility and support the analysis of wake
effects, sediment mobility and scour,
and navigational risks.’’ The existing
§ 585.627(a)(1) requires the submittal of
similar data on conditions that could
create hazards for a project. BOEM
believes obtaining more generalized
meteorological and oceanographic
information to better inform modeling,
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design, and environmental reviews is
also necessary and appropriate. BOEM
proposes only clarifying edits to the
existing biological survey requirements
in this section. BOEM proposes
analogous changes, where appropriate,
in the equivalent regulations for SAPs
and GAPs in §§ 585.610 and 585.645
respectively.
The remaining proposed changes to
this paragraph are edits for organization
and clarity.
§ 585.627 What information and
certifications must I submit with my
COP to assist BOEM in complying with
NEPA and other applicable laws?
BOEM proposes clarifications to the
informational requirements in
paragraph (a) consistent with the
proposed changes to § 585.611(a).
BOEM also proposes to clarify the
wording of the consistency certification
required in paragraph (b)(1) by revising
the language to provide that the
applicant must certify that the proposed
activities described in detail in the
applicant’s plan comply with ‘‘the
enforceable policies of the applicable
States’ approved coastal management
programs (as opposed to ‘‘the State(s)
approved coastal management
program(s)’’) and will be conducted in
a manner that is consistent with such
programs.’’ This change limits BOEM’s
interest to the enforceable policies of the
applicable States’ programs, not to the
CZMA as a whole.
BOEM also proposes a technical
correction to paragraph (c). That
provision requires a lessee to submit an
oil spill response plan (OSRP) with its
COP ‘‘as required by 30 CFR part 254.’’
Because the cross-referenced regulations
apply only to OCS oil and gas activities,
BOEM proposes to require that a lessee
submit an OSRP ‘‘in compliance with 33
U.S.C. 1321, including information
identified in 30 CFR part 254 that is
applicable to your activities.’’ This
statutory provision is not limited to oil
and gas activities, and grants BOEM and
its lessees more flexibility to craft
OSRPs that are commensurate with the
estimated worst-case discharge from a
renewable energy facility. The
regulation clarifies that the OSRP must
include information identified in 30
CFR part 254 that is applicable to the
lessee’s activities. BOEM, in
consultation with BSEE, intends to issue
guidance regarding the recommended
contents of an OCS renewable energy
OSRP.
Additionally, in the section heading
and regulatory text, the more
appropriate phrase ‘‘applicable laws’’
would replace ‘‘relevant laws.’’ The
proposed rule would eliminate the
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paper copy requirement consistent with
BOEM’s proposed changes to § 585.110
and would make minor editorial
changes to improve clarity and
readability.
§ 585.628 How will BOEM process my
COP?
BOEM proposes to add a provision to
paragraph (c) stating that, after all
information requirements for the COP
are met and after the appropriate
environmental assessment or draft
environmental impact statement, if
required, has been published, the lessee
or grant holder would be required to
submit its COP consistency certification
and associated data and information
under 15 CFR part 930, subpart E to the
applicable State CZMA agencies
through BOEM. BOEM has determined
that submitting the COP to the States for
Federal consistency review prior to the
publication of a draft NEPA analysis
would be premature because the States
would not have all the relevant
information at their disposal to make a
State’s consistency decision.
In practical terms, this would change
the date on which a COP is considered
an ‘‘active application’’ under 15 CFR
930.51(f). Therefore, the CZMA review
period (or the start of the 30-day time
period for a State to submit an unlisted
activity review request to NOAA under
15 CFR 930.54) would start on the date
BOEM issues the notice of availability
for the draft NEPA analysis instead of
the date BOEM issues the notice of
intent to publish a draft NEPA analysis.
For CZMA regulatory purposes, this
change would make the draft NEPA
analysis ‘‘necessary data and
information’’ under 15 CFR 930.58.
BOEM proposes several changes to
the project easement requirements in
paragraph (g). Section 585.112 of the
existing regulations defines a ‘‘project
easement’’ to mean ‘‘an easement to
which, upon approval of your COP or
GAP, you are entitled as part of the lease
for the purpose of installing, gathering,
transmission, and distribution cables,
pipelines, and appurtenances on the
OCS as necessary for the full enjoyment
of the lease.’’ Section 585.628(g)
provides that if BOEM approves your
project easement, it will issue an
addendum to your lease specifying the
terms of the project easement. Under the
existing regulations at § 585.628(g), a
project easement may include off-lease
areas that contain the sites on which
cable, pipeline, or associated facilities
are located and ‘‘do not exceed 200 feet
(61 meters) in width, unless safety and
environmental factors during
construction and maintenance of the
associated cables or pipelines require a
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greater width[.]’’ However, though a
lessee will have gathered sufficient data
to know the general route (or routes) of
its cables by the COP-approval stage, the
precise cable route may not be known
until a lessee has conducted detailed
surveys of hazards, such as unexploded
ordnance, following COP approval. A
lessee occasionally may discover
potential hazards while conducting
installation activities that may
necessitate a deviation from the
proposed route. Consequently, a 200foot-wide easement may be too narrow
at the COP-approval stage to
accommodate a reasonable degree of
uncertainty regarding the final export
cable route and could result in timeconsuming amendments to the project
easement before or after cable
installation.
In order to provide flexibility to the
lessee and minimize the need for
subsequent project easement
amendments, BOEM proposes to amend
paragraph (g) to allow BOEM to issue
project easements of ‘‘sufficient off-lease
area to accommodate potential changes
at the design and installation phases of
the project for locating cables, pipelines,
and other appurtenances necessary for
your project.’’ Although a larger
easement would result in greater rental
fees under § 585.507, a lessee may
relinquish any unused portions of the
easement after construction is
completed. BOEM believes that this
approach will allow a lessee to rightsize the width of its project easements
on a case-by-case basis, depending on
site conditions and a lessee’s particular
needs. This revision would be
consistent with the PDE strategy
described in section V.B. above because
it maximizes a lessee’s ability to make
design choices later in the development
process without revising its COP or
reopening the permit review process.
BOEM would still require that a COP
include sufficient survey data for
whatever project easement areas are
requested. The proposed rule also
would not affect the quantity and
quality of data that BOEM presently
requires before the lessee may
commence installation of the export
cable.
BOEM also proposes a technical
correction to paragraph (g) that would
make project easements subject to the
same conditions as ROWs and RUEs
under § 585.302(b): that the United
States can grant rights in the area to
other lessees or grant holders that do not
unreasonably interfere with operations
on the easement. Among other reasons,
these provisions are critical to ensure
that nearby existing or future offshore
wind lessees are not definitively
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foreclosed from using the same general
cable routes established by an earlier
lessee. In the long run, cable routes
shared by multiple projects could result
in lower environmental impacts,
streamlined permitting, and economic
efficiencies.
Other remaining proposed changes to
this section are edits for clarification,
better organization, and consistency
with changes to the equivalent SAP and
GAP regulations.
Activities Under an Approved COP
§ 585.634 What activities require a
revision to my COP, and when will
BOEM approve the revision?
The proposed revisions under
paragraph (c) maintain consistency with
proposed changes to § 585.617 for SAPs
by eliminating unnecessary verbiage in
the list of changes or modifications that
could trigger the revision of an
approved COP and by merging the
substance of existing paragraphs (c)(4),
(5), and (6) into revised paragraphs
(c)(2) and (3). BOEM also proposes to
incorporate in paragraph (c)(3) the PDE
concept for a ‘‘range’’ of facility
locations for the reasons set forth above
in sections V.B, entitled ‘‘Project Design
Envelope,’’ and V.C, entitled
‘‘Geophysical and Geotechnical
Surveys,’’ and to ensure consistency
with proposed § 585.626(a). By
incorporating the PDE, BOEM believes it
can be less prescriptive regarding the
threshold that would trigger a COP
revision and can allow that threshold to
be proportionate to the magnitude of the
proposed project changes. BOEM seeks
comments on what threshold should
trigger COP revision regarding changes
in position or layout of bottom
disturbances. The remaining proposed
revisions to this section are edits for
clarity.
§ 585.637 When may I commence
commercial operations on my
commercial lease?
Paragraph (a) of the existing section
provides that commercial operations
may commence 30-calendar days after
‘‘the CVA or project engineer has
submitted to BOEM the final Fabrication
and Installation Report for the
fabrication and installation review, as
provided in § 585.708.’’ However,
§ 585.708(a)(5)(ii) allows the lessee to
commence commercial operations 30calendar days after BOEM receives the
CVA verification report unless BOEM
raises objections with the lessee during
that time. The proposed rule would
remedy this inconsistency by moving
the existing § 585.708(a)(5)(ii) provision
into section 585.637 and would change
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‘‘certification’’ to ‘‘verification’’ to
maintain consistency with other
provisions of the proposed rule. The
proposed rule also would clarify that
commercial operations may commence
30-calendar days after BOEM deems
submitted—rather than receives—the
final project verification report as
described in the proposed §§ 585.704
and 585.708(a)(5) provided that BOEM
has not notified you within that time
frame of any objections to the
verification report and that BOEM has
confirmed receipt of critical safety
systems commissioning records, as
described in § 585.708(a)(6). This
proposed change is designed to ensure
that BOEM is in possession of complete
and accurate submissions prior to the
commencement of its limited review
period. Finally, to improve organization,
the proposed rule would move the
existing § 585.713 requirement to notify
BOEM within 10-business days of
starting commercial operations into
section 585.637.
BOEM is aware that electricity may be
generated and distributed during testing
activities conducted by a Lessee prior to
submitting the proposed reports in this
section (required as a prerequisite to
beginning commercial operations).
Under the existing regulations,
electricity generation and distribution
meets the definition of commercial
operations, at § 585.112. BOEM has
proposed an edit to the definition of
commercial operations whereby the
generation of electricity needed for the
preparation of the final FIR, or the
generation of electricity for testing
purposes, would be excluded from the
definition of commercial operations
provided that such electricity is not sold
on a commercial basis.
BOEM is soliciting comment on the
proposed revisions to the provisions of
§ 585.637 for required submissions prior
to commencing commercial operations,
and on the revisions to the definitions
of commercial activities and commercial
operations in § 585.112.
§ 585.638 What must I do upon
completion of my commercial
operations as approved in my COP or
FERC license?
The existing regulation, under
paragraph (a), states that you must
‘‘initiate the decommissioning process’’
upon completion of your approved COP
activities. However, the proposed
subpart J of the regulations
contemplates that lessees would initiate
the decommissioning process by
submitting a decommissioning
application as much as 2 years before
the lease expires. BOEM proposes to
revise this section for clarity and
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consistency with §§ 585.905 and
585.906.
with proposed changes to the equivalent
SAP and COP regulations.
General Activities Plan Requirements
for Limited Leases, ROW Grants, and
RUE Grants
Activities Under an Approved Gap
§ 585.640 What is a General Activities
Plan (GAP)?
The proposed rule would eliminate
the second sentence in paragraph (b)
because it is redundant with the
requirements found in the existing and
proposed § 585.303(a) regarding the due
date for GAP submission.
§ 585.641 What must I demonstrate in
my GAP?
The proposed changes include
technical edits to ensure consistency
with proposed changes to existing
provisions of §§ 585.606 and 585.621, as
appropriate.
§ 585.642 How do I submit my GAP?
BOEM proposes to eliminate the
paper copy requirement for this
regulation, consistent with its proposed
changes to § 585.110.
Contents of the General Activities Plan
§ 585.645 What must I include in my
GAP?
BOEM proposes changes to this
section consistent with its proposed
revisions to § 585.610 for SAPs and
§ 585.626 for COPs, as appropriate.
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§ 585.646 What information and
certifications must I submit with my
GAP to assist BOEM in complying with
NEPA and other applicable laws?
BOEM proposes clarifications to the
informational requirements in
paragraph (b) of this section similar to
those proposed for SAPs in § 585.611
and COPs in § 585.627, as appropriate.
As in those sections, these clarifications
are consistent with BOEM’s present
expectations for GAP submittals and,
therefore, should not create additional
burdens on lessees.
Additionally, in the section heading
and regulatory text, the more
appropriate phrase ‘‘applicable laws’’
would replace ‘‘relevant laws.’’
§ 585.647 How will my GAP be
processed for Federal consistency under
the Coastal Zone Management Act?
BOEM is proposing minor changes to
provide clarity and consistency with
other proposed changes.
§ 585.648 How will BOEM process my
GAP?
BOEM proposes minor editorial
changes to this section to improve
clarity, eliminate redundancy, enhance
readability, and provide consistency
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§ 585.652 How long do I have to
conduct activities under an approved
GAP?
BOEM proposes a technical revision
to paragraph (a) to maintain consistency
with its proposed modifications to the
limited lease periods in § 585.236.
§ 585.655 What activities require a
revision to my GAP, and when will
BOEM approve the revision?
BOEM proposes clarifications and
technical edits to the provisions
regarding GAP revisions in paragraphs
(a) and (c) that are analogous to the ones
BOEM proposes in § 585.617 for SAP
revisions and § 585.634 for COP
revisions.
§ 585.657 What must I do upon
completion of approved activities under
my GAP?
BOEM proposes a clarification
analogous to proposed changes to the
corresponding SAP and COP
requirements in §§ 585.618(e) and
585.638 respectively.
Cable and Pipeline Deviations
§ 585.659 What requirements must I
include in my SAP, COP, or GAP
regarding air quality?
BOEM proposes a technical correction
to reflect Congress’ 2011 CAA
amendment expanding BOEM’s air
quality jurisdiction to offshore of the
North Slope Borough of Alaska.94
H. 30 CFR Part 585, Subpart H—Facility
Design, Fabrication, and Installation
Subpart G, Facility Design,
Fabrication, and Installation, is being
redesignated as subpart H to
accommodate the addition of a new
subpart B, as noted in section VI.B
above.
Reports
§ 585.700 What reports must I submit
to BOEM before installing facilities
described in my approved SAP, COP, or
GAP?
BOEM proposes to amend this section
first to clarify that BOEM has the
authority to allow lessees to submit
their FDRs and FIRs for BOEM’s review
by stage or component. As discussed in
section V.D.3(b) above, entitled ‘‘Staged
Submittal of the Facility Design Report
and Fabrication and Installation
Report,’’ this proposed change is
intended to affirm that lessees and grant
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holders have flexibility in certain
circumstances to commence fabrication
or construction of project components
while other aspects are still under
review. Under the proposed rule, a
lessee’s or a grant holder’s ability to
avail itself of this flexibility would be
contingent on providing an adequate
explanation to BOEM that all
components will function together in an
integrated manner in accordance with
its project design basis—which
identifies all requirements,
assumptions, and methodologies
essential for the project design—as
verified by the project CVA. If multiple
FDRs and FIRs were submitted, each
component report would have its own
60-day period for BOEM to review and
respond with objections once BOEM
deems the report submitted, consistent
with the new § 585.704. BOEM proposes
to clarify that FDRs and FIRs may be
submitted before or after SAP, COP, or
GAP approval, though BOEM’s 60-day
review period will not start until the
report is deemed submitted and the plan
is approved. BOEM believes this
proposed change is necessary to ensure
that its limited period for review and
objection does not begin until it has
determined that the submission is
complete, accurate, and ready for
consideration. The changes described
above are achieved by the inclusion of
new paragraphs (b) and (c), and revised
language to existing paragraphs (b) and
(c), which BOEM proposes to
redesignate as paragraphs (d) and (f).
Second, as discussed in section V.D.3
above, entitled ‘‘Definition of
‘Fabrication’ and Early Fabrication of
Facility Components,’’ BOEM is also
revising this section to address industry
concerns with long lead times
associated with the procurement and
fabrication of facility components. To
address these concerns, BOEM is
proposing revisions to the language in
paragraph (b) of the existing regulations
(redesignated as paragraph (d)), and to
add a new paragraph (e). Paragraph (d)
clarifies that fabrication and installation
activities on the OCS may only
commence once a lessee or grant holder
has received BOEM’s non-objection to
the FDR and FIR or if no objections were
made by the end of BOEM’s 60-day
review. Proposed new paragraph (e)
would clarify that (i) procurement of
discrete parts of the project that are
commercially available in standardized
form and type-certified components, or
fabrication activities that do not take
place on the OCS, may commence prior
to the submittal of the FDR and FIR or
any plans required under BOEM’s
regulations; and (ii) any procurement or
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fabrication of facility components prior
to BOEM’s non-objection to the FDR and
FIR, or the end of BOEM’s 60-day
review without objections, is subject to
verification by the CVA and to possible
objection by BOEM prior to the
installation of said components on the
OCS.
In addition to the foregoing, BOEM
also proposes to add in § 585.112 a
definition for the term ‘‘fabrication,’’
since the existing regulations do not
define ‘‘fabrication.’’ The proposed rule
would define fabrication as the ‘‘cutting,
fitting, welding, or other assembly of
project elements of a custom design
conforming to project-specific
requirements,’’ while excluding from
this definition ‘‘the procurement of
discrete parts of the project that are
commercially available in standardized
form and type-certified components.’’
Finally, BOEM proposes to revise
existing paragraph (c), which is
proposed to be redesignated as
paragraph (f), to clarify that it has 60
calendar days to object to an FDR or FIR
or to request additional information.
BOEM believes this proposed change is
necessary to emphasize that additional
time may be needed for its review if key
information is missing from a report.
These proposed changes would bring
BOEM’s regulations in line with
industry practices and would allow
orderly and efficient BOEM and CVA
supervision of a project’s technical
development without sacrificing safety.
These proposed changes also would
afford greater flexibility to lessees and
grant holders to begin certain
procurement and fabrication (e.g.,
manufacturing) activities at an earlier
stage.
§ 585.701 What must I include in my
Facility Design Report?
BOEM proposes several modifications
to the FDR submission requirements.
The proposed rule would replace the
requirements for floating turbines in the
existing paragraph (b) with a reworded
requirement in proposed paragraph
(a)(6), partly for organizational purposes
and partly as a technical correction
because USCG regulations regarding
structural integrity and stability do not
apply to floating offshore wind
facilities. To maintain consistency with
its proposed changes to § 585.626,
BOEM proposes that the FDR include
the results of any detailed geotechnical
surveys that were deferred as a result of
proposed § 585.626(b)(1)(iii). Similarly,
BOEM proposes that the FDR include
the results of any archaeological surveys
that were deferred on a case-by-case
basis under proposed § 585.626(b)(3). To
maintain consistency with the FIR and
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to provide flexibility, BOEM is adding a
requirement in new paragraph (a)(12)
for the lessee to include design
standards in the FDR. This would allow
the lessee to propose design standards
specific to their project instead of BOEM
incorporating standards by reference
into the regulations. Also, BOEM is
proposing a new requirement in
paragraph (a)(13) for the lessee to
include information on critical safety
systems, including a risk assessment
that identifies the critical safety systems
and a description of the identified
critical safety systems. This information
is necessary for the CVA to verify the
commissioning of critical safety
systems, as required by proposed
§ 585.705. The proposed rule would
require the CVA to verify that the
facility has been designed to provide for
safety. By allowing the lessee to conduct
a risk assessment to identify critical
safety systems for the individual project,
BOEM is providing increased flexibility
for the types of equipment that can be
used, especially considering the rapid
pace of technology development.
Finally, for regulatory flexibility, BOEM
proposes a catch-all category to cover
necessary project-specific information
that may not be contained within the
listed categories. BOEM also proposes to
eliminate the third column of the table
in paragraph (a) as superfluous given
BOEM’s proposed elimination of the
paper copy requirement and to replace
that column’s content with a new
paragraph (b) consistent with the
proposed § 585.110.
The remaining proposed changes are
technical corrections and include:
removal of the word ‘‘proposed’’ from
the project easement requirement in
paragraph (a)(2)(iii) because the project
easement would be approved already at
the time of BOEM’s FDR review;
substitution of ‘‘verification’’ for
‘‘certification’’ in the description of the
CVA’s duties, as discussed in section
V.D.1; addition to the CVA verification
statement that the facility has been
designed to provide for safety, in
keeping with other proposed changes;
and removal of the trade secrets
provision as redundant of § 585.113.
§ 585.702 What must I include in my
Fabrication and Installation Report?
BOEM proposes several modifications
to the FIR submission requirements. The
proposed rule would add a requirement
in new paragraph (a)(6) that lessees and
grant holders submit any certificates
documenting that they are adhering to a
recognized quality assurance standard.
This regulatory change would conform
with industry practice and would allow
alternate means of compliance on a
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case-by-case basis. BOEM also proposes
to clarify that any environmental
information contained in a previously
submitted corresponding plan may be
incorporated by reference in an FIR to
the extent that information satisfies the
requirements of proposed paragraphs
(a)(7)(i) through (iv). BOEM is also
proposing to add a requirement in
paragraph (a)(8) for the submittal of
commissioning procedures for critical
safety systems. This information is
necessary for the CVA to verify the
commissioning of critical safety
systems, as required by proposed
§ 585.705. The proposed rule would
clarify that commissioning procedures
include original equipment
manufacturer or other procedures for
commissioning of critical safety
systems. BOEM also proposes to
eliminate the third column of the table
in paragraph (a) as superfluous given
BOEM’s proposed elimination of the
paper copy requirement and to replace
that column’s content with a new
paragraph (b) consistent with the
proposed § 585.110. The proposed
paragraph (c) would provide clarity and
added flexibility regarding project
easement information submittals and
requests. Finally, as with its proposed
changes to the FDR requirements in
§ 585.701, BOEM proposes a catch-all
category for necessary project-specific
information that may not be covered by
the listed categories.
The remaining proposed changes are
largely the same as the technical
corrections to § 585.701.
§ 585.703 What reports must I submit
for project modifications and repairs?
BOEM proposes to eliminate language
in paragraph (a) indicating that major
repairs or modifications must be
‘‘certified,’’ consistent with the
proposed changes to §§ 585.701 and
585.702. To promote safety, BOEM also
proposes that any major modification or
repair report contain a CVA verification
statement analogous to the one required
for FDRs in § 585.701 and for FIRs in
§ 585.702. BOEM is also proposing to
clarify the definition of a ‘‘major repair’’
in paragraph (a)(1) to include
substantial repairs to critical safety
systems and the definition of a ‘‘major
modification’’ in paragraph (a)(2) to
include a substantial alteration of a
critical safety system. It is essential that
BOEM is made aware of major repairs
and modifications to these systems and
that the repairs and modifications are
done in accordance with an accepted
engineering practice. The remaining
proposed changes are similar to
technical corrections to § 585.701.
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§ 585.704 After receiving the FDR, FIR,
or project verification reports, what will
BOEM do?
Over the past few years, BOEM has
received numerous incomplete COPs
and other documents that it could not
properly evaluate. This has created
many issues between the lessees and
BOEM with respect to the status of the
applications. In order to address this,
BOEM is proposing to make a
determination as to the completeness of
the application before its review period
begins. The proposed rule would
provide that BOEM will have 20calendar days to make this
determination. Under the proposed rule,
once BOEM makes a determination that
any given report is sufficiently accurate
and complete, it would deem it
submitted, which would begin the
applicable period of time for BOEM to
review and object, as necessary.
This procedure is similar to the
practice described in § 550.231 for
exploration plans under the oil and gas
program, which BOEM has
implemented successfully for many
years. BOEM is proposing to add this
regulation to clarify that the reports
(e.g., FDR, FIR, and project verification
reports) must be deemed submitted
before the 60-calendar day or 30calendar day review ‘‘clock’’ begins.
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Certified Verification Agent
§ 585.705 When must I use a Certified
Verification Agent (CVA)?
The proposed rule explicitly would
allow the use of multiple CVAs on a
project. This change would enable a
lessee or grant holder to assign the
expertise of specific CVAs to the
corresponding project component. This
change is further discussed in the
analysis of § 585.706.
BOEM proposes several
modifications, clarifications, and
technical corrections to this section.
First, the proposed rule would add a
requirement for the CVA to ensure
critical safety systems are commissioned
in accordance with the procedures
identified in the FDR, FIR, and the
project modification and repair reports
and for the CVA to provide BOEM with
immediate reports of incidents that
affect the commissioning of critical
safety systems. This addition is
necessary for BOEM to meet the
requirement in § 585.102(a)(1) to ensure
any authorized activity is carried out in
a manner that provides for safety. Also,
BOEM is currently requiring a qualified
third party to ensure critical safety
systems are commissioned in
accordance with the procedures
identified in the FDR, FIR, and the
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project modification and repair reports.
This addition will clarify that the
qualified third party should be the CVA,
who is already familiar with the project.
Second, the proposed rule would clarify
that the CVA requirement applies unless
it is waived under paragraph (c) of this
section. Third, BOEM proposes to
clarify that, just as multiple CVAs may
be nominated for different project
elements (see § 585.706 analysis), BOEM
may grant partial waivers of the CVA
requirement for discrete elements of a
project. For instance, BOEM could
determine that a hypothetical project’s
electrical service platform has a
standard design that does not require
CVA review, while the remainder of the
project still warrants such review.
Fourth, the proposed rule would
substitute ‘‘fabricator’’ and ‘‘fabricated’’
for ‘‘manufacturer’’ and ‘‘manufactured’’
to avoid confusion and maintain
consistency with § 585.700. Fifth, the
proposed rule would add a requirement
that fabrications, repairs, or
modifications that are the subject of a
CVA waiver nonetheless must adhere to
a recognized quality assurance standard.
This regulatory change would maintain
consistency with proposed revisions to
§ 585.702(a) and would conform to
industry practice while still allowing for
alternative compliance standards on a
case-by-case basis. Sixth, the proposed
rule would eliminate the requirement
that waiver requests be submitted with
plans, thus relieving BOEM of the
obligation to consider such waiver
requests as part of its plan reviews. This
change would maintain consistency
with other proposed changes intended
to decouple the CVA nomination
process from plan approval as discussed
in section V.D.1. Finally, the proposed
rule would change ‘‘certify’’ to ‘‘verify’’
as also discussed in section V.D.1.
The remaining proposed changes to
this section are edits for clarity and
consistency.
§ 585.706 How do I nominate a CVA
for BOEM approval?
This section would be amended to
eliminate the requirement that a lessee
or grant holder nominate a CVA with its
COP, SAP, or GAP. Instead, BOEM
would require only that a CVA be
nominated and approved before
conducting the relevant verification
activities. As discussed in section
V.D.3(a) above, entitled ‘‘Certified
Verification Agent Roles and
Flexibility,’’ the purpose of this
proposed change is to allow a lessee and
a grant holder greater flexibility to
onboard CVAs earlier in the project
development process so they may
provide independent review of design
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concepts before COP submittal—as well
as to replace or nominate new CVAs as
needed following COP submittal.
Additionally, the proposed rule would
require that if a lessee or grant holder
seeks to use multiple CVAs, it must
nominate a general project CVA no later
than COP submittal to manage the
project verification strategy, to ensure
CVAs are conducting their reviews in a
consistent manner, and to oversee the
transition areas between various project
components and their associated CVAs.
BOEM recognizes that the various
components of an offshore wind facility
must function as an integrated whole
and believes this requirement for a
general project CVA will help ensure
that third-party verification is
coordinated.
The existing regulation bars CVAs
from acting in a capacity that would
create a conflict of interest or the
appearance of one. Because objectivity
is at the core of the CVA role, BOEM
proposes to clarify that the nominated
CVA must not have been involved in
preparing the plans, reports, analyses, or
other technical submittals that it will
verify. While this requirement is
encompassed in the existing regulations,
BOEM believes this clarification
responds to inquiries it has received
from industry. The remaining proposed
changes to this section are technical
corrections or edits for clarity.
§ 585.707 What are the CVA’s primary
duties for facility design review?
The proposed rule would change
‘‘certify’’ to ‘‘verify’’ as discussed in
section V.D.1. Additionally, this section
would mirror proposed changes to
§ 585.701 by replacing the requirements
for floating turbines in the existing
paragraph (c) with a reworded
requirement in proposed paragraph
(b)(10). The proposed rule would allow,
but not require, the CVA to utilize the
FDR defined in proposed § 585.700. In
addition to the current ‘‘verification’’
requirements, the proposed rule would
require the CVA to verify that the
facility has been designed to provide for
safety and to conduct an independent
assessment of the design for human
safety and accident prevention. This
addition is necessary for BOEM to meet
the requirement in § 585.102(a)(1) to
ensure any authorized activity is carried
out in a manner that provides for safety.
§ 585.708 What are the CVA’s or
project engineer’s primary duties for
fabrication and installation review?
The proposed rule would update
existing paragraphs (a)(5) and (b) by
replacing the terms ‘‘certify’’ and
‘‘ensure’’ with ‘‘verify’’ for consistency
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with the proposed changes to the CVA
standard of review as discussed further
in section V.D.3(a) above, entitled
‘‘Certified Verification Agent Roles and
Flexibility.’’ The proposed rule would
add a requirement in paragraph (a)(1)
for the CVA to use good engineering
judgment and practice when conducting
an independent assessment of the
commissioning of critical safety
systems, would require that the
commissioning of critical safety systems
be consistent with § 585.705, and would
require that the CVA monitor the
commissioning of critical safety systems
in paragraph (a)(2). Similar to paragraph
(5)(i), BOEM is proposing to add
paragraph (a)(6) to require the CVA to
provide records documenting that
critical safety systems are commissioned
in accordance with the procedures
identified in § 585.702(a)(8) and to
identify the location of all records
pertaining to commissioning of critical
safety systems, as described in
§ 585.714(c). Unlike paragraph (5)(i),
BOEM is not expecting a full report of
the commissioning of critical safety
systems. BOEM expects a report with
the relevant data, showing the
successful completion of the
commissioning, test date, and signature
of the CVA.
Additionally, the proposed rule
would add language regarding quality
assurance standards to ensure
consistency with § 585.702(a)(6). For
clarity and organization, BOEM also
proposes to move the requirement in the
existing paragraph (a)(5)(ii) regarding
commencement of commercial
operations to § 585.637. Additionally,
BOEM proposes to add a requirement
that if multiple CVAs are used—thus
necessitating multiple verification
reports for different project
components—the general project CVA
must submit the final verification report
for the entire project prior to the
commencement of commercial
operations under § 585.637.
The remaining proposed changes to
this section are edits for clarity and
consistency.
§ 585.709 When conducting onsite
fabrication inspections, what must the
CVA or project engineer verify?
This section would be revised to
mirror the proposed changes to
§ 585.701 by modifying the existing
paragraph (b) to remove the references
to the U.S. Coast Guard and by
specifying the CVA must verify the
structural integrity, stability, and ballast
of a floating facility. In addition,
paragraph (b) is being modified to
remove the requirement for
consideration of foundations,
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foundation pilings and templates, and
anchoring systems, as well as mooring
or tethering systems, because those
requirements are addressed in
§ 585.710.
§ 585.710 When conducting onsite
installation inspections, what must the
CVA or project engineer do?
BOEM proposes to simplify this
section to require only that the CVA
‘‘verify’’ the enumerated items. BOEM
intends for this change to ensure
consistency with the emphasis on the
‘‘verification’’ standard for CVA
activities discussed in section V.D.1 and
reflected in other proposed changes in
this subpart. BOEM also believes the
terms proposed for removal are
redundant of ‘‘verification.’’ BOEM is
also proposing to add language in
several locations requiring the CVA to
verify the commissioning of critical
safety systems to be consistent with
§ 585.705. A new paragraph (f) would
clarify BOEM’s expectation that the
CVA make periodic on-site inspections
to verify: (1) the systems and equipment
function as designed; and (2) the final
commissioning records are complete
during periodic on-site inspections.
Both the OCS Lands Act and the
regulations at § 585.102(a)(1) require
that lessees ensure permitted activities
are conducted in a manner that provides
for safety. BOEM will rely on the CVA
to verify that the commissioning of
critical safety systems meets this
obligation. The remaining changes are
proposed to enhance organization,
clarity, or consistency with amendments
to other sections of this subpart.
§ 585.712 What are the CVA’s or
project engineer’s reporting
requirements?
The proposed rule would eliminate
the paper copy requirement, consistent
with BOEM’s proposed changes to
§ 585.110.
The proposed rule also would add a
requirement that the CVA report
summarize any issues with facility
design, fabrication, or installation, or
the commissioning of critical safety
systems. This requirement would allow
BOEM to catalog a history of
successfully resolved issues and lessons
learned, enabling BOEM to assess and
facilitate the improvement and
evolution of the OCS renewable energy
industry and the CVA program. Adding
this provision to the CVA report also
would codify a standard industry
practice.
§ 585.713 [Reserved]
Section 585.713 in the existing
regulations is entitled ‘‘What must I do
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6013
after the CVA or project engineer
confirms conformance with the
Fabrication and Installation Report on
my commercial lease?’’ Under this
section in the existing regulations a
lessee must notify BOEM within 10business days of commencing
commercial operations. For clarity and
better organization, BOEM proposes
moving that requirement from § 585.713
in the existing regulations to § 585.637
in the proposed rule to consolidate this
provision with the other requirements
in § 585.637 related to the
commencement of commercial
operations. As that was the sole
provision under § 585.713, this section
title would be deleted and the section
would be reserved for future use.
§ 585.714 What records relating to
FDRs, FIRs, and Project Modification
and Repair Reports must I keep?
BOEM proposes adding a requirement
that the records of the commissioning of
critical safety systems must also be kept
and made available to BOEM
representatives until BOEM releases the
lessee from its financial assurance. The
proposed rule would also require the
lessee to provide BOEM with the
location of the records of the
commissioning of its critical safety
systems. This revision would help
ensure the availability of proper records
prior to release of the financial
assurance.
BOEM proposes a technical correction
to this section to clarify that the
recordkeeping requirements apply to the
design, engineering, and modification
and repair reports regulated in this
subpart. Reference to recordkeeping
requirements for SAPs, COPs, and GAPs
are removed because they are addressed
in the existing and proposed § 585.602.
BOEM also proposes to add records of
commissioning of critical safety systems
to the list of records to reflect changes
proposed elsewhere.
I. 30 CFR Part 585, Subpart I—
Environmental and Safety Management,
Inspections, and Facility Assessments
for Activities Conducted Under SAPs,
COPs, and GAPs
Subpart H, Environmental and Safety
Management, Inspections, and Facility
Assessment for Activities Conducted
Under SAPs, COPs, and GAPs, is being
redesignated as subpart I to
accommodate the addition of a new
subpart B, as noted in section VI.B
above.
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§ 585.803 How must I conduct my
approved activities to protect essential
fish habitats identified and described
under the Magnuson-Stevens Fishery
Conservation and Management Act?
The proposed rule would correct a
typographical error in paragraph (b).
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Safety Management Systems
§ 585.810 When must I submit a Safety
Management System (SMS) and what
must I include in my SMS?
The existing § 585.810 broadly
outlines the elements that must be
described in the SMS. BOEM is
proposing changes that would provide
greater detail regarding what the SMS
must include without changing the
substantive requirements. The
complexity of the SMS would be
dependent on the complexity of the
underlying activities that it covers and
proportionate to the scope of the activity
being evaluated.
As discussed in section V.H above,
entitled ‘‘Safety Management Systems,’’
two factors prompted these proposed
changes. First, the offshore wind energy
industry repeatedly has requested
additional detail regarding BOEM’s
expectations of what must be included
in the SMS. Second, in coordination
with OSHA and USCG, DOI has
assumed primary Federal regulatory
responsibility for worker safety on OCS
renewable energy facilities. Both of
these factors highlight the need for
BOEM to elaborate on its expectations
for what must be included in the SMS.
The proposed rule would provide such
elaboration.
The proposed rule would require a
lessee to use an SMS for activities
conducted on the OCS to develop or
operate a lease, from met buoy
placement and site assessment work
through decommissioning, and to
provide its SMS to BOEM upon request.
The lessee would also be required to
submit a detailed description of the
SMS with its COP (as provided under
§ 585.627(d)), SAP (as provided in
§ 585.614(b)), or GAP (as provided in
§ 585.651). This addition clarifies that a
structured approach to safety is both
expected and required for all leaseassociated work. This structured
approach should take into account the
risks to personnel and the environment
associated with work undertaken on the
OCS. The SMS is intended to increase
awareness and communication of those
risks, mitigate those risks, and
implement a disciplined organizational
approach for ensuring effective risk
mitigation. The proposed regulation
provides a more robust framework for
the SMS submission to provide
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clarification of BOEM’s expectations,
facilitate compliance review, and to
ensure the submitted SMS addresses
critical subjects such as the safety of
personnel, remote monitoring, control
and shut down capabilities, emergency
response procedures, fire suppression
equipment, testing of the SMS, and
proper personnel training.
The SMS is required to cover only
those activities that are to take place on
the OCS at any given time, from met
buoy placement and site assessment
work through decommissioning. Each
SMS needs to be only as complex as the
activities with which it is associated.
Should incidents occur, investigations
can focus on the role and success of the
SMS with the purpose of guiding
continual improvement. The
requirement to have an SMS in place
before placement of a met buoy or
engaging in site assessment activities
may create a small additional burden.
However, BOEM’s obligations under the
OCS Lands Act to provide for personnel
safety and protection of the
environment justify the inclusion of
such a requirement.
§ 585.811 Am I required to obtain a
certification of my SMS?
The proposed rule would add a new
§ 585.811 stating that third-party SMS
certification may be obtained from
accredited safety and environmental
CABs. Such certification would possibly
benefit a lessee or a grant holder
through reduced frequency or scope of
BOEM’s safety inspections and
oversight of corrective actions arising
from lessee or grant holder selfinspections. As discussed in section
V.H. above, entitled ‘‘Safety
Management Systems,’’ BOEM could
rely on such third-party certifications
for assurance of SMS compliance in lieu
of direct inspection on the part of
BOEM. Additionally, BOEM believes
that a CAB’s use of a consensus safety
standard—such as ANSI Z10 or ISO/IEC
45001—would allow the incorporation
of the most current safety approaches in
a rapidly evolving industry without the
need for additional rulemaking.
§ 585.812 How must I implement my
SMS?
BOEM proposes to revise the section
heading to reflect its expanded scope, to
eliminate the word ‘‘fully’’ from the
current ‘‘fully functional’’ requirement,
to add the phrase ‘‘and must remain
functional while you perform’’, and to
abbreviate ‘‘Safety Management
Systems’’ as ‘‘SMS’’ to improve
readability. The proposed rule also
would redesignate the existing
regulatory text as paragraph (a) and
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modify it to be consistent with the
clarifications in proposed § 585.810.
The proposed rule would also add a
new paragraph (b) containing two
reporting requirements. The first
proposed report would be an annual
summary of safety performance data due
March 31 covering the previous
calendar year during which site
assessment, construction, operations, or
decommissioning activities occurred,
using a form available on the BOEM
website.95 That form is similar to the
one currently required in BSEE’s OCS
oil, gas, and sulfur regulations. The
second proposed report would be a
summary of the most recent SMS audit,
corrective actions implemented or
pending as a result of that audit, and an
updated SMS description highlighting
changes made since the last report. This
report would be due every 3 years or
upon BOEM’s request.
The proposed revisions to this section
would allow DOI and relevant
stakeholders to measure the success of
the SMS approach to ensure safety. It
also would provide credible data for
comparisons of an individual project’s
safety performance to that of the overall
OCS renewable energy industry.
Equipment Failure and Adverse
Environmental Effects
§ 585.815 What must I do if I have
facility damage or an equipment failure?
The proposed rule would correct an
erroneous cross-reference in paragraph
(a) and would make other minor edits to
enhance readability.
Inspections and Assessments
§ 585.820 Will BOEM conduct
inspections?
The proposed rule would update the
regulations so that BOEM’s conduct of
an inspection of any OCS facilities and
vessels engaged in activities under this
subpart is optional, to complement
changes being proposed to the industry
self-inspection requirements under
§ 585.824. The proposed rule would
clarify that during the inspections
BOEM would verify that activities are
conducted in compliance with the OCS
Lands Act; the regulations in this part;
the terms, conditions, and stipulations
of the lease or grant; approved plans;
and other applicable laws and
regulations. BOEM would also
determine whether proper safety
equipment has been installed and is
operating properly according to the
95 The proposed form is posted to this proposed
rule’s docket at https://www.regulations.gov/
docket?D=BOEM-2020-0033. To access the form as
part of the information collection review, see infra
note 94.
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SMS, as required in § 585.810. These
revisions would provide clarity and
transparency to the BOEM inspections
process.
§ 585.821 Will BOEM conduct
scheduled and unscheduled
inspections?
The proposed rule would clarify that
BOEM may conduct both scheduled and
unscheduled inspections. This revision
would provide greater flexibility for
how BOEM conducts inspections.
§ 585.822 What must I do when BOEM
conducts an inspection?
BOEM proposes a technical correction
to clarify that, for BOEM inspections,
access for BOEM inspectors must be
provided to all facilities and vessels
used for activities authorized under this
subpart. The proposed rule would also
require that certain records be retained
until BOEM releases the associated
financial assurance and that the lessee
make these records available to BOEM
upon request. This revision would help
ensure the availability of proper
documentation during inspection.
§ 585.824 How must I conduct selfinspections?
The proposed rule would require that
you conduct an onsite inspection of
each of your facilities at least once a
year. This revision would allow BOEM
to have flexibility in conducting the
annual onsite inspection required under
the OCS Lands Act by allowing BOEM
to rely upon the lessee’s self-inspection
to fulfill this requirement in the event
BOEM does not inspect a particular
facility in a given year. The proposed
rule provides that the inspection must
include, but is not limited to, all safety
equipment designed to prevent or
ameliorate fires, spillages, or other
major accidents. The proposed rule
would also require that the lessee
maintain records of the facility
inspections, summarize the results of
those inspections, and provide the
records and result summaries to BOEM
upon request.
subpart B, as noted in section VI.B
above.
Decommissioning Obligations and
Requirements
§ 585.900 Who must meet the
decommissioning obligations in this
subpart?
Proposed subpart J contains
requirements for decommissioning all
facilities and obstructions on a lease,
RUE, or ROW issued under BOEM’s
renewable energy regulations. BOEM
proposes to add a new paragraph (c)
establishing a limited exception to its
proposed subpart J requirements for
facilities that are approved by, and
subject to the decommissioning
requirements of, another Federal
authority. This proposed amendment is
primarily intended to cover met buoys
that would no longer require a SAP
under proposed § 585.600. Such buoys
would be subject to the site clearance
requirements in USACE’s NWP 5 and
may be subject to financial assurance
requirements, prior to deployment, at
the discretion of USACE. The USACE
permit requires that met buoys that are
no longer in use are removed within 30
days. Noncompliance with the site
clearance requirements would be dealt
with in accordance USACE regulations
at 33 CFR part 326, which provide for
administrative penalties and/or legal
actions in conjunction with the
appropriate U.S. Attorney’s Office.
BOEM believes that the USACE
procedures for met buoys are an
adequate substitute for any
requirements that BOEM would have
otherwise imposed under this subpart.96
However, in the event that USACE did
not require the removal of a met buoy
deployed under a BOEM lease, BOEM
would exercise its authority to enforce
the decommissioning requirements in
proposed subpart J and its enforcement
options for noncompliance by lessees in
proposed subpart E.97
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Incident Reporting and Investigation
§ 585.830 What are my incident
reporting requirements?
The proposed rule would correct an
erroneous cross-reference in paragraph
(d) to provide the appropriate BSEE
regulatory citation for reporting oil
spills.
J. 30 CFR Part 585, Subpart J—
Decommissioning
Subpart I, Decommissioning, is being
redesignated as subpart J to
accommodate the addition of a new
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96 USACE procedures are described in detail in
the Permit 10 requirements contained in the final
rule ‘‘Issuance and Reissuance of Nationwide
Permits’’ (82 FR 4, Jan. 6, 2017), available at the
following URL: https://www.swf.usace.army.mil/
Portals/47/docs/regulatory/Permitting/Nationwide/
NWP10TX.pdf.
97 This proposed rule also would allow FERC to
substitute its own decommissioning obligations for
marine hydrokinetic projects that it has licensed.
Such projects would be sited on leases issued by
BOEM, which would retain the authority to require
supplemental financial assurance under 30 CFR
585.516(c).
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6015
§ 585.902 What are the general
requirements for decommissioning for
facilities authorized under my SAP,
COP, or GAP?
The proposed rule would allow
BOEM to order decommissioning of
facilities earlier than 2 years following
lease termination if the facilities are no
longer useful for operations. This
mirrors the corresponding ‘‘idle iron’’
authority found in the OCS oil and gas
regulations at 30 CFR 250.1703 and
described for those purposes in NTL No.
2018–G03. Idle facilities pose potential
threats to the OCS environment and
potential financial liabilities if
destroyed or damaged in a future event,
such as a hurricane. The cost and time
to remove damaged facilities are
significantly higher than
decommissioning undamaged facilities.
These increased costs have potential
ramifications on financial assurance
requirements and may impact the future
financial viability of a lessee or
operator.
BOEM is soliciting comments on the
meaning of the term ‘‘no longer useful
for operations’’ and whether this is the
best or most appropriate standard for
BOEM to use to describe facilities that
should be required to be
decommissioned.
Decommissioning Applications
§ 585.905 When must I submit my
decommissioning application?
BOEM proposes to add paragraph (e)
to address the timing of applications
pursuant to the proposed ‘‘idle iron’’
authority under § 585.902.
K. 30 CFR Part 585, Subpart K—Rightsof-Use and Easement for Energy- and
Marine-Related Activities Using Existing
OCS Facilities
Subpart J, Rights-of-Use and Easement
for Energy- and Marine-Related
Activities Using Existing OCS Facilities,
is being redesignated as subpart K to
accommodate the addition of a new
subpart B, as noted in section VI.B
above. BOEM proposes technical
corrections to hyphenate ‘‘rights-of-use’’
in the proposed subpart K heading.
Requesting an Alternate Use RUE
§ 585.1005 How do I request an
Alternate Use RUE?
The proposed rule would clarify the
information requirements for an
alternate use RUE and would broaden
the alternate use RUE specifications to
clarify that any OCS facility could be
converted to an alternate use RUE. In
contrast, the existing regulations were
written in such a manner as to make the
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provisions of this section applicable
only to existing oil and gas facilities.
Decommissioning an Alternate Use RUE
§ 585.1018 Who is responsible for
decommissioning an OCS facility
located on an Alternate Use RUE?
The proposed rule would correct an
outdated cross-reference in paragraph
(b).
VII. Procedural Matters
A. Statutes
1. National Environmental Policy Act of
1969
BOEM has concluded that this rule as
proposed falls under categorical
exclusions established by DOI and
BOEM, does not constitute a major
Federal action significantly affecting the
quality of the human environment, and
does not require preparation of an
environmental impact statement. Most
provisions of this proposed rule fall
under a DOI categorical exclusion for
‘‘regulations . . . that are of an
administrative, financial, legal,
Section(s) in
30 CFR 585
technical, or procedural nature[.]’’ 98
Moreover, the entirety of the proposed
rule fits into the BOEM categorical
exclusion for ‘‘[i]ssuance and
modification of regulations, Orders,
Standards, Notices to Lessees and
Operators . . . for which the impacts
are limited to administrative, economic,
or technological effects and the
environmental impacts are minimal.’’ 99
BOEM has determined that the
proposed rule does not trigger any of the
extraordinary circumstances that would
require analysis under NEPA.100 A final
decision on the level of NEPA analysis
required will be made at the final rule
stage.
2. Paperwork Reduction Act of 1995
This proposed rule references existing
and new information collections for
regulations at 30 CFR part 585.
Submission to OMB for review under
the Paperwork Reduction Act of 1995 101
is required. Therefore, BOEM will
submit an IC request to OMB for review
and approval and will request a new
OMB control number, designated in this
discussion as ‘‘1010–NEW.’’ Once the
1010–AE04 final rule is effective, BOEM
will transfer the hour burden and nonhour costs burden from 1010–NEW to
OMB Control Number 1010–0176,
which expires March 31, 2023, then
discontinue the new number associated
with this rulemaking. BOEM may
neither conduct nor sponsor, nor are
you required to respond to, an
information collection unless it displays
a currently valid OMB control number.
The proposed regulations would
establish revise current requirements
and establish new requirements in 30
CFR part 585. The proposed rule would
increase annual burden hours by 588
and number of responses by 7; the nonhour costs would remain unchanged.
The following table and narrative
provides a breakdown of the paperwork
hour burdens for this proposed rule. As
discussed in the section-by-section
analysis above and in the supporting
statement available at Reginfo.gov, this
rule proposes to add or revise the
following:
Reporting and recordkeeping requirement 1
Burden changes and/or additions
Subpart B—The Renewable Energy Leasing Schedule
150 ..........................
This section references the leasing schedule published by the Secretary ...........
New Subpart B added. No new annual
burden hours.
Subpart C—Issuance of OCS Renewable Energy Leases
231(b) ......................
Submit comments in response to Federal Register notice re interest of unsolicited request for a lease.
Not considered IC as defined in 5 CFR
1320.3(h)(4). Therefore, the burden
will be 0 (¥16 annual burden hours
and ¥4 responses from approved
OMB control number).
Subpart E—Lease and Grant Administration
413 ..........................
Submit merger application, negotiate with BOEM any inconsistencies on terms
and conditions.
10 hour burdens × 1 request = 10 annual burden hours.
Subpart F—Payments and Financial Assurance Requirements
506(c)(4) .................
Submit documentation of the gross annual generation of electricity produced by
the generating facility on the lease—use same form as authorized by the Department of Energy U.S. Energy Information Administration (EIA). (OMB Control Number 1905–0129 covers burden to gather info and fill out form.
BOEM’s burden is for submitting a copy.).
.5 hour burden × 2 submissions = 1 annual burden hour.
Subpart G—Plans and Information Requirements
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600(a); 601(a), (b);
605 thru 614; 238;
810.
615(b) ......................
98 43
Within time specified after issuance of a competitive lease or grant, or within
time specified after determination of no competitive interest, submit copies of
SAP, including required information to assist BOEM to comply with NEPA/
Coastal Zone Management Act (CZMA) such as hazard info, air quality,
SMS, and all required information, certifications, requests, etc., in format
specified.
Submit annual report summarizing compliance from site assessment activities ..
CFR 46.210(i).
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99 Dep’t of the Interior, Departmental Manual part
516, section 15.4C(1) (2004).
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¥240 annual burden hours (¥240 burden hours and ¥1 SAP from approved OMB control number).
¥60 annual burden hours (¥60 burden hours and ¥2 reports from approved OMB control number).
100 See
101 44
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43 CFR 46.215.
U.S.C. 3501 et seq.
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Section(s) in
30 CFR 585
Reporting and recordkeeping requirement 1
6017
Burden changes and/or additions
Subpart I—Environmental and Safety Management, Inspections, and Facility Assessments for Activities Conducted Under SAPs, COPs,
and GAPs
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810; 614; 627;
632(b); 651.
812(b)(i), Form
BOEM–NEW.
812(b)(ii) ..................
Use a Safety Management System for all activities conducted pursuant to a
lease and make available to BOEM upon request. Submit safety management system description with a COP, or with a SAP or GAP, if facilities being
installed are deemed by BOEM to be complex or significant.
Submit safety and environmental performance data (Form BOEM–NEW, Performance Data Measures).
Provide report summary on SMS audit, corrective actions, and changes to SMS
830(d) ......................
Report oil spills as required by BSEE 30 CFR 250.187 .......................................
Total Burden ....
7 Responses ..........................................................................................................
Subpart B. The proposed rule would
add a new subpart B for the renewable
energy leasing schedule published by
the Secretary of the Interior. BOEM
estimates no burdens for this subpart.
Subpart C. Section 585.216(c) relates
to eligibility for bidding credits as set
forth in the FSN before the lease auction
takes place. Bidders must establish that
they are eligible for each bidding credit
that they seek. BOEM proposes to keep
the annual burden hours the same as in
the 2020 approved OMB Control
Number 1010–0176 (2020 approval) but
would attribute the hours to the
requirements of the bidding credit
eligibility criteria.
Section 585.231(b) relates to requests
for competitive interest during the
noncompetitive leasing process.
Requests for competitive interest do not
constitute an information collection
under the PRA implementing
regulations at 5 CFR 1320.3(h)(4).
Therefore, BOEM proposes removing 16
annual burden hours from § 585.231(b).
Subpart E. Proposed § 585.413 would
align the regulations with the existing
practice allowing lease and grant
consolidation. BOEM proposes to add
10 annual burden hours to the 2020
approval attributable to § 585.413 to
account for submission of applications
to consolidate all or part of two or more
adjacent leases or grants by the same
lessee or grant holder into one new lease
or grant, and to negotiate with BOEM on
inconsistencies in terms and conditions.
Subpart F. BOEM previously did not
account for burden hours relating to
§ 585.506(c)(4) because the required
reporting of gross annual electrical
production by a generating facility uses
a DOE form under OMB Control
Number 1905–0129. However, BOEM
would like to receive this form already
completed for DOE. BOEM proposes to
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add one annual burden hour to
§ 585.506(c)(4).
Subpart G. Proposed § 585.600(a)
would significantly revise the
requirement for SAPs. Under the
proposed rule, a SAP would be required
only when site assessment activities
involve an engineered foundation.
BOEM would not require a SAP for
floating site assessment facilities, such
as met buoys. BOEM also would have
the discretion to waive certain
information requirements in a proposed
plan, which could add flexibility to the
permit application process. BOEM
proposes to remove 240 annual burden
hours from § 585.600(a).
Existing and proposed § 585.615(b)
relates to other reports or notices that
must be submitted periodically under
an approved SAP. With the narrowing
of the SAP requirement to site
assessment activities involving an
engineered foundation, BOEM estimates
fewer reports or notices would be filed
under this section. BOEM proposes to
remove 60 annual burden hours from
§ 585.615(b).
The proposed rule would allow the
deferral of detailed geotechnical survey
reporting from COP submission under
the existing § 585.626(b) to FDR
submission under the proposed
§ 585.701(a). This change would not
increase annual burden hours, though it
likely would change the allocation of
existing burden hours between
§§ 585.626(b) and 585.701(a). BOEM
welcomes input regarding the
appropriate reallocation of geotechnical
survey reporting hours.
Subpart H. Proposed § 585.700(b)
would allow separate FDRs and FIRs for
major project components if an
explanation is included in the reports
describing how the systems comprising
the project will function together
effectively in an integrated manner in
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35 hour burdens × 2 submissions = 70
annual burden hours.
82 hour burdens × 10 submissions =
820 annual burden hours.
5 annual burdens hours added to existing OMB approval (no additional responses).
Burden covered under BSEE 1014–
0007. (¥2 annual burden hours and
¥1 report).
588 Hours.
accordance with the project design
basis. BOEM welcomes input regarding
the number of annual burden hours
necessary to complete this integration
statement if separate FDRs and FIRs for
major components are submitted.
Proposed § 585.704 would allow BOEM
20-calendar days to deem the FDR and/
or FIR submitted prior to commencing
the 60-calendar day review time.
Proposed § 585.704 would also allow
BOEM 20-calendar days to deem the
project verification reports submitted
prior to commencing the 30-calendar
day review time. This would allow
BOEM 20-calendar days to ensure
completeness, identify deficiencies, and
would provide BOEM with the ability to
ask for clarifications in order to meet the
60-calendar day review time for FDRs
and/or FIRs or the 30-calendar-day
review time for project verification
reports. Once BOEM has made the
determination that an FDR and/or FIR or
project verification report is deemed
submitted, the previous 60- or 30-day
review times specified in the current
regulations would continue to remain in
effect.
Subpart I. Proposed § 585.810 clarifies
that an SMS is required to conduct
activities pursuant to a lease, from met
buoy placement and site assessment
work through decommissioning. While
a description of the SMS is required to
be submitted for review by BOEM with
a COP, and for review of a SAP or GAP
if the facilities being installed are
deemed by BOEM to be complex or
significant, this addition makes it clear
that a structured approach to safety is
both expected and required for all leaseassociated work. BOEM proposes to add
–70 annual burden hours to the 2020
approval.
Proposed § 585.812(b)(i) and (ii)
would add new reporting requirements.
Proposed § 585.812(b)(i) would require
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an annual summary of safety
performance data covering the previous
calendar year during which site
assessment, construction, operations, or
decommissioning activities occurred by
submitting form BOEM–NEW,
Performance Data Measures—
Renewable Energy.102 This form would
include company identification and
number of injuries, illnesses, and hours
worked by company employees and
contractors. This information would be
used to develop incident rates that
would help assess workplace safety and
environmental compliance across the
OCS renewable energy industry.
Incident rates would enable
benchmarking of individual projects
against industry-wide performance to
facilitate needed improvement. Also,
these rates would allow BOEM and
BSEE to better focus their regulatory and
research programs by highlighting areas
below expected safety performance.
BOEM proposes to add 820 annual
burden hours to § 585.812(b)(i).
Proposed § 585.812(b)(ii) would
require a summary of the most recent
SMS audit, corrective actions
implemented or pending because of that
audit, and an updated SMS description
highlighting changes made since the last
report. This report would be due every
3 years or upon BOEM’s request. BOEM
proposes to add 75 annual burden hours
to § 585.812(b)(ii).
For § 585.830(d), BOEM is proposing
to remove two burden hours since the
burdens for reporting oil spills falls
under OMB Control Number 1014–0007.
Title of Collection: Renewable Energy
Modernization (Notice of Proposed
Rulemaking).
OMB Control Number: 1010–NEW.
Form Numbers:
• BOEM–NEW, Performance Data
Measures—Renewable Energy.
Type of Review: New.
Respondents/Affected Public:
Respondents primarily would be private
sector companies interested in
developing or operating OCS renewable
energy leases and grants; affected State,
local, and tribal governments; and other
companies that submit information
regarding OCS renewable energy
projects.
102 To see a copy of the proposed form, go to
https://www.reginfo.gov, select ‘‘Information
Collection Review,’’ and, in the ‘‘Currently under
Review’’ heading, select Department of the Interior,
find OMB Control Number 1010–NEW, click on the
ICR Reference Number, and click on ‘‘View
Supporting Statement and Other Documents;’’ or
you may obtain a copy of the proposed form from
BOEM’s Information Collection Clearance Officer,
whose mailing address and email may be found in
the ADDRESSES section of the preamble. The
proposed form also is available through this
proposed rule’s docket at https://
www.regulations.gov/docket?D=BOEM-2020-0033.
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Total Estimated Number of Annual
Responses: 7 responses.
Total Estimated Number of Annual
Burden Hours: 588 hours.
Respondent’s Obligations: Responses
to information collections under this
part would be mandatory to obtain, or
retain, an OCS renewable energy lease
or grant.
Frequency of Collection: The
frequency of collection would vary
depending upon BOEM’s decisions to
issue OCS leases or grants for renewable
energy development, a company’s
decision to seek a lease or grant, and the
manner in which the lessee or grant
holder elects to develop its lease or
grant.
Total Estimated Annual Non-Hour
Burden Cost: No non-hour costs.
If this proposed rule becomes
effective and OMB approves the
information collection request 1010–
NEW, BOEM would revise the existing
OMB Control Number 1010–0176 for the
affected subparts discussed above and
would adjust the annual burden hours
accordingly. The information
collections related to 30 CFR part 585
do not include questions of a sensitive
nature. BOEM will continue to protect
proprietary information according to
FOIA and DOI’s implementing
regulations, which address disclosure of
information to the public.103
In addition, the PRA requires agencies
to estimate the total annual reporting
and recordkeeping non-hour cost
burden resulting from the collection of
information. BOEM solicits your
comments regarding non-hour cost
burdens arising from this proposed rule.
For reporting and recordkeeping only,
your response should split the cost
estimate into two components: (1) total
capital and startup cost component, and
(2) annual operation, maintenance, and
disclosure cost component to provide
the information. You should describe
the methods you use to estimate your
cost components, including system and
technology acquisition, expected useful
life of capital equipment, discount
rate(s), and the period over which you
incur costs. Generally, your estimates
should not include equipment or
services purchased: (1) before October 1,
1995; (2) to comply with requirements
not associated with the information
collection arising from this proposed
rule; (3) for reasons other than to
provide information or to keep records
for the U.S. Government; or (4) as part
of customary and usual business or
private practices.
As part of BOEM’s continuing effort to
reduce paperwork and respondent
103 See
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burdens, BOEM invites the public and
other Federal agencies to comment on
any aspect of this information
collection, including:
(1) Is the proposed information
collection necessary or useful for BOEM
to properly perform its functions?
(2) Are the estimated annual burden
hour increases and decreases resulting
from the proposed rule reasonable?
(3) Is the estimated annual non-hour
cost burden resulting from this
information collection reasonable?
(4) Do you have any suggestions that
would enhance the quality, clarity, or
usefulness of the information to be
collected?
(5) Is there a way to minimize the
information collection burden on those
who must respond, such as by using
appropriate automated digital,
electronic, mechanical, or other forms of
information technology?
3. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
requires Federal agencies to prepare and
to provide a regulatory flexibility impact
analysis when a regulation will have a
significant economic impact on a
substantial number of small entities and
to consider regulatory alternatives that
will achieve the agency’s goals while
minimizing the burden on small
entities.104
When an agency issues a notice of
proposed rulemaking, the RFA requires
the agency to ‘‘describe the impact of
the proposed rule on small entities’’ in
its initial regulatory flexibility impact
analysis.105 The RFA does not require a
regulatory flexibility impact analysis
when an agency certifies that the
proposed rule will not impose a
significant economic impact on a
substantial number of small entities.106
(a) Description of and, Where Feasible,
an Estimate of the Number of Small
Entities to Which the Proposed Rule
Would Apply
This proposed rule would directly
affect all current and future OCS
renewable energy developers.107
Renewable energy companies
operating on the OCS are generally
organized under North American
Industry Classification System (NAICS)
code 221115 Wind Electric Power
Generation in Sector 22 (Utilities). The
size standard for determining a small
business in this category is 250
employees or fewer. OCS renewable
energy companies may be financially
104 See
5 U.S.C. 601–612.
U.S.C. 603(a).
106 5 U.S.C. 605(b).
107 See supra note 1 for discussion of developers.
105 5
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supported by investment fund
portfolios. The revenue threshold for
determining a small Portfolio
Management company, NAICS code
523940, is $41.5 million.
The Small Business Administration’s
(SBA) Office of Advocacy provides
guidelines for complying with the RFA.
The SBA’s best practice for
understanding impacts to small
businesses is to conduct analysis at the
firm level. In the case of OCS renewable
energy, the 28 active commercial OCS
renewable energy leases are held by 10
lessees. All these lessees are
subsidiaries of large parent companies
or are majority-owned by portfolio
management companies; none fit the
definition of a small firm or business.
To date, companies that have submitted
bids in BOEM auctions are either large
firms or partners with large firms in
joint ventures.
Developing and operating OCS wind
sites requires significant upfront capital
typical of large firms or investment
portfolios. Pilot-scale commercial
projects cost hundreds of millions of
dollars to install and operate, and
utility-scale projects cost multiple
billions of dollars. As a result, it is
unlikely that small entities will be
constructing or operating wind facilities
on the OCS in the foreseeable future.
The reduction in developmental and
operational costs resulting from this
proposed rule would be available to all
companies developing and operating
OCS renewable energy facilities,
whether large or small. Therefore,
BOEM has determined that the
proposed rule likely does not have a
significant adverse economic impact on
a substantial number of small entities.
Nonetheless, BOEM has prepared an
initial regulatory impact analysis (IRIA)
to quantify the cost savings arising from
this proposed rule and solicit public
comment.108
BOEM does not consider the potential
impacts from this rule on small fishing
businesses or small coastal communities
in the IRIA, as they are not the regulated
entity. BOEM does not anticipate that
this proposed regulation would have
any positive or negative impacts to these
communities above those outlined in
the baseline scenario. However, BOEM
requests that if small fishing industries
businesses or small coastal communities
believe they are impacted as a result of
this proposed rule, they submit
comments during the comment period.
108 The IRIA is posted to this proposed rule’s
docket at https://www.regulations.gov/
docket?D=BOEM-2020-0033.
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(b) Description of the Projected
Reporting, Recordkeeping, and Other
Compliance Requirements of the
Proposed Rule
The proposed rule would add modest
reporting, recordkeeping, and other
compliance requirements. Specifically,
proposed § 585.812 would require
annual reporting of safety related
information once an OCS renewable
energy project begins construction and
triennial reporting of safety audits and
corrective actions. The information
collection burden of these reports is
analyzed in section VII.A.2.
(c) Identification of All Relevant Federal
Rules That May Duplicate, Overlap or
Conflict With the Proposed Rule
The proposed rule would neither
conflict, duplicate, nor overlap with any
relevant Federal rules. Indeed, it would
eliminate duplication with USACE
permitting requirements.
(d) Description of Significant
Alternatives to the Proposed Rule
The regulatory alternatives are
discussed in the accompanying IRIA.
4. Small Business Regulatory
Enforcement Fairness Act
BOEM anticipates the proposed rule
would have neither significant
employment nor small business
impacts; nor cause major price increases
for consumers, businesses, or
governments; nor significantly degrade
competition, employment, investment,
productivity, innovation, or the ability
of U.S. businesses to compete against
foreign businesses. It is estimated to
have an annual economic effect of $100
million or more 109 and, therefore, this
proposed rule is a major rule under the
Small Business Regulatory Enforcement
Fairness Act.110 This rule seeks to
enhance U.S. energy independence by
reducing unnecessary regulatory costs
and uncertainty within the OCS
renewable energy industry while
ensuring safety and appropriate
environmental analyses and mitigations
and providing fair return to the U.S.
taxpayer.
5. Unfunded Mandates Reform Act of
1995
This proposed rule would not impose
an unfunded Federal mandate on State,
local, or tribal Governments, nor would
it have a significant or unique effect on
State, local, or tribal Governments.
Thus, the proposed rule would not have
disproportionate budgetary effects on
109 See infra section VII.B.2 discussion of E.O.
12866 and E.O. 13563.
110 See 5 U.S.C. 804(2).
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6019
these governments. BOEM also has
determined that this proposed rule
would not impose costs on the private
sector of more than $182 million in a
single year.111 Therefore, the proposed
rule does not trigger the requirement to
prepare a written statement under this
act.112
6. Congressional Review Act
Pursuant to the Congressional Review
Act 113 and OMB guidance,114 the Office
of Information and Regulatory Affairs
(OIRA) must decide whether this rule is
a major rule as defined by that act.115
Given its economic implications, OMB
has determined that this rule is
significant and major. The rule has also
been designated by OMB as a significant
rulemaking.
B. Executive Orders
1. Executive Order 12630—Takings
Implication Assessment
Under E.O. 12630 section 2(a)(1)
criteria, this proposed rule would not
have takings implications. This
proposed rulemaking is a Federal action
that would not interfere with
constitutionally protected private
property rights. To the extent OCS
renewable energy lessees and grant
holders possess private property rights
under the terms of BOEM leases, this
proposed rulemaking is not expected to
reduce the value of those rights. A
takings implication assessment is not
required.
2. Executive Order 12866—Regulatory
Planning and Review; and Executive
Order 13563—Improving Regulation
and Regulatory Review
OIRA has determined that this
proposed rule is a ‘‘significant
regulatory action’’ under E.O. 12866
section 3(f). BOEM has prepared an IRIA
that estimates a $1 billion net benefit (7
percent discounting) over a 20-year
period resulting from the compliance
cost savings realized by the OCS
renewable energy industry.
This proposed rule would reform,
streamline, reorganize, update, and
clarify existing regulations. As
economic impact is realized in cost
savings by developers, it is not expected
to have an adverse, material effect on
the economy, an economic sector,
111 The private-sector cost threshold established
in UMRA in 1996 was $100 million. After adjusting
for inflation, the 2022 private-sector threshold is
$182 million.
112 See 2 U.S.C. 1532.
113 5 U.S.C. 801 et seq.
114 Office of Mgmt. & Budget, Exec. Office of the
President, OMB M–19–14, Guidance on Compliance
With the Congressional Review Act (2019).
115 5 U.S.C. 804(2).
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productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities. This proposed rule would
not create a serious inconsistency, or
otherwise interfere, with an action taken
or planned by another agency. This
proposed rule would not materially alter
the budgetary impact of entitlements,
grants, user fees, or loan programs or the
rights and obligations of their recipients.
OIRA has also determined that this
proposed rule is significant under E.O.
12866. This proposed rule is
promulgated under the authority
granted to the Secretary in the OCS
Lands Act to authorize and regulate
OCS renewable energy activities.
E.O. 13563 reaffirms the principles of
E.O. 12866 while calling for systemic
regulatory improvements to promote
predictability, reduce uncertainty, and
leverage the best, most innovative, and
least burdensome tools for achieving
regulatory ends. E.O. 13563 directs
agencies to consider regulatory
approaches that reduce burdens,
promote flexibility, and maintain the
public’s freedom of choice when these
approaches are relevant, feasible, and
consistent with regulatory objectives.
E.O. 13563 emphasizes that the best
available science must inform and guide
new regulations and that an open
exchange of ideas benefits the
rulemaking process. BOEM has
developed this proposed rule in a
manner consistent with these
requirements. E.O. 13563 also calls for
additional consideration of the
regulatory impact on employment. The
proposed rule is not expected to impact
employment within the OCS renewable
energy and associated industries in any
material way.
The proposed rule includes changes
across the renewable energy regulatory
framework. While these proposed
changes are important for reforming,
streamlining, and clarifying the
regulatory requirements, BOEM was
unable to quantify the impact of all the
proposed changes. Those deregulatory
changes, including revisions to CVA
requirements, are analyzed
qualitatively. Minor additional
compliance costs are estimated for SMS
reporting.
The proposed changes would allow
greater flexibility in using
decommissioning accounts. BOEM’s
existing regulations require full funding
of a decommissioning account before
each OCS renewable energy facility (i.e.,
wind turbine) is constructed. The
proposed change to § 585.529 would
allow incremental funding of a
decommissioning account under a
BOEM-approved schedule during the
operations period. This would reduce a
project’s upfront capital costs, would
enable a lessee or a grant holder to
invest available capital in planning and
construction (rather than tying up
excessive capital for decommissioning
costs that will occur no less than 20–30
years in the future), and would result in
savings through the time value of money
concept.
For site assessment activities, the
proposed rule would remove met
buoys—used primarily to collect energy
resource, oceanographic,
meteorological, and other
environmental data to assess OCS areas
for renewable energy development—
from the reach of BOEM’s regulations
requiring submission of a SAP
(§§ 585.600 through 585.618).116
Currently, both BOEM and USACE
regulate met buoys. BOEM proposes to
eliminate its permitting requirements
for met buoys because they are
unnecessarily burdensome and
duplicative of USACE’s NWP 5
permitting. BOEM estimates that this
regulatory change would enable
significantly cheaper and quicker
deployment of met buoys because a SAP
and BOEM approval would be no longer
necessary. Instead, a USACE NWP 5
permit would be the only Federal
approval necessary to deploy a met
buoy. BOEM believes that the USACE
permitting process adequately ensures
met buoys are deployed in a safe and an
environmentally responsible manner.
The proposed rule also addresses
geotechnical surveys, which are
required before COP submittal by
§ 585.626. BOEM proposes to defer
certain detailed geotechnical survey
requirements from COP submittal to the
FDR and FIR submittals, which occur
subsequent to COP approval. This
change would give a lessee or a grant
holder more time to complete the
surveys and would reduce upfront
financial costs. BOEM recognizes that
the current timing of geotechnical
survey requirements is premature and
limits flexibility. This proposed deferral
would provide time value of money
savings to a lessee or a grant holder,
who also would benefit from more
flexibility.
Existing regulations also require
geotechnical core analysis for each
renewable energy facility foundation.
The proposed rule would allow a lessee
or a grant holder—subject to BOEM
approval—to provide data from fewer
than all facility foundation locations if
they can demonstrate that the project
area consists of generally uniform,
predictable geophysical characteristics.
This would allow a lessee and a grant
holder to potentially realize cost savings
by reducing the number of geotechnical
investigations. For this analysis, BOEM
estimated a 10 percent reduction in the
number of geotechnical investigations
needed.
The tables below summarize BOEM’s
estimated 20-year compliance cost
savings for the proposed changes related
to decommissioning accounts, met
buoys, and geotechnical surveys. The
IRIA contains additional information on
assumptions, compliance costs, savings,
and benefits.117
TABLE—20-YEAR (2023–2042) NET PRESENT VALUE BY AFFECTED CATEGORY OF REGULATORY CHANGE
[Millions]
Discounted
at 3%
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Proposed revisions
Discounted
at 7%
Decommissioning Accounting Changes ..................................................................................................................
Meteorological Buoy Streamlining ...........................................................................................................................
Geotechnical Regulatory Revisions .........................................................................................................................
Safety Management System Reporting ...................................................................................................................
¥$1,248.5
¥16.3
¥121.6
5.3
¥$905.3
¥11.6
¥88.2
3.5
Total ..................................................................................................................................................................
¥1,381
¥1.001.5
116 The proposed rule would eliminate BOEM’s
approval requirement for met buoys deployed both
on and off a commercial lease. The proposed
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change to off-lease met buoy deployment is not
analyzed quantifiably because historical activity is
lacking.
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TABLE—20-YEAR ANNUALIZED COST SAVINGS BY REGULATORY PROVISION CATEGORY
[Millions]
Discounted
at 3%
Proposed revisions
Decommissioning Accounting Changes ..................................................................................................................
Meteorological Buoy Streamlining ...........................................................................................................................
Geotechnical Regulatory Revisions .........................................................................................................................
Safety Management System Reporting ...................................................................................................................
¥$83.9
¥1.1
¥8.2
0.35
¥$85.4
¥1.1
¥8.3
0.33
Total ..................................................................................................................................................................
¥92.8
¥94.5
3. Executive Order 12988—Civil Justice
Reform
This proposed rule complies with
E.O. 12988 sections 3(a) and (b)(2)
requirements. This rule was reviewed to
eliminate technical errors and
ambiguity, simplify the existing
regulatory framework, minimize
litigation, and provide clear legal
standards.
4. Executive Order 13132—Federalism
This proposed rule would not have
sufficient federalism implications to
warrant a summary impact statement
under E.O. 13132 section 1(a) because it
neither imposes direct compliance costs
on States; nor does it preempt State law;
nor does it have substantial direct
effects on the States, nor on the
relationship between the Federal and
State Governments, nor on the
distribution of power and
responsibilities between various
governmental levels in the United
States. Thus, a federalism impact
statement is unnecessary.
5. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
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Discounted
at 7%
BOEM strives to strengthen its
government-to-government relationship
with American Indian and Alaska
Native tribes through a commitment to
consultation with federally recognized
tribes (Tribes) and recognition of their
right to self-governance and tribal
sovereignty. BOEM also is respectful of
its responsibilities for consultation with
ANCSA corporations. BOEM has
evaluated this proposed rule under
DOI’s consultation policy,118 BOEM’s
tribal consultation guidance,119 and the
criteria in E.O. 13175. BOEM does not
believe that this proposed rule itself
would have substantial direct effects on
118 Dep’t of the Interior, Departmental Manual
part 512, chapters 4 through 5 (2015).
119 Memorandum from William Y. Brown, Chief
Environmental Officer, Bureau of Ocean Energy
Mgmt., to Bureau Program Chiefs and Regional
Directors (June 29, 2018), available at https://
www.boem.gov/BOEM-Tribal-ConsultationGuidance/.
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Tribes or ANCSA corporations and,
hence, has concluded that consultation
under the DOI and BOEM tribal
consultation policies is not required.
BOEM reached this determination in
part because the requirements of this
proposed rule are, in sum,
administrative, technical, procedural, or
interpretive in nature and they would
not themselves have foreseeable
particular, substantial direct impacts on
tribal resources. That does not mean
that future actions under the rule will
not have tribal implications requiring
consultation. BOEM will review future
actions carefully and will invite Tribes
and ANCSA Corporations to consult
when any such future actions may have
a substantial direct effect on them.
BOEM will also continue outreach to
strengthen collaboration with Tribes
and ANCSA corporations that have
expressed an interest in or concern
about renewable energy activities on the
OCS and their impacts.
6. Executive Order 13211—Effects on
the Nation’s Energy Supply
Under E.O. 13211, agencies are
required to prepare and submit to OMB
a Statement of Energy Effects for
‘‘significant energy actions.’’ This
proposed rule does not add new
regulatory compliance requirements that
would lead to adverse effects on the
nation’s energy supply, distribution, or
use. Rather, the regulatory changes
would help reduce compliance burdens
on the OCS renewable energy industry
that may hinder the continued
development or use of domestically
produced energy resources. Reduced
regulatory burdens do not adversely
affect productivity, competition, or
prices within the energy sector. This
rule is not a significant energy action
under the definition in E.O. 13211.
Therefore, a Statement of Energy Effects
is not required.
7. Presidential Memorandum of June 1,
1998, on Regulation Clarity
Under the criteria in Presidential
Memorandum of June 1, 1998, this
proposed rule is logically organized into
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easily read, short sections using both
sentences that are clearly written in the
active voice and common words rather
than jargon. If you believe this proposed
rule fails these requirements, please
send specific comments to BOEM by
one of the methods listed in the
ADDRESSES section.
List of Subjects in 30 CFR Part 585
Administrative practice and
procedure, Assessment plans, Coastal
zone, Compliance, Continental shelf,
Electric power, Energy, Environmental
protection, Government leases,
Intergovernmental relations, Marine
resources, Natural resources, Ocean
resources, Offshore energy, Offshore
structures, Outer continental shelf,
Payments, Planning, Power resources,
Renewable energy, Reporting and
recordkeeping requirements, Revenue
sharing, Rights-of-way, Rights-of-useand-easement, Wind energy.
Laura Daniel-Davis,
Principal Deputy Assistant Secretary Land
and Minerals Management.
For the reasons discussed in the
preamble, the Bureau of Ocean Energy
Management proposes to amend 30 CFR
part 585 as follows:
PART 585—RENEWABLE ENERGY
AND ALTERNATE USES OF EXISTING
FACILITIES ON THE OUTER
CONTINENTAL SHELF
1. The authority citation for part 585
is revised to read as follows:
■
Authority: 43 U.S.C. 1337(p).
Subpart A—General Provisions
2. Amend § 585.102 by revising
paragraph (a) introductory text to read
as follows:
■
§ 585.102 What are BOEM’s
responsibilities under this part?
(a) BOEM will ensure that any
activities authorized in this part are
carried out in a manner that provides for
and balances the following goals, none
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text, and (b)(3) and adding paragraph (c)
to read as follows:
of which inherently outweighs or
supplants any other:
*
*
*
*
*
■ 3. Amend § 585.103 by revising the
section heading and paragraph (a) to
read as follows:
§ 585.106 Who can acquire or hold a lease
or grant under this part?
§ 585.103 When may BOEM prescribe or
approve departures from the regulations in
this part?
(a) BOEM may prescribe or approve a
departure from these regulations when
BOEM deems the departure necessary
because the applicable provision(s) as
applied to a specific circumstance:
(1) Are impractical or unduly
burdensome and the departure is
necessary to achieve the intended
objectives of the renewable energy
program;
(2) Fail to conserve the natural
resources of the OCS;
(3) Fail to protect life (including
human and wildlife), property, or the
marine, coastal, or human environment;
or
(4) Fail to protect sites, structures, or
objects of historical or archaeological
significance.
*
*
*
*
*
■ 4. Revise § 585.104 to read as follows:
§ 585.104 Do I need a BOEM lease or other
authorization to produce or support the
production of electricity or other energy
product from a renewable energy resource
on the OCS?
Except as otherwise authorized by
law, it is unlawful for any person to
construct, operate, or maintain any
facility to produce, transport, or support
generation of electricity or other energy
product derived from a renewable
energy resource on any part of the OCS,
except in accordance with the terms of
a lease, easement, or ROW issued under
the OCS Lands Act. For the purposes of
this section, site assessment activities
do not produce, transport, or support
the generation of electricity or other
energy product.
■ 5. Amend § 585.105 by revising
paragraph (d) to read as follows:
§ 585.105 What are my responsibilities
under this part?
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*
*
*
*
*
(d) Comply with all applicable laws
and regulations, the terms of your lease
or grant under this part, reports, notices,
and approved plans prepared under this
part, and any conditions imposed by
BOEM through its review of any of these
reports, notices, and approved plans, as
provided in this part;
*
*
*
*
*
■ 6. Amend § 585.106 by revising the
section heading, paragraphs (a)
introductory text, (a)(6), (b) introductory
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(a) You may acquire or hold a lease
or grant under this part if you can
demonstrate that you have the technical
and financial capabilities to conduct the
activities authorized by the lease or
grant and you are a(n):
*
*
*
*
*
(6) State of the United States; or
*
*
*
*
*
(b) You may not acquire or hold a
lease or grant under this part or acquire
an interest in a lease or grant under this
part if:
*
*
*
*
*
(3) After written notice and your
opportunity to be heard, BOEM
determines that:
(i) You no longer meet the
qualification requirements for acquiring
or holding a lease or grant in paragraph
(a) of this section and § 585.107; or
(ii) You have:
(A) Violated an applicable law,
regulation, order, lease or grant
provision, approved plan, or the
prohibitions prescribed in a final sale
notice; or otherwise engaged in illegal
activity, anti-competitive or collusive
behavior, fraud, or misrepresentation;
and
(B) Failed to take timely remedial
action as specified in the notice of the
proposed disqualification to re-establish
eligibility to participate in any BOEM
lease or grant sale and eligibility to
acquire or hold an interest in a lease or
grant under this part.
(c) So long as a party is ineligible to
acquire or hold a lease or grant under
this part, it is also ineligible to
participate in BOEM’s competitive and
noncompetitive lease or grant issuance
processes, including auctions,
conducted under this part, even as an
agent for another entity. A party can
restore its eligibility by completing the
remedial action specified in the notice
of the proposed disqualification.
■ 7. Amend § 585.107 by revising
paragraph (b) to read as follows:
§ 585.107 How do I show that I am
qualified to be a lessee or grant holder?
*
*
*
*
*
(b) An individual must submit a
written statement of citizenship status
attesting to U.S. citizenship. It does not
need to be notarized nor give the age of
the individual. A resident alien may
submit a photocopy of the form issued
by the appropriate Federal immigration
authority evidencing legal status as a
resident alien.
*
*
*
*
*
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■
8. Revise § 585.110 to read as follows:
§ 585.110 How do I submit plans,
applications, reports, or notices required by
this part?
Unless otherwise stated, you must
submit one electronic copy of all plans,
applications, reports, or notices required
by this part to BOEM. BOEM will
inform you if it requires paper copies of
specific documents. Unless stated
otherwise, documents should be
submitted to the relevant contacts listed
on the BOEM website.
■ 9. Amend § 585.112 by:
■ a. Adding in alphabetical order a
definition for ‘‘Bidding credit(s)’’;
■ b. Revising the definitions of
‘‘Commercial activities’’ and
‘‘Commercial operations’’;
■ c. Adding in alphabetical order
definitions for ‘‘Critical safety system’’,
‘‘Engineered foundation’’,
‘‘Fabrication’’, ‘‘Lease area’’, ‘‘Multiple
factor auction’’. ‘‘Project design
envelope’’, ‘‘Provisional winner’’, and
‘‘Receipt’’; and
■ d. Revising the definition of ‘‘Site
assessment activities’’.
The additions and revisions read as
follows:
§ 585.112
Definitions.
*
*
*
*
*
Bidding credit(s) means the value
assigned by BOEM, expressed in
monetary terms, to the factors or actions
demonstrated, or committed to, by a
bidder at a BOEM lease auction during
the competitive lease award process.
The type(s) and value(s) of any bidding
credit(s) awarded to any given bidder
will be set forth in the Final Sale Notice.
*
*
*
*
*
Commercial activities means, under
renewable energy leases and grants, all
activities associated with the generation,
storage, or transmission of electricity or
other energy product from a renewable
energy project on the OCS, and where
such electricity or other energy product
is intended for distribution, sale, or
other commercial use, except for
electricity or other energy product
distributed or sold pursuant either to
technology-testing activities on a
limited lease or facilities testing on a
commercial lease needed to prepare a
final FIR. This term also includes
activities associated with such
development, including initial site
characterization and assessment, facility
construction, and project
decommissioning.
*
*
*
*
*
Commercial operations means the
generation of electricity or other energy
product for commercial use, sale, and
distribution on a commercial lease, but
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does not mean either generation needed
to prepare a final FIR or generation for
testing purposes, provided the
electricity generated for such testing is
not sold on a commercial basis.
Critical Safety System means safety
systems and equipment designed to
prevent or ameliorate major accidents
that could result in harm to health,
safety, or the environment in the area of
your facilities.
*
*
*
*
*
Engineered foundation means any
structure installed on the seabed using
a fixed-bottom foundation constructed
according to a professional engineering
design (based on an assessment of
relevant sedimentary, meteorological,
and oceanographic conditions).
Fabrication means the cutting, fitting,
welding, or other assembly of project
elements of a custom design conforming
to project-specific requirements.
Fabrication does not include the
procurement of discrete parts of the
project that are commercially available
in standardized form or with typecertified components.
*
*
*
*
*
Lease area means an area on the OCS
that BOEM has identified for leasing for
potential development of renewable
energy resources.
*
*
*
*
*
Multiple factor auction means an
auction that involves the use of bidding
credits to incentivize goals or actions
that support public policy objectives or
maximize public benefits through the
competitive leasing auction process. For
any multiple factor auction, the
monetary value of the bidding credits, if
‘‘receipt’’ and ‘‘receive’’ where those
terms are used in this part to describe
the receipt of a document when the
timing of receipt triggers a regulatory
time period or consequence.
*
*
*
*
*
Site assessment activities mean those
initial activities conducted to assess an
area on the OCS, such as resource
assessment surveys (e.g., meteorological
and oceanographic) or technology
testing, involving the installation of
bottom-founded facilities.
*
*
*
*
*
■ 10. Amend § 585.113 by revising
paragraph (b)(1)(i) to read as follows:
§ 585.113 How will data and information
obtained by BOEM under this part be
disclosed to the public?
*
*
*
(b) * * *
*
*
If you have
a. . .
Then BOEM will review data
and information for possible
release:
(1) Commercial lease.
(i) 3 years after the initiation
of commercial operations
or.
*
*
*
*
*
*
*
*
*
*
11. Amend § 585.114 by revising
paragraphs (e)(2) through (10) and
adding paragraph (a)(11) to read as
follows:
■
§ 585.114 Paperwork Reduction Act
statements—information collection.
*
*
*
(e) * * *
*
*
30 CFR 585 subpart, title, and/or BOEM form
(OMB control No.)
Reasons for collecting information and how used
*
*
(2) Subpart B—The Renewable Energy Leasing
Schedule.
(3) Subpart C—Issuance of OCS Renewable
Energy Leases.
*
*
*
*
*
To enable BOEM to publish a proposed five-year leasing schedule for the OCS renewable energy program.
To provide BOEM with information needed to determine when to use a competitive process for
issuing a renewable energy lease, to identify auction formats and bidding systems and variables that we may use when that determination is affirmative, and to determine the terms
under which we will issue renewable energy leases.
To issue ROW grants and RUE grants for OCS renewable energy activities that are not associated with a BOEM-issued renewable energy lease.
(4) Subpart D—Rights-of-Way Grants and
Rights-of-Use and Easement Grants for Renewable Energy Activities.
(5) Subpart E—Lease and Grant Administration
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any, would be added to the value of the
cash bid to determine the highest
bidder.
*
*
*
*
*
Project Design Envelope (PDE) is
means a reasonable range of design
parameters proposed in a lessee’s plan
for components of the project, such as
type, dimensions, and number of wind
turbine generators; foundation type;
location of the export cable route;
location of an onshore substation;
location of the grid connection point;
and construction methods and timing.
*
*
*
*
*
Provisional winner means a bidder
that BOEM determines at the conclusion
of the auction to have submitted the
winning bid. The provisional winner
becomes the winning bidder after the
favorable completion of BOEM’s bid
review, Department of Justice antitrust
review, bidder obligations under
§ 585.225, and any appeals process
under § 585.118(c).
Receipt, as used in this part to
describe the time when a document is
received by any party in the absence of
documentation to the contrary, is
deemed to have taken place: 5-business
days after the date the document was
given to the U.S. Postal Service (or
deposited in one of its mailboxes),
properly addressed and with proper
postage affixed, or was given to a
delivery service (or deposited in one of
its receptacles), properly addressed and
with the delivery cost prepaid; or, on
the date on which the document was
properly addressed and sent
electronically. This definition also
applies to variants of the words
(6) Subpart F—Payments and Financial Assurance Requirements.
(7) Subpart G—Plans and Information Requirements.
(8) Subpart H—Facility Design, Fabrication, and
Installation.
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To ensure compliance with regulations pertaining to a lease or grant, including designation of
operator, assignment, segregation, consolidation, suspension, renewal, termination, relinquishment, and cancellation.
To ensure that payments and financial assurance payments for renewable energy leases comply with subpart F.
To enable BOEM to comply with the National Environmental Policy Act (NEPA), the Coastal
Zone Management Act (CZMA), and other Federal laws and to ensure the safety of the environment on the OCS.
To enable BOEM to review the final design, fabrication, and installation of facilities on a lease
or grant to ensure that these facilities are designed, fabricated, and installed according to
appropriate standards in compliance with BOEM regulations, and where applicable, the approved plan.
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30 CFR 585 subpart, title, and/or BOEM form
(OMB control No.)
Reasons for collecting information and how used
(9) Subpart I—Environmental and Safety Management, Inspections, and Facility Assessments for Activities Conducted Under SAPs,
COPs, and GAPs.
(10) Subpart J—Decommissioning .....................
To ensure that lease and grant operations are conducted in a manner that is safe and protects
the environment. To ensure compliance with other Federal laws, these regulations, the
lease or grant, and approved plans.
(11) Subpart K—Rights-of-Use and Easement
for Energy- and Marine-Related Activities
Using Existing OCS Facilities.
12. Revise § 585.116 to read as
follows:
■
§ 585.116
Requests for information.
BOEM may publish a request for
information (RFI) in the Federal
Register for the following reasons:
(a) To solicit information from
industry, State and local agencies,
federally recognized Tribes, and other
interested entities for evaluating the
offshore renewable energy industry,
including the identification of potential
challenges or obstacles to its continued
development. An RFI may relate to the
identification of environmental,
technical, regulatory, or economic
matters that promote or detract from
continued development of renewable
energy technologies on the OCS. BOEM
may use the information received to
refine its renewable energy program,
including to facilitate OCS renewable
energy development in a safe and
environmentally responsible manner
and to ensure a fair return to the United
States for use of the OCS.
(b) To assess interest in leasing all or
part of the OCS for activities authorized
in this part.
(c) To determine whether there is
competitive interest in a specific OCS
renewable energy proposal received by
BOEM, such as an unsolicited request
for a lease under § 585.231(b) or a RUE
or ROW grant under § 585.307(a).
(d) To seek other information that
BOEM needs for this program.
■ 13. Revise § 585.118 to read as
follows:
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§ 585.118
What are my appeal rights?
(a) Except as stated in paragraph (c) of
this section, any party adversely
affected by a final decision issued by
BOEM under this part may appeal that
decision to the Interior Board of Land
Appeals (IBLA), under part 590 of this
chapter and 43 CFR part 4, subpart E.
(b) Any final decision will remain in
full force and effect during the
pendency of an appeal unless a stay is
granted under 43 CFR part 4.
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To determine that decommissioning activities comply with regulatory requirements and approvals. To ensure that site clearance and platform or pipeline removal are properly performed
to protect marine life and the environment and do not conflict with other users of the OCS.
To enable BOEM to review information regarding the design, installation, and operation of
RUEs on the OCS, to ensure that RUE operations are safe and protect the human, marine,
and coastal environment. To ensure compliance with other Federal laws, these regulations,
the RUE grant, and, where applicable, the approved plan.
(c) A bidder adversely affected by
BOEM’s determination of a provisional
winner made under this part may
appeal to the BOEM Director; but
decisions determining a provisional
winner may not be appealed to the
IBLA.
(1) A bidder that elects to appeal a
provisional winner selection decision
must file a written appeal with the
Director within 15 business days after
receipt of the decision.
(2) Such appeal must be accompanied
by a statement of reasons. Before
reversing a provisional winner selection
decision, the Director will provide the
provisional winner a reasonable
opportunity to respond in writing to the
appellant’s statement of reasons. The
Director will issue a written
determination either affirming or
reversing the decision. The Director’s
decision is not appealable to the IBLA
under this section.
(3) BOEM will not execute a lease or
grant until the 15-business-day appeal
period closes and all timely filed
appeals are resolved.
(4) The review authority of the Office
of Hearings and Appeals does not apply
to either the provisional winner
selection decisions made under this part
or the Director’s final determination
affirming or reversing a provisional
winner selection decision.
Subparts B Through J [Redesignated
as Subparts C Through K]
14. Redesignate subparts B through J
as subparts C through K.
■ 15. Add new subpart B, consisting of
§ 585.150, to read as follows:
■
Subpart B—The Renewable Energy
Leasing Schedule
§ 585.150 What is the renewable energy
leasing schedule?
At least once every 2 years, the
Secretary will publish a schedule with
a list of locations under consideration
for leasing, along with a projection of
when lease sales are anticipated to
occur for the 5-year period following the
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schedule’s publication. This schedule
will include a general description of the
area covered by each proposed lease
sale, the calendar year in which each
lease sale is projected to occur, and the
reasons for any changes made to the
previous schedule. Any proposed lease
sale covered by the schedule will be
subject to all applicable regulations,
including area identification,
coordination with relevant parties, and
applicable environmental reviews.
Subpart C—Issuance of OCS
Renewable Energy Leases
16. Revise § 585.202 to read as
follows:
■
§ 585.202
issue?
What types of leases will BOEM
BOEM may issue commercial or
limited leases for OCS activities under
§ 585.104. BOEM may issue a lease for
OCS renewable energy research
activities under § 585.238.
■ 17. Revise § 585.203 to read as
follows:
§ 585.203 With whom will BOEM consult
before issuance of leases?
For leases issued under this part,
through either the competitive or
noncompetitive process, BOEM, prior to
issuing the lease, will coordinate and
consult with relevant Federal agencies
(including, in particular, those agencies
involved in planning activities that are
undertaken to avoid or minimize
conflicts among users and maximize the
economic and ecological benefits of the
OCS, including multifaceted spatial
planning efforts), the Governor of any
affected State, the executive of any
affected local government, and any
affected Indian Tribe, as directed by
subsections 8(p)(4) and (7) of the OCS
Lands Act or other relevant Federal
laws. Federal statutes that require
BOEM to consult with interested parties
or Federal agencies or to respond to
findings of those agencies, include the
Endangered Species Act (ESA) and the
Magnuson-Stevens Fishery
Conservation and Management Act
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(MSA). BOEM also engages in
consultation with state and tribal
historic preservation officers pursuant
to the National Historic Preservation Act
(NHPA).
■ 18. Revise the undesignated center
heading that appears before § 585.210
and revise § 585.210 to read as follows:
Competitive Lease Award Process—PreAuction Provisions
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§ 585.210 What are the steps in BOEM’s
competitive lease award process?
(a) BOEM may publish an RFI under
§ 585.116.
(b) BOEM will award leases through
a competitive lease award process
unless competitive interest does not
exist. BOEM will publish details for
each auction and lease through
appropriate notices in the Federal
Register. Each competitive lease award
process will include the following steps:
(1) Call for Information and
Nominations (Call). BOEM will publish
a Call in the Federal Register requesting
information to determine qualifications
of prospective bidders and interest in
preliminarily identified OCS lease areas.
(2) Area Identification. BOEM will
identify OCS areas for leasing
consideration and related analysis in
consultation with appropriate Federal
agencies, State and local Governments,
federally recognized Tribes, Alaska
Native Claims Settlement Act (ANCSA)
corporations, and other interested
parties.
(3) Proposed Sale Notice (PSN).
BOEM will publish a PSN, or a notice
of its availability, in the Federal
Register, announcing BOEM’s intention
to conduct an auction for prospective
lease areas. The PSN will set forth
provisions and information concerning
the proposed auction and lease, and will
invite stakeholder comments.
(4) Final Sale Notice (FSN). BOEM
will publish an FSN, or a notice of its
availability, in the Federal Register
setting forth final information
concerning the auction and lease.
(5) Auction. BOEM will hold an
auction under the regulations in this
part and the FSN.
(6) Lease Award. BOEM will award
leases subsequent to the completion of
the aforementioned steps under the
regulations in this part and the FSN.
■ 19. Revise § 585.211 to read as
follows:
§ 585.211
What is the Call?
(a) The Call is a notice that BOEM
will publish in the Federal Register
requesting responses from stakeholders
interested in bidding on designated OCS
areas and comments from interested and
potentially affected parties. The
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responses may inform the area
identification process and will enable
BOEM to determine whether there exists
competitive interest in the proposed
lease area. BOEM may request
additional information from
stakeholders related to environmental,
economic, and other issues.
(b) The Call may include the
following:
(1) The areas that BOEM has
preliminarily identified for leasing;
(2) A request for comments
concerning geological conditions;
archaeological sites on the seabed or
nearshore; multiple uses of the
proposed leasing area (including, for
example, navigation, recreation,
military, and fisheries); and other
socioeconomic, biological, and
environmental information;
(3) Request for comments regarding
feasibility for development, including
the energy resource and opportunity for
grid connection;
(4) Possible lease terms and
conditions;
(5) A request to potential bidders to
nominate one or more areas for a
commercial renewable energy lease
within the preliminarily identified
leasing areas. Such nominations must
include:
(i) The specific OCS blocks that the
respondent is interested in leasing;
(ii) A general description of the
respondent’s objectives and how
respondent proposes to achieve those
objectives;
(iii) A preliminary schedule of the
respondent’s proposed activities,
including those potentially leading to
commercial operations, to the extent
known;
(iv) Information regarding
respondent’s coordination, or intent to
coordinate, with any other entity for the
purposes of acquiring a lease from
BOEM, if applicable;
(v) Documentation demonstrating the
respondent’s qualification to acquire a
lease or grant as specified in § 585.107;
(vi) Available and pertinent
information concerning renewable
energy and environmental conditions in
the nominated areas, including energy
and resource data and information used
to evaluate the areas; and
(vii) Any additional information
requested by BOEM in the Call;
(c) Respondents have 45 calendar
days from the date the Call is published
in the Federal Register to reply, unless
BOEM specifies another time period, to
be no less than 30 calendar days, in the
Call.
(d) BOEM may use the information
received in response to a Call to:
(1) Identify lease areas;
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(2) Develop options for its lease
provisions (e.g., stipulations, payments,
terms, and conditions);
(3) Inform its environmental analysis
conducted under applicable Federal
requirements, including, but not limited
to, NEPA, ESA, and CZMA; and
(4) Determine whether competitive
interest exists in all or a portion of any
potential lease area. If BOEM
determines no competitive interest
exists, BOEM may follow the
noncompetitive leasing process set forth
in § 585.231(d) through (k).
■ 20. Revise § 585.212 to read as
follows:
§ 585.212
What is area identification?
(a) Area identification is the process
by which BOEM delineates one or more
OCS areas for leasing consideration and
environmental analysis if the areas
appear appropriate for renewable energy
development. This process is based on
an area’s relevant attributes, such as
other uses of the area, environmental
factors or characteristics, stakeholder
comments, industry nominations,
feasibility for development, and other
relevant information. BOEM consults
with interested parties during this
process as specified in § 585.210(b)(2).
(b) BOEM may consider areas
nominated by respondents to a Call and
other areas determined appropriate for
leasing.
(c) For the identified areas, BOEM
will evaluate:
(1) The potential effects of leasing the
identified areas on the human, marine,
and coastal environments. BOEM may
develop measures, including lease
stipulations, to mitigate potential
adverse impacts; and
(2) The feasibility of development.
(d) BOEM may hold public hearings
on the environmental analyses
associated with leasing the identified
areas, after appropriate notice.
(e) At the end of the area
identification, BOEM may offer selected
areas for leasing.
■ 21. Revise § 585.213 to read as
follows:
§ 585.213 What information is included in
the PSN?
(a) The PSN is a notice that BOEM
will publish in the Federal Register for
each prospective auction. The PSN will
request public comment on the items
listed in this section. Public comments
will inform BOEM’s decisions regarding
auction format and lease terms and
conditions. At a minimum, the PSN will
include or describe the availability of
information pertaining to:
(1) The proposed leases to be offered,
including:
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(i) The proposed lease areas,
including size and location;
(ii) The proposed lease terms and
conditions, including the proposed
rental rate and operating fee rate;
(iii) Other proposed payment
requirements, as applicable;
(iv) Proposed requirements for
performance under the lease, such as
site-specific lease stipulations and
environmental mitigation measures;
(2) Steps a bidder must take to obtain
and maintain eligibility to participate in
the auction (e.g., financial forms, bid
deposits);
(3) The proposed availability and
potential value of bidding credit(s), if
any are offered, and the actions or
commitments required to obtain them;
(4) A detailed description of the
proposed auction format and procedures
as further described in § 585.223;
(5) The maximum number or specific
sets of lease areas that any given bidder
may be allowed to bid on or to acquire
in an auction, if applicable;
(6) Lease award procedures, including
how and when a lease will be awarded
and executed, and how BOEM will
address unsuccessful bids and
applications;
(7) A copy of, or a reference to, the
official BOEM lease form; and
(8) Other relevant matters, as
determined by BOEM.
(b) The PSN may be used to gauge
competitive interest by requiring
prospective bidders to reaffirm their
intent to participate in the auction as a
prerequisite for continued eligibility.
(c) A prospective bidder is
encouraged to identify in its comments
any specific proposed terms and
conditions in the PSN that may
preclude its participation in the auction.
(d) The PSN’s public comment period
is 60 calendar days from the date of its
publication in the Federal Register,
unless BOEM specifies another time
period of not less than 30 calendar days
in the PSN.
(e) BOEM will notify any potentially
affected States, local governments,
Alaska Native and American Indian
Tribes, and ANCSA corporations of the
PSN’s publication, and will provide
copies of the PSN to these entities upon
written request.
■ 22. Revise § 585.214 to read as
follows:
§ 585.214 What information is included in
the FSN?
(a) The FSN is a notice that BOEM
will publish in the Federal Register at
least 30 calendar days before each
prospective auction. The FSN will
describe the final auction details and
will include or describe the availability
of information pertaining to:
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(1) The leases to be offered, including:
(i) The lease areas, including size and
location;
(ii) Lease terms and conditions,
including the rental rate and the
operating fee rate;
(iii) Other payment requirements, as
applicable;
(iv) Requirements for performance
under the lease, including site-specific
lease stipulations and environmental
mitigation measures;
(2) Steps a bidder must take to ensure
eligibility to participate in the auction
(e.g., financial forms, bid deposits);
(3) The availability and potential
value of bidding credit(s), if any are
offered, and the actions or commitments
required to obtain them.
(4) A detailed description of the
auction format and procedures as
further described in § 585.223;
(5) The maximum number or specific
sets of lease areas that any given bidder
may be allowed to bid on or to acquire
in an auction, if applicable;
(6) Lease award procedures, including
how and when a lease will be awarded
and executed, and how BOEM will
handle unsuccessful bids and
applications;
(7) A copy of, or a reference to, the
official BOEM lease form; and
(8) Other relevant matters as
determined by BOEM.
(b) The terms of the FSN may differ
from the proposed terms of the PSN.
■ 23. Revise § 585.215 to read as
follows:
§ 585.215 What may BOEM do to assess
whether competitive interest for a lease
area still exists before the auction?
(a) At any time BOEM has reason to
believe that competitive interest in any
lease area no longer exists before the
area’s auction, BOEM may issue a notice
in the Federal Register, as described in
§ 585.116, requesting information
regarding competitive interest in that
area. BOEM will consider respondents’
comments to determine whether
competitive interest in that area
remains. BOEM may decide to end the
competitive process for any area if it
determines that competitive interest no
longer exists.
(b) If BOEM determines after
considering respondents’ comments to
such a notice that competitive interest
remains, BOEM will continue with the
competitive process set forth in
§§ 585.210 through 585.226.
(c) If BOEM determines at any time
before the auction that only a single
party remains interested in a lease area,
BOEM may proceed either with the
auction or with the noncompetitive
process set forth in § 585.231(d) through
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(k) following payment by that party of
the acquisition fee specified in
§ 585.502(a).
■ 24. Revise § 585.216 to read as
follows:
§ 585.216 How are bidding credits awarded
and used?
(a) BOEM will determine the highest
bid, taking into account the combined
value of the monetary (cash) component
and the non-monetary component(s),
represented by bidding credits. The PSN
and FSN will explain the following
details, if bidding credit(s) are available
for that auction:
(1) Eligibility and application
requirements;
(2) The value of each available
bidding credit, which will be either a
sum certain or a percentage of the cash
bid; and
(3) Procedures for applying each
available bidding credit to bids
submitted during the auction.
(b) Eligibility for bidding credits must
be established in advance of any lease
auction, in accordance with the
specifications of the FSN. Such
eligibility may be based on actions that
the bidder has already undertaken or
actions that it has committed to
undertake in the future, provided that
BOEM has agreed to the terms by which
such a commitment will be made.
BOEM may offer bidding credits for any
of the following:
(1) Power purchase agreements;
(2) Eligibility for, or applicability of,
renewable energy credits or subsidies;
(3) Development agreements by a
potential lessee that facilitate shared
transmission solutions and grid
interconnection;
(4) Technical merit, timeliness, or
financing and economic considerations;
(5) Environmental considerations,
public benefits, or compatibility with
State and local needs;
(6) Agreements or commitments by
the developer that would facilitate OCS
renewable energy development or other
OCSLA goals; or
(7) Any other factor or criteria to
further development of offshore
renewable energy, as identified by
BOEM in the PSN and FSN.
(c) Before the auction, bidders seeking
to use bidding credits must establish
that they meet the eligibility criteria for
each bidding credit according to the
FSN provisions.
(d) Before the auction, BOEM will
determine each bidder’s eligibility for
bidding credits, and the value of those
bidding credits, and will inform each
eligible bidder of the value of the
bidding credits to which it may be
entitled.
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(e) A provisional winner who is
awarded bidding credits must pay an
amount equal to the cash component of
its winning bid less any bid deposit
retained by BOEM under § 585.501.
■ 25. Revise the undesignated center
heading that appears before § 585.220
and revise § 585.220 to read as follows:
Competitive Lease Award Process—
Auction Provisions
§ 585.220 How will BOEM award leases
competitively?
(a) BOEM will award leases
competitively using an objective, fair,
reasonable, and competitive auction
process that provides a fair return to the
United States. As described in the FSN,
leases will be awarded to the highest
bidder.
(b) BOEM may use any analog or
digital method to conduct the auction.
The specific process and procedural
details for each auction will be noticed
in the PSN and finalized in the FSN.
■ 26. Revise § 585.221 to read as
follows:
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§ 585.221 What general provisions apply
to all auctions?
(a) If BOEM determines competitive
interest exists to develop a renewable
energy resource in any OCS area and
decides to issue a lease for that area,
BOEM will conduct an auction to award
the lease.
(b) The auction’s format, procedures,
and other details will be specified in the
FSN, as outlined in § 585.214. Possible
auction formats include, but are not
limited to, sealed bidding and ascending
bidding.
(c) The FSN will specify the potential
use of alternatives if the primary auction
method, system, or mechanism
malfunctions. Alternatively, BOEM may
take action consistent with paragraph
(d) of this section until the malfunction
is resolved.
(d) Any time before a provisional
winner is determined, BOEM may
delay, suspend, or cancel an auction
due to a natural or man-made disaster,
technical malfunction, security breach,
unlawful bidding activity,
administrative necessity, or any other
reason that BOEM determines may
adversely affect the fair and efficient
conduct of the auction. In its discretion,
BOEM may restart the auction at
whatever point it deems appropriate,
reasonable, fair, and efficient for all
participants; or, alternatively, BOEM
may cancel the auction in its entirety.
(e) BOEM will determine the
provisional winner for each lease area
under the auction rules and bidding
procedures prescribed in the FSN.
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27. Revise § 585.222 to read as
follows:
■
§ 585.222 What other auction rules must
bidders follow?
(a) Bidders must submit a deposit to
participate in an auction under
§ 585.501, unless otherwise specified in
the FSN. A provisional winner’s bid
deposit will be credited toward the
balance due on its bid.
(b) Only bidders qualified by BOEM
under §§ 585.106 and 585.107 are
permitted to bid during an auction.
(c) Only an authorized agent may act
on a bidder’s behalf during an auction.
Bidders must submit the names of their
authorized agents to BOEM before the
auction, as prescribed in the FSN.
(d) Each bidder must follow the
auction process specified in the FSN
and may not take any action to disrupt
or alter the process beyond its intended
function.
(e) A bidder is responsible for
immediately contacting BOEM if it is
unable to submit its bid for any reason
during an auction. If a bidder fails to
timely notify BOEM of its inability to
bid, it may not dispute the auction or
lease award on that basis. If a bidder
timely notifies BOEM of its inability to
submit a bid, BOEM, in its discretion,
may suspend the auction, continue the
auction using an alternative method, or
continue the auction without the
participation of the affected bidder.
(f) Bidders may not disclose their
auction strategies or economic
valuations of a lease area to other
bidders listed in the FSN.
■ 28. Revise § 585.223 to read as
follows:
§ 585.223 What supplemental information
will BOEM provide in a PSN and FSN?
(a) In addition to the information
described in §§ 585.213 and 585.214,
BOEM may provide the following
auction information, as appropriate, in
the PSN and FSN:
(1) Bidding instructions, procedures,
and systems, including the bid
variables. How the auction will be
conducted and what systems and
procedures will be utilized.
(2) Bid deposit. The amount a bidder
must pay under § 585.501 to be eligible
to bid. The FSN will prescribe the
process and deadline for submitting a
bid deposit.
(3) Mock auction. Notice of a practice
auction before the actual auction. Only
bidders eligible for the actual auction
will be permitted to participate in the
mock (i.e., practice) auction.
(4) Auction date, starting time and
location. The starting time will include
the relevant time zone, and the location
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will indicate where the auction will take
place.
(5) Minimum bid. The price at which
the bidding will start.
(6) Information BOEM will release to
bidders between rounds. This
information may include prior round
results and other updates.
(7) Tie-breaking provision. This
provision describes the method that
BOEM will use to break a tie between
two or more identical high bids offered
for the same lease area, or package of
lease areas.
(8) Next highest bidder. The method
that BOEM will use to determine the
next highest bidder of a completed
auction in the event the provisional
winner fails to meet its obligations or is
unable to acquire a lease for any reason,
or if a competitively issued lease or any
portion thereof is relinquished or
cancelled within six months of the
auction.
(b) The list in paragraph (a) of this
section is not exhaustive. BOEM may
include in the FSN any other
information relevant to that auction.
■ 29. Add an undesignated center
heading before § 585.224 and revise
§ 585.224 to read as follows:
Competitive Lease Award Process—
Post-Auction Provisions
§ 585.224
auction?
What will BOEM do after the
(a) At the conclusion of the auction,
BOEM will:
(1) Declare the bidding closed.
(2) Assess whether the bids meet the
requirements of BOEM’s regulations and
the FSN. BOEM may disqualify bids
based on this review.
(3) Under 43 U.S.C. 1337(c), provide
the Department of Justice, in
consultation with the Federal Trade
Commission, the opportunity to conduct
an antitrust review of the lease sale
results. BOEM may disqualify bids
based on the results of this review.
(4) BOEM will declare the provisional
winner of each lease area.
(b) BOEM may reject any and all bids
received, regardless of the amount
offered.
(c) BOEM will accept or reject bids
within 90 calendar days of auction
closure; BOEM may extend that time by
notice to bidders within 15 calendar
days before the 90-calendar day period
ends.
(d) BOEM will deem rejected any bid
not accepted within the 90-calendar-day
period, or any extension. BOEM will
provide each rejected bidder a written
explanation for the rejection and will
refund, without interest, any monies
deposited by the rejected bidder.
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(e) BOEM may withdraw all or part of
a lease area from the lease sale between
auction closure and lease execution. In
the event that a portion of the lease area
is withdrawn, the provisional winner
has the option to refuse the lease
without penalty, to propose new lease
terms for BOEM’s concurrence, or to
accept the lease with the reduced area.
(f) BOEM may re-auction any lease
area or portions thereof that remain
unsold at the conclusion of an auction.
BOEM may restart the competitive
leasing process at any point in the
process set forth in § 585.210 that it
deems reasonable and appropriate (e.g.,
RFI, Call, area identification, PSN, or
FSN).
■ 30. Revise § 585.225 to read as
follows:
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§ 585.225
a bid?
What happens if BOEM accepts
(a) BOEM will identify and notify the
lease area’s provisional winner of the
amount due on each winning bid, which
equals the cash component of the
provisional winner’s bid less its bid
deposit retained by BOEM under
§ 585.501 and paragraph (c) of this
section. BOEM will provide three
unsigned copies of the lease to the
provisional winner.
(b) Within 10 business days after
receipt of the unsigned copies, or as
otherwise specified by BOEM under
paragraph (d) of this section, the
provisional winner must:
(1) Execute all three copies of the
lease and return them to BOEM;
(2) File financial assurance as
required by §§ 585.515 through 585.537;
and
(3) Pay the amount due.
(c) When the bid deposit exceeds the
amount due, BOEM will refund the
overage without interest.
(d) A provisional winner may request
in writing an extension of the 10-day
time limit in paragraph (b) of this
section. BOEM, in its discretion, may
grant such a request.
(e) BOEM will execute the lease by
signing the three returned copies on
behalf of the United States only after the
provisional winner completes the
requirements in paragraph (b) of this
section and any appeals timely filed
under § 585.118(c)(1) have been
resolved. After BOEM executes the
lease, the provisional winner becomes
the winning bidder, and BOEM will
send the winning bidder one fully
executed copy of the lease. The lease
takes effect as set forth in § 585.237.
(f) The winning bidder must pay the
first 12 months’ rent under § 585.503(a)
within 45-calendar days after receiving
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a copy of the executed lease from
BOEM.
(g) In the event that a lessee does not
meet the commitments it made to obtain
any bidding credits, the lessee will be
required to repay the value of the
bidding credits that it received, adjusted
for inflation.
■ 31. Add § 585.226 to read as follows:
§ 585.226 What happens if the provisional
winner fails to meet its obligations?
(a) If BOEM determines that a
provisional winner has failed to timely
complete the steps outlined in
§ 585.225(b) or § 585.316, or has
otherwise failed to comply with
applicable laws, regulations, or FSN
provisions, BOEM may take one or more
of the following actions:
(1) Decline to execute the applicable
lease.
(2) Decline to execute the lease for
any other lease areas that the
provisional winner won during the
auction.
(3) Require forfeiture of the bid
deposit. In the event the bid deposit
exceeds the amount of the winning bid,
BOEM would limit the required
forfeiture to the lesser amount.
(4) Refer the matter to the Department
of the Interior’s Administrative
Remedies Division for suspension or
debarment review pursuant to 2 CFR
part 180 as implemented at 2 CFR part
1400.
(5) Pursue any other remedy available.
(b) If BOEM declines to execute a
lease with the provisional winner under
paragraph (a) of this section, BOEM may
decide to select a new provisional
winner by either repeating the auction
under § 585.224(f), or pursuant to the
procedures in § 585.224(a)(3), by
selecting the next highest bid submitted
during the auction, or by using other
procedures specified in the FSN.
(c) BOEM’s decisions under this
section are appealable under
§ 585.118(a).
■ 32. Revise § 585.231to read as follows:
§ 585.231 Will BOEM issue leases
noncompetitively?
(a) BOEM will consider unsolicited
requests for a lease on a case-by-case
basis and may issue a lease
noncompetitively in accordance with
this part. BOEM will issue a lease
noncompetitively only if it has
determined after public notice that no
competitive interest exists. BOEM will
not consider an unsolicited request for
a lease under this part that is proposed
in a lease area that is scheduled for a
lease auction under this part.
(b) At BOEM’s discretion, BOEM may
issue an RFI under § 585.116 relating to
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your unsolicited lease request and will
consider comments received to
determine if competitive interest exists.
If BOEM decides not to issue an RFI
and, therefore, not to continue
processing your unsolicited lease
request, it will refund your acquisition
fee.
(c) If BOEM determines that
competitive interest exists in the lease
area:
(1) BOEM will proceed with the
competitive process set forth in
§§ 585.210 through 585.226;
(2) If you submit a bid for the lease
area in a competitive lease sale, your
acquisition fee will be applied to the
deposit for your bonus bid; and
(3) If you do not submit a bid for the
lease area in a competitive lease sale,
BOEM will not refund your acquisition
fee.
(d) If BOEM determines that there is
no competitive interest in a lease and
that further investigation of the area is
in the public interest, it will:
(1) Publish in the Federal Register a
determination of no competitive
interest, and
(2) Prepare and provide you with a
written estimate of the proposed fee to
pay for the processing costs under
§ 585.111, including any environmental
review that BOEM may require before
lease issuance.
(3) Conduct environmental reviews
required by Federal law and consult
with affected Federal agencies, State
and local governments, and Native
Alaskan and Indian Tribes.
(e) The following deadlines apply
after issuance of a determination of no
competitive interest:
(1) Within 90 calendar days of
receiving the written estimate of the fee,
or longer (as determined at BOEM’s
discretion), you must pay the fee for any
environmental review under § 585.111.
Failure to pay the required fee may
result in withdrawal of the
determination of no competitive
interest.
(2) A determination of no competitive
interest expires two years after its
publication, unless BOEM determines
that it should be extended for good
cause. BOEM reserves the right to
withdraw a determination of no
competitive interest before it expires if
BOEM determines that you have failed
to exercise due diligence in obtaining a
lease.
(f) After BOEM publishes the
determination of no competitive
interest, you will be responsible for
submitting any consistency certification
and necessary data and information in
a timely manner to the applicable State
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CZMA agencies and BOEM pursuant to
15 CFR part 930, subpart D.
(g) After completing its review of your
lease request, BOEM may offer you a
noncompetitive lease.
(h) If you accept the terms and
conditions of the lease, BOEM will issue
the lease. You must comply with the
terms and conditions of your lease and
the applicable provisions of this part. If
BOEM issues you a lease, BOEM will
send you a notice with 3 copies of the
lease form.
(1) Within 10 business days after you
receive the lease copies you must:
(i) Execute all three copies of the
lease; and
(ii) File financial assurance as
required under §§ 585.516 through
585.537.
(2) You must pay the first 12 months’
rent no later than 45 calendar days after
you receive your copy of the executed
lease from BOEM under § 585.503(a)(1).
(i) BOEM will publish in the Federal
Register a notice announcing the
issuance of your lease.
(j) If you do not accept the terms and
conditions in a timely manner, BOEM
will not issue a lease. Additionally, if
you do not comply with the
requirements for financial assurance,
BOEM may decide not to issue a lease.
If BOEM does not issue a lease due to
your noncompliance or non-acceptance,
BOEM will not refund your acquisition
fee or any fees paid under paragraph
(e)(1) of this section.
■ 33. Amend § 585.232 by revising the
section heading and paragraph (c) to
read as follows:
§ 585.232 May I acquire a lease
noncompetitively after responding to a
request for information or a Call for
Information and Nominations?
*
*
*
*
*
(c) After receiving the acquisition fee,
BOEM will follow the process outlined
in § 585.231(d) through (i).
■ 34. Revise the undesignated center
heading before § 585.235 and revise
§ 585.235 to read as follows:
Commercial and Limited Lease Periods
§ 585.235 What are the lease periods for a
commercial lease?
(a) The lease periods within the term
of your commercial lease are defined as
follows:
(1) Preliminary period. Each
commercial lease has a preliminary
period of up to five years. During the
preliminary period, the lessee must
submit a COP. The preliminary period
begins on the effective date of the lease
and ends either when a COP is received
by BOEM for review or at the expiration
of five years, whichever occurs first.
(2) COP review period. A commercial
lease has a COP review period. The COP
review period begins when BOEM
receives a COP from the lessee and ends
upon COP approval, disapproval, or
approval with modifications pursuant to
§ 585.628. During the COP review
period, BOEM conducts the necessary
reviews and consultations associated
with the COP. The lessee must resolve
issues identified as incomplete in the
COP by BOEM within the first year of
the COP review period.
(3) Design and construction period. A
commercial lease has a design and
construction period for the duration
specified in the approved COP, which
may be modified by mutual agreement
Lease period
(1) Each limited lease has a preliminary period of 12 months within which
to submit a GAP. The preliminary period begins on the effective date of
the lease.
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(2) Each limited lease has an operations period as specified by BOEM (if
the lease is issued competitively) or negotiated by the parties (if the
lease is issued noncompetitively). In either case, the duration of the operations period will depend on the intended use of the lease. The operations period begins on the date that we approve your GAP.
(b) You may request an extension of
any of the lease periods outlined in
paragraph (a) of this section for good
cause. In its discretion, BOEM may
approve your request.
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If we receive a GAP that satisfies the
requirements of §§ 585.640
through 585.648, the preliminary
period will be automatically extended for the period of time necessary for us to conduct a technical and environmental review of
the GAP.
We may order or grant a suspension
of the operations period as provided in §§ 585.415 through
585.421.
The GAP must meet the requirements of §§ 585.640
through 585.648
36. Amend § 585.301 by revising
paragraphs (a)(2) and (3) to read as
follows:
Fmt 4701
(a) For limited leases, the lease
periods are as shown in the following
table:
Requirements
■
Frm 00063
§ 585.236 If I have a limited lease, how
long will my lease remain in effect?
Extension or suspension
Subpart D—Rights-of-Way Grants and
Rights-of-Use and Easement Grants
for Renewable Energy Activities
PO 00000
of the lessee and BOEM. During the
design and construction period, the
lessee must submit its FDR and FIR,
address any issues raised by BOEM, and
complete project construction. The
design and construction period begins at
COP approval and ends either when
commercial operations begin or at the
expiration of the period set forth in the
approved COP as modified, whichever
occurs first.
(4) Operations period. A commercial
lease has an operations period of 30
years or the duration specified in the
lease. The operations period begins at
the start of commercial operations.
Additional time may be added to the
operations period through a lease
suspension under § 585.415 issued
during this period; a lease extension
requested pursuant to paragraph (b) of
this section; or a lease renewal under
§ 585.425.
(b) You may request an extension of
any of the lease periods outlined in
paragraph (a) of this section for good
cause. In its discretion, BOEM may
approve your request.
(c) If you intend to develop your lease
in phases under § 585.629, you may
propose lease period schedules as
appropriate for each phase in your COP.
(d) If you intend to segregate or merge
your lease under §§ 585.408 through
585.413, you and your assignees may
propose lease period schedules in your
segregation or merger application.
■ 35. Revise § 585.236 to read as
follows:
Sfmt 4702
§ 585.301 What do ROW grants and RUE
grants include?
(a) * * *
(2) Is of a width sufficient to
accommodate potential changes at the
design and installation phases of the
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project, with an option for the grant
holder to relinquish unused portions of
the ROW after construction is complete;
(3) For the associated facilities, is
limited to the area reasonably necessary
for a power or pumping station or other
facilities requested.
*
*
*
*
*
■ 37. Amend § 585.302 by revising
paragraph (a) to read as follows:
§ 585.302 What are the general
requirements for ROW grant and RUE grant
holders?
(a) To acquire a ROW grant or RUE
grant, you must provide evidence that
you meet the qualifications set forth in
§§ 585.106 and 585.107.
*
*
*
*
*
■ 38. Revise § 585.303 to read as
follows:
§ 585.303 How long will my ROW grant or
RUE grant remain in effect?
The periods within the term of your
grant are defined as follows:
(a) Each ROW or RUE grant has a
preliminary period of 12 months from
the effective date of the ROW or RUE
grant within which to submit a GAP.
The preliminary period begins on the
effective date of the grant. You must
submit a GAP no later than the end of
the preliminary period for your grant to
remain in effect. However, you may
submit a GAP before the issuance of
your ROW or RUE grant.
(b) Each ROW or RUE grant has an
operations period as set by BOEM (if the
grant is issued competitively) or
negotiated by the parties (if the grant is
issued noncompetitively). In either case,
the duration of the operations period
will depend on the intended use of the
grant. The operations period begins on
the date that we approve your GAP.
(c) You may request an extension of
any of the grant periods outlined in
paragraphs (a) and (b) of this section for
good cause. In its discretion, BOEM may
approve your request.
■ 39. Amend § 585.305 by revising the
introductory text to read as follows:
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§ 585.305 How do I request a ROW grant
or RUE grant?
You must submit a request for a new
or modified ROW grant or RUE grant to
BOEM pursuant to § 585.110. You must
submit a separate request for each ROW
grant or RUE grant you are requesting.
The request must contain the following
information:
*
*
*
*
*
■ 40. Amend § 585.306 by revising
paragraph (b) to read as follows:
§ 585.306 What action will BOEM take on
my request?
*
*
*
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*
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(b) If BOEM determines there is no
competitive interest in a ROW or RUE
grant, BOEM will publish a notice in the
Federal Register of such determination.
After BOEM publishes this notice, you
are responsible for submitting any
required consistency certification and
necessary data and information under
15 CFR part 930, subpart D, to BOEM
and the applicable State CZMA agency.
BOEM may establish terms and
conditions for a noncompetitive grant
and offer the grant to you:
(1) If you accept the terms and
conditions of the grant, BOEM will issue
the grant.
(2) If you do not accept the terms and
conditions of the grant, BOEM may
agree to modify the terms and
conditions or may decide not to issue
the grant.
§ 585.309
■
[Removed]
[Redesignated as § 585.309]
42. Redesignate § 585.310 as new
§ 585.309.
■
§ § 585.310
■
[Reserved]
43. Add new reserved § 585.310
§ 585.316
§ 585.405
How do I designate an operator?
(a) If you intend to designate an
operator who is not the lessee or grant
holder, you must identify the proposed
operator in your SAP (under
§ 585.610(a)(3)), COP (under
§ 585.626(a)(2)), or GAP (under
§ 585.645(a)(2)), as applicable. * * *
*
*
*
*
*
■ 47. Revise the undesignated center
heading immediately before § 585.408
and amend § 585.408 by revising the
first sentence of paragraph (b)
introductory text and first sentence of
paragraph (e) to read as follows:
Lease or Grant Assignment,
Segregation, and Consolidation
41. Remove § 585.309.
§ 585.310
aquatic life), property, or the marine,
coastal, or human environment.
*
*
*
*
*
■ 46. Amend § 585.405 by revising first
sentence of paragraph (a) to read as
follows:
[Amended]
44. Amend § 585.316 in paragraph (a)
by removing the acronym ‘‘BOEM’’ and
adding in its place the words ‘‘Office of
Natural Resources Revenue (ONRR)’’.
■
Subpart D—Lease and Grant
Administration
§ 585.408
interest?
May I assign my lease or grant
*
*
*
*
*
(b) You may assign a lease or grant
interest by submitting one paper copy
and one electronic copy of an
assignment application to BOEM, Form
BOEM–0003 for leases and Form
BOEM–0002 for grants. * * *
*
*
*
*
*
(e) You do not need to request an
assignment for business mergers, name
changes, or changes of business form.
* * *
45a. Remove the undesignated center
heading appearing before § 585.436 and
the undesignated heading appearing
before § 585.437.
■ 45b. Amend § 585.400 by revising
paragraph (f) to read as follows:
§ § 585.410 and 585.411 [Redesignated as
§§ 585.411 and 585.412]
§ 585.400 What happens if I fail to comply
with this part?
§ 585.410 When will my assignment result
in a segregated lease?
■
*
*
*
*
*
(f) BOEM may assess civil penalties as
authorized by section 24 of the OCS
Lands Act and as determined under the
procedures set forth in 30 CFR part 550,
subpart N, if you fail to comply with
any provision of this part or any term
of a lease, grant, or order issued under
the authority of this part:
(1) After notice of such failure and
expiration of any reasonable period
allowed for corrective action; or
(2) Without notice of such failure and
expiration of a period allowed for
corrective action if BOEM determines
the failure may constitute, or
constituted, a threat of serious,
irreparable, or immediate harm or
damage to life (including fish and other
PO 00000
Frm 00064
Fmt 4701
Sfmt 4702
48. Redesignate §§ 585.410 and
585.411 as §§ 585.411 and 585.412,
respectively.
■ 49. Add new § 585.410 to read as
follows:
■
(a) When there is an assignment by all
record title owners of 100 percent of the
record title to one or more aliquots in
a lease, the assigned and retained
portions become segregated into
separate and distinct leases. In such a
case, both the new lease and the
remaining portion of the original lease
are referred to as ‘‘segregated leases’’
and the assignee becomes the record
title owner of the new lease, which is
subject to all the terms and conditions
of the original lease. The financial
assurance requirements of subpart F of
this part apply separately to each
segregated lease.
(b) If a record title owner transfers an
undivided interest of less than 100
percent of the record title interest in any
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given aliquot, that transfer will not
segregate the portions of that aliquot, or
the whole aliquot, in which part of the
record title was transferred, into a
separate lease from the portions in
which no interest was transferred.
Instead, that transfer will create a joint
ownership between the assignee and
assignor in the portions of the lease in
which part of the record title interest
was transferred.
■ 50. Amend newly redesignated
§ 585.412 by revising the first sentence
of paragraph (b) to read as follows:
§ 585.412 How does an assignment affect
the assignee’s liability?
*
*
*
*
*
(b) Assignees are bound to comply
with each term or condition of the lease
or grant and the regulations in this part.
* * *
■ 51. Add § 585.413 to read as follows:
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§ 585.413
grants?
How do I consolidate leases or
(a) You may apply to consolidate all
or part of two or more adjacent leases
or grants held by the same lessee or
grant holder into one new lease or grant,
subject to BOEM’s approval. The
application must include a description
of the leases or grants, or portions
thereof, to be consolidated, including
the relevant lease number, lease blocks,
and aliquots.
(b) An approved consolidation will
create a new lease or grant that will be
subject to the terms and conditions of
the consolidated leases and grants.
(c) To the extent the leases and grants
to be consolidated have different times
remaining in the relevant lease periods,
BOEM will default to using the shorter
remaining periods in the new lease or
grant but will consider requests for
extensions pursuant to § 585.235(b).
(d) To the extent the leases and grants
to be consolidated have other different
terms and conditions, BOEM will
default to using the terms and
conditions in the most recently issued
leases and grants to be consolidated for
the new lease. BOEM will consider
requests for modifications on a case-bycase basis and, in its discretion, approve
such requests for good cause.
(e) Before BOEM will approve your
consolidation request, BOEM will assess
appropriate financial assurance
obligations for the new lease or grant
per §§ 585.516 and 585.517 or
§§ 585.520 and 585.521.
(f) Any consolidated leases and grants
that have been fully absorbed into the
new lease or grant in their entirety will
be considered terminated at the time of
consolidation approval.
■ 52. Amend § 585.415 by revising
paragraph (b) to read as follows:
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§ 585.415 What is a lease or grant
suspension?
§ 585.425 May I obtain a renewal of my
lease or grant before it terminates?
*
You may request renewal of the
operations period of your lease or the
original authorized period of your grant.
* * *
■ 57. Amend § 585.426 by revising
paragraph (a)(2) to read as follows:
*
*
*
*
(b) A suspension extends the
expiration date for the relevant period of
your lease or grant for the length of time
the suspension is in effect.
*
*
*
*
*
■ 53. Revise § 585.416 to read as
follows:
§ 585.416 How do I request a lease or
grant suspension?
(a) You must submit a written request
to BOEM that includes the following
information no later than 90 calendar
days before the expiration of your
appropriate lease or grant period:
(1) The reasons you are requesting
suspension of your lease or grant,
including an explanation why the
suspension is necessary.
(2) The length of additional time
requested.
(3) An explanation why it is in the
public interest to approve the
suspension.
(4) Any other information BOEM may
require.
(b) If you are unable to timely submit
a COP or GAP, as required, you may
request a suspension to extend the
preliminary period of your lease or
grant. Your request must include a
revised schedule for submission of your
COP or GAP, as appropriate.
■ 54. Amend § 585.417 by revising
paragraph (b)(2) to read as follows:
§ 585.417 When may BOEM order a
suspension?
*
*
*
*
*
(b) * * *
(2) You must furnish a copy of the
study and results to BOEM pursuant to
§ 585.110;
*
*
*
*
*
■ 55. Amend § 585.420 by revising
paragraph (b) and removing paragraph
(c).
The revision reads as follows:
§ 585.420 What effect does a suspension
order have on my payments?
*
*
*
*
*
(b) If BOEM approves your request for
a suspension under § 585.416, or orders
a suspension under § 585.417, BOEM
may waive or defer your payment
obligations during the suspension.
BOEM’s decision to waive or defer
payments will depend on the reasons
for the suspension, including your
responsibility for the circumstances
necessitating a suspension.
■ 56. Amend § 585.425 by revising the
first sentence to read as follows:
PO 00000
Frm 00065
Fmt 4701
Sfmt 4702
§ 585.426 When must I submit my request
for renewal?
(a) * * *
(2) No later than two years before the
termination date of the operations
period of your commercial lease.
*
*
*
*
*
■ 58. Amend § 585.427 by revising the
introductory text and paragraphs (a) and
(b) to read as follows:
§ 585.427
How long is a renewal?
BOEM will set the length of the
renewal at the time of renewal on a
case-by-case basis.
(a) For commercial leases, the length
of the renewal will not exceed the
original operations period unless a
longer time is negotiated by the parties.
(b) For limited leases, the length of
the renewal will not exceed the original
operations period.
*
*
*
*
*
■ 59. Amend § 585.429 by adding
paragraph (g) to read as follows:
§ 585.429 What criteria will BOEM consider
in deciding whether to renew a lease or
grant?
*
*
*
*
*
(g) Other relevant factors, as
appropriate.
■ 60. Amend § 585.432 by revising
paragraph (a) to read as follows:
§ 585.432 When does my lease or grant
terminate?
*
*
*
*
*
(a) The expiration of the applicable
period of your lease or grant, unless the
relevant period is extended under
§ 585.235(b) or § 585.236(b), a request
for renewal of your lease or grant is
pending a decision by BOEM, or your
lease or grant is suspended or renewed
as provided in this subpart, in which
case it terminates on the date set forth
in the notice of suspension or renewal;
*
*
*
*
*
■ 61. Revise the undesignated center
heading appearing before § 585.435 and
revise § 585.435 to read as follows:
Lease or Grant Relinquishment,
Contraction, or Cancellation
§ 585.435 How can I relinquish a lease or
a grant or parts of a lease or grant?
(a) You may surrender a lease or
grant, or a designated subdivision
thereof, by filing with BOEM a properly
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completed official relinquishment form
available on the BOEM website. A
relinquishment takes effect on the date
BOEM receives your completed form,
subject to the continued obligation of
the lessee or grant holder and the surety
to:
(1) Make all payments due on the
lease or grant, including any accrued
rent and deferred bonuses;
(2) Decommission all facilities on the
relinquished lease or grant (or portion
thereof) to BOEM’s satisfaction; and
(3) Perform any other outstanding
obligations under the lease or grant.
(b) After you submit a completed
relinquishment form for a lease or grant,
ONRR will bill you for any outstanding
payments that have accrued from
obligations arising under the
relinquished lease or grant.
■ 62. Add § 585.438 to read as follows:
§ 585.438 What happens to leases or
grants (or portions thereof) that have been
relinquished, contracted, or cancelled?
(a) If a lease or grant (or portion
thereof) is relinquished, contracted, or
cancelled under § 585.435, § 585.436, or
§ 585.437, respectively, BOEM may
restart the competitive leasing process at
any point set forth in § 585.210 that it
deems reasonable and appropriate (e.g.,
RFI, Call, area identification, PSN, or
FSN), subject to all necessary
environmental analyses and
consultations.
(b) If a competitively issued lease or
grant (or portion thereof) is relinquished
or cancelled under § 585.435 or
§ 585.437, respectively, within six
months of the auction, BOEM may
reoffer the lease or grant (or portion
thereof) to the next highest bidder from
that auction, if one can be identified. If
BOEM decides to reoffer to the next
highest bidder, the price will be the next
best bid, or a prorated amount based on
Payment
the size of the relinquished share, as
long as the next best bid reflects a fair
return to the government.
Subpart F—Payments and Financial
Assurance Requirements
63. Amend § 585.500 by revising
paragraphs (a) and (c)(1) through (7) and
removing paragraph (c)(8).
The revsions read as follows:
■
§ 585.500 How do I make payments under
this part?
(a) For acquisition fees or the initial
12 months’ rent paid for the preliminary
period of your lease, you must make
your electronic payments through the
Fees for Services page on the BOEM
website at https://www.boem.gov, and
you must include one copy of the
Pay.gov confirmation receipt page with
your unsolicited request.
*
*
*
*
*
(c) * * *
Due date
Payment
mechanism
With bid ........................
Pay.gov .................
§ 585.501.
Within 10-business
days of receiving unsigned lease.
With application ............
30 CFR 1218.51 ...
§ 585.225.
Pay.gov .................
§ 585.502.
45-calendar days after
lease execution.
Pay.gov .................
§ 585.503.
Amount
Section
reference
Initial payments for leases
(1) If your lease is
issued competitively.
Bid Deposit ...................
Bonus Balance .............
(2) If your lease is
issued non-competitively.
(3) All leases .................
Acquisition Fee ............
Initial Rent ....................
As set in Final Sale Notice/depends on bid.
......................................
$0.25 per acre, unless
otherwise set by the
Director.
$3 per acre per year ....
Subsequent payments for leases and project easements
(4) All leases .................
(5) If you have a project
easement.
(6) If your commercial
lease is producing.
Subsequent Rent, unless otherwise provided in the terms of
the lease.
Rent, unless otherwise
provided in the terms
of the grant.
Operating Fee ..............
$3 per acre per year ....
Annually .......................
30 CFR 1218.51 ...
§§ 585.503 and
585.504.
Greater of $5 per acre
per year or $450 per
year.
Determined by the formula in § 585.506.
When/operations period
for associated lease
starts, then annually.
Annually .......................
30 CFR 1218.51 ...
§ 585.507.
30 CFR 1218.51 ...
§ 585.506.
Grant execution ............
Pay.gov .................
§ 585.508.
Annually or in 5-year
batches.
30 CFR 1218.51.
Payments for ROW grants and RUE grants *
(7) All ROW grants and
RUE grants.
Initial Rent ....................
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Subsequent Rent .........
64. Revise § 585.501 to read as
follows:
■
Greater of $5 per acre
per year or $450 per
year, unless otherwise established in
the grant.
......................................
§ 585.501 What deposits must I submit for
a competitively issued lease, ROW grant, or
RUE grant?
(a) For a competitively issued lease or
grant, BOEM may require a bid deposit
before the auction as established in the
FSN.
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(b) The provisional winner of an
auction must pay the balance of its
accepted bid in accordance with the
FSN.
■ 65. Revise § 585.503 to read as
follows:
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§ 585.503 What are the rent and operating
fee requirements for a commercial lease?
(a) The rent for a commercial lease is
$3 per acre per year, unless otherwise
established in the FSN or lease.
(1) You must pay ONRR the first 12
months’ rent no later than 45 calendar
days after you receive your copy of the
executed lease from BOEM under
§ 585.500(a).
(2) You must pay ONRR as provided
in 30 CFR 1218.51 the rent due at the
beginning of each subsequent 1–year
period for the entire lease area until the
facility begins commercial operations as
specified in § 585.506 or as otherwise
specified in the FSN or lease:
(i) For leases issued competitively,
BOEM will specify in the FSN and lease
any adjustment to the rent that will take
effect during the operations period and
before commercial operations.
(ii) For leases issued
noncompetitively, BOEM will specify in
the lease any adjustment to the rent that
will take effect during the operations
period and before commercial
operations.
(3) You must pay ONRR as provided
in 30 CFR 1218.51 the rent due for a
project easement in addition to the lease
rent as provided in § 585.507. You must
commence rent payments for your
project easement upon BOEM’s
approval of your COP or GAP.
(b) After your lease begins commercial
operations or on the date BOEM
specifies in the lease, you must pay
operating fees in the amount specified
in § 585.506. Regardless of whether the
lease is awarded competitively or
noncompetitively, BOEM will specify in
the lease the date when operating fees
commence.
■ 66. Amend § 585.504 by revising the
introductory text to read as follows:
§ 585.504 How are my payments affected if
I develop my commercial lease in phases?
If you develop your commercial lease
in phases as approved by BOEM in your
COP under § 585.629, you must pay
ONRR as provided in 30 CFR 1218.51:
*
*
*
*
*
■ 67. Amend § 585.505 by revising
paragraph (c) to read as follows:
§ 585.505 What are the rent and operating
fee requirements for a limited lease?
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*
*
*
*
*
(c) You must pay ONRR as provided
in 30 CFR 1218.51 the rent due at the
beginning of each subsequent 1-year
period on the entire lease area for the
duration of your operations period.
*
*
*
*
*
■ 68. Amend § 585.506 by:
■ a. Revising the introductory text and
the first sentence of paragraph (c)(1);
■ b. Removing the acronym ‘‘DOE’’ and
adding in its place the words
‘‘Department of Energy (DOE)’’ in
paragraph (c)(2)(i); and
■ c. Removing the acronym ‘‘BOEM’’
and adding in its place the acronym
‘‘ONRR’’ in paragraph (d).
The revisions read as follows:
§ 585.506 What operating fees must I pay
on a commercial lease?
Once you begin commercial
operations, you must pay ONRR as
provided in 30 CFR 1218.51 operating
fees on your commercial lease as
described in § 585.503.
*
*
*
*
*
(c) * * *
(1) Unless BOEM specifies otherwise,
the operating fee rate ‘‘r’’ is 0.02 for each
year the operating fee applies when you
begin commercial generation of
electricity. * * *
*
*
*
*
*
■ 69. Amend § 585.507 by revising
paragraphs (a) introductory text, (a)(1),
and (b)(1) to read as follows:
§ 585.507 What rent payments must I pay
on a project easement?
(a) You must pay ONRR, as provided
in 30 CFR 1218.51, rent for your project
easement in the amount of $5 per acre,
subject to a minimum of $450 per year,
unless specified otherwise in the lease.
(1) The size of the project easement
will be determined according to
§ 585.628(g)(1).
*
*
*
*
*
(b) * * *
(1) You must make the first rent
payment when the operations period
begins, as provided in § 585.500.
*
*
*
*
*
■ 70. Amend § 585.508 by revising
paragraph (a) and paragraph (b)
introductory text to read as follows:
§ 585.508 What rent payments must I pay
on ROW grants or RUE grants associated
with renewable energy projects?
(a) For each ROW grant BOEM
approves under subpart D of this part,
you must pay ONRR, as provided in 30
CFR 1218.51, an annual rent of $5 per
acre as determined by § 585.301(a), but
in no case less than $450, for use of the
grant, unless specified otherwise in the
grant.
(b) For each RUE grant BOEM
approves under subpart D of this part,
you must pay ONRR, as provided in 30
CFR 1218.51, a rent in the amount of:
*
*
*
*
*
§ 585.509
[Amended]
71. Amend § 585.509 in the section
heading by removing the acronym
‘‘BOEM’’ and adding in its place the
acronym ‘‘ONRR’’.
■ 72. Amend § 585.510 by revising the
section heading and paragraphs (a), (b)
introductory text, (b)(4)(i) and (ii), and
(c) to read as follows:
■
§ 585.510 May BOEM defer, reduce, or
waive my lease or grant payments?
(a) The BOEM Director may defer,
reduce, or waive the rent or operating
fee or components of the operating fee,
such as the fee rate or capacity factor,
when the Director determines that
continued activities would be
uneconomic without the requested
deferral, reduction, or waiver, or that it
is necessary to encourage continued or
additional activities.
(b) When requesting a deferral,
reduction, or waiver, you must submit
an application to BOEM that includes
all of the following:
*
*
*
*
*
(4) * * *
(i) Continued activities would be
uneconomic without the requested
deferral, reduction, or waiver, or
(ii) A deferral, reduction, or waiver is
necessary to encourage additional
activities; and
*
*
*
*
*
(c) No more than 6 years of your
operations period will be subject to a
full waiver of the operating fee.
§ 585.515
[Removed and Reserved]
73. Remove and reserve § 585.515.
■ 74. Revise § 585.516 to read as
follows:
■
§ 585.516 What are the financial assurance
requirements for each stage of my
commercial lease?
(a) The financial assurance
requirements for each stage of your
commercial lease are:
Before BOEM will . . .
You must provide . . .
(1) Execute a commercial lease or
approve an assignment of an existing commercial lease.
A bond or other authorized financial assurance in the amount of 12 months’ rent.
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Before BOEM will . . .
You must provide . . .
(2) Allow
proved
(3) Allow
proved
A supplemental bond or other authorized financial assurance in an amount determined by BOEM based on
the anticipated decommissioning costs of the proposed facilities.
A supplemental bond or other authorized financial assurance in an amount determined by BOEM based on
anticipated decommissioning costs of the proposed facilities. If you propose to incrementally fund your financial assurance instrument, BOEM must approve the schedule for providing the appropriate financial
assurance.
you to install facilities apin your SAP.
you to install facilities apin your COP.
(b) Each bond or other authorized
financial assurance must guarantee
compliance with this part, the
applicable plan approvals, and the
terms and conditions of the lease.
(c) For hydrokinetic commercial
leases, supplemental financial assurance
may be required in an amount
determined by BOEM prior to
installation of facilities pursuant to a
FERC license.
■ 75. Revise § 585.517 to read as
follows:
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§ 585.517 How will BOEM determine the
amounts of the supplemental financial
assurance requirements associated with
commercial leases?
(a) BOEM determines the amount of
your supplemental financial assurance
based on the estimated costs to meet all
accrued lease obligations, including:
(1) The projected amount of annual
rent and other payments due the United
States over the next 12 months, to the
extent that amount is not covered in the
initial financial assurance provided in
§ 585.516(a)(1);
(2) Any past due rent and other
payments;
(3) Other monetary obligations; and
(4) The estimated cost of facility
decommissioning required by subpart J
of this part.
(b) If your cumulative potential
obligations and liabilities increase or
decrease, we may adjust the amount of
the supplemental financial assurance.
(1) If we propose adjusting your
financial assurance amount, we will
notify you of the proposed adjustment
and give you an opportunity to
comment; and
(2) We may approve a reduced
financial assurance amount if you
request it and if the reduced amount
that you request is sufficient to cover
your obligations and liabilities
calculated under paragraph (a) of this
section.
■ 76. Revise § 585.520 to read as
follows:
§ 585.520 What financial assurance must I
provide when I obtain my limited lease,
ROW grant, or RUE grant?
Before BOEM will execute your
limited lease, ROW grant, or RUE grant,
or approve an assignment of an interest
therein, you or a proposed assignee
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must guarantee compliance with all
terms and conditions of the lease or
grant by providing a bond or other
authorized financial assurance in the
amount of 12 months’ rent.
■ 77. Revise § 585.521 to read as
follows:
§ 585.521 Do my financial assurance
requirements change as activities progress
on my limited lease or grant?
(a) BOEM may require you to increase
or allow you to decrease the amount of
your financial assurance as activities
progress on your limited lease or grant
based on the estimated costs to meet all
accrued lease or grant obligations.
(b) The total amount of the financial
assurance must be no less than the
amount required to meet your limited
lease and grant obligations, including:
(1) The projected amount of rent and
other payments due the United States
over the next 12 months;
(2) Any past due rent and other
payments;
(3) Other monetary obligations; and
(4) The estimated cost of facility
decommissioning as required by subpart
J of this part.
(c) If BOEM proposes adjusting the
amount of your financial assurance to
ensure your limited lease and grant
obligations are met, BOEM will notify
you of the proposed adjustment and will
provide you an opportunity to object.
(d) You may submit a written request
to BOEM to reduce the amount of your
financial assurance if your proposed
amount is not less than the sum of your
obligations listed in paragraph (b) of this
section. BOEM may approve your
request in its discretion.
(e) You may satisfy the requirement
for increased financial assurance on
your limited lease or grant by increasing
the amount of your existing bond or by
providing a supplemental bond or other
financial assurance.
(1) The supplemental bond or other
financial assurance must meet the
requirements specified in §§ 585.525
through 585.529.
(2) If you propose to incrementally
fund your financial assurance, BOEM
must approve the schedule for
providing the appropriate financial
assurance.
■ 78. Amend § 585.526 by:
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a. Revising paragraph (a)(2);
b. Removing the word ‘‘and’’ after the
semi-colon at the end of paragraph
(a)(5); and
■ c. Adding paragraphs (a)(7) through
(9).
The revision and additions read as
follows:
■
■
§ 585.526 What instruments other than a
surety bond may I use to meet the financial
assurance requirement?
(a) * * *
(2) A pledge of cash, in an amount
equal to the required dollar amount of
the financial assurance, to be deposited
and maintained in a Federal depository
account of the U.S. Treasury;
*
*
*
*
*
(7) Letters of credit, subject to the
following conditions:
(i) The letter of credit provider must
have an issuer credit rating from an
Nationally Recognized Statistical Rating
Organization (NRSRO) greater than or
equal to investment grade from either
Standard & Poor’s Ratings Service or
from Moody’s Investor Service, or a
proxy credit rating determined by
BOEM based on audited financial
information (including an income
statement, balance sheet, statement of
cash flows, and the auditor’s certificate)
greater than or equal to either
investment grade from Standard &
Poor’s Ratings Service or from Moody’s
Investor Service;
(ii) The letter of credit must grant
BOEM full authority to demand
immediate payment in case of default in
the performance of the terms and
conditions of a lease or regulatory
obligations;
(iii) The letter of credit must be
irrevocable during its term and will be
subject to collection by BOEM if not
replaced by another letter of credit or
other form of financial assurance at least
30 calendar days before its expiration
date;
(iv) The expiration date of the letter
of credit must not be less than 1 year
following the date it becomes effective;
(v) The letter of credit must contain a
provision for automatic renewal for
periods of not less than 1 year in the
absence of notice of cancellation to
BOEM at least 90 calendar days before
the expiration date; and
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(vi) The letter of credit must contain
a venue provision, which requires any
disputes to be adjudicated in a U.S.
Federal court that is mutually agreed
upon by BOEM and the issuers of the
letter of credit.
(8) Another form of security approved
by BOEM in its discretion; or
(9) A combination of paragraphs (a)(1)
through (8) of this section.
■ 79. Amend § 585.528 by revising the
first sentence of paragraph (a), the
second sentence of paragraph (c)
introductory text, paragraph (c)(4), and
the first sentence of paragraph (c)(5) to
read as follows:
§ 585.528 May I use a third-party guaranty
to meet the financial assurance requirement
for lease or grant activities?
(a) You may use a third-party
guaranty to secure all or part of the
obligations for which financial
assurance was demanded by BOEM if
the guarantor meets the criteria
prescribed in paragraph (b) of this
section and submits an agreement
meeting the criteria prescribed in
paragraph (c) of this section. * * *
*
*
*
*
*
(c) * * * All parties are bound jointly
and severally, and the guarantor must
meet the legal and financial
qualifications set forth in §§ 585.106
and 585.107.
*
*
*
*
*
(4) The guaranty agreement must
contain a confession of judgment
providing that, if BOEM determines that
you or your operator are in default, the
guarantor must not challenge the
determination and must remedy the
default.
(5) If you or your operator fail to
comply with any law, term, or
regulation, your guarantor must either
take corrective action or provide, within
7 calendar days or other agreed upon
Financial assurance
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§ 585.529 Can I use a lease- or grantspecific decommissioning account to meet
the financial assurance requirements
related to decommissioning?
(a) * * *
(2) You must fund the account in the
amount determined by and according to
the payment schedule approved by
BOEM. BOEM will estimate the cost of
decommissioning, including site
clearance; and
(3) Subject to BOEM’s approval, a
decommissioning account may be
funded in whole or in part during the
operations period of a lease or grant.
*
*
*
*
*
■ 81. Amend § 585.532 by revising the
section heading, the first sentence of
paragraph (a) introductory text, and the
first and second sentences of paragraph
(b) to read as follows:
§ 585.532 What happens if my surety
wants to terminate the period of liability of
my financial assurance?
(a) Terminating the period of liability
of your financial assurance ends the
period during which surety liability
continues to accrue. * * *
*
*
*
*
*
(b) Your surety must submit to BOEM
its request to terminate the period of
liability under its financial assurance
and notify you of that request no less
than 90 days before the proposed
termination date. If you intend to
continue activities on your lease or
grant, you must provide replacement
financial assurance of equivalent or
greater value. * * *
■ 82. Revise § 585.533 to read as
follows:
§ 585.533 How does my surety obtain
cancellation of my financial assurance?
BOEM will allow a surety to cancel
financial assurance and will relieve the
surety from liability for accrued
obligations on the earliest to occur of
the following:
(a) BOEM determines that there are no
outstanding obligations covered by the
financial assurance;
(b) The following occurs:
(1) BOEM accepts replacement
financial assurance in an amount equal
to or greater than the financial assurance
to be cancelled to cover the period of
liability prior to termination; or
(2) The surety issuing the new
financial assurance has expressly agreed
to assume all outstanding liabilities
under the original financial assurance
that accrued during the period of
liability that was terminated;
(c) Seven years have elapsed since the
termination of the period of liability if
the new surety did not assume the
accrued obligations for the terminated
period of liability; or
(d) A longer period as necessary to
complete any appeals or judicial
litigation related to your liabilities
covered by the financial assurance.
■ 83. Revise § 585.534 to read as
follows:
§ 585.534 When may BOEM cancel my
financial assurance?
(a) When your lease or grant ends,
your sureties remain responsible, and
BOEM will cancel your financial
assurance as shown in the following
table:
Your financial assurance will not be cancelled until . . .
(1) Financial assurance for commercial leases
submitted under § 585.516(a)(1), and for
grants or limited leases submitted under
§§ 585.520 and 585.521.
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time period, sufficient funds, up to the
value of the guaranty, for BOEM to
complete corrective action. * * *
*
*
*
*
*
■ 80. Amend § 585.529 by removing ‘‘;
and’’ from the end of the paragraph
(a)(1), revising paragraph (a)(2), and
adding paragraph (a)(3).
The revision and addition read as
follows:
6035
Seven years after all operations and activities under the lease or grant cease, including decommissioning and site clearance, or a longer period as necessary to complete any appeals
or judicial litigation related to your financial assurance obligation. BOEM may reduce or cancel your financial assurance or return some or all of your security if BOEM determines that
the full amount is no longer needed.
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Financial assurance
Your financial assurance will not be cancelled until . . .
(2) Supplemental financial assurance for commercial leases submitted under § 585.516
and for grants or limited leases submitted
under §§ 585.520 and 585.521.
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(b) BOEM may require reinstatement
of your financial assurance as if no
cancellation had occurred if:
(1) A person makes a payment under
the lease or grant, and the payment is
rescinded or must be repaid by the
recipient because the person making the
payment is insolvent, bankrupt, subject
to reorganization, or placed in
receivership; or
(2) The responsible party represents to
BOEM that it has discharged its
obligations under the lease or grant, and
the representation was materially false
when the financial assurance was
cancelled.
(i) The lease or grant expires or is terminated and BOEM determines you have met your secured obligations, unless BOEM:
(A) Determines that the future potential liability resulting from any undetected problem is greater than the amount of your lease-specific financial assurance; and
(B) Notifies the provider of the supplemental financial assurance that BOEM will wait 7 years
before cancelling all or a part of the supplemental financial assurance (or longer period as
necessary to complete any appeals or judicial litigation related to your secured obligations);
or
(ii) At any time when:
(A) BOEM determines, in its discretion, that you no longer need to provide the supplemental financial assurance;
(B) The operations for which the supplemental financial assurance was provided were cancelled before accrual of any decommissioning obligation; or
(C) Cancellation of the supplemental financial assurance is appropriate because, under the
regulations, BOEM determines such financial assurance never should have been required.
84. Amend § 585.535 by revising the
section heading, paragraph (a)
introductory text, and paragraph (a)(2)
to read as follows:
■
§ 585.535 Why might BOEM call for
forfeiture of my financial assurance?
(a) BOEM may call for forfeiture of all
or part of your financial assurance if:
*
*
*
*
*
(2) You default on one of the
conditions under which we accepted
your financial assurance.
*
*
*
*
*
§ 585.541
[Amended]
85. Amend § 585.541 by removing the
word ‘‘nautical’’ from the first sentence.
■
§ 585.542
[Amended]
86. Amend § 585.542 by removing the
word ‘‘nautical’’ from the third
sentence.
■
Subpart G—Plans and Information
Requirements
87. Revise § 585.600 to read as
follows:
■
§ 585.600 What plans and information
must I submit to BOEM before I conduct
activities on my lease or grant?
(a) You must submit a SAP, COP, or
GAP and receive BOEM approval as set
forth in the following table:
Before you:
you must:
(1) Conduct any site assessment activities on your commercial lease involving an engineered
foundation, such as meteorological towers or other facilities that are installed using a fixedbottom foundation requiring professional engineering design and assessment of sediment,
meteorological, and oceanographic condition.
(2) Conduct any activities pertaining to construction of facilities for commercial operations on
your commercial lease.
(3) Conduct any activities on your limited lease or grant in any OCS area ...................................
Submit, and obtain approval of, your SAP
under §§ 585.605 through 585.613.
(b) BOEM may waive certain types of
information or analyses that you
otherwise must provide in your
proposed plan when you demonstrate
that:
(1) Sufficient applicable information
or analysis is readily available to BOEM.
(2) The coastal or marine resources
that are the subject of the information
requirement are not present or affected.
(3) Other factors affect your ability to
obtain or BOEM’s need for the required
information.
(4) Information is neither necessary
nor required for a State to determine
consistency with its coastal
management program.
■ 88. Revise § 585.601 to read as
follows:
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§ 585.601
BOEM?
When must I submit my plans to
(a) You may submit your SAP
anytime; however, your SAP must be
submitted to and approved by BOEM
before you conduct activities requiring a
SAP under § 585.600(a)(1).
(b) You must submit your COP within
5 years of your lease effective date as
determined by § 585.237.
(1) Your COP must contain sufficient
data and information for BOEM to
complete its reviews and NEPA
analysis.
(2) BOEM may need to conduct
additional reviews of your COP,
including environmental analysis under
NEPA, if significant, new information
becomes available from your site
assessment and characterization
activities or if you substantially revise
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Submit, and obtain approval of, your COP
under §§ 585.620 through 585.629.
Submit, and obtain approval of, your GAP
under §§ 585.640 through 585.648.
your COP. As a result of the additional
reviews, BOEM may require that you
modify your COP.
(c) You must submit your GAP within
12 months of your lease effective date as
determined by § 585.237 or your grant
effective date as determined by
§ 585.303(a), as applicable.
■ 89. Revise § 585.602 to read as
follows:
§ 585.602
What records must I maintain?
Until BOEM releases your financial
assurance under § 585.534, you must
maintain and provide to BOEM upon
request all data and information related
to compliance with the required terms
and conditions of your lease, grant, and
approved plans.
■ 90. Revise § 585.605 to read as
follows:
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§ 585.605
(SAP)?
What is a Site Assessment Plan
(a) A SAP describes the site
assessment activities meeting the
criteria in § 585.600(a)(1) that you plan
to perform on your commercial lease.
(b) You must receive BOEM approval
of your SAP, as provided in § 585.613,
before you can begin any proposed site
assessment activities requiring such
approval.
(c) If BOEM determines that your
proposed site assessment facility or
combination of facilities is complex or
significant under § 585.613(a)(1), you
must comply with the requirements in
subpart H of this part regarding facility
design and construction and submit
your SMS as required by § 585.810.
■ 91. Revise § 585.606 to read as
follows:
What must I demonstrate in my
Your SAP must demonstrate that you
have planned and are prepared to
conduct the proposed site assessment
activities in a manner that:
(a) Conforms to your responsibilities
listed in § 585.105(a);
(b) Conforms to all applicable laws,
regulations, and provisions of your
commercial lease;
(c) Is safe;
(d) Does not unreasonably interfere
with other uses of the OCS, including
those involved with national security or
defense;
(e) Does not cause undue harm or
damage to natural resources; life
(including human and wildlife);
property; the marine, coastal, or human
environment; or sites, structures, or
objects of historical or archaeological
significance;
(f) Uses best available and safest
technology;
(g) Uses best management practices;
and
(h) Uses properly trained personnel.
■ 92. Revise § 585.607 to read as
follows:
§ 585.607
How do I submit my SAP?
You must submit your SAP to BOEM
pursuant to § 585.110.
■ 93. Revise § 585.610 to read as
follows:
§ 585.610
What must I include in my SAP?
(a) Project information may be
provided using a PDE. When you
provide information using a PDE, BOEM
reserves the right to determine what
range of values for any given parameter
are acceptable. Your SAP must include
the following project-specific
information, as applicable:
Project information
Including
(1) Contact information .......................................
(2) The site assessment or technology testing
concept.
(3) Designation of operator, if applicable ...........
(4) Commercial lease stipulations and compliance.
(5) A location plat, or indicative layout ...............
The name, address, e-mail address, and phone number of an authorized representative.
A discussion of the objectives; description of the proposed activities, including the technology
you will use; and proposed schedule from start to completion.
As provided in § 585.405.
A description of the measures you took, or will take, to satisfy the conditions of any lease stipulations related to your proposed activities.
The range of surface locations and associated water depths for proposed structures, facilities,
and appurtenances located both offshore and onshore, including all anchor and mooring
data; and the location and associated water depths of all existing structures.
Preliminary design information for each facility associated with your site assessment activity.
(6) General structural and project design, fabrication, and installation.
(7) Deployment activities ....................................
(8) Your proposed measures for avoiding, minimizing, reducing, eliminating, and monitoring
environmental impacts.
(9) Project verification strategy ...........................
(10) References ..................................................
(11) Decommissioning and site clearance procedures.
(12) Air quality information .................................
(13) A listing of all Federal, State, and local authorizations or approvals required to conduct
site assessment activities.
(14) A list of agencies and persons with whom
you have communicated, or with whom you
will communicate, regarding potential impacts
associated with your proposed activities.
(15) Financial assurance information .................
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§ 585.606
SAP?
6037
(16) Information you incorporate by reference ...
(17) Other information ........................................
(b) You must include reports that
document the results of surveys and
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A description of the safety, prevention, and environmental protection features or measures that
you will use.
A description of the measures you will use to avoid or minimize adverse effects and any potential incidental take, before you conduct activities on your lease, and how you will mitigate
environmental impacts from your proposed activities, including a description of the measures
you will use as required by subpart I of this part.
An analysis supporting your recommendation as to whether your site assessment activities
should be determined complex or significant. If your recommendation supports a complex or
significant determination, describe your strategy for compliance with §§ 585.705 through
585.714.
A bibliographic list of any document or published source that you cite as part of your plan. You
may reference information and data discussed in other plans you previously submitted or
that are otherwise readily available to BOEM.
A discussion of general concepts and methodologies.
Information as described in § 585.659.
A statement indicating whether you have applied for or obtained such authorization or approval from the U.S. Coast Guard, U.S. Army Corps of Engineers, and any other applicable
Federal, State, or local authorizers.
Contact information and issues discussed.
Statements attesting that the activities and facilities proposed in your SAP are or will be covered by an appropriate bond or other approved financial assurance instrument as required in
§ 585.516 and §§ 585.525 through 585.529.
A list of the documents you have incorporated by reference and their public availability.
Additional information as required by BOEM.
investigations that characterize and
model the site of your proposed
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assessment activities. Your reports must
address the following topics:
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Topic:
Purpose of report:
Including:
(1) Geological and
geotechnical.
To define the baseline geological conditions of the seabed and provide
sufficient data to develop a geologic
model, assess geologic hazards, and
determine the feasibility of the proposed site for your assessment facility.
(i) Desktop studies to collect available data from published sources and nearby
sites.
(ii) Geophysical surveys of the proposed area with sufficient areal coverage,
depth penetration, and resolution to define the geological conditions of the
seabed at the site that could impact, or be impacted by, your proposed site
assessment activities.
(2) Biological ............
To determine the presence of biological
features and marine resources.
(3) Archaeological resources and other
historic properties.
(4) Meteorological
and oceanographic
(metocean).
To provide BOEM with required information to conduct review of your
SAP under NHPA.
To provide an overall understanding of
the meteorological and oceanographic conditions at the site of your
proposed facility, and to identify conditions that may pose a significant
risk to your facility.
(iii) Geotechnical investigations of sufficient scope and detail to: ground truth
the geophysical surveys; support development of a geological model; assess
potential geological hazards that could impact the proposed site assessment
activities; and provide geotechnical data for design of the site assessment
facility, including type and approximate dimensions of the foundation.
(iv) An overall site characterization report for your site assessment facility that
integrates the findings of your studies, surveys, and investigations; describes
the geological model; contains supporting data and findings; and states your
recommendations.
A description of the results of biological surveys used to determine the presence of live bottoms, hard bottoms, topographic features, and other marine
resources, including migratory populations such as fish, marine mammals,
sea turtles, and coastal and marine birds.
Archaeological resource and other historic property identification surveys with
supporting data.
Desktop studies to collect available data from hindcast or re-analysis models
and field measurements in sufficient detail to support design of your facility
and support the analysis of wake effects, sediment mobility and scour, and
navigation risks.
§ 585.611 What information and
certifications must I submit with my SAP to
assist BOEM in complying with NEPA and
other applicable laws?
94. Revise § 585.611 to read as
follows:
■
(a) Your SAP must contain detailed
information and analysis to assist BOEM
in complying with NEPA and other
applicable laws.
Type of information:
Including:
(1) Hazard information ........................................
Meteorology, oceanography, sediment transport, geology, and shallow geological or manmade
hazards.
Turbidity and total suspended solids from construction; impact from vessel discharges.
Benthic communities, marine mammals, sea turtles, coastal and marine birds, fish and shellfish, plankton, sea grasses, and other plant life.
As needed for ESA consultation.
Essential fish habitat, refuges, preserves, special management areas identified in coastal management programs, nearby marine protected areas, including State and Federal coastal and
marine protected areas, as well as nearby national marine sanctuaries, and nearby marine
national monuments, rookeries, hard bottom habitat, chemosynthetic communities, calving
grounds, barrier islands, beaches, dunes, and wetlands.
To provide BOEM with required information to conduct review of the COP under the NHPA or
other applicable laws or policies, including treaty and reserved rights with Native Americans
or other Indigenous peoples.
(2) Water quality .................................................
(3) Biological resources ......................................
(4) Threatened or endangered species ..............
(5) Sensitive biological resources or habitats ....
(6) Archaeological resources use, other historic
property use, Indigenous traditional cultural
use, or use pertaining to treaty and reserved
rights with Native Americans or other Indigenous peoples.
(7) Social and economic conditions ...................
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(b) When proposing site assessment
activities in an area where BOEM has no
previous experience, your SAP must
contain information about resources,
conditions, and activities listed in the
following table that could be affected by
or that could affect your proposed
activities:
(8) Coastal and marine uses ..............................
(9) Consistency Certification ...............................
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Employment, existing offshore and coastal infrastructure (including major sources of supplies,
services, energy, and water), land use, subsistence resources and harvest practices, recreation, recreational and commercial fishing (including typical fishing seasons, location, and
type), minority and lower income groups, coastal zone management programs, and a visual
impact assessment.
Military activities, vessel traffic, fisheries, and exploration and development of other natural resources. This includes a navigational safety risk assessment that provides a description of
the predicted impacts of the project to navigation, and the measures you will use to avoid or
minimize adverse impacts. This document must also be submitted to the U.S. Coast Guard
to assist with its analysis if your proposal identifies potential impediments to safe navigation.
If required by CZMA, under:
(i) 15 CFR part 930, subpart D, if the SAP is submitted before lease issuance;
(ii) 15 CFR part 930, subpart E, if the SAP is submitted after lease issuance.
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Type of information:
Including:
(10) Other resources, conditions, and activities
As identified by BOEM.
(c) When proposing site assessment
activities in an area BOEM previously
considered, BOEM will review your
SAP to determine if its impacts are
consistent with those previously
considered. If the anticipated effects of
your proposed SAP activities are
significantly different than those
95. Amend § 585.612 by revising
paragraphs (a) and (b) to read as follows:
■
§ 585.612 How will my SAP be processed
for Federal consistency under the Coastal
Zone Management Act?
*
*
*
*
*
If your SAP is submitted:
Consistency review of your SAP will be handled as follows:
(a) Before lease issuance ....
You will furnish a copy of your SAP, consistency certification, and necessary data and information, to the applicable State CZMA agencies if required by 15 CFR part 930, subpart D. Submit a copy to BOEM in accordance
with § 585.110.
You must submit a copy of your SAP, consistency certification, and necessary data and information pursuant to
15 CFR part 930, subpart E, to BOEM only if BOEM did not consider the proposed site assessment activities
for your lease area under its previously submitted consistency determination under 15 CFR part 930, subpart
C, and if required by 15 CFR part 930, subpart E. BOEM will forward to the applicable State CZMA agency or
agencies one copy of your SAP, consistency certification, and necessary data and information required under
15 CFR part 930, subpart E, after BOEM has determined that all information requirements for the SAP are met.
(b) After lease issuance .......
96. Amend § 585.613 by revising
paragraph (e)(2) to read as follows:
■
§ 585.613
SAP?
How will BOEM process my
*
*
*
*
*
(e) * * *
(2) If we disapprove your SAP, we
will inform you of the reasons and allow
you an opportunity to submit a revised
plan addressing our concerns, and we
may suspend your lease, as appropriate,
to give you a reasonable amount of time
to resubmit the SAP.
■ 97. Amend § 585.614 by revising
paragraph (b) to read as follows:
§ 585.614 When may I begin conducting
activities under my approved SAP?
*
*
*
*
*
(b) If you are installing a facility or a
combination of facilities deemed by
BOEM to be complex or significant, as
provided in § 585.613(a)(1), you must
comply with the requirements of
subpart H of this part and submit your
Safety Management System description
required by § 585.810 before
construction may begin.
■ 98. Revise § 585.617 to read as
follows:
§ 585.617 What activities require a revision
to my SAP, and when will BOEM approve
the revision?
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previously anticipated, we may
determine that additional NEPA and
other relevant Federal reviews are
required. In that case, BOEM will notify
you of such determination, and you
must submit information required in
paragraph (b) of this section as
appropriate.
(a) You must notify BOEM in writing
before conducting any site assessment
activities not described in your
approved SAP. Your notice must
describe in detail the type of activities
you propose to conduct. We will
determine whether the activities you
propose require a revision to your SAP.
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We may request additional information
from you, if necessary, to make this
determination.
(b) If a revised SAP is required, BOEM
will reassess, upon its receipt, whether
the facility or combination of facilities
described in it is complex or significant.
(1) If BOEM determines that the
facilities described in your revised SAP
are not complex or significant, you may
conduct your approved activities under
§ 585.614(a).
(2) If BOEM determines that the
facilities described in your revised SAP
are complex or significant, you must
comply with § 585.614(b).
(c) BOEM will periodically review the
activities conducted under an approved
SAP. The frequency and extent of the
review will be based on the significance
of any changes in available information
and on onshore or offshore conditions
affecting or affected by the activities
conducted under your SAP. If the
review indicates that the SAP should be
revised to meet the requirements of this
part, we will require you to submit the
needed revisions.
(d) Activities for which a proposed
revision to your SAP likely will be
necessary include:
(1) Activities not described in your
approved SAP;
(2) Modifications to the number, size,
or type of facilities or equipment you
will use;
(3) Changes in the geographical
location or layout of your bottom
disturbances, offshore facilities, or
onshore support bases beyond the range
of possible locations described in your
approved SAP;
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(4) Structural failure of any facility; or
(5) Changes to any other activity
specified by BOEM.
(e) We may begin the appropriate
NEPA analysis and other relevant
consultations when we determine that a
proposed revision could:
(1) Result in a significant change in
the impacts previously identified and
evaluated;
(2) Require any additional Federal
authorizations; or
(3) Involve activities not previously
identified and evaluated.
(f) When you propose a revision, we
may approve the revision if we
determine that the revision is:
(1) Designed not to cause undue harm
or damage to natural resources; life
(including human and wildlife);
property; the marine, coastal, or human
environment; or sites, structures, or
objects of historical or archaeological
significance; and
(2) Otherwise consistent with the
provisions of section 8(p) of the OCS
Lands Act.
■ 99. Amend § 585.618 by revising
paragraphs (a) and (e) to read as follows:
§ 585.618 What must I do upon completion
of approved site assessment activities?
(a) If your COP or FERC license
application describes the continued use
of existing facilities approved in your
SAP, you may keep such facilities in
place on your lease during the time that
BOEM reviews your COP or FERC
reviews your license application.
*
*
*
*
*
(e) You must decommission your site
assessment facilities as set forth in
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subpart J of this part upon the
termination of your lease. You must
submit your decommissioning
application as required in §§ 585.905
and 585.906.
■ 100. Revise § 585.621 to read as
follows:
§ 585.621
COP?
What must I demonstrate in my
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Your COP must demonstrate that you
have planned and are prepared to
conduct the proposed activities in a
manner that:
(a) Conforms to your responsibilities
listed in § 585.105(a);
(b) Conforms to all applicable laws,
regulations, and provisions of your
commercial lease;
(c) Is safe;
(d) Does not unreasonably interfere
with other uses of the OCS, including
those involved with national security or
defense;
(e) Does not cause undue harm or
damage to natural resources; life
(including human and wildlife);
property; the marine, coastal, or human
environment; or sites, structures, or
objects of historical or archaeological
significance;
(f) Uses best available and safest
technology;
(g) Uses best management practices;
and
(h) Uses properly trained personnel.
■ 101. Amend § 585.622 by revising
paragraph (a) to read as follows:
§ 585.622
How do I submit my COP?
(a) You must submit your COP to
BOEM pursuant to § 585.110.
*
*
*
*
*
■ 102. Revise § 585.626 to read as
follows:
§ 585.626
What must I include in my COP?
(a) Project information may be
provided using a PDE. When you
provide information using a PDE, BOEM
reserves the right to determine what
range of values for any given parameter
are acceptable. Your COP must include
the following project-specific
information, as applicable:
Project information:
Including:
(1) Contact information ........
(2) Designation of operator,
if applicable.
(3) Commercial lease stipulations and compliance.
(4) A location plat, or indicative layout.
The name, address, e-mail address, and phone number of an authorized representative.
As provided in § 585.405.
(5) General structural and
project design, fabrication,
and installation.
(6) Deployment activities ......
(7) A list of solid and liquid
wastes generated.
(8) A listing of chemical
products used (if stored
volume exceeds Environmental Protection Agency
(EPA) reportable quantities).
(9) A description of any vessels, vehicles, and aircraft
you will use to support
your activities.
(10) A general description of
the operating procedures
and systems.
(11) Decommissioning and
site clearance procedures.
(12) A listing of all Federal,
State, and local authorizations or approvals required
to conduct the proposed
activities, including commercial operations.
(13) Your proposed measures for avoiding, minimizing, reducing, eliminating, and monitoring environmental impacts.
(14) Information you incorporate by reference.
(15) A list of agencies and
persons with whom you
have communicated, or
with whom you will communicate, regarding potential impacts associated
with your proposed activities.
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A description of the measures you took, or will take, to satisfy the conditions of any lease stipulations related to
your proposed activities.
The range of surface locations and associated water depths for proposed structures, facilities, and appurtenances
located both offshore and onshore, including all anchor and mooring data, and the location and associated
water depths of all existing structures.
Preliminary design information for each facility associated with your project.
A description of safety, prevention, and environmental protection features or measures that you will use.
Disposal methods and locations.
A list of chemical products used; the volume stored on location; their treatment, discharge, or disposal methods
used; and the name and location of the onshore waste receiving, treatment, and/or disposal facility. A description of how these products would be brought onsite, the number of transfers that may take place, and the
quantity that will be transferred each time.
An estimate of the frequency and duration of vessel, vehicle, or aircraft traffic.
(i) Under normal conditions.
(ii) In the case of accidents or emergencies, including those that are natural or manmade.
A discussion of general concepts and methodologies.
A statement indicating whether you have applied for or obtained such authorization or approval from the U.S.
Coast Guard, U.S. Army Corps of Engineers, and any other applicable Federal, State, or local authorizers pertaining to energy gathering, transmission or distribution (e.g., interconnection authorizations).
A description of the measures you will use to avoid or minimize adverse effects and any potential incidental take
before you conduct activities on your lease, and how you will mitigate environmental impacts from your proposed activities, including a description of the measures you will use as required by subpart I of this part.
A list of the documents you have incorporated by reference and their public availability.
Contact information and issues discussed.
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Project information:
Including:
(16) References ...................
A bibliographic list of any document or published source that you cite as part of your plan. You may reference information and data discussed in other plans you previously submitted or that are otherwise readily available to
BOEM.
Statements attesting that the activities and facilities proposed in your COP are or will be covered by an appropriate bond or other approved financial assurance instrument as required in § 585.516 and §§ 585.525 through
585.529.
A list of all facilities or combination of facilities on your approved COP that are considered complex or significant.
You must describe your strategy for compliance with §§ 585.705 through 585.714.
A reasonable schedule of construction activity showing significant milestones leading to the commencement of
commercial operations consistent with the requirements of subpart H of this part.
Information as described in § 585.659.
Additional information as required by BOEM.
(17) Financial assurance ......
(18) Project verification strategy.
(19) Construction schedule ..
(20) Air quality information ...
(21) Other information ..........
(b) You must include reports that
document the results of surveys and
investigations that characterize and
model the site of your proposed project.
Your reports must address the following
topics:
Topic:
Purpose of report:
Including:
(1) Geological and
geotechnical.
To define the baseline geological conditions of the
seabed and provide sufficient data to develop a
geologic model, assess
geologic hazards, and determine the feasibility of
the proposed site for your
proposed facility.
(2) Biological ...........................
To determine the presence
of biological features and
marine resources.
To provide BOEM with required information to conduct review of the COP
under NHPA.
To provide an overall understanding of the meteorological and oceanographic
conditions at the site of
the proposed facility, and
to identify conditions that
may pose a significant risk
to the facility.
(i) Desktop studies to collect available data from published sources and nearby sites.
(ii) Geophysical surveys of the proposed area with sufficient areal coverage, depth penetration, and
resolution to define the geological conditions of the site’s seabed that could impact, or be impacted
by, the proposed project.
(iii) Geotechnical investigations of sufficient scope and detail to: ground truth the geophysical surveys; support development of a geological model; assess potential geological hazards that could
impact the proposed project; and provide geotechnical data for preliminary design of the facility, including type and approximate dimensions of the foundation.
(iv) An overall site characterization report for your facility that integrates the findings of your studies,
surveys, and investigations; describes the geological model; contains supporting data and findings;
and states your recommendations.
A description of the results of biological surveys used to determine the presence of live bottoms, hard
bottoms, topographic features, and other marine resources, including migratory populations such
as fish, marine mammals, sea turtles, and sea birds.
Archaeological resource and other historic property. On a case-by-case basis and subject to terms
and conditions of COP approval per § 585.628(f), BOEM may permit you to submit certain surveys
of the subsea portions of the area of potential effects with your FDR per § 585.701(a)(11).
(3) Archaeological resources
other historic properties.
(4) Meteorological and oceanographic (metocean).
103. Amend § 585.627 by revising the
section heading and paragraphs (a)
through (c) to read as follows:
■
Desktop studies to collect available data from hindcast or re-analysis models and field measurements
in sufficient detail to support preliminary design of the facility and support the analysis of wake effects, sediment mobility and scour, and navigational risks.
§ 585.627 What information and
certifications must I submit with my COP to
assist BOEM in complying with NEPA and
other applicable laws?
(a) Your COP must contain detailed
information and analysis to assist BOEM
in complying with NEPA and other
applicable laws. Your COP must contain
information about those resources,
conditions, and activities listed in the
following table that could be affected
by, or that could affect, your proposed
activities:
Type of information:
Including:
(1) Hazard information ....................
(2) Water quality .............................
(3) Biological resources ..................
Meteorology, oceanography, sediment transport, geology, and shallow geological or manmade hazards.
Turbidity and total suspended solids from construction; impact from vessel discharges.
Benthic communities, marine mammals, sea turtles, coastal and marine birds, fish and shellfish, plankton,
seagrasses, and plant life.
As required by ESA.
(4) Threatened or endangered species.
(5) Sensitive biological resources or
habitats.
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6041
(6) Archaeological resources use,
other historic property use, Indigenous traditional cultural use, or
use pertaining to treaty and reserved rights with Native Americans or other Indigenous peoples.
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Essential fish habitat, refuges, preserves, special management areas identified in coastal management
programs, nearby marine protected areas, including State and Federal coastal and nearby marine protected areas, as well as national marine sanctuaries and nearby marine national monuments, rookeries,
hard bottom habitat, chemosynthetic communities, calving grounds, barrier islands, beaches, dunes, and
wetlands.
To provide BOEM with required information to conduct review of the COP under the NHPA or other applicable laws or policies, including treaty and reserved rights with Native Americans or other Indigenous
peoples.
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Type of information:
Including:
(7) Social and economic resources
Employment, existing offshore and coastal infrastructure (including major sources of supplies, services, energy, and water), land use, subsistence resources and harvest practices, recreation, recreational and
commercial fishing (including typical fishing seasons, location, and type), minority and lower income
groups, coastal zone management programs, and a visual impact assessment.
Military activities, vessel traffic, fisheries, and exploration and development of other natural resources. This
includes a navigational safety risk assessment that provides a description of the predicted impacts of the
project to navigation, and the measures you will use to avoid or minimize such adverse impacts. This
document also must be submitted to the U.S. Coast Guard to assist with its analysis.
If required by the CZMA regulations:
(i) 15 CFR part 930 subpart D, if your COP is submitted before lease issuance.
(ii) 15 CFR part 930 subpart E, if your COP is submitted after lease issuance.
As identified by BOEM.
(8) Coastal and marine uses ..........
(9) Consistency Certification ...........
(10) Other resources, conditions,
and activities.
(b) You must submit one copy of your
consistency certification. Your
consistency certification must include:
(1) One copy of your consistency
certification under either subsection
307(c)(3)(B) of the CZMA (16 U.S.C.
1456(c)(3)(B)) and 15 CFR 930.76 or
subsection 307(c)(3)(A) of the CZMA (16
U.S.C. 1456(c)(3)(A)) and 15 CFR
930.57, stating that the proposed
activities described in detail in your
plans comply with the enforceable
policies of the applicable States’
approved coastal management programs
and will be conducted in a manner that
is consistent with such programs; and
(2) ‘‘Necessary data and information,’’
as required by 15 CFR 930.58.
(c) You must submit an oil spill
response plan in compliance with 33
U.S.C. 1321, including information
identified in 30 CFR part 254 that is
applicable to your activities.
*
*
*
*
*
■ 104. Amend § 585.628 by revising the
first sentence of paragraph (a) and
paragraphs (c), (f)(2), and (g) to read as
follows:
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§ 585.628
COP?
How will BOEM process my
(a) BOEM will review your submitted
COP, including the information
provided under § 585.627, to determine
if it contains the information necessary
to conduct our technical and
environmental reviews. * * *
*
*
*
*
*
(c) If your COP is submitted after lease
issuance, and if your COP is subject to
Federal consistency review under the
CZMA regulations at 15 CFR part 930,
subpart E, you must submit your COP,
consistency certification, and associated
data and information under CZMA to
BOEM after all information
requirements for the COP are met, and
the appropriate environmental
assessment or draft environmental
impact statement, if required, has been
published. BOEM will forward the COP,
consistency certification, and associated
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data and information to the applicable
State CZMA agencies.
*
*
*
*
*
(f) * * *
(2) If we disapprove your COP, we
will inform you of the reasons and allow
you an opportunity to submit a revised
plan addressing our concerns, and we
may suspend the COP review period of
your lease, as appropriate, to give you
a reasonable amount of time to submit
the revised plan.
(g) If BOEM approves your project
easement, BOEM will issue an
addendum to your lease specifying the
terms of the project easement.
(1) The project easement will provide
sufficient off-lease area to accommodate
potential changes at the design and
installation phases of the project for
locating cables, pipelines, and other
appurtenances necessary for your
project.
(2) Unused portions of the project
easement may be relinquished after
construction is complete.
(3) A project easement is subject to
the following conditions:
(i) The rights granted will not prevent
the granting of other rights by the
United States, either before or after the
granting of the project easement,
provided that any subsequent
authorization issued by BOEM in the
area of a previously issued project
easement may not unreasonably
interfere with activities approved or
impede existing operations under the
project easement; and
(ii) If the project easement is granted
in an area where a lease or ROW or RUE
grant has previously been issued, the
project easement holder must agree that
its activities will not interfere with or
impede existing operations under the
lease or ROW or RUE grant.
■ 105. Amend § 585.634 by revising
paragraphs (a) and (c) to read as follows:
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§ 585.634 What activities require a revision
to my COP, and when will BOEM approve
the revision?
(a) You must notify BOEM in writing
before conducting any activities not
described in your approved COP. Your
notice must describe in detail the type
of activities you propose to conduct. We
will determine whether the activities
you propose require a revision to your
COP. We may request additional
information from you, if necessary, to
make this determination.
*
*
*
*
*
(c) Activities for which a proposed
revision to your COP likely will be
necessary include:
(1) Activities not described in your
approved COP;
(2) Modifications to the number, size,
or type of facilities or equipment you
will use;
(3) Material changes in the
geographical location or layout of
bottom disturbances, offshore facilities,
or onshore support bases beyond the
range of possible locations described in
your approved COP;
(4) Structural failure of any facility;
(5) Submission of an FDR or FIR that
contains new information or that is
inconsistent with the COP that has been
previously submitted; or
(6) Change in any other activity
specified by BOEM.
*
*
*
*
*
■ 106. Amend § 585.637 by revising
paragraph (a) to read as follows:
§ 585.637 When may I commence
commercial operations on my commercial
lease?
(a) If you are conducting activities on
your lease that do not require a FERC
license (i.e., wind power projects), then
you may commence commercial
operations 30 calendar days after:
(1) Your project verification report,
described in §§ 585.704 and
585.708(a)(5), is deemed submitted by
BOEM;
(2) BOEM has confirmed receipt of
critical safety systems commissioning
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records, as described in § 585.708(a)(6);
and
(3) BOEM has not notified you within
that timeframe of any objections to the
verification report or the commissioning
records.
(b) If you are conducting activities on
your lease that do require a FERC
license or exemption, then you may
commence commercial operations when
permitted by the terms of your license
or exemption.
(c) You must notify BOEM within 10
business days after you commence
commercial operations.
■ 107. Amend § 585.638 by revising the
first sentence of paragraph (a) to read as
follows:
§ 585.638 What must I do upon completion
of my commercial operations as approved
in my COP or FERC license?
(a) Upon completion of your approved
activities under your COP, you must
decommission your project as set forth
in subpart J of this part. * * *
*
*
*
*
*
■ 108. Amend § 585.640 by revising
paragraph (b) to read as follows:
What is a General Activities Plan
*
*
*
*
*
(b) You must receive BOEM approval
of your GAP before you can begin any
of the proposed activities on your lease
or grant.
■ 109. Revise § 585.641 to read as
follows:
§ 585.641
GAP?
What must I demonstrate in my
Your GAP must demonstrate that you
have planned and are prepared to
conduct the proposed activities in a
manner that:
(a) Conforms to your responsibilities
listed in § 585.105(a);
(b) Conforms to all applicable laws,
regulations, and provisions of your
limited lease or grant;
(c) Is safe;
(d) Does not unreasonably interfere
with other uses of the OCS, including
those involved with national security or
defense;
(e) Does not cause undue harm or
damage to natural resources; life
(including human and wildlife);
property; the marine, coastal, or human
environment; or sites, structures, or
objects of historical or archaeological
significance;
(f) Uses best available and safest
technology;
(g) Uses best management practices;
and
(h) Uses properly trained personnel.
■ 110. Amend § 585.642 by revising
paragraph (a) to read as follows:
§ 585.642
How do I submit my GAP?
(a) You must submit your GAP to
BOEM pursuant to § 585.110.
*
*
*
*
*
■ 111. Amend § 585.645 by revising
paragraphs (a) through (c) to read as
follows:
§ 585.645
What must I include in my GAP?
(a) Project information may be
provided using a PDE. When you
provide a range of parameters using a
PDE, BOEM reserves the right to
determine what range of values for any
given parameter are acceptable. Your
GAP must include the following projectspecific information, as applicable:
Project information:
Including:
(1) Contact information ...................
(2) Designation of operator, if applicable.
(3) The site assessment or technology testing concept.
(4) ROW or RUE grant, or limited
lease stipulations, if known.
(5) A location plat, or indicative layout.
The name, address, e-mail address, and phone number of an authorized representative.
As provided in § 585.405.
(6) General structural and project
design, fabrication, and installation.
(7) Deployment activities ................
(8) Your proposed measures for
avoiding, minimizing, reducing,
eliminating, and monitoring environmental impacts.
(9) A list of solid and liquid wastes
generated.
(10) A listing of chemical products
used (if stored volume exceeds
EPA reportable quantities).
(11) A description of any vessels,
vehicles, and aircraft you will use
to support your activities.
(12) Reference information .............
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§ 585.640
(GAP)?
(13) Decommissioning and site
clearance procedures.
(14) Air quality information ..............
(15) A listing of all Federal, State,
and local authorizations or approvals required to conduct activities on your grant or limited
lease.
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A discussion of the objectives; description of the proposed activities, including the technology you will use;
and proposed schedule from start to completion.
A description of the measures you took, or will take, to satisfy the conditions of any grant or lease stipulations related to your proposed activities.
The range of surface locations and associated water depths for proposed structures, facilities, and appurtenances located both offshore and onshore, including all anchor and mooring data; and the location and
associated water depths of all existing structures.
Preliminary design information for each facility associated with your project.
A description of the safety, prevention, and environmental protection features or measures that you will
use.
A description of the measures you will use to avoid or minimize adverse effects and any potential incidental take before you conduct activities on your lease, and how you will mitigate environmental impacts
from your proposed activities, including a description of the measures you will use as required by subpart I of this part.
Disposal methods and locations.
A list of chemical products used; the volume stored on location; their treatment, discharge, or disposal
methods used; and the name and location of the onshore waste receiving, treatment, and/or disposal facility. A description of how these products would be brought onsite, the number of transfers that may
take place, and the quantity that will be transferred each time.
An estimate of the frequency and duration of vessel/vehicle/aircraft traffic.
A bibliographic list of any document or published source that you cite as part of your plan. You may reference information and data discussed in other plans you previously submitted or that are otherwise
readily available to BOEM.
A discussion of general concepts and methodologies.
As described in § 585.659.
A statement indicating whether you have applied for or obtained such authorization or approval from the
U.S. Coast Guard, U.S. Army Corps of Engineers, and any other applicable Federal, State or local authorizers pertaining to your activities.
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Project information:
Including:
(16) A list of agencies and persons
with whom you have communicated, or with whom you will
communicate, regarding potential
impacts associated with your proposed activities.
(17) Financial assurance information.
Contact information and issues discussed.
(18) Project verification strategy .....
(19) Information you incorporate by
reference.
(20) Other information .....................
Statements attesting that the activities and facilities proposed in your GAP are, or an explanation of how
they will be, covered by an appropriate bond or other approved security, as required in §§ 585.520 and
585.521.
An analysis supporting your recommendation as to whether your activities should be determined complex
or significant. If your recommendation supports a complex or significant determination, describe your
strategy for compliance with §§ 585.705 through 585.714.
A list of the documents you have incorporated by reference and where they may be publicly accessed; for
confidential information, you may reference information and data discussed in other plans previously
submitted or that are otherwise readily available to BOEM.
Additional information as required by BOEM.
(b) You must include reports that
document the results of surveys and
investigations that characterize and
model the site of your proposed
Topic:
Purpose of report:
Including:
(1) Geological and
geotechnical.
To define the baseline geological conditions of the seabed and provide
sufficient data to develop a geologic
model, assess geologic hazards,
and determine the feasibility of the
proposed facility.
(2) Biological ................
To determine the presence of biological features and marine resources.
(3) Archaeological resources and other
historic properties.
(4) Meteorological and
oceanographic
(metocean).
To provide BOEM with required information to conduct review of the
GAP under NHPA.
To provide an overall understanding of
the meteorological and oceanographic conditions at the site of the
proposed facility, and to identify
conditions that may pose a significant risk to the facility.
(i) Desktop studies to collect available data from published sources and nearby sites.
(ii) Geophysical surveys of the proposed area with sufficient areal coverage,
depth penetration, and resolution to define the geological conditions of the
seabed at the site that could impact, or be impacted by, the proposed
project.
(iii) Geotechnical investigations of sufficient scope and detail to: ground truth
the geophysical surveys; support development of a geological model; assess potential geological hazards that could impact the proposed development; and provide geotechnical data for preliminary design of the facility,
including type and approximate dimensions of the foundation.
(iv) An overall site characterization report for your facility that integrates the
findings of your studies, surveys, and investigations; describes the geological model; contains supporting data and findings; and states your recommendations.
A description of the results of biological surveys used to determine the presence of live bottoms, hard bottoms, topographic features, and other marine
resources, including migratory populations, such as fish, marine mammals,
sea turtles, and sea birds.
Archaeological resource and other historic property identification surveys with
supporting data.
(c) If you are applying for a project
easement, or constructing a facility or a
combination of facilities deemed by
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activities. Your reports must cover the
following topics:
Desktop studies to collect available data from hindcast or re-analysis models
and field measurements in sufficient detail to support preliminary design of
the facility and support the analysis of wake effects, sediment mobility and
scour, and navigation risks.
BOEM to be complex or significant, you
must provide the following additional
information and comply with the
requirements of subpart H of this part:
Project information:
Including:
(1) The construction and operation
concept.
(2) All cables and pipelines, including cables on project easements.
(3) A general description of the operating procedures and systems.
(4) Construction schedule ...............
A discussion of the objectives, description of the proposed activities, and tentative schedule from start to
completion.
The location, design, installation methods, testing, maintenance, repair, safety devices, exterior corrosion
protection, inspections, and decommissioning.
(i) Under normal conditions.
(ii) In the case of accidents or emergencies, including those that are natural or manmade.
A reasonable schedule of construction activity showing significant milestones leading to the commencement of activities consistent with the requirements of subpart H of this part.
Additional information as requested by BOEM.
(5) Other information .......................
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■ 112. Amend § 585.646 by revising the
section heading, introductory text, and
paragraphs (b)(2), (5), and (6) through
(9) to read as follows:
§ 585.646 What information and
certifications must I submit with my GAP to
assist BOEM in complying with NEPA and
other applicable laws?
You must submit, with your GAP,
detailed information and analysis to
assist BOEM in complying with NEPA
and other applicable laws.
*
*
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*
*
(b) * * *
*
*
(2) Water quality ..............................
*
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Turbidity and total suspended solids from construction; impact from vessel discharges.
*
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*
(5) Sensitive biological resources or
habitats.
*
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Essential fish habitat, refuges, preserves, special management areas identified in coastal management
programs, marine protected areas, including State and Federal coastal and marine protected areas, as
well as nearby national marine sanctuaries and nearby marine national monuments, rookeries, hard bottom habitat, chemosynthetic communities, calving grounds, barrier islands, beaches, dunes, and wetlands.
To provide BOEM with required information to conduct review of the COP under the NHPA or other applicable laws or policies, including treaty and reserved rights with Native Americans or other Indigenous
peoples.
(6) Archaeological resources use,
other historic property use, Indigenous traditional cultural use, or
use pertaining to treaty and reserved rights with Native Americans or other Indigenous peoples.
(7) Social and economic conditions Employment, existing offshore and coastal infrastructure (including major sources of supplies, services, energy, and water), land use, subsistence resources and harvest practices, recreation, recreational and
commercial fishing (including typical fishing seasons, location, and type), minority and lower income
groups, coastal zone management programs, and a visual impact assessment.
(8) Coastal and marine uses .......... Military activities, vessel traffic, fisheries, and exploration and development of other natural resources. This
includes a navigational safety risk assessment that provides a description of the predicted impacts of the
project to navigation, and the measures you will use to avoid or minimize such adverse impacts. This
document also must be submitted to the U.S. Coast Guard to assist with its analysis if your proposal
identifies potential impediments to safe navigation.
(9) Consistency Certification ........... If required by CZMA, under:
(i) 15 CFR part 930, subpart D, if the GAP is submitted before lease or grant issuance;
(ii) 15 CFR part 930, subpart E, if the GAP is submitted after lease or grant issuance.
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*
113. Amend § 585.647 by revising
paragraphs (a) and (b) to read as follows:
■
(b) After lease or grant issuance ....
114. Amend § 585.648 by revising
paragraphs (a) introductory text and
(e)(2) to read as follows:
lotter on DSK11XQN23PROD with PROPOSALS2
How will BOEM process my
(a) BOEM will review your submitted
GAP, along with the information and
certifications you submitted in
compliance with § 585.646, to
determine if it contains the information
necessary to conduct our technical and
environmental reviews.
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(e) * * *
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You will furnish a copy of your GAP, consistency certification, and necessary data and information to the
applicable State CZMA agencies if required by 15 CFR part 930, subpart D. Submit a copy to BOEM
pursuant to § 585.110.
You will submit a copy of your GAP, consistency certification, and necessary data and information to
BOEM if required by 15 CFR part 930, subpart E. BOEM will forward to the applicable State CZMA
agency or agencies one copy of your GAP, consistency certification, and necessary data and information required under 15 CFR part 930, subpart E, after BOEM has determined that all information requirements for the GAP are met.
■
§ 585.648
GAP?
*
§ 585.647 How will my GAP be processed
for Federal consistency under the Coastal
Zone Management Act?
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(a) Before lease or grant issuance
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(2) If we disapprove your GAP, we
will inform you of the reasons and allow
you an opportunity to submit a revised
plan addressing our concerns, and we
may suspend your lease or grant, as
appropriate, to give you a reasonable
amount of time to resubmit the GAP.
■ 115. Amend § 585.652 by revising
paragraph (a) to read as follows:
§ 585.652 How long do I have to conduct
activities under an approved GAP?
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(a) For a limited lease, the time period
established under § 585.236(a)(2), unless
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we renew the term under §§ 585.425
through 585.429.
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■ 116. Amend § 585.655 by revising
paragraphs (a) and (c) to read as follows:
§ 585.655 What activities require a revision
to my GAP, and when will BOEM approve
the revision?
(a) You must notify BOEM in writing
before conducting any activities not
described in your approved GAP,
describing in detail the type of activities
you propose to conduct. We will
determine whether the activities you
propose are authorized by your existing
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GAP or require a revision to your GAP.
We may request additional information
from you, if necessary, to make this
determination. Upon receipt of your
revised GAP, BOEM will make a
determination as to whether it deems
the facility or combination of facilities
described in your revised GAP to be
complex or significant.
(1) If BOEM determines that your
revised GAP is not complex or
significant, you may conduct your
approved activities in accordance with
§ 585.650.
(2) If BOEM determines that your
revised GAP is complex or significant,
then you must comply with the
requirements of § 585.651.
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(1) In the Gulf of Mexico west of
87.5° west longitude (western
Gulf of Mexico) or offshore of the
North Slope Borough of Alaska.
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Subpart H—Facility Design,
Fabrication, and Installation
119. Revise § 585.700 to read as
follows:
■
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§ 585.700 What reports must I submit to
BOEM before installing facilities described
in my approved SAP, COP, or GAP?
(a) You must submit the following
reports to BOEM before installing
facilities described in your approved
COP (§ 585.632(a)) and, when required
by this part, your SAP (§ 585.614(b)) or
GAP (§ 585.651):
(1) A Facility Design Report (FDR);
and
(2) A Fabrication and Installation
Report (FIR).
(b) You may submit separate FDRs
and FIRs for the major components of
your project as agreed to by BOEM on
a case-by-case basis. If you submit
separate FDRs and FIRs by major
components, you must explain to BOEM
how all major components detailed in
the reports will function together
effectively in an integrated manner in
accordance with your project design,
18:15 Jan 27, 2023
117. Amend § 585.657 by revising the
first sentence to read as follows:
■
§ 585.657 What must I do upon completion
of approved activities under my GAP?
Upon completion of your approved
activities under your GAP, you must
decommission your project as set forth
in subpart J of this part. * * *
■ 118. Amend § 585.659 by revising
paragraphs (a) introductory text and
(a)(1) and the second sentence of
paragraph (b) to read as follows:
§ 585.659 What requirements must I
include in my SAP, COP, or GAP regarding
air quality?
(a) Your SAP, COP, or GAP must
address air quality as follows:
*
*
*
*
*
include in your plan any information required for BOEM to make the appropriate air quality determinations
for your project.
(b) * * * In the western Gulf of
Mexico (west of 87.5° west longitude)
and offshore of the North Slope Borough
of Alaska, you must submit to BOEM
three copies of the modeling report and
three sets of digital files as supporting
information. * * *
VerDate Sep<11>2014
(c) Activities for which a proposed
revision to your GAP will likely be
necessary include:
(1) Activities not described in your
approved GAP;
(2) Modifications to the number, size,
or type of facilities or equipment you
will use;
(3) Changes in the geographical
location or layout of bottom
disturbances, offshore facilities, or
onshore support bases beyond the range
of possible locations described in your
approved GAP;
(4) Structural failure of any facility; or
(5) Change to any other activity
specified by BOEM.
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and you must demonstrate that such
integration has been verified by your
CVA.
(c) You may submit your FDRs and
FIRs before or after SAP, COP, or GAP
approval.
(d) Subject to the requirements in
paragraph (b) of this section, you may
commence fabrication and installation
of the facilities on the OCS as described
in each report:
(1) If BOEM deems your report
submitted before SAP, COP, or GAP
approval and notifies you of its nonobjection to the FDR and FIR or does not
respond with objections within 60
calendar days of SAP, COP, or GAP
approval; or
(2) If BOEM deems your report
submitted after SAP, COP, or GAP
approval and notifies you of its nonobjection to the FDR and FIR or does not
respond with objections within 60
calendar days of the report being
deemed submitted.
(e) You may commence procurement
of discrete parts of the project that are
commercially available in standardized
form and type-certified components, or
fabrication activities that do not take
place on the OCS (e.g., manufacturing),
prior to the submittal of the reports
required under paragraph (a) of this
section or any plans required under this
part. The procurement and fabrication
of facility components allowed under
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this subsection are subject to
verification by your CVA, and BOEM
may object to the installation of said
components on the OCS if it considers
that the components or their fabrication
is inconsistent with accepted industry
or engineering standards, the approved
SAP, COP, or GAP, the FDR or FIR, or
BOEM’s regulations.
(f) If BOEM requires additional
information or has objections, we will
notify you in writing within 60 calendar
days of the report being deemed
submitted. Following initial notification
of any objections, BOEM may follow up
with written correspondence detailing
its objections to the report and
requesting that certain actions be
undertaken. You cannot commence
fabrication or installation activities on
the OCS that are addressed in such
reports until you resolve all objections
to BOEM’s satisfaction.
■ 120. Amend § 585.701 by:
■ a. Revising paragraphs (a)(1) through
(10);
■ b. Adding paragraphs (a)(11) through
(14);
■ d. Revising paragraphs (b) and (d); and
■ e. Removing paragraph (e).
The revisions read as follows:
§ 585.701 What must I include in my
Facility Design Report?
(a) * * *
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Required documents
Required contents
(1) Cover letter ....................................................
(i) Proposed facility designations:
(ii) Lease, ROW grant or RUE grant number;
(iii) Area; name and block numbers; and
(iv) The type of facility.
(i) Latitude and longitude coordinates, Universal Mercator grid-system coordinates, state plane
coordinates in the Lambert or Transverse Mercator Projection System;
ii) Distances in feet from the nearest block lines. These coordinates must be based on the
NAD (North American Datum) 83 datum plane coordinate system; and
(iii) The location of any project easements.
(i) Facility dimensions and orientation;
(ii) Elevations relative to Mean Lower Low Water; and
(iii) Pile sizes and penetration.
The approved for construction fabrication drawings should be submitted including, e.g.,
(i) Cathodic protections systems;
(ii) Jacket design;
(iii) Pile founations;
(iv) Mooring and tethering systems;
(v) Foundations and anchoring systems; and
(vi) Associated cable and pipeline designs.
A summary of the environmental data used in the design or analysis of the facility. Examples
of relevant data include information on:
(i) Extreme weather
(ii) Seafloor conditions, and
(iii) Waves, wind, current, tides, temperature, snow and ice effects, marine growth, and water
depth.
(i) Loading information (e.g., live, dead, environmental);
(ii) Structural information (e.g., design-life; material types; cathodic protection systems; design
criteria; fatigue life; jacket design; deck design; production component design; foundation pilings and templates, and mooring or tethering systems; fabrication and installation guidelines);
(iii) Location of foundation boreholes and foundation piles;
(iv) Foundation information (e.g., soil stability, design criteria); and
(v) For a floating facility, structural integrity, stability, and ballast information.
Self-explanatory.
All studies pertinent to facility design or installation e,g., oceanographic and soil reports including the results of the survey required in §§ 585.610(b), 585.627(a), 585.645(a).
(i) Loads imposed by the jacket;
(ii) Decks;
(iii) Production components;
(iv) Foundations, foundation pilings and templates, and anchoring systems; and
(v) Mooring or tethering systems.
All data from geotechnical and geophysical surveys, in situ explorations, laboratory tests, analyses, burial or drivability assessments, and recommended design parameters.
All archaeological resource and historic property identification surveys with supporting data
that BOEM has authorized you to submit with your FDR under § 585.626(b)(3).
The industry standards you will apply to ensure the facilities are designed to meet § 585.105.
A risk assessment that identifies the critical safety systems and description of the identified
critical safety systems.
Additional information required by BOEM.
(2) Location plat ..................................................
(3) Front, Side, and Plan View drawings ...........
(4) Complete set of structural drawings .............
(5) Summary of environmental data used for
design.
(6) Summary of the engineering design data .....
(7) A complete set of design calculations ..........
(8) Project-specific studiesused in the facility
design or installation.
(9) Description of the loads imposed on the facility.
(10) Geotechnical and geophysical reports ........
(11) Archaeological resources reports ...............
(12) Design Standards ........................................
(13) Critical Safety System .................................
(14) Other information ........................................
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(b) You must submit your Facility
Design Report to BOEM pursuant to
§ 585.110.
*
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*
*
(d) If you are required to use a CVA,
the FDR must include the following
verification statement: ‘‘The design of
this structure has been verified by a
BOEM-approved CVA to be in
accordance with accepted engineering
practices and the approved SAP, GAP,
or COP, as applicable, and has been
designed to provide for safety. The
verified design and as-built plans and
specifications will be on file at [provide
location].’’
■ 121. Amend § 585.702 by:
■ a. Revising paragraphs (a)(1) through
(7);
■ b. Adding paragraphs (a)(8) through
(10);
■ d. Removing paragraph (d);
■ e. Redesignating paragraphs (b) and
(c) as paragraphs (d) and (e),
respectively;
f. Adding new paragraphs (b) and (c);
and
■ g. Revising newly redesignated
paragraph (e).
The revisions and additions read as
follows:
■
§ 585.702 What must I include in my
Fabrication and Installation Report?
(a) * * *
Required documents
Required contents
(1) Cover letter ................................
(i) Proposed facility designation, lease, ROW grant, or RUE grant number;
(ii) Area, name, and block number; and (iii) The type of facility.
Fabrication and installation.
The industry standards you will use to ensure the facilities are fabricated to the design criteria identified in
your Facility Design Report.
(2) Schedule ....................................
(3) Fabrication information ..............
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Required documents
Required contents
(4) Installation process information
(5) Federal, State, and local permits (e.g., EPA, Army Corps of
Engineers).
(6) Quality assurance ......................
(7) Environmental information .........
(8) Commissioning procedures for
critical safety systems.
(9) Project easement ......................
(10) Other information .....................
Details associated with the deployment activities, equipment, and materials, including onshore and offshore
equipment and support, and anchoring and mooring patterns.
Either 1 copy of the permit or information on the status of the application.
Certificates ensuring adherence to a recognized quality assurance standard. Alternate means of compliance must be approved on a case-by-case basis.
(i) Water discharge;
(ii) Waste disposal;
(iii) Vessel information;
(iv) Onshore waste receiving treatment or disposal facilities; and
(v) If you submitted this data as part of your SAP, COP, or GAP, you may incorporate by reference.
Original equipment manufacturer procedures or other BOEM approved procedures for commissioning of
critical safety systems as identified in § 585.701(a)(13).
Design of any cables, pipelines, or facilities. Information on burial methods and vessels.
Additional information required by BOEM.
(b) You must submit your FIR to
BOEM pursuant to § 585.110.
(c) You may submit a request for any
project easement and supporting
information as part of your original FIR
submission or as a revision to it.
*
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*
(e) If you are required to use a CVA,
the FIR must include the following
verification statement: ‘‘The fabrication
and installation of this structure has
been verified by a BOEM-approved CVA
to be in accordance with accepted
engineering practices, the FDR, and the
approved SAP, GAP, or COP, as
applicable. The verified design and asbuilt plans and specifications will be on
file at [provide location].’’
■ 122. Amend § 585.703 by revising
paragraphs (a) and (c) to read as follows:
§ 585.703 What reports must I submit for
project modifications and repairs?
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(a) You must demonstrate in a report
to us that major repairs and major
modifications to a completed project
conform to accepted engineering
practices.
(1) A ‘‘major repair’’ is a corrective
action involving structural members
affecting the structural integrity of all or
a portion of the facility or substantial
repair of a critical safety system(s),
including those identified in your FDR.
(2) A ‘‘major modification’’ is an
alteration involving structural members
affecting the structural integrity of all or
a portion of the facility or substantial
alteration of a critical safety system(s),
including those as identified in your
FDR.
*
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*
(c) If you are required to use a CVA,
the report described in paragraph (a) of
this section must include the following
verification statement: ‘‘The
[modification or repair] of this [structure
or critical safety system] has been
verified by a BOEM-approved CVA to be
in accordance with accepted
engineering practices, the FDR, and the
approved SAP, GAP, or COP as
applicable.’’
■ 123. Add § 585.704 to read as follows:
§ 585.704 After receiving the FDR, FIR, or
project verification reports, what will BOEM
do?
(a) Determine whether the report is
deemed submitted. Within 20 calendar
days after receiving your proposed FDR,
FIR, or project verification report,
BOEM will review your submission and
deem your FDR, FIR, or project
verification report submitted provided
that your submission is sufficiently
complete and accurate to fulfill the
applicable requirements of § 585.701,
§ 585.702, or § 585.712.
(b) Identify problems and deficiencies.
If BOEM determines that you have not
met the conditions in paragraph (a) of
this section, BOEM will notify you of
the problem or deficiency within 20
calendar days after BOEM receives your
FDR, FIR, or project verification report.
BOEM will not deem your FDR, FIR, or
project verification report submitted
until you have corrected all problems or
deficiencies identified in the notice.
(c) Notify you when the report is
deemed submitted. BOEM will notify
you when the FDR, FIR, or project
verification report is deemed submitted.
If BOEM has not notified you within 20
calendar days that your report has
problems or deficiencies, you may
consider it deemed submitted.
■ 124. Revise § 585.705 to read as
follows:
§ 585.705 When must I use a Certified
Verification Agent (CVA)?
(a) Unless BOEM waives this
requirement under paragraph (c) of this
section, you must use one or more CVAs
to review and verify your FDRs, FIRs,
and the Project Modification and Repair
Reports.
(b) The purpose of a CVA is to:
(1) Ensure that your facilities are
designed, fabricated, and installed in
conformance with accepted engineering
practices and the Facility Design Report
and Fabrication and Installation Report;
(2) Ensure critical safety systems are
commissioned in accordance with the
procedures identified in § 585.702(a)(8);
(3) Ensure that major repairs and
major modifications are completed in
conformance with accepted engineering
practices; and
(4) Provide BOEM and you with
immediate reports of all incidents that
affect the facility design, fabrication,
and installation, including
commissioning of critical safety
systems, for the project and its
components.
(c) BOEM may waive in whole or in
part the requirement that you use a CVA
if you can demonstrate the following:
Then BOEM may waive the
requirement for a CVA for the
following:
If you demonstrate that . . .
(1) The facility design conforms to a standard design that has been used successfully in a similar environment, and the installation design conforms to accepted engineering practices.
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The design of your structure(s).
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Then BOEM may waive the
requirement for a CVA for the
following:
If you demonstrate that . . .
(2) The relevant fabricator has successfully fabricated similar facilities, and the facility will be fabricated in
conformance with accepted engineering practices and to a recognized quality assurance standard. Alternate means of quality assurance compliance must be approved on a case-by-case basis.
(3) The relevant installation companies have successfully installed similar facilities in a similar offshore environment, and your structures will be installed in conformance with accepted engineering practices.
(4) Major repairs or major modifications will be completed in conformance with accepted engineering practices and to a recognized quality assurance standard. Alternate means of quality assurance compliance
must be approved on a case-by-case basis.
(d) You must submit a request to
waive, in whole or in part, the
requirement to use a CVA to BOEM in
writing.
(1) BOEM will review your request to
waive, in whole or in part, the use of the
CVA and notify you of its decision.
(2) If BOEM does not waive, in whole
or in part, the requirement for a CVA,
you may file an appeal under § 585.118.
(3) If BOEM waives, in whole or in
part, the requirement that you use a
CVA, your project engineer must
perform the same duties and
responsibilities as would have the CVA,
except as otherwise provided.
■ 125. Amend § 585.706 by revising
paragraphs (a), (b)(2) and (7), and (c)
through (e) to read as follows:
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§ 585.706 How do I nominate a CVA for
BOEM approval?
(a) A CVA must be nominated and
approved by BOEM before conducting
any verification activities for which it
has been nominated. If you intend to
use multiple CVAs, you must nominate
a general project CVA who will manage
the project verification strategy and who
will ensure consistency and oversight
among the CVAs, especially in
transition areas between different CVAs.
The general project CVA must be
nominated no later than COP
submission.
(b) * * *
(2) Technical capabilities of the
individual or the primary staff for the
specific project, including relevant
professional licenses, certifications, and
accreditations;
*
*
*
*
*
(7) The scope and level of work to be
performed by the CVA, including all
relevant reports and facilities that the
CVA will verify.
(c) Individuals or organizations acting
as CVAs must not function in any
capacity that will create a conflict of
interest or the appearance of a conflict
of interest. The CVA must not have
prepared, or been directly involved in,
any original work related to the
preparation of design, fabrication,
installation, modification, or repair
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plans for which it will provide
verification services.
(d) The verification must be
conducted by or under the direct
supervision of a registered professional
engineer.
(e) BOEM will approve or disapprove
your CVA.
*
*
*
*
*
■ 126. Amend § 585.707 by:
■ a. Revising the second sentence of
paragraph (a);
■ b. Removing ‘‘and’’ from paragraph
(b)(8);
■ c. Redesignating paragraph (b)(9) as
paragraph (b)(11);
■ d. Adding new paragraph (b)(9) and
paragraph (b)(10); and
■ e. Removing paragraph (c).
The revisions and additions read as
follows:
§ 585.707 What are the CVA’s primary
duties for facility design review?
(a) * * * The CVA must verify to
BOEM that the facility is designed to
withstand the environmental and
functional load conditions appropriate
for the intended service life at the
proposed location and has been
designed to provide for safety.
(b) * * *
(9) Design for human safety and
accident prevention;
(10) For a floating facility, structural
integrity, stability, and ballast; and
*
*
*
*
*
■ 127. Amend § 585.708 by revising
paragraphs (a)(1), (2), and (5), adding
paragraphs (a)(6) and (7), and revising
paragraph (b) to read as follows:
§ 585.708 What are the CVA’s or project
engineer’s primary duties for fabrication
and installation review?
(a) * * *
(1) Use good engineering judgment
and practice in conducting an
independent assessment of the
fabrication and installation activities
and of the commissioning of critical
safety systems;
(2) Monitor the fabrication and
installation of the facility and the
commissioning of critical safety systems
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The fabrication of your structure(s).
The installation of your structure(s).
The major repair or major modification of your structure(s).
as required by paragraph (b) of this
section;
*
*
*
*
*
(5) Verify in a report that project
components are fabricated and installed
in accordance with accepted
engineering practices and to a
recognized quality assurance standard
or to an equivalent alternate means of
quality assurance considered on a caseby-case basis, your approved SAP, COP,
or GAP (as applicable), and your FIR. If
multiple CVAs are involved in your
project, the general project CVA must
submit the final report containing such
verification for the project.
(i) The report must identify the
location of all records pertaining to
facility fabrication and installation as
required in § 585.714(c); and
(ii) You may commence commercial
operations or other approved activities
30 days after BOEM receives that
verification report, unless BOEM
notifies you within that time period of
its objections to the verification report.
(6) Provide records documenting that
critical safety systems are commissioned
in accordance with the procedures
identified in § 585.702(a)(8); and
(7) Identify the location of all records
pertaining to commissioning of critical
safety systems, as required in
§ 585.714(c).
(b) To comply with paragraph (a)(5) of
this section, the CVA or project engineer
must monitor the fabrication and
installation of the facility and the
commissioning of critical safety systems
to verify that it has been built and
installed according to your FDRs and
FIRs.
(1) If the CVA or project engineer
finds that either fabrication and
installation procedures or safety system
commissioning procedures, or both,
have been changed or design
specifications have been modified, the
CVA or project engineer must inform
you; and
(2) If you accept the modifications,
you must also inform BOEM.
■ 128. Revise § 585.709 to read as
follows:
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§ 585.709 When conducting onsite
fabrication inspections, what must the CVA
or project engineer verify?
(a) To comply with § 585.708(a)(3),
the CVA or project engineer must make
periodic onsite inspections while
fabrication is in progress and must
verify the following fabrication items, as
appropriate:
(1) Quality control by lessee (or grant
holder) and builder;
(2) Fabrication site facilities;
(3) Material quality and identification
methods;
(4) Fabrication procedures specified
in your FIRs and adherence to such
procedures;
(5) Welder and welding procedure
qualification and identification;
(6) Structural tolerances specified,
and adherence to those tolerances;
(7) Nondestructive examination
requirements and evaluation results of
the specified examinations;
(8) Destructive testing requirements
and results;
(9) Repair procedures;
(10) Installation of corrosionprotection systems and splash-zone
protection;
(11) Erection procedures to ensure
that overstressing of structural members
does not occur;
(12) Alignment procedures;
(13) Dimensional check of the overall
structure, including any turrets, turretand-hull interfaces, any mooring line
and chain and riser tensioning line
segments; and
(14) Status of quality-control records
at various stages of fabrication.
(b) For a floating facility, the CVA or
project engineer must verify the
structural integrity, stability, and
ballast.
■ 129. Revise § 585.710 to read as
follows:
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§ 585.710 When conducting onsite
installation inspections, what must the CVA
or project engineer do?
To comply with § 585.708(a)(4), the
CVA or project engineer must make
periodic onsite inspections while
installation is in progress and must, as
appropriate, verify, witness, survey, or
check the installation items required by
this section.
(a) To comply with § 585.708(a)(4),
the CVA or project engineer must make
periodic onsite inspections while
installation is in progress and must
verify the installation and
commissioning items required by this
section.
(b) The CVA or project engineer must
verify, as appropriate, all of the
following:
(1) Loadout and initial flotation
procedures;
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(2) Towing operation procedures to
the specified location, including a
review of the towing records;
(3) Launching and uprighting
activities;
(4) Submergence activities;
(5) Pile or anchor installations;
(6) Installation of mooring and
tethering systems;
(7) Final deck and component
installations;
(8) Installation at the locations set
forth in your FDR(s) and FIR(s); and
(9) Commissioning of critical safety
systems.
(c) For a fixed or floating facility, the
CVA or project engineer must verify that
proper procedures were used during the
following:
(1) The loadout of the jacket, decks,
piles, or structures from each fabrication
site;
(2) The actual installation of the
facility or major modification and the
related installation activities; and
(3) Commissioning of critical safety
systems.
(d) For a floating facility, the CVA or
project engineer must verify that proper
procedures were used during the
following:
(1) The loadout of the facility;
(2) The installation of foundation
pilings and templates, and anchoring
systems; and
(3) The installation of the mooring
and tethering systems.
(e) The CVA or project engineer must
conduct an onsite inspection of the
installed facility.
(f) The CVA or project engineer must
make periodic onsite inspections to
witness the commissioning of critical
safety systems in order to verify that:
(1) The systems and equipment
function as designed; and
(2) The final commissioning records
are complete.
(g) The CVA or project engineer must
spot-check the equipment, procedures,
and recordkeeping as necessary to
determine compliance with the
applicable documents incorporated by
reference and the regulations under this
part.
■ 130. Amend § 585.712 by:
■ a. Revising paragraph (a) and the first
sentence of paragraph (b) introductory
text;
■ c. Removing ‘‘and’’ at the end of
paragraph (b)(3);
■ d. Removing the period at the end of
paragraph (b)(4) and adding in its place
‘‘; and’’; and
■ e. Adding paragraph (b)(5).
The revisions and addition read as
follows:
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§ 585.712 What are the CVA’s or project
engineer’s reporting requirements?
(a) The CVA or project engineer must
prepare and submit to you and BOEM
all reports and records required by this
subpart. The CVA or project engineer
must also submit interim reports to you
and BOEM, as requested by BOEM.
(b) For each report required by this
subpart, the CVA or project engineer
must submit the final report to BOEM
pursuant to § 585.110. * * *
*
*
*
*
*
(5) Summarize any issues with the
design and any incidents during facility
fabrication and installation, or critical
safety system commissioning, and how
those issues were resolved.
§ 585.713
[Reserved and Reserved]
131. Remove and reserve § 585.713.
132. Amend § 585.714 by:
a. Revising the section heading;
b. Redesignating paragraphs (a)(4) and
(5) as paragraphs (a)(5) and (6),
respectively;
■ c. Adding new paragraph (a)(4); and
■ d. Revising paragraph (c).
The revisions and addition read as
follows:
■
■
■
■
§ 585.714 What records relating to FDRs,
FIRs, and Project Modification and Repair
Reports must I keep?
(a) * * *
(4) The records of the commissioning
of critical safety systems;
*
*
*
*
*
(c) You must provide BOEM with the
location of these records in the
certification statement, as required in
§§ 585.701(c), 585.703(b), and
585.708(a)(5)(i) and (a)(6).
Subpart I—Environmental and Safety
Management, Inspections, and Facility
Assessments for Activities Conducted
Under SAPs, COPs, and GAPs
§ 585.803
[Amended]
133. Amend § 585.803 in the first
sentence of paragraph (b) by removing
the word ‘‘affects’’ and adding in its
place the word ‘‘effects’’.
■ 134. Revise § 585.810 to read as
follows:
■
§ 585.810 When must I submit a Safety
Management System (SMS) and what must
I include in my SMS?
You are required to use a Safety
Management System (SMS) for activities
conducted on the OCS to develop or
operate a lease, from met buoy
placement and site assessment work
through decommissioning, and to
provide your SMS to BOEM upon
request. You must also submit a detailed
description of the SMS with your COP
(as provided under § 585.627(d)) and,
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when required by this part, your SAP
(as provided in § 585.614(b)) or GAP (as
provided in § 585.651). Your SMS must
address:
(a) How you will ensure the safety of
your personnel or anyone else on or
near your facilities, such as:
(1) Health and safety risks that anyone
on or near your facilities are likely to
face during activities covered by the
SMS;
(2) Policies and strategies that will be
used to control such risks;
(3) Procedures and published
standards that will be followed to
ensure the safety of the activities
covered by the SMS;
(4) Tools that will be used to monitor
the implementation of the SMS and
maintain the safety of activities covered
by the SMS, including management of
change and stop work practices; and
(5) Procedures for personnel to report
unsafe work conditions both to the
lessee or its designated operator and to
BOEM.
(b) Remote monitoring, control, and
shut down capabilities, such as:
(1) Aspects of operations and
mechanical and structural integrity that
will be monitored remotely;
(2) Circumstances under which
remote monitoring will be activated and
how it will be maintained;
(3) Maintenance of the security of the
remote sensing and control capabilities;
(4) Monitoring of conditions if remote
sensing equipment fails; and
(5) Conditions that will result in the
shut-down of one or more facilities.
(c) Emergency response procedures,
such as:
(1) Types of incidents to be addressed
(e.g., serious injury to workers during
maintenance, unexploded ordnance
encountered during construction,
damage due to hurricane or allision by
vessels or aircraft, unauthorized access
into remote monitoring capabilities);
(2) Potential response activities,
including contractor support, for each
category of incident;
(3) Management controls, authorities,
and reporting to be employed for each
response;
(4) Locations from which emergency
response will be controlled; and
(5) Resources available to assist in the
response.
(d) Fire suppression equipment, such
as a description of how and when it will
be used, if needed;
(e) How and when you will test your
SMS, such as:
(1) Plans, processes, and schedules
for:
(i) Self or third-party auditing of the
SMS; and
(ii) Regular testing of certain SMS
components, including remote shut-
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down capabilities and emergency
response readiness; and
(2) Corrective action processes to
improve the effectiveness of your SMS
based on the results of audits, tests,
investigations of incidents (including
near-misses), feedback from the field,
and other information sources.
(f) How you will ensure personnel
who conduct activities on your facilities
are properly trained and have the
capability to safely perform duties, such
as:
(1) Required training for personnel
who conduct activities on your
facilities; and
(2) Mechanisms to ensure that
personnel have the required knowledge
and skills to perform duties safely for
the duration of activities.
■ 135. Revise § 585.811 to read as
follows:
§ 585.811 Am I required to obtain a
certification of my SMS?
You are not required to obtain a
certification that your SMS meets
acceptable health and safety standards
(e.g., ANSI Z10, ISO/IEC 45001) from a
recognized accreditation organization.
However, BOEM will consider such
certification in determining the
frequency and scope of SMS-related
inspections that it conducts under this
subpart, as well as the scope and nature
of its oversight over any audit-induced
corrective actions.
■ 136. Add § 585.812 to read as follows:
§ 585.812
How must I implement my SMS?
(a) Your SMS must be functional
before you begin, and must remain
functional while you perform, any
activity on the OCS pursuant to a lease,
including met buoy placement and site
assessment work, or for any activities
described in your approved SAP, COP,
or GAP. You must conduct all activities
described in your approved SAP, COP,
or GAP in accordance with the SMS you
described under § 585.810.
(b) You must regularly demonstrate to
BOEM that your SMS is being
implemented effectively by submitting
the following to BOEM in accordance
with § 585.110:
(1) By March 31 of each year,
summarize safety, work hour, and
electric generation performance data for
the prior calendar year in which you
conducted site assessment,
construction, operations, or
decommissioning activities in
accordance with your lease terms, using
a form available on the BOEM website;
and
(2) Once every 3 years or upon
BOEM’s request, provide a report to
BOEM summarizing the results of your
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6051
most recent SMS audit, corrective
actions implemented or being
implemented as a result of that audit,
and an updated description of your SMS
highlighting changes that were made
since the last such submission to BOEM.
■ 137. Amend § 585.815 by revising the
second sentence of paragraph (a) to read
as follows:
§ 585.815 What must I do if I have facility
damage or an equipment failure?
(a) * * * If you have a major repair,
you must submit a report to BOEM
under § 585.703.
*
*
*
*
*
■ 138. Revise § 585.820 to read as
follows:
§ 585.820
Will BOEM conduct inspections?
BOEM may inspect OCS facilities and
any vessels engaged in activities
authorized under this part. When we
conduct these inspections, we will:
(a) Verify that you are conducting
activities in compliance with subsection
8(p) of the OCS Lands Act; the
regulations in this part; the terms,
conditions, and stipulations of your
lease or grant; approved plans; and
other applicable laws and regulations.
(b) Determine whether proper safety
equipment has been installed and is
operating properly according to your
SMS, as required in § 585.810.
■ 139. Revise § 585.821 to read as
follows:
§ 585.821 Will BOEM conduct scheduled
and unscheduled inspections?
BOEM may conduct both scheduled
and unscheduled inspections.
■ 140. Amend § 585.822 by revising
paragraphs (a)(1) and (b) to read as
follows:
§ 585.822 What must I do when BOEM
conducts an inspection?
(a) * * *
(1) Provide access to all facilities on
your lease (including your project
easement) or grant and any vessels
engaged in activities authorized under
this part; and
*
*
*
*
*
(b) You must retain the records
referenced in paragraph (a)(2)(iii) of this
section until BOEM releases your
financial assurance under § 585.534,
and provide them to BOEM upon
request within the time period specified
by BOEM.
*
*
*
*
*
■ 143. Revise § 585.824 as follows:
§ 585.824 How must I conduct selfinspections?
(a) You must develop a
comprehensive self-inspection plan
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covering all of your facilities. You must
keep this self-inspection plan wherever
you keep your records and make it
available to BOEM upon request. Your
self-inspection plan must specify:
(1) The type, extent, and frequency of
inspections that you will conduct for
both the above-water and the belowwater structures of all facilities and
pertinent components of the mooring
systems for any floating facilities;
(2) How you will monitor the
corrosion protections for both abovewater and below-water structures; and
(3) How you will fulfill the
requirement for annual on-site
inspection of all safety equipment
designed to prevent or ameliorate fires,
spillages, or other major accidents under
paragraph (b) of this section.
(b) You must conduct an onsite
inspection of each of your facilities at
least once a year. This inspection must
include, but is not limited to, all safety
equipment designed to prevent or
ameliorate fires, spillages, or other
major accidents.
(1) You must develop and retain
summary reports for all such
inspections for each calendar year. The
summary report must note any failures
of operability, required maintenance of
critical safety equipment, or required
replacement of the critical safety
equipment identified during inspection.
(2) You must retain records of
inspections and summary reports for the
previous 2 calendar years and make
them available to BOEM on request.
(c) You must submit a report annually
to us no later than November 1 that
must include:
(1) A list of facilities inspected for
structural condition and corrosion
protection in the preceding 12 months;
(2) The type of inspection employed,
(i.e., visual, magnetic particle,
ultrasonic testing); and
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(3) A summary of the inspection
indicating what repairs, if any, were
needed and the overall structural
condition of the facility.
§ 585.830
[Amended]
142. Amend § 585.830 in paragraph
(d) by removing ‘‘30 CFR 254.46’’ and
adding in its place ‘‘30 CFR 250.187(d)’’.
■
Subpart J—Decommissioning
143. Amend § 585.900 by adding
paragraph (c) to read as follows:
§ 585.905 When must I submit my
decommissioning application?
*
*
*
*
*
(e) Ninety (90) days after BOEM
determines a facility is no longer useful
for operations.
Subpart K—Rights-of-Use and
Easement for Energy- and MarineRelated Activities Using Existing OCS
Facilities
■
§ 585.900 Who must meet the
decommissioning obligations in this
subpart?
*
*
*
*
*
(c) If a lessee or grant holder has
installed a facility on a lease or grant
that was authorized by an authority
other than BOEM and that approving
authority has imposed a
decommissioning obligation, such
obligation will substitute for the
requirements of this subpart. The
decommissioning requirements in this
subpart will apply to such a facility if
the authorizing agency has not imposed
or enforced a decommissioning
obligation.
■ 144. Amend § 585.902 by revising
paragraph (a) introductory text to read
as follows:
§ 585.902 What are the general
requirements for decommissioning for
facilities authorized under my SAP, COP, or
GAP?
(a) Except as otherwise authorized by
BOEM under § 585.909, within 2 years
following termination of a lease or grant,
or earlier if BOEM determines a facility
is no longer useful for operations, you
must:
*
*
*
*
*
■ 145. Amend § 585.905 by adding
paragraph (e) to read as follows:
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146. Revise the heading of newly
redesignated subpart K to read as set
forth above.
■ 147. Amend § 585.1005 by revising
paragraphs (a) and (b)(2) and (3) to read
as follows:
■
§ 585.1005
Use RUE?
How do I request an Alternate
*
*
*
*
*
(a) The name, address, email address,
and phone number of each owner and
an authorized representative, if
applicable.
(b) * * *
(2) A description of the existing OCS
facility, including a map providing its
location on the OCS and the relevant
lease block or lease area, as applicable;
(3) If the facility is an oil, gas, or
sulfur facility, provide the name of each
operator, lessee, and any owner of
operating rights, as defined in 30 CFR
550.105; for any other type of facility,
provide the name of any operators, a
description of the facility, and its use;
*
*
*
*
*
§ 585.1018
[Amended]
148. Amend § 585.1018 in paragraph
(b) by removing ‘‘30 CFR part 250’’ and
adding in its place ‘‘30 CFR part 556’’.
■
[FR Doc. 2023–00668 Filed 1–27–23; 8:45 am]
BILLING CODE 4340–98–P
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Agencies
[Federal Register Volume 88, Number 19 (Monday, January 30, 2023)]
[Proposed Rules]
[Pages 5968-6052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00668]
[[Page 5967]]
Vol. 88
Monday,
No. 19
January 30, 2023
Part II
Department of the Interior
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Bureau of Ocean Energy Management
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30 CFR Part 585
Renewable Energy Modernization Rule; Proposed Rule
Federal Register / Vol. 88, No. 19 / Monday, January 30, 2023 /
Proposed Rules
[[Page 5968]]
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DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
30 CFR Part 585
[Docket No. BOEM-2023-0005]
RIN 1010-AE04
Renewable Energy Modernization Rule
AGENCY: Bureau of Ocean Energy Management (BOEM), Interior.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The first Outer Continental Shelf (OCS) renewable energy
regulations were promulgated in 2009 by BOEM's predecessor, the
Minerals Management Service (MMS). BOEM's renewable energy program has
matured over the past 13 years, during which time BOEM conducted eleven
auctions and issued and managed 27 active commercial leases. Based on
this experience, the Department has identified opportunities to
modernize its regulations to facilitate the development of offshore
wind energy resources to meet U.S. climate and renewable energy
objectives. This proposed rule contains reforms identified by the
Department and recommended by industry since 2010, including proposals
for incremental funding of decommissioning accounts; more flexible
geophysical and geotechnical survey submission requirements;
streamlined approval of meteorological (met) buoys; revised project
verification procedures; reform of BOEM's renewable energy auction
process; and greater clarity regarding safety requirements. This
proposed rule would advance the Department of the Interior's (DOI)
energy policies in a safe and environmentally sound manner that would
provide a fair return to the U.S. taxpayer.
DATES: Submit comments regarding the substance of this proposed rule to
BOEM on or before March 31, 2023. Submit comments regarding the
information collection burden of this proposed rule to the Office of
Management and Budget (OMB) and to BOEM on or before March 1, 2023.
Comments received after these dates might not be considered.
ADDRESSES: You may send comments regarding the substance of this
proposed rule, identified by docket number BOEM-2022-0019 and
regulation identifier number (RIN) 1010-AE04, using any of the
following methods:
Federal e-rulemaking portal: https://www.regulations.gov.
Follow the instructions for submitting comments. Helpful search terms
are ``RIN 1010-AE04'' or ``BOEM-2022-0019.''
U.S. Postal Service or other mail delivery service:
Address comments to Office of Regulations, Bureau of Ocean Energy
Management, Department of the Interior, Attention: Georgeann Smale,
45600 Woodland Road, Mailstop: DIR-BOEM, Sterling, VA 20166.
Information Collection Addresses: Written comments and
recommendations for this particular proposed information collection
should be submitted within 30 days of this notice's publication to
https://www.reginfo.gov/public/do/PRAMain. From this main web page, you
can find and submit comments on this particular information collection
by proceeding to the boldface heading ``Currently under Review,''
selecting ``Department of the Interior'' in the ``Select Agency'' pull
down menu, clicking ``Submit,'' then, checking the box ``Only Show ICR
for Public Comment'' on the next web page, scrolling to OMB Control
Number 1010-0176, and clicking ``Comment'' button at the right margin.
Or, you may use the search function on the main web page. Please
provide a copy of your comments to the Information Collection Clearance
Officer, Office of Regulations, Bureau of Ocean Energy Management,
Attention: Anna Atkinson, 45600 Woodland Road, Sterling, VA 20166; or
by email to [email protected]. Please reference OMB Control Number
1010-0176 in the subject line of your comments.
Instructions: All comments submitted regarding this proposed rule
and its information collection requirements should reference the docket
number BOEM-2022-0019 or RIN 1010-AE04. All comments received by BOEM
will be reviewed and may be posted to https://www.regulations.gov,
including any personal information provided with the submission. For
further instructions on submitting comments and protecting personally
identifiable information, see ``What Should I Consider as I Prepare My
Comments?'' in section II.A under the SUPPLEMENTARY INFORMATION section
of this document.
Docket: To access this proposed rule's docket to read related
documents and public comments, visit https://www.regulations.gov and
enter the docket number BOEM-2020-0033 into the search engine.
FOR FURTHER INFORMATION CONTACT: Georgeann Smale, Renewable Energy
Modernization Rule Lead, Office of Regulations, BOEM, at telephone
number 703-544-9246 or email address [email protected]; or Karen
Thundiyil, Chief, Office of Regulations, BOEM, at telephone number 202-
742-0970, or email address [email protected].
To obtain a copy of the information collection supporting
statement, contact: Information Collection Clearance Officer, Office of
Regulations, Bureau of Ocean Energy Management, Attention: Anna
Atkinson, 45600 Woodland Road, Sterling, VA 20166.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Executive Summary
II. General Information
A. What should I consider as I prepare my comments?
1. Contact Information
2. Public Availability of Comments
3. Information Collection Comments
4. Scope of Comments
5. Suggestions for Preparing Your Comments
III. Preamble Glossary of Abbreviations, Terms, and Acronyms
IV. Background
A. Statutory Authority
B. Existing Regulatory Framework
1. Conducting Renewable Energy Activities on the Outer
Continental Shelf
2. Issuing Competitive Leases and Grants
3. Administration of Leases and Grants
4. Payments and Financial Assurance
5. Plan Submittal and Review
6. Design, Fabrication, and Installation of Facilities
7. Facility Operations
8. Decommissioning
C. Need for Rulemaking
V. Analytical Overview of the Proposed Rule
A. Site Assessment Facilities
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
B. Project Design Envelope
C. Geophysical and Geotechnical Surveys
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
4. Solicitation of Comments Concerning a Potential New Permit
Requirement for Conducting Geological and Geophysical Surveys for
Renewable Energy Activities
D. Certified Verification Agent and Engineering Reports
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
E. Renewable Energy Leasing Schedule
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
F. Lease Issuance Procedures
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
G. Risk Management and Financial Assurance
1. Existing Regulations
[[Page 5969]]
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
H. Safety Management Systems
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
I. Inspections
1. Existing Regulations
2. Why the Existing Regulations Should Be Updated
3. Proposed Changes
J. Other Proposed Changes
1. Lease Structure
2. Lease Segregation and Consolidation
3. Civil Penalties
4. Standardize Annual Rental Rates for Grants
5. Technical Corrections and Clarifications
K. Potential Revisions to Regulations Governing Research
Activities
L. Potential Revisions to Regulations Governing Transmission
VI. Section-by-Section Analysis of Proposed Rule
A. 30 CFR Part 585, Subpart A--General Provisions
B. 30 CFR Part 585, Subpart B--The Renewable Energy Leasing
Schedule
C. 30 CFR Part 585, Subpart C--Issuance of OCS Renewable Energy
Leases
D. 30 CFR Part 585, Subpart D--Rights-of-Way Grants and Rights-
of-Use and Easement Grants for Renewable Energy Activities
E. 30 CFR Part 585, Subpart E--Lease and Grant Administration
F. 30 CFR Part 585, Subpart F--Payments and Financial Assurance
Requirements
G. 30 CFR Part 585, Subpart G--Plans and Information
Requirements
H. 30 CFR Part 585, Subpart H--Facility Design, Fabrication, and
Installation
I. 30 CFR Part 585, Subpart I--Environmental and Safety
Management, Inspections, and Facility Assessments for Activities
Conducted Under SAPs, COPs, and GAPs
J. 30 CFR Part 585, Subpart J--Decommissioning
K. 30 CFR Part 585, Subpart K--Rights-of-Use and Easement for
Energy- and Marine-Related Activities Using Existing OCS Facilities
VII. Procedural Matters
A. Statutes
1. National Environmental Policy Act of 1969
2. Paperwork Reduction Act of 1995
3. Regulatory Flexibility Act
4. Small Business Regulatory Enforcement Fairness Act
5. Unfunded Mandates Reform Act of 1995
6. Congressional Review Act
B. Executive Orders
1. Executive Order 12630--Takings Implication Assessment
2. Executive Order 12866--Regulatory Planning and Review; and
Executive Order 13563--Improving Regulation and Regulatory Review
3. Executive Order 12988--Civil Justice Reform
4. Executive Order 13132--Federalism
5. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
6. Executive Order 13211--Effects on the Nation's Energy Supply
7. Presidential Memorandum of June 1, 1998, on Regulation
Clarity
I. Executive Summary
This proposed rule would facilitate the development of OCS
renewable energy and would promote U.S. climate and renewable energy
objectives in a safe and environmentally sound manner while providing a
fair return to the U.S. taxpayer. These important goals would be
accomplished by modernizing regulations, streamlining overly complex
and burdensome processes, clarifying ambiguous provisions, enhancing
compliance provisions, and correcting technical errors and
inconsistencies. Through these changes, the Department aims to reduce
administrative burdens for both developers and the Department's staff,
reduce developer \1\ costs and uncertainty, and introduce greater
regulatory flexibility in a rapidly changing industry to foster the
supply of OCS renewable energy to meet increasing demand, while
maintaining environmental safeguards. This proposed rule is a major
modernization of the regulations, reflects lessons learned from the
past 13 years, and is projected to save the renewable energy industry
$1 billion over 20 years.\2\
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\1\ As used in this preamble, the term ``developer'' includes
those interested in constructing, operating, and maintaining OCS
facilities to produce, transport, or support the generation of
energy from renewable resources. Developers may include applicants
seeking noncompetitive leases and grants, bidders in competitive
auctions, holders of BOEM-issued leases (lessees) and grants (grant
holders), and operators of facilities and support contractors.
\2\ For the supporting economic analyses, see section VII.B.2 of
this preamble, including the associated tables, that summarizes
BOEM's estimated 20-year compliance cost savings as well as the
initial regulatory impact analysis available in this proposed rule's
docket at https://www.regulations.gov/docket?D=BOEM-2020-0033. The
estimated cost reduction is expressed in net present value of 2022
dollars estimated over a 20-year period at a 7 percent discount
rate. The estimated annualized cost reduction at the 7 percent
discount rate is about $95 million. At a 3 percent discount rate,
the estimated cost reduction over a 20-year period is about $1.4
billion in net present value of 2022 dollars. The estimated
annualized cost reduction at the 3 percent discount rate is about
$93 million.
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These updates are necessary to ensure a durable and appropriate
process is in place to advance renewable energy on the OCS.
The proposed rule contains eight major components:
1. Eliminating unnecessary requirements for the deployment of
meteorological (met) buoys.
BOEM requires a site assessment plan (SAP) for data collection
activities that measure met conditions and that aid the siting and
design of an offshore renewable energy project. Such activities include
the use of met towers and buoys. BOEM first formulated the SAP
requirement in 2009, when the offshore wind industry gathered
meteorological data primarily from towers fixed in place by foundations
pile-driven into the seafloor. The industry has since transitioned to
buoys anchored to the seafloor that gather the same data at lower cost
and with less environmental impact.
The U.S. Army Corps of Engineers (USACE) permits scientific
measurement devices used for a variety of purposes deployed in U.S.
navigable waters and on the OCS, including met towers and met buoys.
The USACE permitting process is tailored to buoys and is subject to the
same Federal environmental laws \3\ as BOEM's SAP process. BOEM's
existing SAP process is well suited for the complexities involved with
installing met towers but has proven to be unreasonably burdensome for
simply anchoring met buoys on the seafloor and redundant with USACE's
process.
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\3\ E.g., National Environmental Policy Act, Endangered Species
Act, and National Historic Preservation Act.
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This proposed rule would eliminate both the SAP requirement for met
buoys and the limited lease requirement for installing off-lease met
towers and met buoys.\4\ Off-lease met towers and met buoys would
continue to require USACE permits, given that agency's jurisdiction
over obstructions deployed in U.S. navigable waters under section 10 of
the Rivers and Harbors Act.
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\4\ As used throughout this notice, ``off-lease'' means
activities occurring on the OCS that are conducted outside the
leasehold of a commercial lease issued by BOEM. ``On-lease'' means
activities occurring on the OCS within the boundaries of a
commercial lease issued by BOEM.
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2. Increasing survey flexibility.
Before constructing an offshore renewable energy project, lessees
and grant holders must conduct geotechnical, geophysical, and
archaeological surveys. The primary purposes of these surveys are to
ensure the site is suitable for construction, avoid seafloor hazards,
and identify historic and cultural resources. Currently, BOEM requires
detailed geotechnical survey data for each proposed wind turbine
location in the construction and operations plan (COP) submitted by the
lessee before project construction is authorized. However, the
Department has learned that the precise location of each wind turbine
[[Page 5970]]
may be uncertain at the COP submittal stage, and geotechnical data
collected primarily for engineering purposes are more relevant to the
review process after COP approval. Consequently, lessees have requested
permission to submit geotechnical data for each turbine location after
COP approval, but before construction.
This proposed rule would defer certain geotechnical survey
requirements, such as engineering site-specific surveys (e.g.,
boreholes, vibracores, grab samplers, cone penetrometer tests and other
penetrative methods). This proposed change would allow more time to
complete the required surveys and would provide greater flexibility in
designing projects. BOEM's guidelines for geotechnical surveys are
available online.\5\
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\5\ https://www.boem.gov/sites/default/files/documents/about-boem/GG-Guidelines.pdf.
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3. Improving the project design and installation verification
process.
A certified verification agent (CVA) provides independent third-
party review of a project's design, fabrication, and installation. The
proposed rule would expand the CVA's role to include verification of
the design and commissioning of the critical safety systems to assist
the Department in meeting requirements of the Outer Continental Shelf
Lands Act (OCS Lands Act; 43 U.S.C. 1331 et seq.), and its implementing
regulations at 30 CFR 585.102(a), to ensure that any activities
authorized by BOEM are carried out safely. BOEM's regulations require
CVAs to ``certify'' projects, but CVAs have informed BOEM that the
proper industry standard is ``verification.'' This proposed rule would
change the regulatory language defining the CVA's role from ``certify''
and ``certification'' to ``verify'' and ``verification.'' This proposed
change likely would encourage additional firms to participate in
offshore renewable energy projects as CVAs. Industry also has suggested
changes that would enable BOEM to approve CVA nominations before COP
submittal and would allow separate facility design reports (FDRs) and
fabrication and installation reports (FIRs) for major project
components. These changes would encourage developers to seek CVA review
throughout their project design process and would permit the use of
specialized CVAs to verify specific project components.
4. Establishing a Public Renewable Energy Leasing Schedule.
This proposed rule would introduce a new commitment by the
Secretary of the Interior (Secretary) to publish a schedule of
anticipated lease sales that BOEM intends to hold in the subsequent 5
years. This provision is intended to provide advance notice to
stakeholders of areas being considered for future lease sales. The
proposed schedule for leasing would provide increased certainty and
enhanced transparency. This is intended to facilitate planning by
industry, the States, and other stakeholders. Comments on the timing
and scope of a scheduled lease sale can be made during the public
comment opportunities afforded by BOEM during the planning process for
each particular lease sale scheduled (e.g., Request for Interest, Call
for Information and Nominations, etc.). The proposed schedule would be
updated at least once every 2 years to reflect any changes. This
proposed schedule would include a general description of the area of
each proposed lease sale, the anticipated quarter of each sale, and
reasons for changes made to the previously issued leasing schedule, if
any.
5. Reforming BOEM's renewable energy auction regulations.
In response to lessons learned from eleven auctions, BOEM proposes
to reorganize and clarify its pre- and post-auction procedures. These
changes would also address the use of bidding credits, deter potential
bidder collusion, and more clearly outline auction processes and
requirements. They also would specify actions to be taken if a
provisional winner fails to meet its obligations, or if an existing
lease is relinquished, contracted, or cancelled. The proposed rule
would preserve the option to use multiple factor auctions.
6. Tailoring financial assurance requirements and instruments.
BOEM requires financial assurances from lessees and grant holders
to protect the U.S. taxpayer against potential liabilities arising from
any default on lessee or grant holder regulatory obligations. The
proposed rule would tailor the financial assurance requirements to
better align those requirements with actual risk by allowing
incremental funding of decommissioning accounts in accordance with a
BOEM-approved schedule during the lease term and by expanding the
acceptable categories of financial assurance instruments.
7. Clarifying safety management system regulations.
The proposed rule would clarify the information requirements for
safety management systems and would add two safety reporting
requirements. The proposed rule would incentivize lessees and grant
holders to obtain a safety management certification from an accredited
conformity assessment body (CAB) as a means to reduce the frequency and
intensity of regulatory oversight activities.
8. Revising other provisions and making technical corrections.
The proposed rule contains numerous additional provisions that do
not fit within the categories described above. The most significant of
these provisions would: restructure commercial lease terms into four
periods tied to activities required to develop the lease; explicitly
allow regulatory departures before and after a lease or grant is issued
or made; authorize civil penalties without either notice or a time
period for corrective action when violations cause or threaten to cause
serious, irreparable, or immediate harm or damage; add specific
procedures regarding lease segregation and consolidation; and
standardize the annual rental rate per acre across most grants. The
proposed rule would correct technical errors in the existing
regulations and would make corrections to ensure consistency between
the proposed changes and existing practice.
The Department has authority to promulgate OCS renewable energy
regulations under the OCS Lands Act. The proposed rule would be
consistent with and would advance DOI's energy policies as outlined in
various executive orders.
II. General Information
A. What should I consider as I prepare my comments?
1. Contact Information
Please include your name, address, and telephone number or email
address so BOEM can contact you with any questions regarding your
submission. BOEM will not consider anonymous comments.
2. Public Availability of Comments
Responses will be posted on https://www.regulations.gov. Your
entire comment will become publicly available after submission,
including your name, address, phone number, email address, and any
other personally identifiable information (PII) in your comment.
If you wish to protect the confidentiality of your comments,
clearly mark the relevant sections and request that BOEM treat them as
confidential. In order for BOEM to withhold from disclosure your PII,
you must identify any information contained in your comments that, if
released, would constitute a clearly unwarranted invasion of your
privacy. You must also briefly describe any possible harmful
consequences of the disclosure of information, such as embarrassment,
injury, or other harm.
[[Page 5971]]
Please label privileged or confidential information as ``Contains
Confidential Information,'' and consider submitting such information as
a separate attachment. Information that is not labeled as privileged or
confidential may be regarded by BOEM as suitable for public release.
While you can request that your PII be withheld from public view,
BOEM cannot guarantee that it will be able to do so.
3. Information Collection Comments
OMB is required to provide its comments concerning the information
collection in this proposed rule 30-60 days after publication of this
document in the Federal Register. Therefore, a comment to OMB is best
assured of being fully considered if OMB receives it by March 1, 2023.
This does not affect the deadline for public comments to BOEM on the
proposed rule. To review a copy of the information collection request
submitted to OMB, go to https://www.reginfo.gov, select ``Information
Collection Review.'' Under the heading ``Currently Under Review,''
select ``Department of the Interior'' from the pull-down menu; click
``submit;'' check the box ``Only Show ICR for Public Comment'' on the
next web page; scroll to OMB Control Number 1010-0176; and click
``Comment'' button at the right margin. You may obtain a copy of the
supporting statement for this proposed information collection by
contacting BOEM's information collection clearance officer at (703)
787-1025.
4. Scope of Comments
BOEM seeks public comments on the changes in regulatory text and
interpretation contained in this proposed rule. As part of this
rulemaking, BOEM will consider whether this proposed rule or any
additional modifications would improve, clarify, or streamline its OCS
renewable regulations. BOEM also seeks comment on several specific
areas of inquiry for which it is not proposing regulatory text. Based
on comments received and its experience in administering the OCS
renewable energy programs, BOEM may include in the final rule revisions
to any provisions in part 585 that are a logical outgrowth of this
proposed rule, consistent with the Administrative Procedure Act.
5. Suggestions for Preparing Your Comments
(a) Label your comments on this proposed rule with RIN 1010-AE04 or
docket number BOEM-2020-0033.
(b) Organize your comments sequentially by the preamble section
heading or by the proposed rule section number when addressing specific
rule sections.
(c) Explain why you agree or disagree with specific provisions;
suggest alternative provisions or provide substitute language.
(d) Describe your assumptions, information, and data used in
formulating your comments.
(e) Provide specific examples to illustrate your concerns and
suggested alternatives.
(f) Explain your views clearly and succinctly.
(g) Ensure your comments are submitted by the deadline.
III. Preamble Glossary of Abbreviations, Terms, and Acronyms
The following abbreviations, terms, and acronyms are used in the
preamble:
ANCSA Alaska Native Claims Settlement Act
BOEM Bureau of Ocean Energy Management
BSEE Bureau of Safety and Environmental Enforcement
CAA Clean Air Act
CAB Conformity Assessment Body
Call Call for Information and Nominations
CFR Code of Federal Regulations
COP Construction and Operations Plan
CVA Certified Verification Agent
CZMA Coastal Zone Management Act
DNCI Determination of No Competitive Interest
DOE Department of Energy
DOI Department of the Interior
E.O. Executive Order
ESA Endangered Species Act
FDR Facility Design Report
FERC Federal Energy Regulatory Commission
FIR Fabrication and Installation Report
FR Federal Register
FSN Final Sale Notice
GAP General Activities Plan
Met Meteorological
MSA Magnuson-Stevens Act
MMPA Marine Mammal Protection Act
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NMFS National Marine Fisheries Service
NOAA National Oceanic and Atmospheric Administration
NWP 5 U.S. Corps of Engineers Nationwide Permit 5
OCS Outer Continental Shelf
OCS Lands Act Outer Continental Shelf Lands Act
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
ONRR Office of Natural Resources Revenue
OSHA Occupational Safety and Health Administration
PDE Project Design Envelope
PPA Power Purchase Agreement
PRA Paperwork Reduction Act
PSN Proposed Sale Notice
RIN Regulation Identifier Number
ROW Right-of-Way Grant
RUE Right-of-Use and Easement Grant
SAP Site Assessment Plan
Secretary Secretary of the Interior
SMS Safety Management System
USACE United States Army Corps of Engineers
U.S.C. United States Code
USCG United States Coast Guard
USEPA United States Environmental Protection Agency
IV. Background
A. Statutory Authority
Congress authorized the Secretary to grant OCS leases for renewable
energy activities when it enacted the Energy Policy Act of 2005, which
amended the OCS Lands Act by adding a new subsection 8(p).\6\ OCS Lands
Act subsection 8(p) authorizes the Secretary to award OCS leases,
right-of-way grants (ROWs), and right-of-use and easement grants (RUEs)
for activities not authorized by other applicable laws that produce, or
that support the production, transportation, or transmission of, energy
from sources other than oil and gas. Subsection 8(p) requires the
Secretary to competitively award such leases, ROWs, and RUEs unless the
Secretary determines following public notice that competitive interest
does not exist. Subsection 8(p) also authorizes the Secretary to issue
regulations to carry out the subsection's grant of authority. The
Secretary first delegated that authority to BOEM's predecessor, MMS.
---------------------------------------------------------------------------
\6\ Codified at 43 U.S.C. 1337(p).
---------------------------------------------------------------------------
On April 29, 2009, MMS promulgated regulations for leasing and
managing OCS renewable energy activities. On May 19, 2010, the
Secretary signed Secretary's Order 3299, dividing MMS into three
separate agencies: BOEM, the Bureau of Safety and Environmental
Enforcement (BSEE), and the Office of Natural Resources Revenue (ONRR).
Amendment 2 of Secretary's Order 3299 assigned BOEM all renewable
energy-related management functions--including resource evaluation,
planning, leasing, and safety and environmental enforcement functions--
until the ``Assistant Secretary--Land and Minerals Management
determines that an increase in activity justifies transferring the
inspection and enforcement functions to [BSEE].'' \7\ On October 18,
2011, BOEM's regulations were codified at 30 CFR chapter V, and its
renewable energy regulations were,
[[Page 5972]]
and remain, located in 30 CFR part 585.\8\
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\7\ Secretary's Order 3299, Amendment No. 2, August 29, 2011,
https://www.doi.gov/sites/doi.gov/files/elips/documents/3299a2-establishment_of_the_bureau_of_ocean_energy_management_the_bureau_of_safety_and_environmental_enforcement_and_the_office_of_natural_resources_revenue.pdf (last visited Mar. 6, 2019).
\8\ Reorganization of Title 30: Bureaus of Safety and
Environmental Enforcement and Ocean Energy Management, 76 FR 64432
(October 18, 2011).
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B. Existing Regulatory Framework
This section provides an overview of BOEM's existing renewable
energy regulatory framework.
1. Conducting Renewable Energy Activities on the Outer Continental
Shelf
BOEM's regulations specify that a lease, ROW, or RUE is required
before a person may construct, operate, or maintain a renewable energy
facility on the OCS. A lease authorizes the lessee to propose a plan
for development. Following review of the development plans and
associated consultations, BOEM may authorize installation and operation
of a renewable energy facility on a designated portion of the OCS. A
lease also confers the right to one or more project easements necessary
for the use of the lease, which in most cases is a corridor from the
facility to shore for one or more transmission cables.
BOEM may issue a commercial lease or a non-commercial (or limited)
lease for renewable energy activities, subject to obtaining the
necessary approvals. A commercial lease specifies the terms and
conditions for activities that generate, store, or transmit renewable
energy on the OCS for distribution, sale, or other commercial use.
These activities include facility construction and project
decommissioning.
A limited lease specifies the terms and conditions for activities
that support the production of energy on the OCS, but do not produce
energy for sale, distribution, or other commercial use exceeding a
limit specified in the lease. In addition to commercial and limited
leases, a lease may be issued to a Federal agency or a State for
research activities supporting future renewable energy development.
A ROW authorizes the installation and maintenance of cables,
pipelines, and associated facilities on the OCS that involve the
transportation or transmission of any energy product from renewable
energy projects. A RUE authorizes the operation of facilities or other
installations on the OCS that support the production, transportation,
or transmission of electricity or other energy product from any
renewable energy source, including shared transmission solutions. The
term `grant,' as used in this document, refers to ROWs or RUEs issued
pursuant to the regulations of part 585.
BOEM makes leases, ROWs, and RUEs available on a competitive basis,
unless BOEM determines that there is no competitive interest. When
competitive interest is absent, BOEM may issue leases, ROWs, and RUEs
noncompetitively.
BOEM has discretion to issue departures from its regulations. BOEM
may approve departures if they are documented in writing; are
consistent with the requirements of the OCS Lands Act; protect the
environment, public health, and safety; protect the rights of third
parties; and are necessary to facilitate activities on a lease or
grant, conserve natural resources, or protect life, property, the
environment, or archaeological resources.
2. Issuing Competitive Leases and Grants
Subpart B of 30 CFR part 585 describes the process for issuing a
renewable energy lease. BOEM may begin the leasing process by
publishing a request for interest to assess interest in leasing all or
part of a region of the OCS for renewable energy activities. The
request for interest is typically followed by a call for information
and nominations (Call) in the Federal Register. The Call requests that
respondents nominate OCS areas for commercial renewable energy
development. BOEM uses the feedback from the request for interest and
the Call to assess competitive interest in specified OCS areas.
BOEM also will consider unsolicited requests for a lease on a case-
by-case basis. If BOEM determines that competitive interest exists for
an area nominated through an unsolicited request, BOEM will use the
competitive process if it decides that a lease in that area is
appropriate.
After potential OCS renewable energy development areas are
identified, BOEM evaluates the potential impacts of leasing those areas
on the human, marine, and coastal environments under the OCS Lands Act
and consults with Federal agencies and affected States regarding the
requirements of other potentially applicable Federal statutes,
including the National Environmental Policy Act (NEPA), Coastal Zone
Management Act (CZMA), Endangered Species Act (ESA), Magnuson-Stevens
Act (MSA), Marine Mammal Protection Act (MMPA), and National Historic
Preservation Act (NHPA), National Marine Sanctuaries Act (NMSA), and
Native American Graves Protection and Repatriation Act (NAGPRA).
Under the competitive process, BOEM initiates a sale by publishing
a proposed sale notice (PSN) in the Federal Register detailing the
areas proposed for leasing and the competitive leasing process for
those areas, including auction procedures and lease provisions and
conditions. The PSN also invites public comment on the areas and
proposed auction procedures. BOEM assesses the comments received in
response to the PSN and may incorporate changes in the final sale
notice (FSN) in response to these comments. The FSN is published in the
Federal Register at least 30-calendar days before the auction date. The
FSN finalizes the areas offered for lease, auction procedures, and
lease provisions based on the PSN. The FSN also provides details
regarding a mock auction, which is an optional practice auction
intended to familiarize bidders with auction procedures.
BOEM may end the competitive process for a specific lease area at
any time before the FSN if it believes competitive interest no longer
exists. BOEM does so by issuing a notice and considering the responsive
comments to reassess competitive interest.
If BOEM concludes that competitive interest is absent in a lease
area, BOEM may publish a determination of no competitive interest
(DNCI) in the Federal Register. BOEM then may offer a noncompetitive
lease to the sole interested developer, if one exists, after consulting
potentially affected Federal agencies, State and local governments, and
federally recognized Tribes (Tribes), and, if applicable, Alaska Native
Claims Settlement Act (ANCSA) corporations, and after the interested
developer submits the requisite certifications, information, and
payments.
If BOEM concludes that competitive interest exists, BOEM may
proceed with an auction on the date specified in the FSN. Existing
regulations specify four auction types and six bidding systems from
which BOEM may choose to conduct its auctions. The auction format and
bidding system for a specific auction are specified in the FSN. Among
the auction types is multiple factor bidding, in which BOEM may allow
bids with a non-monetary component based on certain beneficial
attributes identified in the FSN, including technical merit, financing
and economics, and compatibility with State and local needs.
BOEM conducts an auction for the relevant lease areas in accordance
with the FSN. At the end of the auction, BOEM determines the winning
bidder for each area to be leased. BOEM may reject any bid if it
determines that the bid was inadequate, illegal, or the result of anti-
competitive behavior, administrative error, or the presence of unusual
bidding patterns.
[[Page 5973]]
Once a winning bidder has been identified, BOEM implements a
statutorily mandated 30-day antitrust review by the Department of
Justice and Federal Trade Commission. If the antitrust review does not
raise concerns and no appeals of the auction result are pending, BOEM
typically accepts the winning bid within 90-calendar days of the
auction and sends three unsigned copies of the lease to the winning
bidder. The winning bidder has 10-business days from date of receipt to
sign these copies, return them to BOEM, provide financial assurance,
and pay the balance due on its bid. BOEM may extend the deadline for
good cause. The winner must pay a sum equal to the first 12 months'
rent within 45-calendar days of receiving the unsigned copies of the
lease. After receiving the signed copies, BOEM executes the lease on
behalf of the United States, and sends one fully executed copy to the
winning bidder. BOEM reserves the right to withdraw an OCS area at any
time prior to lease execution, whereupon BOEM would refund the bid
deposit.
A bidder may appeal to the BOEM Director within 15-business days of
bid rejection to seek reconsideration. BOEM will send a response either
affirming or reversing the final bid decision.
Subpart C of 30 CFR part 585 describes the process for issuing ROWs
and RUEs. BOEM conducts the competitive process for awarding a ROW or
RUE using procedures similar to those for a lease. This would involve
publishing a public notice, describing the parameters of the project in
order to give affected and interested parties an opportunity to comment
on the proposed ROW grant or RUE grant area. If such interest exists,
BOEM would conduct a competitive auction for issuing the ROW grant or
RUE grant. The auction process for ROW grants and RUE grants, following
the same process for leases set forth in Sec. Sec. 585.211 through
585.225.
3. Administration of Leases and Grants
Subpart D of 30 CFR part 585 describes the various processes that
BOEM can use to enforce the terms of its leases and grants once they
have been issued. This subpart also describes the requirements for
transferring ownership interests and modifying the duration of a lease
or grant.
BOEM has broad enforcement discretion under this subpart and may
act whenever a lessee or grant holder has violated a term or condition
of a lease or grant, an order or approval, or a regulation. BOEM's
potential remedies include corrective actions, a cessation order, civil
penalties, and lease or grant termination.
Lessees and grant holders are allowed to designate an operator to
act on their behalf to perform activities on a lease or grant. Whenever
the regulations in part 585 require the lessee or grant holder to
conduct an activity in a prescribed manner, the lessee or grant holder
and the operator are jointly and severally responsible for complying
with the regulations. Lessees and grant holders may assign all or part
of their lease or grant interests using procedures set forth in this
subpart; assignors remain jointly and severally liable for liabilities
that accrued before BOEM approves the assignment. An assignee must be
legally, technically, and financially qualified to hold the lease or
grant under 30 CFR part 585.
BOEM's regulations contain several mechanisms for extending the
lease duration. The term of a lease or grant can be suspended through
request by a lessee or grant holder that is approved by BOEM, through a
BOEM order, or when necessary to comply with a judicial decree, avoid
an imminent threat of irreparable harm, or for reasons of national
security. A suspension has the effect of pausing the running of the
term of a lease, thereby extending the termination date by the same
length as the pause. In BOEM's discretion, a suspension of the lease
may also suspend lease payments. BOEM also may approve the renewal of a
lease or grant term requested by a lessee or grant holder based on an
enumerated set of criteria.
There are numerous means by which a lease or grant may be
terminated in whole or in part. First, it may be terminated through
expiration of the lease or grant term without a renewal. Second, BOEM
may cancel a lease or grant for reasons enumerated in the regulations,
including proof that the lease or grant was obtained fraudulently.
Third, BOEM may require a partial cancellation of a lease by reducing
the area of the leasehold. Fourth, a lessee or grant holder may
voluntarily relinquish some or all of its lease or grant, subject to
BOEM approval.
4. Payments and Financial Assurance
Lessees and grant holders are required to make regular payments to
the U.S. Treasury in exchange for use of their leases and grants. Under
the OCS Lands Act, BOEM is required to ensure that U.S. taxpayers
obtain a fair return from OCS renewable energy leases, ROWs, and
RUEs.\9\ Lessees and grant holders also must provide financial
assurance--in the form of a bond or other qualifying instrument--in an
amount sufficient to guarantee compliance with terms and conditions of
their leases and grants. Subpart E of BOEM's regulations detail these
respective obligations.
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\9\ 43 U.S.C. 1337(p)(2)(A).
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Before an entity may bid to acquire a lease or grant competitively,
it must submit a bid deposit that is applied to the winning bid and
refunded to unsuccessful bidders. Obtaining a lease (but not a grant)
noncompetitively requires the payment of an acquisition fee. Lessees
and grant holders must make annual rental payments that are calculated
according to the acreage of the lease or grant. Rental payments for
ROWs are based on the length of the right-of-way as well as the
acreage. Under a commercial lease, an operating fee replaces rental
payments when commercial operations begin. The operating fee is
calculated using a formula set forth in the regulations. The
regulations provide a mechanism for lessees and grant holders to
request a reduction or waiver of their payments. Under OCS Lands Act
section 8(g), BOEM will distribute offshore renewable energy revenue
among eligible coastal States for OCS projects that are wholly or
partially located within three miles seaward of a State's submerged
lands.
Financial assurance must be provided at various stages in the
commercial development process. A lessee must provide financial
assurance in the amount of $100,000 before acquiring a commercial lease
and supplemental financial assurance before approval of a site
assessment plan (SAP) and a construction and operations plan (COP), and
before commencement of construction. BOEM bases its financial assurance
requirements on calculations of the lessee's cumulative liabilities and
obligations, including payments due the following year, and the cost of
decommissioning facilities on the lease. Financial assurance
requirements for limited leases and grants are calculated in a similar
fashion, although the initial financial assurance requirement is
$300,000.
BOEM imposes several general requirements that must be met by any
financial assurance and provides guidance on acceptable financial
instruments. Such instruments include surety bonds, Treasury
securities, AAA-rated securities, insurance, self-insurance, third-
party guaranties, and decommissioning accounts funded on a schedule
approved by BOEM. Subpart E also sets forth procedures to follow if a
lessee's or grant holder's financial assurance lapses or reduces in
value or
[[Page 5974]]
if a surety prematurely terminates a lessee's or a grant holder's
financial assurance. This subpart also explains when and how BOEM will
call for forfeiture of financial assurance. BOEM requires the
maintenance of financial assurance until no less than 7 years after a
lease or grant ends.
5. Plan Submittal and Review
Once a lease has been issued, a lessee may, but is not required to,
conduct site assessment activities to assess the energy potential of a
commercial renewable energy project in the lease area and site
characterization surveys to inform project design and the preparation
of plans. Site assessment activities include the installation and use
of meteorological towers and buoys to gather oceanographic and
meteorological information. A lessee planning to install site
assessment facilities must submit a SAP to BOEM. The SAP must include
general structural, design, fabrication, and installation information
for each type of facility associated with the proposed site assessment
activities, and must also include information about the environment
gathered from geological and geophysical surveys, hazard surveys,
baseline environmental surveys, and archaeological surveys that the
lessee must conduct.
The lessee must submit its SAP or a combined SAP/COP no later than
12 months after the date of lease issuance. BOEM may approve or
disapprove the SAP or may approve it with modifications. A commercial
lease has a term of five years for the lessee to conduct site
assessment activities and to submit a COP; the five-year site
assessment term begins upon approval of the SAP. BOEM will determine if
the proposed facilities described in the SAP are complex or
significant. If BOEM determines that they are not complex or
significant, the lessee may begin its proposed site assessment
activities when BOEM approves the SAP. If BOEM determines the
facilities are complex or significant, the lessee must comply with
additional requirements in subpart G of 30 CFR part 585 before
beginning its proposed site assessment activities. Implementation of
activities described in the SAP, whether or not deemed complex or
significant, is required to follow a safety management system (SMS)
that accounts for and mitigates risks to personnel and the environment
associated with such activities. SAP approval does not authorize the
lessee to build and install facilities for commercial energy
production.
Before fabricating and installing any facility for commercial
operations, a lessee must submit a COP for BOEM review and approval.
The COP must be submitted at least 6 months before the five-year site
assessment term expires.
The COP must describe the facilities that a lessee will construct
or use for its commercial operations, including any project easements
and associated onshore and support facilities. The COP also must
describe all proposed activities the lessee intends to conduct on its
lease, including construction, commercial operations, and
decommissioning. The COP must include general structural and project
design, fabrication, and installation information for each type of
structure associated with the project, as well as the results of
geological, geotechnical, biological, and archaeological surveys
undertaken in support of the project. BOEM may approve or disapprove
the lessee's COP or may approve it with modifications.
Activities conducted under a limited lease, ROW, or RUE must be
approved by BOEM under a general activities plan (GAP). Like a SAP, the
GAP must be submitted no later than 12 months after the date of lease
or grant issuance. The GAP must describe the facilities that a lessee
or grant holder will construct or use for its proposed activities,
including any project easements and any associated onshore and support
facilities. The GAP must describe the design, fabrication,
construction, use, and decommissioning of those facilities. The GAP
also must include the results of geological, geotechnical, biological,
and archaeological surveys undertaken in support of the proposed
activities.
BOEM may approve or disapprove the lessee's GAP or may approve it
with modifications. BOEM also will determine if the proposed facilities
described in the GAP are complex or significant. If BOEM determines
that they are not complex or significant, the proposed activities may
begin when BOEM approves the GAP. If BOEM determines the facilities are
complex or significant, the lessee must comply with additional
requirements in subpart G of 30 CFR part 585 before beginning the
proposed activities.
6. Design, Fabrication, and Installation of Facilities
Subpart G requires detailed design, fabrication, and installation
information for each complex or significant facility that a lessee or
grant holder proposes to operate.\10\ The purpose of subpart G is to
ensure that facilities operate in a safe manner using accepted
engineering practices in conformance with approved plans.
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\10\ By definition, all facilities proposed in a COP are complex
or significant. BOEM makes a case-by-case determination about
whether facilities proposed in a SAP or GAP are complex or
significant.
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The regulations achieve this objective primarily by requiring an
independent assessment of a facility's design, fabrication, and
installation by one or more outside experts called certified
verification agents (CVAs). The CVA should be ``experienced in the
design, fabrication, and installation of offshore marine facilities or
structures, [and] will conduct specified third-party reviews,
inspections, and verifications.'' \11\ Although hired by a lessee or
grant holder, the CVA reports directly to BOEM. The CVA must not act in
a capacity that creates a conflict of interest or the appearance of a
conflict of interest. Subpart G outlines the circumstances
necessitating a CVA, the CVA nomination and waiver processes, and the
duties of the CVA. BOEM regulations contemplate that BOEM will approve
or disapprove the CVA nomination or waiver request during its review of
the SAP, COP, and GAP. If the CVA requirement is waived, the lessee's
or grant holder's project engineer must perform the same duties and
responsibilities as the CVA, except that the project engineer would not
be acting as an independent third-party reviewer.
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\11\ 30 CFR 585.112.
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After obtaining BOEM's approval of the SAP, COP, or GAP, a lessee
or grant holder must submit an FDR to BOEM describing the final design
of all proposed facilities. The CVA must certify that the facilities
are designed to withstand the environmental and functional load
conditions appropriate for the intended service life at the proposed
location. The CVA must also use good engineering judgment and practice
in conducting independent assessments of the commissioning of critical
safety systems.
Before any fabrication (e.g., assembly) or installation of facility
components takes place on the OCS, a lessee or grant holder must submit
an FIR to BOEM describing how the facilities will be fabricated and
installed consistent with accepted industry standards, the approved
SAP, COP, or GAP, and the FDR. The FIR must also describe how
fabrication of facility components that took place outside of the OCS
(e.g., manufacturing) is consistent with accepted industry standards,
the approved SAP, COP, or GAP, and the FDR. However, fabrication of
facility components outside of the OCS does not
[[Page 5975]]
require the submittal of an FDR and FIR. The CVA must certify that the
facilities were fabricated and installed in such a manner. The lessee
or grant holder may begin approved activities 30-calendar days after
BOEM deems submitted the fabrication and installation certification
from the CVA, unless BOEM objects in the interim. If BOEM objects to
the CVA verification report, the lessee or grant holder must resolve
those objections to BOEM's satisfaction before commencing approved
activities.
7. Facility Operations
The conduct of lease or grant activities under an approved plan is
covered by subpart H. BOEM requires that approved activities be
conducted in a way that ensures safety, prevents undue harm or damage
to natural resources, uses trained personnel, and complies with
approved plans. Activities must comply with the various wildlife
protection statutes--particularly the MMPA and ESA. Lessees and grant
holders also must follow prescribed procedures if they encounter
potential archaeological resources while conducting approved
activities. This subpart contains numerous operational requirements,
including safety management systems, incident reporting, inspections,
and self-inspections.
8. Decommissioning
Except when otherwise authorized by BOEM, lessees and grant holders
must decommission (i.e., remove) all facilities and clear the seafloor
of all obstructions created by their activities within 2 years
following termination of their lease or grant or earlier if BOEM
determines a facility is no longer useful for operations. Subpart I
sets forth BOEM's decommissioning requirements and process.
C. Need for Rulemaking
The existing regulations were finalized in 2009, when the OCS
renewable energy industry in the United States was in its infancy. In
response to Executive Order (E.O.) 13610, the Department determined
that aspects of BOEM's renewable energy regulations could be made less
burdensome and costly while clarifying ambiguities and filling gaps
that have become apparent during the past 13 years. Through its
experience and engagement with industry and other stakeholders, the
Department has identified opportunities for reducing burdens, making
regulations more efficient, clarifying ambiguities, and correcting
errors. E.O. 14008, ``Tackling the Climate Crisis at Home and Abroad,''
states that it is the policy of the U.S. ``to organize and deploy the
full capacity of its agencies to combat the climate crisis to implement
a Government-wide approach that reduces climate pollution in every
sector of the economy; increases resilience to the impacts of climate
change; protects public health; conserves our lands, waters, and
biodiversity; delivers environmental justice; and spurs well-paying
union jobs and economic growth, especially through innovation,
commercialization, and deployment of clean energy technologies and
infrastructure.'' In furtherance of the goals of E.O. 14008, the
Departments of the Interior, Energy, and Commerce established a target
to deploy 30 gigawatts (30,000 megawatts) of offshore wind by 2030,
creating nearly 80,000 jobs.
These proposed revisions to BOEM's regulations would facilitate
safe and environmentally sound renewable energy production in offshore
waters and help the Biden-Harris Administration meet its offshore wind
energy commitment. This proposed rulemaking would implement reforms
identified by BOEM and BSEE or suggested by industry, align regulations
to practices that have evolved since 2009, and reduce regulatory
uncertainty. The proposed regulations are estimated to save lessees and
grant holders about $1 billion over a 20-year period.\12\ The proposed
changes would continue to protect environmental and cultural resources
and to ensure that U.S. taxpayers receive a fair return from OCS
renewable energy activities.
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\12\ See supra note 2.
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The Department also plans to issue another rule related to its OCS
renewable energy program. That rule would reorganize the current
renewable energy regulations between BOEM and BSEE consistent with
Secretary's Order 3299, as amended, and the Departmental Manual.
Specifically, that rule would move regulations pertaining to safety,
environmental oversight, and enforcement from BOEM to BSEE under 30 CFR
part 285. Following that rulemaking, any future OCS renewable energy
rulemaking, including any rule that finalizes the provisions of this
proposed rule, would reflect the reorganized regulations. The
Department will continue to work closely with both BOEM and BSEE in
finalizing provisions of this proposed rule within their respective
delegated authorities.
V. Analytical Overview of the Proposed Rule
The proposed rule contains seven main components that would
accomplish the following: (1) eliminate site assessment plan
requirements for met buoys; (2) adopt a flexible and performance-based
approach to geophysical and geotechnical surveying; (3) conform the CVA
review standard to industry practice and provide flexibility in the CVA
nomination and engineering report submittal process; (4) clarify
auction procedures; (5) align financial assurances with the risk to
U.S. taxpayers and permit incremental funding of decommissioning
accounts; (6) clarify and enhance safety management requirements; and
(7) make other revisions and technical corrections that would improve
BOEM's OCS renewable regulatory program and fix technical errors and
inconsistencies. These components are analyzed below.
A. Site Assessment Facilities
1. Existing Regulations
In its regulations and guidance documents, BOEM uses the term
``site assessment'' to describe the activities used to estimate the OCS
renewable energy resource and baseline ocean conditions before any
potential development occurs. BOEM's regulations currently contemplate
that a lessee will deploy at least one facility, typically a met tower
or buoy, to conduct site assessment activities before submitting a COP.
Data from these met buoys and towers are used to design the offshore
renewable energy project (e.g., the turbine array for a wind project)
for a particular OCS area, calculate its energy generation potential,
estimate its revenue potential, and obtain project financing. At the
time BOEM promulgated its regulations in 2009, the industry standard
for site assessment activities was fixed-bottom met towers pile-driven
into the seabed. BOEM crafted its requirements for the approval of site
assessment activities under the assumption that most lessees would
continue to install met towers.
Since 2009, the offshore wind industry has transitioned to met
buoys, which are both less costly and less environmentally impactful
than fixed bottom structures. Met buoys are typically between 6 and 12
meters in length, attached to the seabed with a chain and mooring
anchor, and deployed for no more than 5 years. Met buoys include
different types of instrumentation to collect a variety of data,
including wind speed and direction; air and water temperature; wave
height; water currents; ambient
[[Page 5976]]
noise; and the presence of benthic communities, fish, marine mammals,
birds, and bats.\13\ Scientific devices similar to met buoys are used
widely for research and commercial applications and by other Federal
agencies (e.g., National Oceanic and Atmospheric Administration and the
Department of Energy (DOE)).
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\13\ Dep't of Energy & Dep't Of Interior, National Offshore Wind
Strategy (2016) [hereinafter Offshore Wind Strategy], https://www.boem.gov/National-Offshore-Wind-Strategy. At this time, met
buoys deployed for this purpose use Light Detection and Ranging
(LIDAR) technology, which is capable of collecting measurements to
the same height as a typical met tower and the hub height of
proposed wind turbines.
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Before installing any facilities for site assessment activities on
its commercial lease, a lessee must submit a SAP for BOEM approval.\14\
The SAP ``describes the activities (e.g., installation of [met] towers,
[met] buoys) [the lessee] plan[s] to perform for the characterization
of [its] commercial lease, including [its] project easement, or to test
technology devices.'' \15\ The SAP must include the information
required by 30 CFR 585.610 through 585.611.\16\ BOEM may request
additional information during its review and may specify terms and
conditions that must be incorporated into the SAP before approval. In
BOEM's experience, a lessee invests substantial time preparing the SAP
and awaiting BOEM's approval. BOEM requires SAP facilities to be
decommissioned under subpart I of the current part 585 and requires
financial assurance to cover the cost of their decommissioning.\17\
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\14\ 30 CFR 585.600(a).
\15\ 30 CFR 585.605(a).
\16\ To improve readability and avoid any confusion, all further
regulatory section references in the main body of this notice are to
30 CFR part 585 unless otherwise specified. Footnotes will contain
the complete citation.
\17\ 30 CFR 585.516(a)(2).
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If a developer wants to conduct site assessment activities at a
particular OCS location without a commercial lease, a limited lease may
be required. BOEM's regulations require a lease, easement, or ROW for
activities that ``support generation of electricity or other energy
product derived from a renewable energy resource on any part of the
OCS.'' \18\ BOEM has the discretion to determine whether an activity
``supports generation'' of electricity and, therefore, requires a
lease.\19\ BOEM issued leases for site assessment activities early in
the OCS renewable energy program, but has not received a formal request
for a limited lease for site assessment activities since its
regulations took effect in 2009.
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\18\ 30 CFR 585.104.
\19\ Office of Renewable Energy Programs, Bureau of Ocean Energy
Mgmt., Guidelines for Activities Requiring Authorization for
Renewable Energy Development on the Outer Continental Shelf Pursuant
to 30 CFR part 585 (2020), available at https://www.boem.gov/guidance.
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If a limited lease is required, a developer must first notify BOEM
that it is requesting a lease for a specific portion of the OCS.\20\
BOEM then issues a public notice in the Federal Register to determine
whether competitive interest exists in the requested area. If there is
no such interest, BOEM may negotiate a limited lease with the
developer.\21\ If BOEM and the developer agree to terms, the developer
has 12 months to submit a GAP under Sec. Sec. 585.640 through 585.647
for BOEM's review and approval. BOEM may request additional information
during its review and may specify terms and conditions that must be
incorporated into the GAP before approval.\22\ Although BOEM has yet to
issue a limited lease, BOEM estimates that it could take 3 years
between the submission of a limited lease application and authorization
to conduct activities on the lease.
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\20\ 30 CFR 585.230.
\21\ 30 CFR 585.231.
\22\ 30 CFR 585.648.
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2. Why the Existing Regulations Should Be Updated
BOEM has determined that its regulations are overly burdensome for
authorizing met buoys for site assessment activities for the reasons
outlined below.
(a) Minimal Environmental Impacts of Meteorological Buoys
After 10 years of analyzing the environmental impacts of
deployment, operation, and removal of met buoys, BOEM has concluded
that, when properly sited, these buoys cause minimal harm to the
marine, coastal, and human environments.\23\ Given a met buoy's
surficial seabed disturbance during a limited deployment time and
BOEM's repeated analysis of these devices, BOEM has concluded that
their potential environmental effects are short-term and minimal,
assuming sensitive benthic habitat and archaeological sites are
avoided.\24\ Proper deployment will be ensured through the USACE
Nationwide Permit 5 (NWP 5), which is reasonably tailored to buoys and
is subject to the same applicable Federal environmental laws as BOEM's
authorization of met buoys. USACE's NWP 5 procedures may require a pre-
construction notification under the general conditions for permits,
depending on the presence of certain resources, e.g., listed species,
critical habitat, or essential fish habitat. These procedures are the
same for vast majority of buoys installed offshore; it is only the
renewable energy met buoys that require a SAP under the current BOEM
regulations.
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\23\ See, e.g., Office of Renewable Energy Programs, Bureau of
Ocean Energy Mgmt., Commercial Wind Lease Issuance and Site
Assessment Activities on the Atlantic Outer Continental Shelf
Offshore New Jersey, Delaware, Maryland, and Virginia, Final
Environmental Assessment (2012), available at https://www.boem.gov/uploadedFiles/BOEM/Renewable_Energy_Program/Smart_from_the_Start/Mid-Atlantic_Final_EA_012012.pdf; Office of Renewable Energy
Programs, Bureau of Ocean Energy Mgmt., Commercial Wind Lease
Issuance and Site Assessment Activities on the Atlantic Outer
Continental Shelf Offshore Massachusetts, Revised Environmental
Assessment (2014), available at https://www.boem.gov/Revised-MA-EA-2014/); and Office of Renewable Energy Programs, Bureau of Ocean
Energy Mgmt., Commercial Wind Lease Issuance and Site Assessment
Activities on the Atlantic Outer Continental Shelf Offshore New
York, Revised Environmental Assessment (2016), available at https://www.boem.gov/NY-EA-FONSI-2016/.
\24\ See supra note 22; see also Offshore Wind Strategy, supra
note 12, at 31. Another concern is the potential for marine mammal
entanglement in anchor chains. However, the Army Corps of Engineers
will require mitigation of such risks pursuant to its consultations
with NMFS, regardless of any BOEM permit.
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BOEM determined in 2016 that met buoys meet the criteria for a
nondestructive data collection categorical exclusion from the potential
requirement to prepare an environmental impact statement under
NEPA.\25\ Consequently, BOEM's existing SAP (Sec. Sec. 585.605 through
585.618) and GAP (Sec. Sec. 585.640 through 585.657) requirements
governing on-lease and off-lease site assessment activities,
respectively, are disproportionate to the potential environmental
impacts caused by met buoys.
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\25\ See 43 CFR 46.210(e).
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(b) Duplicative Regulations
BOEM's regulation of site assessment activities is duplicative of
the USACE's permitting requirements under section 10 of the Rivers and
Harbors Act, which applies to obstructions in U.S. navigable waters,
including the OCS.\26\ The USACE typically authorizes data collection
buoys under its NWP 5 for scientific measurement devices, or its
equivalent, depending on the geographic district in which the buoy is
proposed. NWP 5 addresses the most critical impacts of met buoys--
environmental resources, archaeological resources, safety, and
navigation--while also requiring that such devices be removed ``to the
maximum extent practicable and the site restored to pre-construction
elevations.'' \27\ The
[[Page 5977]]
USACE's permitting process is subject to the same Federal laws
concerning environmental analyses and inter-agency consultations that
govern BOEM's authorization of met buoys--including NEPA, ESA, MMPA,
MSA, NMSA, and NHPA. To date, USACE has participated in BOEM's
environmental reviews as a cooperating agency under 40 CFR 1501.6.
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\26\ 33 U.S.C. 403.
\27\ U.S. Army Corps of Engineers, Nationwide Permit 5--
Scientific Measurement Devices (2017), available at https://www.swt.usace.army.mil/Portals/41/docs/missions/regulatory/NationwidePermits/Nationwide%20Permit%2005%20-%20Scientific%20Measurement%20Devices.pdf?ver=2017-03-31-150714-880).
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The deployment of a met buoy or tower to collect data for potential
OCS renewable energy development is subject to two regulatory regimes--
BOEM's and USACE's--that largely analyze the same environmental
impacts. However, the same type of buoy or tower is subject to only
USACE's regime if deployed for other purposes. As discussed below, the
proposed rule would resolve this duplication of regulatory compliance
by eliminating BOEM's SAP requirement for met buoys.
(c) Requirement for Air Permits for Meteorological Buoys
Under the Clean Air Act (CAA), a party proposing to construct a
source of air pollution on the OCS that meets the CAA definition of an
``OCS source'' is required to apply for an air permit before
construction. The CAA definition of an ``OCS source'' of air pollution
includes those sources that have the potential to emit air pollutants,
are deployed on the OCS, and are regulated or authorized under the OCS
Lands Act.\28\ Met buoys to support renewable energy development,
authorized by BOEM, are currently included as OCS sources because some
contain backup diesel generators that emit air pollutants. These met
buoys frequently are required to have a CAA permit when deployed in OCS
areas under U.S. Environmental Protection Agency (USEPA) jurisdiction,
specifically offshore the U.S. Atlantic and Pacific coasts. While
emissions from buoy backup generators are minimal due to their limited
use, the CAA has no de minimis exception to the air permit requirement.
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\28\ 42 U.S.C. 7627(a)(4)(C).
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In some instances, obtaining OCS air quality permit for a met buoy
can take longer than obtaining SAP approval from BOEM. Under the
proposed rule, met buoys deployed in OCS areas solely under USEPA's
jurisdiction reasonably and appropriately would no longer require CAA
permits since they would neither be regulated nor authorized under the
OCS Lands Act and, consequently, would not meet the definition of an
``OCS source.'' This conclusion also takes into consideration that
these buoys are anticipated to have minimal emissions, there is a
significant time and cost associated with obtaining a CAA permit, and
similar buoys authorized under other statutes do not require a CAA
permit (e.g., scientific measurement devices permitted under NWP 5).
(d) European Practice
BOEM is aware that European countries with mature offshore wind
industries and permitting regimes have more streamlined permitting
processes for site assessment activities. In several European
countries, including Denmark and The Netherlands, the government will
typically undertake the site characterization and site assessment work
as part of its ``pre-development'' efforts before a tender offering
(i.e., lease sale in the U.S. model). In the U.K. model, which shares
similarities with the U.S. regulatory framework, the developer is
responsible for undertaking this work. Pre-construction site assessment
activities, including the deployment of met towers and buoys, are
described in a separate submission to the U.K. Marine Management
Organization following the developer's receipt of governmental
approval. Recent met buoy case files show that these site assessment
applications are typically approved in roughly 30-calendar days. BOEM
has received multiple comments from industry criticizing the length of
its present met buoy authorization process and urging BOEM to learn
from the European practice. The proposed rule would move the United
States closer to Europe's more efficient approach to site assessment
activities.
(e) Lack of Off-Lease Site Assessment
BOEM believes that public and private entities alike should be
encouraged to collect OCS meteorological and oceanographic data for
potential renewable energy development in areas not yet leased
commercially. BOEM is aware of only four met buoys (and no met towers)
that have been deployed on the OCS for such purposes: two off the east
coast and two research buoys managed by the DOE off the coast of
California. BOEM is concerned that the perceived difficulty of
obtaining a limited lease and subsequent GAP approval is deterring off-
lease site assessment activities.
3. Proposed Changes
The proposed rule would eliminate BOEM's duplicative authorizations
for on-lease site assessment facilities without an engineered
foundation (primarily met buoys) and all off-lease site assessment
facilities. BOEM proposes to retain its SAP process for facilities
installed on a commercial lease using an engineered foundation, such as
met towers.
(a) On-Lease Meteorological Buoys
The proposed rule would eliminate SAPs for site assessment
activities that do not use an engineered foundation, defined as a met
tower or other facility installed using a fixed-bottom foundation.\29\
Met buoys would be exempt from the SAP requirement unless deployed with
an engineered foundation, which BOEM expects will occur rarely. A SAP
would still be required for met towers and other site assessment
facilities with engineered foundations. BOEM would also recommend that
lessees consult with BOEM and other Federal agencies with jurisdiction
over submerged lands in off lease areas before deploying site
assessment facilities with novel anchoring technologies absent a BOEM-
approved SAP. Independent of the need to submit a SAP for approval, all
site assessment activities are required to be performed under an SMS
that accounts for and mitigates risks to personnel and the environment
associated with the assessment activities. In any case where an NMSA
permit may be required, NOAA may require certain financial assurances
for infrastructure removal activities potentially required under
permit.
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\29\ Unlike a simple anchor, a fixed-bottom foundation generally
requires professional engineering design and assessment of sediment,
meteorological, and oceanographic conditions. Examples of fixed
bottom foundations are monopiles, jackets with driven piles or
suction buckets, and gravity-based foundations.
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The proposed rule also would amend the decommissioning regulations
in the proposed subpart J to ensure that lessees are not subject to
duplicative or conflicting requirements for the removal of met buoys.
Under the proposed rule, a lessee would decommission its met buoys
according to USACE requirements in lieu of submitting a decommissioning
plan for BOEM's approval. In the unlikely event that USACE did not
require site clearance, BOEM would retain the authority to require
decommissioning of the buoys under proposed Sec. 585.900(c) pursuant
to OCS Lands Act subsection 8(p)(6)(C) so that the United States can
fulfill its international treaty obligation to restore the lease
area.\30\ BOEM also would no
[[Page 5978]]
longer routinely require supplemental financial assurance for
decommissioning of met buoys. In most cases, the buoys are authorized
and installed pursuant to USACE regulations and USACE would assume
responsibility for ensuring that any required removal takes place; in
these circumstances, the USACE would be responsible for obtaining any
financial assurance necessary.
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\30\ See 43 U.S.C. 1337(p)(6)(C) and article 5.5 of the
Convention on the Continental Shelf, T U.N. Doc. A/CONF. 13/L.55,
T.I.A.S. 5578 and 15 U.S.T. 471. Any installations which are
abandoned or disused must be entirely removed [emphasis added].
---------------------------------------------------------------------------
These changes should allow lessees to deploy met buoys in
substantially less time and at a reduced cost because a SAP would no
longer be required. Instead, lessees would deploy a met buoy under the
authorization of a USACE NWP 5 scientific device permit or the USACE
district equivalent. BOEM estimates one buoy would be permitted
annually, and this permitting change would save approximately $1.1
million of compliance costs in each instance.\31\ BOEM also anticipates
that this change could eliminate the need for lessees to obtain a CAA
air quality permit from the USEPA for on-lease met buoys with backup
diesel generators because these buoys would fall outside the CAA
definition of an ``OCS source.'' BOEM is not including the potential
savings for a CAA permit in its economic analysis because the
underlying burden arises from another Federal agency's regulatory
requirements (appropriately, USEPA could claim any CAA burden
reduction).
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\31\ See infra part VII.B.2 for overview of this proposed rule's
economic analysis.
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This approach likely would result in regulatory relief from the SAP
requirement for nearly all future development of OCS renewable
resources. Most current lessees have proposed conducting site
assessments with met buoys. BOEM expects that pattern to continue for
the foreseeable future. Off-lease site assessment activities would fall
outside BOEM's control, though remain within USACE's, and should they
occur within a national marine sanctuary or in the vicinity of a
national marine sanctuary, activities may require NMSA permits or
consultations.
BOEM proposes several conforming ancillary regulatory changes to
accommodate the SAP changes outlined in this section. These changes
include merging the preliminary and site assessment periods of the
lease (see the analysis of proposed changes to Sec. 585.235 in section
VI.C.), eliminating deadlines for SAP submittals, decoupling the
requirement to operate under an SMS from SAP submission (i.e., all site
assessment activities must be conducted under an SMS, regardless of
whether a SAP is required), and removing references to terminology that
relates primarily to buoys (e.g., anchors, chains, mooring) in the SAP
regulations.
For several reasons, this approach would not increase environmental
impacts and would be subject to the same environmental review and
consultations currently performed by BOEM. First, BOEM will prepare
environmental analysis under NEPA and will consult under the ESA prior
to a lease sale. That environmental analysis will include potential
impacts from activities that are expected to occur following lease
issuance after the sale (e.g., site characterization and site
assessment activities). Second, NWP 5 complies with current Federal
environmental laws and governs deployment of other scientific
measurement devices that result in no more than minimal individual and
cumulative adverse environmental impacts. Lessees must ensure that the
placement of met buoys and towers conforms with NWP 5. The USACE
general conditions for nationwide permits require interagency
consultations if warranted by the location and activities proposed.
USACE considers cumulative impacts in the re-issuance of the nationwide
permits every 5 years. Third, based on BOEM's experience in approving
SAPs to date, BOEM has already documented the environmental impacts of
met buoys to be minimal. Fourth, those who are conducting site
assessment activities are still required to conduct all such activities
under an SMS that accounts for and mitigates risks to personnel and the
environment. Fifth, BOEM would not disclaim all oversight of site
assessment activities. As noted above, the potential environmental
impacts of met towers and facilities with engineered foundations are
both more variable and more significant for certain marine resources.
Therefore, BOEM would continue to require SAPs for such facilities.
Finally, BOEM may consider adding stipulations to future leases
relating to site assessment activities not covered by a SAP. BOEM
anticipates that such stipulations would ensure BOEM is aware of
activities conducted on its lease and that such activities are required
to be performed in accordance with any applicable USACE requirements
and best industry practices.
BOEM notes that the proposed rule likely would require revisions to
BOEM's programmatic agreements with consulting parties under the NHPA.
Most of BOEM's existing agreements anticipate that it would review and
approve plans relating to all site assessment activities.
BOEM completed an informal programmatic section 7 consultation
under the Endangered Species Act with the National Marine Fisheries
Service (NMFS) in 2021. This informal consultation covered leasing,
site characterization, and site assessment activities. It is expected
to cover most, if not all, USACE NWP 5 permits issued for on-lease met
buoys in the three Atlantic Renewable Energy Regions (North Atlantic
Planning Area, Mid-Atlantic Planning Area, and South Atlantic Planning
Area). This consultation concluded that the activities considered are
not likely to adversely affect any ESA-listed species or critical
habitat.\32\ Activities are considered not likely to adversely affect
as long as they are within the scope of what was analyzed in the
consultation, meet the stated project design criteria and apply the
prescribed conservation measures. BOEM is conducting similar ESA
consultations for the Pacific and Gulf of Mexico regions.
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\32\ See https://www.boem.gov/sites/default/files/documents/renewable-energy/OSW-surveys-NLAA-programmatic.pdf.
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(b) Off-Lease Meteorological Buoys
The proposed rule would clarify that off-lease site assessment
facilities do not require a limited lease. BOEM proposes to accomplish
this by amending Sec. 585.104 to add a statement that, for purposes of
that section, site assessment activities neither produce, transport,
nor support the generation of any energy products.
In so doing, BOEM would cease its existing policy of making case-
by-case determinations about whether off-lease site assessment
activities require a lease.\33\ BOEM does not believe off-lease site
assessment activities support the production of energy within the
meaning of 43 U.S.C. 1337(p)(1)(C) because the nexus between such
activities and the commercial production of energy is too speculative
(e.g., the entity conducting site assessment may determine the energy
potential is insufficient for commercial operations, may not seek a
commercial lease for other reasons, or may not be the winning bidder in
a lease auction).\34\
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\33\ See supra note 18.
\34\ In contrast, site assessment activities conducted on a
commercial lease are not subject to the same jurisdictional analysis
despite the proposed change to Sec. 585.104. BOEM may determine by
regulation which on-lease activities do and do not require a
separate BOEM approval. In the proposed rule, BOEM would determine
that site assessment activities under a commercial lease involving
an engineered foundation require a SAP given the likely
environmental impacts.
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[[Page 5979]]
BOEM believes this change will substantially decrease the time and
expense required to obtain authorization to deploy a site assessment
facility on the OCS that is not tethered to a commercial renewable
energy lease. As a result, BOEM anticipates that more developers,
research institutions, and governmental entities may be interested in
collecting renewable energy resource data on the OCS--likely through
deployment of met buoys. Such increased data collection could, in turn,
aid in determining which areas are most suitable for future OCS
renewable energy leasing.
This clarification of BOEM's authority over off-lease site
assessment activities applies to both met buoys and met towers.
Although met towers have greater environmental impacts than met buoys,
BOEM does not believe this proposed regulatory change would increase
environmental risk. First, USACE would continue to permit facilities
associated with off-lease site assessment. USACE has already permitted
an off-lease met tower in connection with the Cape Wind project in
Nantucket Sound offshore Massachusetts. Second, BOEM believes it is
highly unlikely that anyone would undertake the considerable expense of
constructing a met tower absent the exclusive development rights
afforded by a commercial lease, particularly because met buoys have
become commonplace as the more cost-effective site assessment
alternative. Finally, this regulatory change would not have an
environmental impact because it would not substantially alter BOEM's
existing practice. BOEM presently has the authority not to require
limited leases for off-lease site assessment activities based on a
case-by-case determination that such activities do not support the
production of energy.
B. Project Design Envelope
The proposed rule would codify the use of project design envelopes
(PDE)--i.e., proposing a range of design parameters and construction
and operation activities--in COP submissions. The use of PDEs was first
introduced by BOEM in draft guidance in 2016 and is now being codified
in the regulations.
The proposed rule would add language throughout the proposed
subpart G that would clarify the ability of lessees and grant holders
to submit plans using a PDE. The PDE is a proven approach to provide
lessees and grant holders with flexibility throughout the permitting
process while still complying with NEPA and other statutory and
regulatory obligations. As detailed in BOEM's draft guidance,\35\ the
PDE is ``a permitting approach that allows a project proponent the
option to submit a reasonable range of design parameters within its
permit application, allows a permitting agency to then analyze the
maximum impacts that could occur from the range of design parameters,
and may result in the approval of a project that is constructed within
that range.'' \36\ BOEM recognizes that a PDE should not be overly
broad to avoid not defining the project well enough for meaningful
analysis. BOEM's NEPA analysis will continue to include reasonable
alternatives that meet the purpose and need of the project. As a
result, the NEPA analysis would be sufficient to avoid a delay in
review by BOEM or other agencies.
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\35\ See ``Draft Guidance Regarding The Use Of A Project Design
Envelope In A Construction And Operations Plan,'' (January 12,
2018), U.S. Department of the Interior, Bureau of Ocean Energy
Management, Office of Renewable Energy Programs, available at
https://www.boem.gov/guidance.
\36\ Id. at 1.
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Here is an illustrative example:
Lessee X has determined that jacket and monopile
foundations are both technically feasible options for its project. Its
ultimate foundation choice could depend on several factors that are not
typically known at the time of COP submittal, such as the cost of steel
at the time of procurement, contract negotiations with foundation
fabricators, and the availability of novel pile-driving technologies.
Lessee X proposes in its COP that it will use a foundation
PDE consisting of three scenarios: all jacket foundations, all monopile
foundations, and half each.
In its environmental analysis, BOEM will assume the
maximum design scenario (i.e., the scenario with the greatest impacts)
for each affected resource. For benthic habitat, BOEM could analyze 100
percent use of jacket foundations because that scenario disturbs the
most seabed.
BOEM may ultimately approve the full PDE for foundations,
meaning Lessee X would have the flexibility to construct its project
using either or both foundations. Alternatively, BOEM could find that
the environmental impacts of one foundation type are unacceptable and
approve the use of only the other foundation type, meaning Lessee X
could only construct its project using the approved foundation type.
In its draft PDE guidance, BOEM set out ``its support of, and
preliminary recommendations for the voluntary use of the PDE in the
submission and review of COPs for offshore wind energy facilities.''
\37\ In preparing to issue its draft guidance, BOEM contracted a
yearlong study of PDE use in the United Kingdom and its potential use
in the United States.\38\
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\37\ Id.
\38\ Office of Renewable Energy, Bureau of Ocean Energy Mgmt.,
Phased Approaches to Offshore Wind Developments and Use of Project
Design Envelope, Final Technical Report (2017), https://www.boem.gov/Phased-Approaches-to-Offshore-Wind-Developments-and-Use-of-Project-Design-Envelope/.
---------------------------------------------------------------------------
BOEM has concluded that use of the PDE would be beneficial to OCS
renewable energy development because that approach provides reasonable
latitude to make site-specific design and engineering decisions after
plan approval without having to reopen the permitting review process.
Though BOEM's existing regulations allow a PDE, BOEM believes that
it can clarify the process for lessees and other stakeholders by
explicitly integrating PDE principles into its regulatory text--
primarily by referencing ``ranges'' of design parameters or locations.
It should be noted, however, that the range of parameters in a PDE
could involve non-design attributes, such as installation methods or
mitigation measures. BOEM believes these proposed changes (and other
related modifications described in the part VI section-by-section
analysis of the proposed rule) would not substantively alter its
existing regulatory framework, or its required consultations with other
agencies, but would be helpful to lessees and the general public.
C. Geophysical and Geotechnical Surveys
1. Existing Regulations
BOEM regulations require a lessee's COP to include, among other
things, survey data characterizing the seabed and sub-seabed that would
be disturbed by the proposed project. BOEM uses this information to
inform its environmental analysis of the project, its related
consultations (particularly involving historical resources and
essential fish habitat), and its review of the project's technical
feasibility. These data are derived from surveys that are typically
divided into two categories: geophysical surveys that use acoustic and
magnetic sensing techniques to map and model the composition of the
seafloor where ground-disturbing activities will take place, and to
identify natural and manmade hazards as well as potential
archaeological resources; and geotechnical surveys that use boreholes,
vibracores, grab samplers, and other
[[Page 5980]]
penetrative methods to determine the actual geological composition of
the subsurface and, in certain cases, identify potential archaeological
resources.
BOEM's regulations require a commercial lessee to submit a COP with
geotechnical survey data that include the results of a testing program
used to investigate the stratigraphic and engineering properties of the
sediment that may affect foundations or anchoring systems; in situ
testing, boring, and sampling at each foundation location; and at least
one deep boring (with soil sampling and testing) at each edge of the
project area and within the project area as needed to determine the
vertical and lateral variation in seabed conditions.\39\ Thus, lessees
are currently obligated to conduct their full suite of geotechnical
surveys before COP submittal.
---------------------------------------------------------------------------
\39\ 30 CFR 585.626(a)(4).
---------------------------------------------------------------------------
The FDR, which is submitted following COP approval, requires the
submittal of a ``summary of environmental data used for design'' as
well as a ``summary of the engineering design data,'' \40\ both of
which could include additional geotechnical surveys. Lessees must apply
for a regulatory departure under Sec. 585.103 if they wish to defer in
situ testing, boring, and sampling at each foundation location until
the FDR stage.
---------------------------------------------------------------------------
\40\ 30 CFR 585.701(a)(5)-(6).
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A lessee's COP also is required to include ``[t]he results of the
archaeological resource survey with supporting data.'' \41\ BOEM,
therefore, requires the results of all archaeological surveys to be
submitted with the COP.
---------------------------------------------------------------------------
\41\ 30 CFR 585.626(a)(5).
---------------------------------------------------------------------------
2. Why the Existing Regulations Should Be Updated
BOEM has learned that its existing COP data submittal regulations
lack sufficient flexibility to accommodate both the lessees' needs and
BOEM's statutory and regulatory mandate. The amount and type of data
that BOEM needs from lessees in order to conduct its environmental and
technical reviews and reach a decision on a COP may vary depending on
the size and design of the project as well as site conditions in the
proposed project area. Lessees may use various techniques to gather
this data, depending on the intended use of the data. The surveys are
costly (generally in the tens of millions of dollars, depending on the
size of the area and the desired resolution); time-consuming
(individual surveys can each take several months to complete); and
challenging to schedule due to limitations on the availability of
survey vessels and equipment, weather, and seasonal restrictions.
(a) Existing Survey Requirements
The current regulations at 30 CFR 585.626(a)(1)-(3), (5), and (6)
require robust information on shallow hazard, geological survey
results, biological survey results, archeological resources, and an
overall site investigation before COP submission. The current
regulations also require geotechnical surveys and borings of all
locations where foundations are expected to be installed in order to
inform the engineering properties of the sediment. Frequently, the
exact locations of foundations change between the time of COP
submission and installation, requiring the lessee to repeat the same
survey and boring work at new locations.
The geophysical and geotechnical survey requirements in BOEM's
renewable regulations are largely built upon the framework for offshore
oil and gas energy facilities, which have a smaller footprint and
different geologic data needs than OCS renewable energy projects. The
detailed engineering survey data that BOEM's offshore renewable
regulations require early in the authorization process do not align
with existing renewable industry practices. Requiring geotechnical
sampling at each turbine location and engineering-specific geophysical
survey data--several years before the turbines are procured and before
the final layout is known--is unnecessary for BOEM's review of the COP.
Equally important, this data requirement for COP submissions creates
major logistical difficulties for lessees, hinders their ability to
modify the project design during and after COP review, and is the
subject of frequent industry criticism and regulatory departure
requests under Sec. 585.103. This information can instead be reviewed
with the FDR once siting has been finalized.
Offshore wind projects are complex and have a development timeline
that may last as much as 7 years from lease issuance to commencement of
construction. During that time, technologies likely will evolve. The
collection of geotechnical and, to a lesser extent, geophysical data is
more logically performed in stages as the process evolves from planning
and permitting to preliminary and final designs, with the appropriate
level of survey data provided at each stage. This staged data
collection and design process allows lessees to take advantage of the
newest technologies and to make project modifications responsive to
BOEM and stakeholder concerns, rather than locking the project into a
detailed design years in advance of completion.
The current lack of flexibility is also at odds with the
development and use of PDE discussed above in section V.B, entitled
``Project Design Envelope.'' The PDE's benefits cannot be fully
realized without additional flexibility regarding the timing of
engineering survey data submittal. If a lessee is required to conduct
all of its engineering surveys (and potentially its most detailed
archaeological surveys) before COP submittal, it may be constrained
from adjusting the project design based on the availability of new
technologies, stakeholder input, or other emergent factors. Likewise, a
lack of flexibility in data submittal requirements could indirectly
constrain BOEM's ability to consider NEPA alternatives that might
modify the proposed project design. Such design changes might result in
additional survey costs and project delays that may, in turn,
jeopardize electricity offtake agreements or otherwise render the
project nonviable. Revising the geophysical and geotechnical survey
timing and data submittal requirements would codify and increase the
utility of the PDE.
(b) European and Industry Practices
Based on BOEM's conversations with various European regulators of
offshore wind energy projects, many European governments that have
authorized offshore wind development allow for the final engineering-
related surveys to occur after project approval given the widespread
use of design envelopes, which are discussed in section V.B. Performing
geotechnical investigations in phases is a common approach for offshore
wind projects in Europe and for most large and complex land-based
developments. Experienced offshore wind developers and consultants are
accustomed to this approach and have informed BOEM of its
advantages.\42\
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\42\ See, e.g., Soc'y for Underwater Tech., Guidance Notes for
the Planning and Execution of Geophysical and Geotechnical Ground
Investigations for Offshore Renewable Energy Developments 12 (Mick
Cook ed., 2014), https://www.sut.org/wp-content/uploads/2014/07/OSIG-Guidance-Notes-2014_web.pdf.
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Moreover, this staged method of data submittal has been recommended
by experienced geotechnical consultants in various publications and in
geotechnical guidelines published by offshore wind classification
societies.
Based on BOEM's experience and stakeholder feedback, the Department
has concluded that allowing the submittal of certain geophysical and
geotechnical data and analysis in stages would not adversely affect our
ability to
[[Page 5981]]
execute the statutory mandate to provide for environmental protection
and safety on the OCS. We have learned that the precise location of
each wind turbine may be uncertain at the COP submittal stage and that
the geotechnical survey data, in particular, collected primarily for
engineering purposes, are more relevant to the facility design and
review process, which follows COP approval.
The Department and BOEM acknowledge that the level of data required
for fulfilling its statutory mandate may be different than the level of
data required to satisfy the mandates of other agencies. Under the
proposed rule, the COP must still contain information sufficient to
define the baseline geological conditions of the seabed, develop a
geologic model,\43\ assess geologic hazards, and determine the
feasibility of the proposed site for the proposed facility. At the COP
review stage, lessees would still be required to provide the data
necessary to conduct the required consultations.
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\43\ The geologic model brings together bathymetric data,
surficial data imagery, sub-bottom data imagery, and sediment
samples.
---------------------------------------------------------------------------
The non-geotechnical survey data included in the COP submittal are
more than adequate to assess impacts to the human, marine, and coastal
environment, to conduct necessary statutory consultations, and to show
technical feasibility of all proposed foundation types. BOEM's oil and
gas program takes a similar approach. Non-geotechnical survey data are
used to assess plans, and geotechnical surveys occur after plan
approval. Over the last 10 years, over 2,600 oil and gas plans have
been approved; in none of these cases have subsequent geotechnical
surveys identified any potential impact that required supplementation
of an EIS or reinitiation of consultation. Because of this, we are
confident that the proposed change is unlikely to undermine the
environmental review done as part of the COP approval process. Even if
a geotechnical survey after COP approval caused a change in the
approved action or environmental assessment, we would expeditiously
analyze the requisite changes and update the environmental assessment
and record of decision.
The information from the deferred geotechnical surveys is not
necessary to perform the requisite environmental reviews and
consultations for COP approval or CZMA consistency reviews. Instead,
the detailed information is necessary for engineering specifications
associated with the design of the project. Furthermore, to ensure BOEM
has sufficient information for its requisite technical reviews,
environmental analysis, and interagency consultations, BOEM conducts a
sufficiency review after receipt of a COP and notifies the lessee of
any information shortfalls that must be filled before the COP review is
complete.
3. Proposed Changes
(a) COP Data Requirements
The proposed rule would address the concerns with the existing
regulations primarily by providing more flexibility (and clarifying
existing flexibility) in the COP requirements.\44\ For clarity, the
proposed rule would reorganize the data requirements by topic. The
first proposed topic, ``geological and geotechnical,'' would encompass
the types of surveys required in existing Sec. 585.626(a)(1), (2),
(4), and (6). The survey and data collection requirements would shift
from the largely prescriptive standards in the existing regulation to
performance-based standards. These performance-based standards would
give lessees the leeway to demonstrate that their selected combination
of geotechnical and geophysical surveys provide BOEM the data that it
needs at the COP review stage to determine whether the project as
designed can be constructed safely in the proposed range of locations--
assuming industry standard engineering practices are used at subsequent
phases. Lessees could strike their own balance between geotechnical and
geophysical surveys at the COP stage, so long as BOEM deems that data
sufficient for BOEM's review as well as the required consultations or
authorizations of other agencies. BOEM would still ensure that the COP
contains information sufficient to complete its environmental review
and required consultations, through a COP sufficiency determination.
BOEM has issued guidelines elaborating its recommended best practices
for such surveys.\45\ These guidelines will be revised as needed based
on the regulatory text of the final rule. BOEM could recommend, as a
best practice, that developers coordinate early with relevant agencies
on applicable site characterization plans, before surveys occur.
---------------------------------------------------------------------------
\44\ See 30 CFR 585.626(a).
\45\ See Office of Renewable Energy, Bureau of Ocean Energy
Mgmt., Guidelines for Providing Geophysical, Geotechnical, and
Geohazard Information Pursuant to 30 CFR part 585 (2020), available
at https://www.boem.gov/guidance. See also Bureau of Ocean Energy
Mgmt., Data Gathering Process: Geotechnical Departures for Offshore
Wind Energy (2018), https://www.boem.gov/Data-Gathering-Process/.
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The proposed rule would no longer require that COPs contain the
results of in situ boring and sampling at each foundation location.
Instead, the proposed rule would allow submission of geotechnical data
for an engineering assessment of the proposed turbine foundations with
a lessee's FDR.
The proposed rule also would grant the Department the flexibility
to allow a lessee to submit certain subsea archaeological surveys with
the FDR on a case-by-case basis, subject to terms and conditions of COP
approval. We recognize that deferring subsea archaeological data
submission until after COP submittal could introduce some degree of
uncertainty and risk into a project by extending the timeline for
BOEM's review and consultations under section 106 of the NHPA and its
implementing regulations. This could delay a lessee's clearance to
commence construction. This risk may be reduced, however, through the
development of programmatic agreements or memoranda of agreement among
the section 106 consulting parties that could establish procedures for
avoiding or mitigating impacts discovered after COP approval.
BOEM estimates that a geotechnical investigation costs on average
$200,000 per turbine location and assumes that deferring survey work by
2 years would result in time value of money savings to a lessee. BOEM
also estimates a 10 percent reduction in the number of geotechnical
investigations by adding flexibility to the existing requirement of a
core analysis at each individual turbine location.\46\
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\46\ See infra Part VII.B.2 for overview of this proposed rule's
economic analysis.
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It is important to consider what these proposed rule changes would
not do. First, the proposed rule would not prevent BOEM from obtaining
COP data sufficient for an adequate impact analysis of a proposed
project under the OCS Lands Act, NEPA, and other statutory authorities.
The COP sufficiency review will ensure the necessary data is submitted
to complete BOEM's and other agencies' analyses. The COP must still
have the information sufficient to define the baseline geological
conditions of the seabed and provide sufficient data to develop a
geologic model, assess geologic hazards, and determine the feasibility
of the proposed site. Changing when lessees must submit data from each
foundation-specific boring does not impact the sufficiency review that
BOEM uses to ensure that a COP has sufficient detail to support all
consultations that accompany BOEM's environmental
[[Page 5982]]
review under NEPA. The vast majority of the data that would be deferred
to the FDR and FIR stage is used solely for engineering purposes. Any
deferred data would be subject to terms and conditions of COP approval
that would allow the Department to halt or require modifications to
further activities if the data is inconsistent with the analysis upon
which BOEM based its COP approval. If the COP needs to be modified as a
result of information gathered from the deferred surveys, such as if
the deferred survey data reveals likely effects that were not
considered previously, the Department would require the lessee to
revise the COP under the regulations at Sec. 585.634. The Department
also retains the authority to halt or require modifications to the
deferred surveys themselves, if necessary, through the lease suspension
authority at Sec. 585.417(a)(2). The Department believes the
flexibility attained by these proposed changes would enhance the
Department's (and lessees') ability to respond to environmental and
ocean user concerns raised during its environmental reviews by
modifying the project design.
Second, the proposed rule would not prevent the Department from
obtaining engineering-related survey data sufficient to analyze the
safety and feasibility of the final design before the lessee installs
facilities, as provided in Sec. 585.701. Such data would instead be
reviewed at the FDR and FIR stage rather than the COP stage. Put
differently, the Department would be able to obtain the same data under
the proposed rule as it obtains now before the commencement of
construction. Therefore, the Department anticipates that this element
of the proposed rule would have no environmental and safety impacts,
and no socioeconomic impacts beyond the potential cost savings to
lessees.
(b) Limited Leases and Grants
Extending the reasoning articulated above in sections V.B, entitled
``Project Design Envelope,'' and V.C.3(a), entitled ``COP Data
Requirements,'' the proposed rule would make similar changes to the GAP
requirements for limited leases and grants.
4. Solicitation of Comments Concerning a Potential New Permit
Requirement for Conducting Geological and Geophysical Surveys for
Renewable Energy Activities
Section 11 of OCSLA (43 U.S.C. 1340) addresses exploration for
minerals (which include oil and gas) and subsection (g) requires that
any exploration permit ``will not be unduly harmful to aquatic life in
the area, result in pollution, create hazardous or unsafe conditions,
unreasonably interfere with other uses of the area, or disturb any
site, structure, or object of historical or archeological
significance.'' However, geological and geophysical exploration permits
for minerals, including oil and gas, are required only for off-lease
surveys, i.e., on unleased lands or on lands under lease to a third
party.\47\ On-lease surveys are governed by separate regulations and
require only that the lessee notify BOEM at least 30 days prior to
conducting such activities.\48\ BOEM reviews such notices to ensure the
activities described do not cause undue or serious harm or damage to
the human, marine, or coastal environment.
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\47\ See 30 CFR 551.4
\48\ See 30 CFR 550.207 through 550.210.
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BOEM's existing renewable energy regulations do not expressly
govern survey activities. However, subsection 8(p) of OCSLA, which
authorizes BOEM to ``issue any necessary regulations to carry out this
subsection,'' also requires that activities authorized under this
subsection be carried out in a manner that provides for ``safety . . .
protection of the environment . . . [and] consideration of . . . any
other use of the area, including use for a fishery . . . .'' OCSLA
8(p)(4).
Although BOEM requires a lessee to submit the results of certain
surveys to BOEM in order to obtain approval of its COP, those
regulations do not require BOEM's approval of a permit for such
surveys. Instead, BOEM has provided guidance on conducting such surveys
\49\ and also includes terms and conditions in renewable energy leases
that require lessees to submit survey plans to BOEM for review in
advance of their survey activities.\50\ BOEM's review of the plans,
while not an approval process, does provide BOEM an opportunity to
communicate with lessees to ensure the lessees' survey results will
meet BOEM's information needs and to ensure certain environmental
conditions are met in conducting the surveys.
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\49\ Guidelines for Providing Information on Fisheries Social
and Economic Conditions for Renewable Energy Development on the
Atlantic Outer Continental Shelf Pursuant to 30 CFR part 585 (2020)
available at https://www.boem.gov/sites/default/files/documents/about-boem/Social%20%26amp%3B%20Econ%20Fishing%20Guidelines.pdf.
\50\ Refer to stipulation 3.1.2.1 in Addendum C of commercial
leases auctioned by BOEM in recent lease sales (e.g., available at
https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/Lease%20OCS-A%200537_0.pdf.
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BOEM is considering whether there is a need for a future rulemaking
intended to regulate surveys associated with OCS renewable energy
activities. To that effect, BOEM is soliciting comments on the
following questions:
What additional protections might be gained through
rulemaking that cannot be achieved by way of the lease stipulations?
Should BOEM establish a permit-based mechanism to regulate
how, when (pre-lease, post-lease), and where (on- and off-lease)
surveys are conducted? And to what extent, if any, should that permit
program differ from the permit requirements of the oil and gas program
and marine minerals program?
Is there another method, other than a permit-based
mechanism, that could aid in the confirmation of any damage to fishing
gear as well as the identification of responsible parties for any such
damage from survey activities?
To what extent should BOEM require additional public
reporting and notice of any anticipated OCS survey activities, beyond
the current lease stipulation requirements of two weeks' advance notice
to applicable ocean users of lessee geological and geophysical surveys?
Is there a greater need for specific advance notice requirements,
extending beyond geological and geophysical surveys, to include the
location, dates, and times in which other OCS surveys will be
conducted?
To what extent should BOEM identify and track OCS survey
activities related to renewable energy program activities?
How can BOEM improve the current procedures for reporting
by and reimbursement of any party that is harmed as a result of the
activities of a company engaged in renewable energy survey activities?
Can these improvements replace the need to promulgate regulations
governing OCS surveys for renewable energy projects?
Should BOEM require advance coordination of survey
activities with other lessees operating on the OCS?
Are there other policies or requirements that BOEM should
consider in order to minimize the adverse interaction between other
users of the OCS and those conducting surveys that support renewable
energy activities on the OCS?
Please see the Addresses caption at the beginning of this notice to
send responses to these questions and any other comments that you have.
If you have any data or information that could be used to evaluate the
extent of this problem, or potential costs or benefits of instituting
additional procedures to address it, please provide that information as
well. Please see the For Further Information Contact caption at the
beginning of this notice if you
[[Page 5983]]
have questions or comments regarding this topic.
D. Certified Verification Agent and Engineering Reports
1. Existing Regulations
As discussed above, the current subpart G of BOEM's regulations
governs the design, fabrication, and installation of offshore wind
facilities following plan approval--as well as the process by which
independent third-party CVAs are nominated, selected, and tasked with
duties for project engineering review.
2. Why the Existing Regulations Should Be Updated
The existing regulations use terminology to describe the role of
the CVA that is not consistent with industry practices. They also are
inexplicit regarding the flexibility that lessees or grant holders are
afforded in the timing and composition of their FDRs and FIRs, and
ambiguous regarding what procurement and fabrication activities lessees
or grant holders can carry out before BOEM's review of these reports.
3. Proposed Changes
(a) Certified Verification Agent Roles and Flexibility
BOEM and the Bureau of Safety and Environmental Enforcement (BSEE),
concurrently review reports for design and construction of the
facilities. However, rather than relying solely on agency engineering
expertise, the bureaus also require lessees to use a CVA to provide
independent third-party review of a project's FDR and FIR. The CVA
plays an integral role in BOEM's determination that a proposed OCS
renewable energy facility will be designed and constructed safely using
best engineering practices in accordance with Sec. 585.700(a)(1). The
CVA also is expected to monitor fabrication and installation activities
and to submit a final report to BOEM before the start of commercial
operations or other approved activities in accordance with Sec.
585.700(a)(2). So that the Department is able to ``ensure that any
activities . . . are carried out in a manner that provides for safety''
as required by Sec. 585.102(a), the Department proposes to add a
requirement that the CVA verify the facility's design, taking human
safety into appropriate consideration. In addition, the CVA would be
required to evaluate the commissioning of any critical safety systems.
Critical safety systems would be defined as safety systems and
equipment designed to prevent or ameliorate major accidents that could
result in harm to health, safety, or the environment associated with
facilities.
The Department proposes to change all ``certification'' references
in the proposed subpart H to ``verification.'' This modification would
align the regulations with industry standards.\51\
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\51\ Panel on Certification of Offshore Structures, National
Research Council, Verification of Fixed Offshore Oil and Gas
Platforms 8-9 (1977), https://www.nap.edu/read/18431/chapter/1
(opining that ``verification'' is the preferred description of the
procedure assuring stakeholders that appropriate environmental and
operating factors have been duly considered in the design,
construction, and installation of offshore oil and gas platforms);
see also Transportation Research Board, Nat'l Academies of Sciences,
Engineering, and Medicine, Structural Integrity of Offshore Wind
Turbines, Oversight of Design, Fabrication, and Installation 96-108
(2011) (discussing role of third party oversight and certified
verification agents in the offshore wind industry).
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The proposed rule also would add flexibility to the CVA nomination
process. Currently, a lessee or a grant holder must submit its CVA
nominations with its SAP, COP, or GAP.\52\ BOEM approves or disapproves
CVA nominations as part of its plan review.\53\ Multiple lessees have
expressed a desire to have approved CVAs in place before COP submittal
so the CVA may provide third-party review of design concepts in the
COPs. This reasoning also supports CVA review of SAPs and GAPs before
submittal. The Department believes that integrating CVA review into the
earliest stages of the design and permitting process is consistent with
its policy goals of encouraging safety and best engineering practices.
We also recognize that a lessee or a grant holder may need to nominate
new CVAs as the project progresses (for instance, if a design parameter
changes at a late stage) or to request the replacement of an approved
CVA if that CVA is ineffective or can no longer perform its duties. As
a result, the proposed rule would provide flexibility for the
Department, lessees, and grant holders by decoupling the CVA nomination
and approval process from plan submittal and approval. The proposed
rule also clarifies that a lessee or a grant holder may nominate
separate CVAs to review different components of a project.
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\52\ For COP requirements, see 30 CFR 585.626(b)(20), 706(a).
For SAP and GAP requirements, see 30 CFR 585.610(a)(9) and
585.645(c)(5), respectively. CVA nominations are required in a SAP
and a GAP if BOEM determines the facilities proposed in those plans
require an FDR and FIR because they are complex and significant. See
30 CFR 585.700(a), 705, 706(a).
\53\ 30 CFR 585.706(e).
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(b) Staged Submittal of the Facility Design Report and Fabrication and
Installation Report
The Department recognizes that the construction of an offshore
renewable energy facility is complex and that the procurement and
installation of components depends on a wide range of project-specific
factors that may change over time. These factors include availability
of port facilities and installation vessels, weather conditions,
seasonal construction restrictions, project financing, and approval of
permits and authorizations. Requiring a lessee or a grant holder to
submit only one FDR and FIR ignores that time-dependent complexity and
could lead to unnecessary inefficiencies and delays. Indeed, lessees
have already requested permission to submit separate, staged reports
for discrete major project components. If the Department approves such
requests, those lessees could begin fabricating and installing certain
components while other components are being verified by a CVA. We
acknowledge that some major project components may require analysis
upfront to ensure safety and adherence to best engineering practices
but believes that more flexibility is warranted in the timing of
component review.
The Department believes that allowing staged submittal of FDRs and
FIRs addresses this complexity and provides appropriate flexibility
without compromising its project review. Though BOEM's existing
regulations permit staged FDR and FIR submittal, this proposed rule
would clarify that authority and would better define the circumstances
under which staged submittal would be allowed. Importantly, staged
submittals would be allowed only if the lessee or grant holder could
explain how the constituent major components would function together in
an integrated manner and could demonstrate that a CVA has verified such
integration. The Department believes these two qualifications would
minimize the risk that a lessee or grant holder would have to modify
completed fabrications or installations based on any subsequent
Department or CVA objections to later-reviewed components of the
project.
(c) Definition of ``Fabrication,'' and Early Fabrication of Facility
Components
Because of the long lead times for the procurement or fabrication
of some components for offshore wind energy facilities, numerous
lessees have expressed interest in the procurement or
[[Page 5984]]
fabrication of facility components before submittal of their COPs,
FDRs, and FIRs. This ``early fabrication of facility components'' would
take place outside of the OCS (e.g., onshore manufacturing).
The existing regulations provide that a lessee or a grant holder
may begin to fabricate and install approved facilities only after BOEM
notifies the lessee or grant holder that it has received the FDR and
FIR and has no objections.\54\ BOEM has previously read this provision
conservatively and required lessees to obtain departures before they
``begin'' any fabrication prior to BOEM's notification that it has no
objection to their FDR and FIR, even if the fabrication, i.e.,
manufacture, does not occur on the OCS. Lessees have asked BOEM to
clarify what constitutes ``fabrication'' because they want to
accelerate timelines by proceeding with procurement or fabrication
activities outside of the OCS prior to receiving BOEM's non-objection
to the FDR and FIR or the end of BOEM's 60-day review of the FDR and
FIR without objections.
---------------------------------------------------------------------------
\54\ 30 CFR 585.700(b). BOEM is also ``deemed'' to have no
objections if BOEM does not object within 60 days of receiving the
reports.
---------------------------------------------------------------------------
The Department has determined that the term ``fabrication,'' as
used in the current subpart G, is arguably ambiguous and, therefore,
further clarifying this term would be useful for the regulated
community. BOEM has granted departures from the requirements of Sec.
585.700(b) on a case-by-case basis,\55\ provided that the departure
request meets the requirements in BOEM's regulations and the lessee or
grant holder assumes all business risk associated with fabrication
activities that occur as a result of the departure. Whenever granting a
departure for early fabrication, BOEM reserved the right to object to
the fabrication methodologies described in the submitted FDR and FIR
before the lessee began installation of facility components on the OCS.
The Department has now concluded that the regulation in question
prohibits only the fabrication and installation of facility components
that take place on the OCS (e.g., assembly, construction, or
installation). Therefore, the fabrication of facility components that
does not take place on the OCS may be carried out prior to the
submittal of an FDR, FIR, or any plans under the regulations, and such
activities do not require the prior issuance of a departure. However,
the fact that fabrication activities outside the OCS can commence prior
to the submittal of an FDR, FIR, or any plans does not prevent the
Department from objecting to the installation of such components on the
OCS if their fabrication is inconsistent with accepted industry or
engineering standards, the approved SAP, COP, or GAP, or the FDR or
FIR, or regulations. To codify this policy, the Department proposes to
amend the existing regulations to remove any doubt that only
fabrication activities that take place on the OCS are prohibited prior
to the Department non-objection of the FDR and FIR or the end of the
60-day review period without objections.
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\55\ See BOEM's record of departure requests at https://www.boem.gov/departure-request.
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The Department also proposes to include in 585.112 a definition for
the term ``fabrication,'' which would be defined as ``cutting, fitting,
welding or other assembly of project elements of a custom design
conforming to project-specific requirements,'' and would exclude from
this definition the procurement of discrete parts of the project that
are commercially available in standardized form (such as electrical
components, magnets, and gears) and type-certified components (such as
nacelles and blades).\56\
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\56\ Component type-certification (for type-certified
components) provides independent proof that critical main components
of a wind turbine meet relevant international standards and codes
for performance and safety. Component type-certification differs
from project certification, which assesses the performance of a
group of wind turbines on a specific project site.
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Consequently, the proposed rule would reduce the number of
components that are considered ``fabricated'' through the definition.
The proposed rule would clarify that fabrication activities that do not
take place on the OCS can commence before the submittal of the FDR,
FIR, or any plans required under regulations. This proposed change
would not in any way limit BOEM's ability to conduct a robust
environmental review during the plan approval process; BOEM's
consideration of alternatives and mitigations would be unaffected. The
rule would also clarify that all facility components procured or
fabricated (regardless of where they were fabricated) would be subject
to CVA verification. This requirement would reduce the risk of a lessee
or grant holder seeking short-term cost savings to the detriment of
safety and accepted engineering practices. The lessee or grant holder
assumes any business risk associated with the procurement or
fabrication of facility components prior to plan approval or the
Department non-objection to the FDR and FIR or the end of the 60-day
review period without objections. In order to avoid the business risk
of objections to the fabrication of facility components prior to
installation, developers can always opt not to fabricate until their
FDR and FIR have gone through the 60-day review period without
objections or received a non-objection to the FDR and FIR. Although
such procurement and fabrication activities are not prohibited by the
regulations, the proposed rule would clarify that the Department
reserves the right, during its FDR and FIR reviews, to object to the
installation of previously procured or fabricated facility components
if said components are inconsistent, or were not fabricated in
accordance with, accepted industry or engineering standards, the
approved SAP, COP, or GAP, or the FDR or FIR, or BOEM's regulations.
Clarifying that the regulations do not prohibit all procurement or
fabrication activities prior to the submittal of the FDR and FIR
provides maximum flexibility to the industry, while still allowing the
goals of the regulation to be met (i.e., to prevent the installation of
facility components on the OCS if the Department has objections to
their fabrication or the installation methodologies proposed in the
FIR).
E. The Renewable Energy Leasing Schedule
1. Existing Regulations
The existing regulations do not address the preparation of a
renewable energy leasing schedule. Under the existing regulations, BOEM
announces lease sales individually as each is scheduled.
2. Why the Existing Regulations Should Be Updated
BOEM proposes to add a new section to the regulations, entitled
`The Renewable Energy Leasing Schedule' to indicate BOEM's intent to
publish a proposed five-year leasing schedule for the OCS renewable
energy program. This would provide greater transparency to the leasing
process by giving stakeholders as much advance notice as possible of
proposed lease sales.
The Secretary provided a preview of such a schedule on October 13,
2021, by announcing plans for BOEM to potentially hold up to 7 new
offshore lease sales by 2025 in the Gulf of Maine, New York Bight,
Central Atlantic, and Gulf of Mexico, as well as offshore the
Carolinas, California, and Oregon. The proposed regulation would
require a proposed leasing schedule and periodic updates to the
schedule. Through a proposed schedule, BOEM would provide increased
certainty and
[[Page 5985]]
enhanced transparency, and facilitate planning by industry, the States,
and other stakeholders. With this change, DOI can lay out an ambitious
roadmap to confront climate change, create good-paying jobs, and
accelerate the nation's transition to a cleaner energy future.
3. Proposed Changes
The proposed rule would include a new section describing the
renewable energy leasing schedule. This proposed schedule would include
a list of locations under consideration for leasing and a leasing
schedule that BOEM intends to follow in announcing its future renewable
energy lease sales. According to this proposal, at least once every two
years, the Secretary would publish a schedule of proposed lease sales.
As a proposed schedule, it would not obligate BOEM to offer all sales
on the schedule; BOEM would adjust the schedule as necessary through
the scheduled updates. The first published schedule would be issued for
the five-year period following the effective date of this rulemaking,
and subsequent schedules will cover the five-year period after each
update. This schedule would include a general description of the area
of each proposed lease sale, the calendar year in which each lease sale
is projected to occur, and the reasons for any changes made to the
previous schedule. Every time the schedule is updated, BOEM would
identify those lease sales that are being considered for the following
5-year period.
The Inflation Reduction Act (IRA), Public Law 117-169, requires
that, during the 10-year period beginning on August 16, 2022, BOEM may
not issue an OCS wind lease unless an OCS oil and gas lease sale has
been held during the 1-year period ending on the date of the issuance
of the wind lease and the sum total of acres offered for lease in OCS
oil and gas lease sales during that 1-year period is at least 60
million acres. BOEM will comply with the requirements of the IRA.
This Renewable Energy Leasing Schedule would differ substantially
from the Five Year Oil and Gas Leasing Program, described in the oil
and gas regulations in 30 CFR part 556. Compared to the Five Year Oil
and Gas Leasing Program, which is mandated under section 18(a) of the
OCS Lands Act, the proposed Renewable Energy Leasing Schedule would be
much less complicated and would not constitute a final action
enforceable or challengeable administratively or in the courts. The
proposed regulations would not have requirements for public meetings,
comment periods, or iterative proposals, and would not include a list
of factors that must be considered other than those already enumerated
in Sec. 585.102. Any proposed lease sale covered by the schedule would
be subject to all applicable regulations, including area
identification, coordination with relevant parties, and applicable
environmental reviews.
BOEM seeks comment on its proposal to publish a proposed Renewable
Energy Leasing Schedule and what information should be provided as part
of this schedule. BOEM is soliciting comments specifically on the
content and the timing of the schedule updates, as well as generally on
how best to provide a schedule to improve transparency of renewable
energy development on the OCS.
F. Lease Issuance Procedures
1. Existing Regulations
During the past 10 years, the existing lease issuance procedures
have been criticized for being too prescriptive in some aspects and
unclear in others. The existing procedures constrain flexibility by
prescribing auction formats, processes, systems, and variables. BOEM
has determined that the lease issuance process requires added
flexibility, transparency, and clarity and that its regulations should
address possible consequences when the provisional winner fails to
execute a lease, a lessee relinquishes a lease, or BOEM contracts or
cancels a lease.
2. Why the Existing Regulations Should Be Updated
BOEM proposes to revise several aspects of its lease issuance
procedures primarily for simplification, clarification, and conformance
with existing agency practice.
3. Proposed Changes
(a) Pre- and Post-Auction Procedures
This proposed rule would reorganize, simplify, and clarify the
sections of BOEM's regulations that detail the steps leading to an OCS
renewable energy auction. The proposed rule would introduce a new term,
``provisional winner,'' to describe the bidder that BOEM determines has
submitted the winning bid at the close of the auction, pending
completion of the government's post-auction reviews and the lease award
reconsideration process. The provisional winner becomes the winning
bidder upon favorable completion of these reviews and appeals. The
proposed rule would consolidate the reconsideration and appeal
provisions into a single section while retaining separate processes for
seeking the review of a decision selecting a provisional winner and for
appealing all other final decisions under this part. The proposed rule
would simplify and clarify post-auction procedures by outlining what
BOEM and a provisional winner must do between the auction and lease
execution. The proposed rule would eliminate the term ``request for
interest'' and replace it with the broader term ``request for
information.'' Finally, the proposed rule would change the due date for
payment of the first 12 months' rent to 45-calendar days after the
winning bidder receives a copy of the executed lease.
(b) Auction Processes and Rules
BOEM recognizes that the auction formats and bidding systems
described in the existing Sec. Sec. 585.220 and 585.221 are difficult
to understand and overly prescriptive, although they allow for
customization of each auction. This proposed rule would simplify and
clarify the auction regulations, replacing the currently enumerated
auction formats, bid systems, and bid variables with a more flexible
process to better accommodate an emerging industry while allowing for
auctions to be customized based on circumstances. The proposed rule
would meet the fundamental policy objectives to have a process that is
objective, fair, reasonable, and competitive; awards leases to the
highest bidder; and provides a fair return to the U.S. taxpayer.
Consistent with BOEM's existing practice, the PSN would propose the
specific format and procedures for an upcoming auction, and the public
would have an opportunity to submit comments that would inform BOEM's
final decisions regarding format and procedures. BOEM would publish the
final auction format and procedures in the FSN. This proposed rule
would allow BOEM greater flexibility to tailor each auction to fit the
particular circumstances.
(c) Multiple Factor Auctions and Bidding Credits
BOEM proposes to continue to implement multiple factor auctions,
through the use of bidding credits, to allow the competitive lease
award process to take into consideration various priorities, such as
advancing a domestic supply chain or requiring workforce development
agreements, relating to orderly development of OCS renewable energy
resources. The multiple factor auction format ascribes a value,
expressed in monetary terms, to the factors or actions demonstrated or
committed to by a bidder at a lease auction during the competitive
lease
[[Page 5986]]
award process. In each round of the auction, a bid may have a non-
monetary component represented by the bidding credit as well as a
monetary (cash) component.
A multiple factor auction using bidding credits would be expected
to proceed along the lines of the following example. We assume there
are three qualified bidders in an ascending bid clock auction, which is
the same auction format traditionally used for BOEM's wind energy lease
sales. Bidder A has met the requirements for a bidding credit of 10
percent of the cash component by having obtained a power purchase
agreement (PPA); Bidder B has met the requirements for a bidding credit
of 20 percent of the cash component by having committed to appropriate
workforce or supply chain development agreements; and Bidder C has not
earned or made the requisite commitments to earn a credit.
The auction begins with an opening bid of $100 with subsequent $10
bidding increments per round. The auction continues for seven rounds.
Bidder C submitted an exit bid in Round 6 and is ineligible to continue
bidding. The auction concludes when Bidder B bids the asking price in
Round 7 and Bidder A submits an exit bid less than the asking price.
Bidder B wins the auction with its lower cash bid combined with its
commitment to workforce training and supply chain development. The
example bidding results are shown in the following table.
Table--Offshore Wind Auction Example
----------------------------------------------------------------------------------------------------------------
BOEM's asking
Bidding round price (combined Bidder A (10 Bidder B (20 Bidder C (no credit)
bid) percent credit) percent credit)
----------------------------------------------------------------------------------------------------------------
1............... $100 $90.90 cash + $9.10 $83.30 cash + $100.00.
credit. $16.70 credit.
2............... $110 $100 cash + $10 $91.67 cash + $110.00.
credit. $18.33 credit.
3............... $120 $109.09 cash + $100 cash + $20 $120.00.
$10.91 credit. credit.
4............... $130 $118.18 cash + $108.33 cash + $130.00.
$11.82 credit. $21.67 credit.
5............... $140 $127.27 cash + $116.67 cash + $140.00.
$12.73 credit. $23.33 credit.
6............... $150 $136.36 cash + $125 cash + $25 $145.00 (exit bid).
$13.64 credit. credit.
7............... $160 Exit bid of $140 $133.33 cash + [ineligible to bid].
cash + $14 credit $26.67 credit =
= $154.00. $160.00 (winner).
----------------------------------------------------------------------------------------------------------------
Before the auction, BOEM will determine each bidder's eligibility
for bidding credits in accordance with the specifications of the FSN;
however, such eligibility may be established either for actions that
the bidder has already undertaken or for actions which it has committed
to undertake in the future, provided that BOEM has agreed to the terms
by which such a commitment will be made. Eligibility for bidding
credits would be tied to specific actions defined in the FSN that
facilitate OCS renewable energy development by increasing the
likelihood or pace of development--for instance, a PPA--or by advancing
other public policy goals reflected in the OCS Lands Act. The FSN would
contain the rules governing the eligibility of parties to obtain
bidding credits, as well as the application process, use, and value of
bidding credits in a specific auction. As it has done in the past, BOEM
would consider the enforceability of commitments made by bidders during
the design of the auction credits to be offered in specific lease
sales. In the past, this was not much of a concern because BOEM mostly
offered credits for commitments and achievements previously made. This
proposed rule would clarify that a bidder may be eligible for bidding
credits based on actions the bidder has already undertaken or for
commitments to future actions. However, in proposed 30 CFR 585.225,
this rule would also provide that, in the event that a lessee does not
meet the commitments it made to obtain any bidding credits, the lessee
would be required to repay the value of the bidding credits that it
received, adjusted for inflation. BOEM would also reserve the right to
impose civil penalties pursuant to the provisions of subpart N of 30
CFR 550 for failure to comply with the terms or provisions of a lease,
easement, or right-of-way.
According to the provisions of this proposed rule, a multiple
factor auction may take one or more non-monetary factors into
consideration, including: (1) power purchase agreements; (2)
eligibility for, or applicability of, renewable energy credits or
subsidies; (3) development agreements by a potential lessee that
facilitate shared transmission solutions and grid interconnection; (4)
technical merit, timeliness, financing and economics, environmental
considerations, public benefits, or compatibility with State and local
needs; (5) agreements or commitments by the developer that would
facilitate OCS renewable energy development or other OCS Lands Act
goals; or (6) any other factor or criteria to further development of
offshore renewable energy in a sustainable and environmentally sound
manner, as identified by BOEM in the PSN and FSN.
(d) Solicitation of Comments
BOEM seeks comments on the use of bidding credits and multiple
factor auctions as a method of advancing important priorities, such as
promoting workforce development or supply chain enhancement, consistent
with the goals of the OCS Lands Act. It is BOEM's goal to ensure that
there is adequate flexibility to the leasing process to achieve public
policy goals and any comments or suggestions as to how BOEM could best
achieve this objective would be welcome. Specifically, BOEM is
interested in obtaining comments on how bidding credits or factors
might be tailored to mitigate possible adverse, project-related
impacts. For example, BOEM is interested in receiving comment on what
impacts a project could have on underserved communities and how bidding
credits or multiple factor auctions can be used to promote mechanisms
such as community benefit agreements that could address those impacts
and provide benefits to the underserved communities. Comments on
alternative means to achieve public policy goals, such as through lease
stipulations, are also sought.
(e) Improper or Inappropriate Bidder Communications
The proposed rule would explicitly prohibit a bidder from
disclosing its auction strategies and economic valuations of a lease
area to other bidders in a particular auction in any manner that might
prevent the United States from obtaining a fair return on a prospective
lease. Such practices have been prohibited in recent FSNs.
This proposal would outline the rules applicable to all auctions
and the
[[Page 5987]]
processes BOEM would use to disqualify a bidder that no longer meets
qualification requirements or who engages in specified improper
conduct. The proposed rule would specify how a disqualified bidder
might seek to be re-qualified as a bidder.
(f) Provisional Winner Obligations
This proposed rule would define the term ``provisional winner'' and
would outline consequences if a provisional winner fails to sign the
lease agreement, provide the requisite amount of financial assurance,
or tender the outstanding bid balance. The proposed rule would provide
a list of actions that BOEM is authorized to take if a provisional
winner fails to fulfill its obligations. In addition, because the
proposed rule would allow a provisional winner to become a lessee
before it has completed all obligations for which it obtained bidding
credits, an additional provision has been added to proposed Sec.
585.225, specifying that a lessee that has obtained bidding credits for
prospective performance obligations that were not fulfilled at the time
of the lease award, are subject to repayment in the event that those
performance obligations are not ultimately met prior to a specified
deadline or event. BOEM would also reserve the right to impose civil
penalties pursuant to the provisions of subpart N of 30 CFR 550 for
failure to comply with the terms or provisions of a lease, easement, or
right-of-way.
(g) Re-Offering Leases at Auction or When a Lease Area Is Relinquished,
Contracted or Cancelled
The proposed rule would provide clear authority for BOEM to offer a
lease to the next highest bidder if a provisional winner of a lease
auction fails to fulfill its obligations before lease execution or is
otherwise unable to execute a lease. Similarly, if a lessee
relinquishes its lease or BOEM contracts or cancels a lease in whole or
in part, BOEM may re-offer the area previously covered by the lease.
G. Risk Management and Financial Assurance
1. Existing Regulations
As discussed above, under the current subpart E of part 585, BOEM
requires lessees and grant holders to provide financial assurance, in
the form of a bond or other instrument, in an amount sufficient to
guarantee compliance with terms and conditions of their leases and
grants.
2. Why the Existing Regulations Should Be Updated
The existing financial assurance regulations lack flexibility and
clarity in several key areas, as explained below.
3. Proposed Changes
This proposed rule would revise BOEM's risk management and
financial assurance requirements in the proposed subpart F. The
revisions are intended to facilitate OCS renewable energy development
while continuing to protect the U.S. taxpayer against risks of default.
The proposed rule would accomplish both goals through four key changes.
Other minor proposed changes are addressed in section VI.F. BOEM also
seeks comment on additional potential changes that would better align
financial assurances to risk discussed in subsection 3(e) below.
(a) Elimination of COP Approval Financial Assurance Requirement
The proposed rule would eliminate the supplemental financial
assurance currently required before COP approval.\57\ This requirement
was intended to protect the U.S. taxpayer against liability from
defaulted lease obligations that accrue after COP approval.\58\
However, decommissioning liabilities do not accrue from COP approval;
such liabilities accrue only with the commencement of approved
activities on the OCS.\59\ BOEM's regulations require--and this
proposed rule would continue to require--supplemental financial
assurance before OCS installation starts in order to cover those
liabilities, i.e., anticipated decommissioning costs. Therefore, BOEM
proposes to eliminate as unnecessary the requirement for supplemental
financial assurance before COP approval. In the unforeseen event that a
COP approval does, by itself, cause the accrual of new obligations,
BOEM retains the authority to assess supplemental financial assurance
on a case-by-case basis under Sec. 585.517.\60\
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\57\ 30 CFR 585.516(a)(3).
\58\ See Renewable Energy and Alternate Uses of Existing
Facilities on the Outer Continental Shelf Final Rule, 74 FR 19637
(Apr. 29, 2009), available at https://www.boem.gov/Renewable-Energy-Program/FinalRenewableEnergyRule-pdf.aspx.
\59\ Under both the existing regulations and the proposed rule,
OCS installation of approved facilities may begin only after the
lessee addressed all CVA and BOEM concerns raised during their FDR
and FIR reviews to their satisfaction.
\60\ Where a permit under the National Marine Sanctuaries Act
may be required, NOAA's Office of National Marine Sanctuaries may
require certain financial assurances for infrastructure removal
activities potentially required under the permit.
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(b) Revision of Lease-Specific Financial Assurance Amount
The proposed rule would simplify the requirements for financial
assurance during the early stages of a commercial lease. Currently,
before BOEM will execute a commercial lease, the lessee is required to
provide lease-specific financial assurance in the amount of $100,000 to
guarantee compliance with the lease terms and conditions. BOEM
recognizes, however, that annual rental payment is the only financial
obligation accrued at lease execution and before installation
activities on the OCS are authorized. BOEM currently assesses financial
assurance for 12 months of rent when it makes its first request for
supplemental financial assurance--typically during SAP review.\61\ This
practice leaves BOEM under-bonded for the preliminary term of a lease
if annual rent exceeds $100,000, which it generally does.
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\61\ 30 CFR 585.516(a)(2).
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BOEM, therefore, proposes to replace the $100,000 lease-specific
financial assurance with financial assurance in the amount of 12
months' rent, due before lease execution. This amendment would ensure
that BOEM and U.S. taxpayers are adequately bonded throughout the early
stages of the lease. Combined with the proposed elimination of
financial assurance for met buoy decommissioning, this amendment would
simplify financial assurance by eliminating the need for supplemental
financial assurance in addition to 12 months' rent before installation
of BOEM-approved facilities on the OCS. The amendment is not expected
to have a financial impact on lessees.\62\
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\62\ As discussed in section V.A above, BOEM proposes to
eliminate SAPs for met buoys, which have become the predominate
facilities for OCS site assessment activities.
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Additionally, BOEM's regulations allow periodic adjustments to the
$100,000 lease-specific financial assurance based on the Consumer Price
Index-All Urban Consumers or equivalent index. With the proposed
replacement of the $100,000 lease-specific financial assurance, BOEM
proposes to eliminate these adjustment provisions as obsolete. BOEM
seeks comments on the extent to which additional modifications or
enhancements to the financial assurance might be appropriate.
Extending the reasoning in this section, the proposed rule also
would change the financial assurance requirement prior to issuance of
limited leases and grants from $300,000 to an amount equal to 12
months' rent.
[[Page 5988]]
(c) Additional Authorized Financial Assurance Instruments
The proposed rule would provide greater flexibility regarding the
financial assurance instruments that BOEM would accept. While BOEM's
regulations list types of acceptable financial assurance instruments,
BOEM's regulations permit it to accept other instruments that meet the
general requirements for financial assurance in 30 CFR 585.525. Several
lessees have expressed an interest in using letters of credit, which
are accepted as financial assurance across a range of industries. The
proposed rule explicitly would allow letters of credit as permissible
financial assurance instruments and would set forth evaluation criteria
for their use. The proposed rule would add catch-all provisions
clarifying that BOEM may accept instruments not explicitly listed as
well as combinations of different instruments; however, these
instruments would need to meet BOEM's general requirements for
financial assurance as noted above. These changes would provide greater
flexibility to a lessee and a grant holder, but still protect the
United States against default.
The proposed rule also would provide lessees and grant holders with
greater flexibility when using a third-party guaranty by allowing
guarantors to cap their liability. BOEM's existing regulations require
a third-party guaranty to cover the full amount of all lease and grant
obligations. The proposed rule would grant BOEM the discretion to
approve a third-party guaranty for a specific amount. This modification
would provide lessees and grant holders with the flexibility to use a
third-party guaranty up to a certain dollar amount and to satisfy the
remainder of their financial assurance obligations through other
acceptable instruments. Given that BOEM would retain the ability to
approve all proposed financial assurance instruments and that the
criteria for such instruments would remain unchanged, BOEM believes
these changes would not increase the risk to U.S. taxpayers.
(d) Staged Funding of Decommissioning Accounts
The proposed rule would allow staged funding of decommissioning
accounts during the operations period of a lease or grant to satisfy
financial assurance requirements for decommissioning. BOEM's existing
regulations require full funding of a decommissioning account for each
renewable energy facility, such as a wind turbine generator, before its
installation on the OCS. This places a significant upfront capital
burden on a lessee or a grant holder.
BOEM strives to develop a financial assurance framework for the
renewable energy sector that accomplishes the same goal of protecting
the taxpayer as does the financial assurance framework governing the
oil and gas sector. BOEM also recognizes that there are key differences
between the renewable energy and oil and gas sector that necessitate
different approaches. Notably, offshore renewable energy is projected
to maintain consistent levels of power production over the life of a
project, as opposed to production decline curves associated with oil
and gas production from offshore wells. In addition, the risk that
predicted levels of oil and gas reserves may be overstated is also not
a concern with offshore renewable energy projects. Additionally,
renewable energy projects often have legally binding PPAs, which ensure
an ongoing revenue source over a significant time horizon and eliminate
another major risk factor faced by the oil and gas sector: commodity
price volatility. This relatively consistent production, combined with
PPAs that often guarantee a market for power at predictable prices over
15 to 20 years, allows BOEM to receive revenue and make profitability
projections with a much greater degree of certainty than for
conventional energy assets.
BOEM's proposal to set a scheduled and staged implementation of a
decommissioning trust account or other financial assurance funding
mechanism is also appropriate given that the funding schedule is
established at the beginning of the operations period, significantly
before decommissioning is scheduled to occur, as opposed to after the
assets have been operating for years and may be approaching or past
scheduled end-of-life. The proposed rule would allow BOEM to approve a
schedule for funding decommissioning accounts during a lease's or
grant's operations period on a case-by-case basis.\63\ In all
instances, the decommissioning account would be required to be fully
funded by the time a lessee or grant holder is obligated to
decommission the applicable facility. This proposed change would align
BOEM's financial assurance regulations with common European practices.
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\63\ The operations period for a commercial lease is defined at
Sec. 585.235(a)(4); for a limited lease, Sec. 585.236(a)(2); and
for a grant, Sec. 585.303(b).
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BOEM believes the risk of this proposed change to U.S. taxpayers is
negligible. First, the proposed rule would not commit BOEM to allowing
staged funding of a decommissioning account in all instances. If BOEM
believes that a particular project poses a high financial risk, BOEM
could require full funding of the decommissioning account before OCS
installation. Second, the European industry has a strong history of
solvency that BOEM believes would extend to the U.S. industry because
the lessees and projects share many of the same characteristics. Third,
BOEM anticipates that even if a lessee became insolvent during its
commercial operations period, it would likely be able to transfer a
functioning OCS renewable energy facility to a solvent entity because
the revenues would be expected to exceed operating costs.
(e) Other Financial Assurance Provisions
BOEM is considering additional changes to its existing financial
assurance framework. In December 2015, the Government Accountability
Office highlighted risks in BOEM's financial assurance procedures
applicable to the offshore oil and gas industry and recommended that
BOEM complete its planned financial assurance revisions ``including the
use of alternative measures of financial strength.'' \64\ Subsequently,
BOEM is considering a new rulemaking to revise the financial assurance
regulations for its offshore oil and gas program while continuing to
protect U.S. taxpayers against defaulted obligations incurred by
lessees and grant holders.\65\
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\64\ Government Accountability Office, GAO-16-40, Offshore Oil
and Gas Resources, Action Needed to Better Protect Against Billions
of Dollars in Federal Exposure to Decommissioning Liabilities 34
(2015), https://www.gao.gov/products/GAO-16-40.
\65\ Risk Management, Financial Assurance and Loss Prevention,
85 FR 65904 (Oct. 16, 2020).
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The oil and gas rulemaking initiative could consider reliance on
credit ratings with a specific regulatory credit rating threshold for
BOEM's evaluation of the financial strength and reliability of a
lessee, grant holder, or third-party guarantor. In all cases, BOEM
could retain the discretion to require supplemental financial assurance
in situations where it is warranted.
Similarly, in its renewable energy program, BOEM is considering use
of a minimum credit threshold rating to help determine the necessity
for financial assurance. BOEM is not proposing regulatory text
implementing this concept and is not specifying a credit rating
threshold in this rulemaking. BOEM does seek comments on the merits of
this concept for potential inclusion in the final rule for the
renewable energy program. Regulatory
[[Page 5989]]
text implementing this proposal likely would result in BOEM replacing
many of the factors that currently guide BOEM's determination of a
lessee's or grant holder's financial strength in the existing Sec.
585.527, or adding provisions outlining additional methods for
determining financial strength.
(i) Credit Ratings
Currently, BOEM requires a commercial lessee to provide
supplemental financial assurance before installing facilities included
in the approved COP.\66\ Under existing regulations, BOEM may allow a
lessee or grant holder to use its financial strength and reliability to
cover its financial assurance based on an evaluation of audited
financial statements; business stability; reliability; and a record of
compliance with laws, regulations, and contracts.\67\ Based on a
similar evaluation of a guarantor, BOEM also may allow a lessee or
grant holder to use a third-party guarantee to meet its financial
assurance requirements.\68\
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\66\ 30 CFR 585.516(a)(4). BOEM may adjust the amount of the
supplemental financial assurance as cumulative obligations increase
or decrease during the lease. 30 CFR 585.517(c). On a grant or
limited lease, BOEM may require supplemental financial assurance as
activities progress and obligations accrue. 30 CFR 585.521(a).
\67\ 30 CFR 585.527(a).
\68\ 30 CFR 585.528(b).
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These factors primarily assess past performance as a proxy for
future financial strength and reliability. In dynamic electricity
markets, however, such backward-looking factors may lead to inaccurate
and inconsistent assessments of financial strength and reliability.
A forward-looking assessment would be more reliable because the
financial situation of a lessee, grant holder, or third-party guarantor
can worsen quickly despite its past performance. Credit ratings provide
such forward-looking assessments by taking into account relevant
factors, such as cash flow, debt-to-income ratios, and debt-to-funds
from operation.
BOEM seeks comment on whether it should alter its assessment of
financial strength and reliability by replacing the use of several
current factors with a credit rating from a nationally recognized
statistical rating organization (NRSRO), as identified by the U.S.
Securities and Exchange Commission under the Credit Rating Agency
Reform Act of 2006 and its implementing regulations,\69\ or a proxy
credit rating determined by BOEM using audited financial statements.
Based on BOEM's experience in the oil and gas industry, BOEM has
concluded credit ratings are the most reliable predictor of future
ability to meet obligations.\70\ The use of credit ratings would align
BOEM's assessment with widely accepted risk evaluation methods within
the banking and financial industry.
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\69\ See 17 CFR parts 240 and 249.
\70\ Credit ratings are part of current reliability criteria
discussed in existing Sec. 585.527(a)(3).
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BOEM believes that an NRSRO credit rating greater than or equal to
investment grade from Standard & Poor's Ratings Service (S&P) or from
Moody's Investor Service would be a sufficient indicator of future
reliability to allow a lessee or grant holder to use its financial
strength to meet its requisite financial assurances. BOEM also proposes
to use the same credit rating criteria to evaluate the financial
strength and reliability of a lessee's or grant holder's proposed
third-party guarantor. If a lessee, grant holder, or guarantor lacks an
NRSRO credit rating, it would be allowed to submit audited financial
statements--which generally include an income statement, balance sheet,
statement of cash flows, and auditor's certificate--prepared in
accordance with generally accepted accounting principles. Based on
these audited financial statements, BOEM then would determine a proxy
credit rating using the S&P Credit Analytics credit model or a similar
widely accepted credit rating model. BOEM has concluded that such a
model, used in conjunction with audited financial statements, can
generate a proxy credit rating comparable to that of an NRSRO.
(ii) Joint and Several Liability
Currently, co-lessees and co-grant holders are jointly and
severally liable for lease or grant obligations accruing during their
tenancy, including decommissioning.\71\ When a lease or grant is
assigned, the assignor remains liable for unmet obligations that
accrued before BOEM's approval of the assignment.\72\ The assignee is
liable for obligations that accrued before and after BOEM's approval of
the assignment.\73\ Moreover, the assignee is required to provide
requisite financial assurance.\74\ This joint and several liability
significantly reduces the risk of non-performance if any liable party
has adequate financial strength and reliability.
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\71\ 30 CFR 585.406(a).
\72\ 30 CFR 585.410.
\73\ 30 CFR 585.411(b).
\74\ 30 CFR 585.408(b)(8).
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BOEM seeks comment on whether it should explicitly rely on the
financial strength and reliability of these other liable parties,
including any current or predecessor lessees and grant holders, when
determining the need for, and amount of, financial assurance necessary
to cover all accrued lease or grant obligations.
H. Safety Management Systems
An SMS is a combination of policies, procedures, and control
mechanisms designed to meet an organization's safety objectives in a
disciplined and continually improving manner. BOEM regulations require
a lessee or a grant holder to develop an SMS for COP-approved renewable
energy facilities and for SAP- and GAP-approved facilities that BOEM
deems complex and significant. The SMS must be functional when a lessee
or grant holder begins its approved activities and throughout the
project.
1. Existing Regulations
BOEM's existing SMS regulations are brief and general, having been
promulgated in 2009 when construction and operation activities were
years in the future. The regulations require a lessee or a grant holder
to submit a general description of safety measures and capabilities,
emergency procedures, and testing protocols. Multiple Federal statutes
authorize various safety oversight activities by different agencies for
facilities on the OCS, including renewable energy facilities. BOEM
recognizes that duplicative enforcement of similar statutes by multiple
agencies is likely to be confusing and cause unneeded cost and delay.
Consequently, BOEM and BSEE have coordinated with the Occupational
Safety and Health Administration (OSHA) and the United States Coast
Guard (USCG)--the Federal agencies primarily responsible for OCS
facility safety management--to assure coordination and consistency with
the safety management responsibility of these agencies for OCS
facilities. BOEM's SMS requirements will become the primary tool to
ensure human and environmental safety with respect to renewable energy
development on the OCS. This rule is intended to clarify the
expectations of the SMS for the regulated community. It is also
designed to clarify the expected content of an SMS and support the
assessment by other Federal regulators that an SMS performance-based
approach to risk management will establish a reasonable regulatory
framework.
2. Why the Existing Regulations Should Be Updated
With construction and operation activities expected to commence
soon, OCS wind lessees and contractors have
[[Page 5990]]
informally asked BOEM to clarify its expectations regarding SMS
standards. The proposed rule would address those inquiries, incentivize
SMS certification from a recognized accreditation organization, add two
safety reporting requirements, and clarify that lessees and grant
holders would be required to have and use an SMS for all OCS activities
undertaken pursuant to a lease, from site assessment through
decommissioning.
Additionally, the proposed changes would reflect the recent DOI
policy statement clarifying that 30 CFR part 585 contains the primary
workplace health and safety regulations for OCS renewable energy
operations.\75\
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\75\ Notification of policy statement, 84 FR 55861 (Oct. 18,
2019).
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3. Proposed Changes
The Department proposes a performance-based approach that would
promote flexibility in determining the best way to ensure personnel
safety on and near OCS renewable energy facilities during activities
covered by the SMS. The proposed SMS changes are consistent with
industry's safety management best practices. The proposed amendments
would allow a lessee or grant holder to adopt U.S. and international
workplace health and safety standards as its SMS framework.
Under the proposed rule, upon SMS receipt, the Department would
engage with the lessee or grant holder to understand the risks the
safety system was designed to mitigate and how the system would
function. The proposed rule would provide transparency regarding the
types of information that the Department considers necessary in a
satisfactory SMS and would clarify that the Department expects the
lessee or grant holder to design, implement, and maintain the SMS
according to widely accepted standard practices. This clarification
would help prospective OCS renewable energy developers understand the
Department's SMS expectations.
The proposed rule would provide incentives for a lessee or grant
holder to obtain certification of its SMS from a recognized safety and
environmental management system CAB. A lessee or grant holder whose SMS
has been certified would be eligible for streamlined oversight in
recognition of the increased rigor in the development and
implementation of its SMS. While such certifications would not be
required and cannot guarantee streamlined oversight in all instances,
BOEM anticipates that most lessees and grant holders would pursue
certification as a best practice.
The proposed rule would add two reporting requirements. One report
would require an annual summary of how the SMS performed, normalized to
work hours and energy generation. This report would allow the
Department to verify SMS functionality and track continual
improvements.\76\ The second would be a triannual report summarizing
the results of the most recent SMS audit, the corrective actions
implemented, and a description of any changes made to the SMS since the
prior report. Data from these reports could be used to generate annual
industry-wide comparisons of safety performance.
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\76\ This report also would close a known reporting gap between
BOEM and OSHA, which requires annual reporting of workplace injury
and illness data.
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Finally, the proposed rule would provide that a lessee must have a
functional SMS before beginning any activity on the OCS pursuant to a
lease, and must use its SMS for all such activities, including site
assessment work. This would clarify the Department's expectations
regarding the stages at which an SMS must be functional and used,
including prior to the SAP, COP, or GAP.
I. Inspections
1. Existing Regulations
Existing regulations state that BOEM will inspect facilities and
vessels engaged in renewable energy activities to verify compliance
with applicable terms, conditions, laws and regulations, and to
determine whether safety equipment has been properly installed and
operated. The existing regulations that require the lessee to conduct
self-inspections are limited to inspections of structures, mooring
systems, and monitoring of corrosion protection.
2. Why the Existing Regulations Should Be Updated
OCS Lands Act section 1834(c) requires the Department to promulgate
regulations to provide for scheduled onsite inspection, at least once a
year, of each facility on the outer Continental Shelf. As currently
written, BOEM's regulations require BOEM to perform a scheduled on-site
inspection of all renewable energy facilities on the OCS and inspect
all safety equipment designed to prevent or ameliorate fires, spills,
or other major accidents.
To ensure that the OCS Lands Act mandate of an annual onsite
inspection is met, the Department proposes to update its regulations to
require the lessee conduct annual onsite self-inspections. The lessee
would also be required to maintain records of its self-inspections and
to provide these records to the Department upon request. This would
make the lessee accountable for ensuring safety and protection of the
environment. In addition, the Department would retain the ability to
conduct inspections at any time.
This update would allow for DOI to focus resources on conducting
inspections, both scheduled and unscheduled, based on designated
criteria, such as operational risk severity and risk probability,
industry trends, incident data, analytical data, safety management
system implementation and audits, and other observations.
This proposal would also reduce logistical and human resource
burdens on the operators by allowing them to schedule the annual self-
inspections with maximum efficiency by incorporating the inspections
into scheduled onsite activities.
3. Proposed Changes
(a) BOEM Inspection Requirement
The proposed rule would revise BOEM's requirement ``to conduct'' an
inspection on OCS facilities or any vessels engaged in renewable
activities to state that BOEM ``may conduct'' an inspection on an OCS
facility or any vessel engaged in renewable activities.
(b) Self-Inspection Requirements
The proposed rule would require that, once a facility has commenced
commercial operations, the lessee would conduct an onsite inspection of
its facility at least annually, including all safety equipment designed
to prevent or ameliorate fires, spillages, or other major accidents, to
satisfy the annual onsite inspection requirement of the OCS Lands Act.
The proposed rule would also require the lessee to maintain records of
the facility inspections, summarize the results of those inspections
and provide the records and the summary of the results to BOEM upon
request.
J. Other Proposed Changes
The Department proposes other regulatory changes that fall outside
the eight categories previously discussed. The most significant of
these proposed changes are summarized here. Other changes correct
technical errors or clarify inconsistencies arising from this proposed
rule. All these proposed changes and their rationales are discussed
further in section VI.
[[Page 5991]]
1. Lease Structure
The proposed rule would change the default lease terms in Sec.
585.235 by merging the existing preliminary and site assessment terms
into one preliminary period; establishing new lease periods for COP
review and for design and construction that can vary in length based on
the duration of the COP review and the design and construction process;
and converting the existing 25-year operations term that commences at
COP approval into a 30-year operations period commencing at the
commercial operations date. These proposed changes recognize most
lessees will not submit SAPs, account for the time required for permit
review and construction, and provide certainty to a lessee regarding
the operations period of its renewable energy project.
2. Lease Segregation and Consolidation
BOEM has received requests from lessees to segregate single leases
into multiple leases, held by different subsidiaries, as well as to
consolidate multiple adjacent leases into a single lease. BOEM
regulations allow such segregations and consolidations, and the
proposed rule would clarify the existing regulations by establishing
specific procedures.
3. Civil Penalties
BOEM's renewable energy regulations do not explicitly provide for
assessing immediate civil penalties for violations that constitute(d) a
threat of serious, irreparable, or immediate harm or damage to life,
property, or the marine, coastal, or human environment, without notice
and an opportunity to correct. However, the authority for doing so is
set forth in the OCS Lands Act. This proposed rule would amend the
Department's regulations to ensure that its civil penalty regulations
are coextensive with its statutory authority.
4. Standardize Annual Rental Rates for Grants
The proposed rule would standardize the annual rental rate for most
grants. Under the proposed rule, BOEM would apply a $5 per acre annual
rental rate for both ROWs and RUEs.
5. Technical Corrections and Clarifications
Finally, the proposed rule would make numerous minor technical
changes. These technical revisions maintain consistency with proposed
changes elsewhere in the regulations, clarify ambiguities, correct
technical errors, and improve organization. Examples of proposed
changes in this category include:
Clarifying that under 30 CFR 585.103(a)(1), regulatory
departures may be granted when necessary to facilitate programmatic
activities before, during and after lease termination.
Replacing reference to the Immigration and Naturalization
Service, which no longer exists, with ``appropriate Federal immigration
authority.''
Eliminating the paper copy submission requirement for
plans, applications, reports, and notices to modernize procedures and
to promote responsible stewardship of resources.
Replacing ``BOEM'' with ``ONRR'' in certain provisions to
reflect that ONRR is the correct payee for all lease and grant
payments.
Revising the cross-reference to BSEE's 30 CFR part 254
regulations in BOEM's oil spill response plan requirement for COPs,
because the majority of 30 CFR part 254 does not apply to offshore
renewable energy.
Modifying the air quality provisions to reflect Congress'
2011 amendments to the CAA.
K. Potential Revisions to Regulations Governing Research Activities
BOEM requests public comments on whether the lease process for
research activities in existing Sec. 585.238 warrants amendment. This
proposed rule does not contain changes to this section, but BOEM is
interested in receiving comments on the following: whether it should
create a specific regulatory framework for research leases and
planning; whether it should expand the criteria for who can hold
research leases; whether the DNCI requirement can or should be relaxed
for research activities; and whether any other aspects of this section
deter OCS renewable energy research. Note that for one of the two
leases issued under this section to date, BOEM used its discretion to
require the submittal of a Research Activities Plan containing
information substantially the same as what is required to be included
in a COP.\77\
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\77\ See letter from Bureau of Ocean Energy Mgmt. to John
Warren, Dir., Va. Dep't Mines, Minerals & Energy (Mar. 23, 2016),
https://www.boem.gov/Approval-of-VOWTAP-Research-Activities-Plan/.
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L. Potential Revisions to Regulations Governing Transmission
BOEM recognizes a need to minimize impacts to the environment and
natural and cultural resources and maximize the utility of land-based
points of interconnection. BOEM is continuing efforts to explore a
coordinated approach to transmission, which could include the shared
use of cable corridors or other shared transmission solutions, such as
regional transmission systems, meshed systems, and the development of
an offshore grid. Accordingly, BOEM seeks comment on the types of
regulatory changes that would be appropriate to better accommodate
these options and to minimize impacts to environmental, natural, and
cultural resources. For example, should 30 CFR 585.200(b) be modified
to allow BOEM to encourage or require use of such options where they
are available and allow for full enjoyment of the lease? What
approaches or options should BOEM consider advancing in 30 CFR
585.200(b) to facilitate interconnection for lessees, while minimize
impacts to important resources?
VI. Section-by-Section Analysis of Proposed Rule
A. 30 CFR Part 585, Subpart A--General Provisions
Sec. 585.102 What are BOEM's responsibilities under this part?
Section 585.102(a) specifies that BOEM will authorize renewable
energy activities in accordance with OCS Lands Act subsection 8(p)(4),
as enumerated in Sec. 585.102(a)(1) through (12). BOEM is amending
this regulation to clarify that none of the enumerated requirements is
intended to outweigh or supplant any other. The purpose of this change
is to clarify that BOEM takes all of these relevant factors into
consideration in planning its renewable energy program and that no one
factor or consideration, by itself, should outweigh the other relevant
considerations.
Sec. 585.103 When may BOEM prescribe or approve departures from the
regulations in this part?
Section 585.103 was promulgated to allow BOEM to maintain
programmatic flexibility while adapting to a new and changing industry
by approving departures from regulatory requirements under certain
limited circumstances.\78\
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\78\ See supra note 51, at 19653.
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The proposed rule would modify Sec. 585.103(a) introductory text
and (a)(1) to specify that BOEM may prescribe or approve a departure
from the regulations when BOEM deems the departure necessary because
the applicable provision(s) as applied to a specific circumstance are
impractical or unduly burdensome and the departure is necessary to
achieve the intended objectives of the renewable energy program. In
this way BOEM would maintain flexibility to adapt the regulations to
the unique circumstances of this new and evolving industry while
[[Page 5992]]
retaining the consistency and integrity of the regulations as a whole.
The existing departure provisions of this section are limited in
scope to those regulatory provisions that apply to existing lease and
grant holders. However, BOEM has applied departures not only to
activities ``on a lease or grant,'' but also to activities that occur
before lease issuance (e.g., BOEM's planning and lease sale processes)
and after lease termination (e.g., decommissioning, release of
financial assurance). The proposed changes would allow for such
departures.
Minor updates to the provisions paragraphs (a)(2) through (4) were
made for consistency with the new language in Sec. 585.103(a). No
changes are proposed to Sec. 585.103(b) which lists the requirements
that an approved departure and its rationale must be consistent with
subsection 8(p) of the OCS Lands Act, protect the environment and
public health and safety, not impair the rights of third parties, and
be documented in writing.
Sec. 585.104 Do I need a BOEM lease or other authorization to produce
or support the production of electricity or other energy product from a
renewable energy resource on the OCS?
Section 585.104 traces the statutory language of the OCS Lands Act
in establishing that a lease, ROW, or RUE issued under this part is
required in order to construct, operate, or maintain facilities that
``produce or support production, transportation, or transmission of
energy from sources other than oil and gas.'' \79\ The proposed rule
would clarify that for purposes of this section, site assessment
activities are not considered to produce, transport, or support the
generation of any energy products; and, therefore, such activities do
not, by themselves, require a lease, easement or ROW. As discussed
above in section V.A of this preamble, this revision is intended to
clarify that an entity does not require a lease from BOEM to deploy a
met buoy or tower for site assessment activities that are not located
on an existing commercial lease. Under the proposed rule, BOEM would
not require a separate lease for the deployment of such facilities.\80\
The USACE would be the lead Federal permitting agency for such
facilities under its existing legal authority, though other agencies
may also have permitting or consultation requirements, such as NOAA
under the NMSA (for any off-lease site assessment activities that may
occur within a national marine sanctuary or in the vicinity of a
national marine sanctuary).
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\79\ 43 U.S.C. 1337(p)(1)(C).
\80\ BOEM would nonetheless require a commercial lessee, that
seeks to install a met tower, to submit a SAP in addition to the
USACE permit, given the potential impacts that might be caused by
such towers.
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Sec. 585.105 What are my responsibilities under this part?
BOEM is proposing a minor modification to strengthen the
requirement for lessees to comply with all applicable laws,
regulations, other requirements, the terms of the lease or grant under
this part, reports, notices, approved plans, and any conditions imposed
by BOEM. This would expand, strengthen, and clarify the language found
in current Sec. 585.105(d), requiring compliance only with the
``terms, conditions, and provisions of all reports and notices
submitted to BOEM, and of all plans, revisions, and other BOEM
approvals, as provided in this part.''
Sec. 585.106 Who can acquire or hold a lease or grant under this part?
BOEM proposes several changes to its qualification requirements.
First, the proposed rule would replace the word ``hold'' with
``acquire or hold'' throughout this section to clarify that the
qualification requirements of Sec. 585.106 are intended to apply both
to the acquisition and retention of both OCS lease and grant interests.
BOEM does not require automatic forfeiture of a party's existing lease
and grant interests if the lessee or grant holder no longer meets the
criteria in this section; rather, the cancellation provisions at Sec.
585.437 would be the appropriate vehicle for revoking a lease.
Second, the proposed rule would correct Sec. 585.106(a) to list
the citizenship qualifications in the disjunctive and not the
conjunctive by substituting ``or'' for ``and'' in Sec. 585.106(a)(6).
Third, the proposed rule would add criteria that may disqualify a
party from acquiring a lease or grant interest under this part and,
consequently, from participation in the lease and grant issuance
processes. The proposed rule would prevent a party that has been
disqualified from acquiring a lease or grant interest (because it
either lacks the basic regulatory qualifications or has engaged in
certain enumerated misconduct) from participating in any lease or grant
issuance processes under this part. This provision closes a loophole by
prohibiting a party disqualified from acquiring a lease or grant
interest from entering into commercial agreements to participate in the
lease or grant issuance processes on behalf of a third party. This
provision also would clarify BOEM's authority to disqualify a party
from an auction, which is not explicitly set forth in the existing
regulations. These proposed provisions are intended primarily to deter
current and potential lessees and grant holders from engaging in
conduct that is illegal or detrimental to BOEM's renewable energy
program and to the fair conduct of its auctions.
A party under consideration for disqualification would receive
written notice from BOEM of the basis for the disqualification and
would be provided an opportunity to be heard before BOEM issues a
final, appealable decision. BOEM also may instruct that party regarding
what remedial actions, if any, would restore its qualification. Until
such remedial actions are completed to BOEM's satisfaction or until
qualification is otherwise restored, a disqualified party would be
ineligible to acquire a lease or grant under this part or to otherwise
participate in BOEM's competitive and noncompetitive lease or grant
issuance processes.
Sec. 585.107 How do I show that I am qualified to be a lessee or grant
holder?
BOEM proposes a technical correction to paragraph (b) to reflect
that the Immigration and Naturalization Service no longer exists and to
avoid the need for future technical corrections in the event of another
change in the name of the relevant Federal immigration authority.
Sec. 585.110 How do I submit plans, applications, reports, or notices
required by this part?
BOEM proposes to eliminate its paper copy requirement and rely
primarily on electronic submissions. The paper requirement has proven
unwieldy for voluminous plan submittals that contain multiple
appendices and may be subject to multiple revisions before they are
finalized.
BOEM proposes to reserve the authority to require paper copies of
certain documents (such as maps and charts) if necessary.\81\ The
proposed rule also would eliminate the specific BOEM mailing address to
avoid the need for future technical corrections if BOEM's mailing
address changes again. Instead, the mailing addresses for BOEM
submissions would be listed for the appropriate contacts on BOEM's
website.
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\81\ BOEM proposes to retain the paper copy requirement for
assignment applications given the importance of having an original
signed version. See discussion infra VI.E Sec. 585.408.
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Sec. 585.112 Definitions
The proposed rule would add a new definition for ``bidding
credits.'' Bidding
[[Page 5993]]
credits are defined as the value assigned by BOEM, expressed in
monetary terms, to the factors or actions demonstrated, or committed
to, by a bidder at a BOEM lease auction during the competitive lease
award process. The regulations further specify that the types and
values of any bidding credits awarded to any given bidder will be set
forth in the FSN.
The proposed rule would modify the definition of ``commercial
activities'' to state that such activities are conducted ``under''
leases and grants. This modification would maintain consistency with
the proposed revisions to Sec. 585.104 by clarifying that site
assessment activities that are not conducted on a commercial lease (and
thus do not require a lease) are excluded from the definition of
``commercial activities.''
The proposed rule would modify the definition of ``commercial
operations'' to state that the term means the generation of electricity
or other energy product for commercial use, sale, and distribution on a
commercial lease, but does not mean either generation needed to prepare
a final FIR or generation for testing purposes, provided the
electricity generated for such testing is not sold on a commercial
basis.
The proposed rule would add a new definition for ``Critical Safety
System'' to mean safety systems and equipment designed to prevent or
ameliorate major accidents that could result in harm to health, safety,
or the environment associated with the lessee's or grant holder's
facilities. This modification would clarify new requirements in
Sec. Sec. 585.705, 585.707, 585.708, 585.710, 585.712, and 585.637 for
the CVA to verify the commissioning of critical safety systems.
The proposed rule would add a definition for the term ``engineered
foundation,'' which would mean any structure installed on the seabed
using a fixed-bottom foundation constructed according to a professional
engineering design (based on an assessment of sedimentary,
meteorological, or oceanographic conditions). Comments are solicited on
the appropriateness of the definition of this term, as used in the
proposed rule.
The proposed rule would also add a definition for the term
``fabrication'' which would mean the cutting, fitting, welding, or
other assembly of project elements of a custom design conforming to
project-specific requirements. Fabrication does not include the
procurement of discrete parts of the project that are commercially
available in standardized form and type-certified components.
The proposed rule would also add definitions for the terms ``lease
area'' and ``provisional winner'' to provide clarity in the regulatory
text. Lease area is an OCS area identified by BOEM for potential
development of renewable energy resources. The provisional winner is
the bidder that BOEM determines at the conclusion of the auction to
have submitted the highest bid. The provisional winner would become the
winning bidder upon favorable completion of the government's post-
auction reviews.
The proposed rule would also add a new definition of ``multiple
factor auction,'' which would be defined to mean an auction that
involves the use of bidding credits to incentivize goals or actions
that support public policy objectives or maximize public benefits
through the competitive leasing auction process. In all multiple factor
auctions, BOEM would add the monetary value of the bidding credits to
the value of the cash bid to determine the highest bidder.
The proposed rule also would define ``receipt'' of a document as
having been deemed to take place, in the absence of documentation to
the contrary, (a) 5-business days after the document was given to a
mail or delivery service with the proper address and postage; or (b) on
the date the document was sent electronically. This proposed definition
borrows from the Interior Board of Land Appeals regulation on service
of documents at 43 CFR 4.401(c)(7), but acknowledges that most
documents will be transmitted instantaneously through electronic means.
In the absence of documentation evincing actual receipt, the
presumption of constructive receipt in this definition would be
overcome by evidence demonstrating that a document was either not
received or received in more or less time than the default timeframes
set forth. The definition of ``receipt'' would apply to variants of
that word, including variants of ``receive,'' and would apply only
where those terms are used in the regulations to describe the receipt
of a document when the timing of receipt triggers a regulatory time
period or consequence.
Finally, BOEM proposes a technical correction to the definition of
``site assessment activities'' to avoid possible confusion with site
characterization activities.
Sec. 585.113 How will data and information obtained by BOEM under this
part be disclosed to the public?
BOEM proposes a technical change, substituting the word
``operations'' for ``generation'' in paragraph (b)(1), so that BOEM's
review of the data and information will be done ``3 years after the
initiation of commercial operations . . .,'' to provide greater
consistency with the remainder of BOEM's offshore renewable
regulations.
Sec. 585.114 Paperwork Reduction Act Statements--Information
Collection
BOEM proposes to update the table in this section to align with
proposed regulations.
Sec. 585.116 Requests for Information
The existing regulations reference two public information requests
that share the same acronym: requests for interest (RFI) under
Sec. Sec. 585.210 and 585.231, and requests for information (RFI)
under Sec. 585.116. The proposed rule would combine all such notices
in a revised Sec. 585.116 and call them requests for information. The
request for interest is an optional step in the leasing process that
assists BOEM in collecting information in advance of initiating a new
leasing process. BOEM used the request for interest in this way several
times, especially early in the program. However, more recently, the
practice has been to initiate the leasing process with the next,
mandatory step in the leasing process, publishing a Call. The proposed
rule suggests eliminating the request for interest as a step in the
leasing process. In the event that BOEM would like to start the leasing
process with a solicitation of information from the public, the more
general request for information under Sec. 585.116 is available to
serve that need.
Sec. 585.118 What are my appeal rights?
BOEM's existing renewable energy regulations discuss appeal rights
in two sections--Sec. Sec. 585.118 and 585.225. Section 585.118
describes appeals of BOEM final decisions made under part 585. Section
585.225 provides that a bidder may request the Director to reconsider
its bid rejection. To simplify and clarify the administrative review
provisions, the proposed rule would combine these two sections by
locating all procedures for review of BOEM renewable energy final
decisions or orders in a revised Sec. 585.118. This revised section
would maintain the existing distinction between requesting
reconsideration of rejected bids and appeals of other final decisions
made under part 585, but will now characterize challenges to decisions
selecting provisional winners as appeals to the Director, rather than
requests for reconsideration.
The proposed section would provide appeal rights to any adversely
affected bidder of a provisional winner selection
[[Page 5994]]
decision. Currently, Sec. 585.225(b) limits requests for
reconsideration to those with rejected bids. The proposed section would
also provide provisional winners an opportunity to appeal if they
believe there have been any errors or omissions in the selection
decision, such as miscalculated or unapplied bidding credits.
This proposed section would specify that BOEM must receive written
appeals of a decision selecting the provisional winner within 15-
business days after a bidder receives notice of the decision. This is
consistent with the existing regulations at Sec. 585.225(b) and
clarifies the existing language at Sec. 585.118(c)(1). This section
would adopt the rules found in the appeal procedures at 30 CFR 590.3 of
this chapter for determining when a selection decision is received.
Finally, the proposed section would clarify two points regarding an
appeal of a decision selecting the provisional winner. First, the
provisional winner would have an opportunity to be heard before the
BOEM Director reverses a selection decision. Second, the Director's
decision would not be appealable administratively to the Interior Board
of Land Appeals.
B. 30 CFR Part 585, Subpart B--The Renewable Energy Leasing Schedule
Sec. 585.150 What Is the Renewable Energy Leasing Schedule?
BOEM is proposing to add a new subpart and section to the
regulations that would define a proposed leasing schedule for the
renewable energy program. BOEM determined that a new subpart is
appropriate given the nature of this change and the potentially
significant benefit to stakeholders. This proposed schedule would
include a list of locations under consideration for leasing and a
schedule that BOEM would follow in holding its future renewable energy
lease sales. According to this proposal, at least once every 2 years,
the Secretary would publish this schedule of proposed lease sales. The
first published schedule would be issued for the 5-year period
following the effective date of this rulemaking and subsequent
schedules will cover the 5-year period after the update. This schedule
would include a general description of the area of each proposed lease
sale, the calendar year in which each lease sale will occur, and the
reasons for any changes made to the previous schedule. BOEM is
soliciting comments from stakeholders regarding this provision. Any
proposed leasing would be subject to all applicable regulations,
including area identification, coordination with relevant parties, and
applicable environmental reviews.
C. 30 CFR Part 585, Subpart C--Issuance of OCS Renewable Energy Leases
General Lease Information
Subpart B, Issuance of OCS Renewable Energy Leases, is being
redesignated as subpart C to accommodate the addition of a new subpart
B, as noted above. The individual section numbers in subpart C and in
subsequent subparts have not been changed.
Sec. 585.202 What types of leases will BOEM issue?
BOEM proposes a technical revision to this section to make it
consistent with subsection 8(p) of the OCS Lands Act and the proposed
revisions to Sec. 585.104, as well as to add a reference to leases
issued for research activities under Sec. 585.238.
Sec. 585.203 With whom will BOEM consult before issuance of leases?
BOEM proposes to make a technical correction to the penultimate
sentence of this section by removing the word ``including'' and
replacing it with ``include.''
Competitive Lease Award Process--Pre-Auction Provisions
Sec. 585.210 What are the steps in BOEM's competitive lease award
process?
Proposed Sec. 585.210 would provide an overview of the competitive
leasing process and effectively would merge existing Sec. Sec. 585.210
and 585.211. The proposed rule would replace the request for interest
in the existing Sec. 585.210 with a request for information in the
revised Sec. 585.116. The revised Sec. 585.210 would provide an
overview of the entire competitive leasing process by including two
steps that are not currently mentioned in this section of the existing
regulations: the auction and lease award.
Sec. 585.211 What is the Call?
Proposed Sec. 585.211 would consolidate the existing Sec. Sec.
585.211(a), 585.213, and 585.214, which describe the information
requested by the Call, the information a respondent should include in
its response if it wishes to nominate one or more areas for a
commercial renewable energy lease within the preliminarily identified
leasing areas, and BOEM's handling and processing of the information
received. The primary purpose of this proposed change is
reorganization; no substantive changes would be made to BOEM's existing
regulations and practice. BOEM proposes to remove the reference to
withholding privileged and confidential information as redundant of the
protections already described in Sec. 585.113.
Sec. 585.212 What is area identification?
Proposed Sec. 585.212 would provide more clarity regarding BOEM's
area identification process, thus expanding the description of this
step in the existing Sec. 585.211(b). This section would make no
substantive change to the existing process.
This section would clarify that BOEM balances potential OCS
renewable energy development with competing uses and environmental
concerns during area identification and attempts to resolve foreseeable
issues. Consistent with the existing regulations and practice, BOEM
would determine during area identification whether specific OCS areas
are suitable for further consideration for renewable energy development
with appropriate mitigation.
BOEM would consider any factors that it determines relevant during
this process. These factors may include, but would not be limited to,
other uses in and around the area, applicable environmental analysis,
formal and informal stakeholder comments, industry nominations, and the
area's feasibility for development. Consideration of the area's
feasibility for development could include, but would not be limited to,
analysis of the area's size and other relevant physical conditions,
potential electrical generation capacity, pertinent technical data, and
applicable electricity market and offtake information. For example,
BOEM may incorporate a high-level assessment of an area's
characteristics that would be relevant to potential development, such
as bathymetry, distance to shore, and wind resources, and may consider
an adjacent State's offshore wind energy offtake or incentive programs.
BOEM would retain the flexibility to modify the selection of
parcels offered for leasing after area identification and before the
auction. Also consistent with existing regulations, BOEM would use the
area identification process to inform its NEPA review and associated
interagency consultations to evaluate the potential effects of
activities that are expected to take place after lease issuance on the
human, marine, and coastal environments and on other environmental
requirements. For example, the National Marine
[[Page 5995]]
Sanctuaries Act may apply to any actions that may injure sanctuary
resources or that may require permits for placement of equipment or
disturbance of covered submerged lands. In any case where a NMSA permit
may be required, NOAA may require certain financial assurances for
infrastructure removal activities potentially required under permit.
BOEM may develop lease stipulations or other measures as part of its
NEPA review to mitigate potential adverse impacts and may hold public
hearings regarding its environmental analyses after potential lease
areas have been identified.
Sec. 585.213 What information is included in the PSN?
The analyses of the proposed sections on the PSN and the FSN,
Sec. Sec. 585.213 and 585.214 respectively, emphasize the close
interrelationship between the notices, and enhance understanding.
The PSN and FSN are closely related but distinct notices published
in the Federal Register that detail the auction procedures and lease
provisions relevant to a particular lease sale. Currently, the PSN
proposes procedures and provisions and invites public comment on them;
the FSN establishes the final procedures and provisions. BOEM uses the
public comments received in response to the PSN to inform its decisions
regarding the final procedures and provisions in the FSN.
Proposed Sec. Sec. 585.213 and 585.214 would replace Sec. 585.216
of the existing regulations. These proposed sections would not change
substantially the nature, scope, or content of the PSN and FSN from
BOEM's existing regulations and practice. However, the proposed
sections would clarify BOEM's existing authority to set a maximum
number of lease areas that an individual party may bid on or acquire in
an auction. The proposed rule would separate the PSN and FSN
regulations into individual sections because, although the notices are
closely related, each notice represents a distinct step in the leasing
process. The PSN and FSN would continue to serve as the primary sources
of information for prospective bidders on the lease areas, auction
procedures, and lease provisions. Also, proposed Sec. 585.223 would
outline supplemental auction information that may be contained in the
PSN and FSN.
Sec. 585.215 What may BOEM do to assess whether competitive interest
for a lease area still exists before the auction?
BOEM's existing regulation at Sec. 585.212 explains the process
BOEM follows if it has reason to believe competitive interest no longer
exists before the FSN is issued. Proposed Sec. 585.215 would maintain
essentially the same process for determining whether competitive
interest remains and then acting on that determination. This section
would clarify, however, that BOEM may engage this process any time
before the auction when it has reason to believe competitive interest
is absent. The competitive lease issuance process is the ``default''
under the OCS Lands Act,\82\ so BOEM may proceed with an auction
regardless of the result of its competitive interest inquiry under this
section.
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\82\ 43 U.S.C. 1337(p)(3).
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Sec. 585.216 How are bidding credits awarded and used?
Proposed Sec. 585.216 would allow the provisional winner's bid to
include the value of bidding credits awarded if the provisional winner
has made certain demonstrable commitments that facilitate OCS renewable
energy development and that reflect a developmental advantage, or
advance public policy--for instance, a power purchase agreement. The
PSN and FSN would prescribe the use of bidding credits in a particular
auction, including eligibility requirements, application procedures,
and the types and values of available credits. BOEM would retain
discretion not to offer bidding credits in a given auction.
A bidder would be awarded bidding credits before the auction under
the FSN if it timely submits a bidding credit application with the
requisite commitments and meets eligibility requirements. Depending on
the FSN provisions, a bidder might be eligible for multiple bidding
credits if the bidder meets the criteria for each credit. The FSN could
provide for bidding credits that are stackable or non-stackable.
Stackable credits are those where the total value of a bidder's bidding
credits would be the sum of all the credits for which the bidder was
eligible. Alternatively, the FSN may limit the bidding credits to non-
stackable credits, where the total value of a bidder's bidding credits
would be limited to the value of the largest bidding credit for which
the bidder was eligible. Stackable credits would incentivize bidders to
meet the criteria for as many of the available bidding credits as they
can. Alternatively, using non-stackable credits would limit the total
value of the non-monetary component of the bid. Bidding credits may be
denominated as either a fixed dollar amount or a percentage of the cash
bid, as specified in the FSN.
The FSN would specify the procedures, timing, and eligibility
requirements for bidding credits. BOEM would inform bidders before the
auction of the value of each bidding credit for which they are
eligible. A provisional winner who received bidding credits would pay
its bonus as the amount of the cash component of its winning bid less
the bid deposit, as prescribed in the FSN. The regulation text would
further specify that qualification to obtain bidding credits must be
done in advance of any lease auction, in accordance with the
specifications of the FSN; however, such qualifications may be obtained
either for actions that the bidder has already undertaken or for
actions which it has committed to undertake in the future, provided
that BOEM has agreed to the terms by which such a commitment will be
made. If a bidder receives a bidding credit for a commitment to future
action, acceptance of the lease would constitute an obligation to
undertake those actions, and failure to do so would constitute
noncompliance with the lease.
BOEM is soliciting comments on whether the regulations should
codify its past practice of imposing a cap on the value of bidding
credits that any bidder can earn, measured as either an absolute dollar
amount or as a percentage of the bid amount. Bidding credit limits in
past auctions ranged from 10 to 25 percent of the high bid. If
implemented, this cap would be intended to ensure that BOEM obtains a
fair return on the prospective lease.
BOEM is also requesting comment on what factors in proposed Sec.
585.216(b) should qualify for credits, particularly the policy-based
factors described in Sec. 585.216(b)(5), and how such factors could
best be quantified for the purpose of calculating their value as part
of the auction process.
Competitive Lease Award Process
Sec. 585.220 How will BOEM award leases competitively?
BOEM proposes to continue to implement multiple factor auctions,
through the use of bidding credits, to allow the competitive lease
award process to take into consideration various priority actions, such
as advancing a domestic supply chain and providing workforce
development agreements, consistent with the goals of the OCS Lands Act.
As noted previously, bidding credits represent a monetary value
assigned by BOEM to the actions or factors demonstrated or committed to
by a bidder at a BOEM
[[Page 5996]]
lease auction during the competitive lease award process. The value of
the bidding credits would be added to the value of the cash bid to
determine who is the highest bidder.
The existing regulations at Sec. Sec. 585.220 through 585.222 set
forth options that BOEM can use for auction formats, bidding systems,
and bid acceptance criteria for both commercial and limited leases. As
discussed in section V.E above, entitled ``Lease Issuance Procedures,''
these regulations are overly prescriptive and require clarification and
modification to provide BOEM with flexibility to adopt new and
innovative auction processes and procedures. Proposed Sec. 585.220
would replace these sections with a simplified and flexible approach
that would allow BOEM to use any auction process, including multiple
factor, and any procedure that is objective, fair, reasonable, and
competitive; awards a lease based upon the highest total bid; and
provides a fair return to the United States. This section also would
clarify that the specific process for each auction would be noticed in
the PSN and, subject to revisions, finalized in the FSN.
BOEM is soliciting comments on the various alternatives that could
be used to incorporate incentives and preferences into the competitive
leasing process.
Sec. 585.221 What general provisions apply to all auctions?
This is a newly proposed section that would set forth the
provisions and rules applicable to all auctions. This proposed section
would codify the existing practice whereby BOEM conducts an auction if
it determines after the Call that competitive interest exists for
renewable energy development on parcels of the OCS and decides to issue
leases within those areas. Proposed Sec. 585.221 would codify the use
of the FSN to prescribe the detailed process for any auction.
Proposed Sec. 585.221(d) would add details to outline the
circumstances under which BOEM may delay, suspend, cancel, and restart
an auction due to a natural or man-made disaster, technical
malfunction, security breach, unlawful bidding activity, administrative
necessity, or any other reason that BOEM determines may adversely
affect the fair and efficient conduct of the auction. The proposed
Sec. 585.221(d) would also add a provision that BOEM may restart the
auction at whatever point it deems appropriate, reasonable, fair, and
efficient for all participants; or, alternatively, BOEM may cancel the
auction in its entirety.
Sec. 585.222 What other auction rules must bidders follow?
Proposed Sec. 585.222 would establish a set of procedures and
rules of conduct for bidders. This section would be consistent with
BOEM's existing practices and would include requirements that bidders
submit bid deposits in accordance with Sec. 585.501, and meet
Sec. Sec. 585.106 and 585.107 qualification requirements. If the
awarded lease is executed by an agent acting on behalf of the bidder,
the bidder must submit, along with the executed lease, written evidence
that the agent is authorized to act on behalf of the bidder, as is
already required under existing Sec. 585.224(g). Notably, this section
would explicitly prohibit bidders from disclosing their auction
strategies and economic valuations of the lease area to other bidders
listed in the FSN in such a way as to adversely affect the ability of
the United States to obtain a fair return from the auction. This
prohibition is aimed at deterring pre-auction communications among
bidders regarding their preferred lease areas or the maximum amount
they are willing to bid, which could constitute an explicit or tacit
agreement that has the effect of reducing competition for a particular
lease. Such communications between bidders may undermine an auction's
competitiveness and adversely affect the ability of the United States
to obtain a fair return from the auction.
This proposed provision would not impede commercial speech by
bidders regarding their participation in the auction. For example,
public announcements regarding a bidder's intent to participate in an
upcoming OCS renewable energy auction would not be prohibited by the
proposed rule. BOEM nonetheless seeks comment on whether the proposed
language constitutes an appropriate and effective means of preventing
anti-competitive bidder behavior and on whether there are alternative
means of achieving this goal.
Sec. 585.223 What supplemental information will BOEM provide in a PSN
and FSN?
Proposed Sec. 585.223 would contain a non-exhaustive list of
supplemental auction details likely to be contained in a PSN and FSN.
Although this section lacks an analogue in the existing regulations,
the supplemental details listed in this section generally are
consistent with the information that BOEM has provided in recent FSNs.
This section would clarify the concept of the next highest bidder and
would describe the process to determine the next best bid if the
provisional winner fails to meet its obligations or is otherwise unable
to acquire the lease. The next best bidder criteria would be detailed
in the PSN and FSN.
Competitive Lease Award Process--Post-Auction Provisions
Sec. 585.224 What will BOEM do after the auction?
Proposed Sec. 585.224 would outline the steps that BOEM would take
following the end of an auction. This section would make explicit
existing practices that are consistent with the OCS Lands Act and that
have proven effective in BOEM's auctions thus far. Proposed Sec.
585.224 would retain BOEM's existing authority in Sec. Sec.
585.222(a)(2) and 585.224(f) to reject and accept bids and to withdraw
lease areas between auction completion and lease execution. Finally, if
an auction results in unsold lease areas, proposed Sec. 585.224 would
clarify that BOEM has the discretion to re-auction those unsold areas
after the auction by restarting the competitive leasing process at any
reasonable and appropriate step in that process.
Sec. 585.225 What happens if BOEM accepts a bid?
Proposed Sec. 585.225 would set forth the steps BOEM and the
provisional winner would take after the auction. This section would
function similarly to the existing regulations at Sec. 585.224(a),
(b), (c), and (e), but contains several new proposed provisions. First,
this proposed section would provide that BOEM will refund without
interest any portion of the provisional winner's bid deposit that
exceeds the amount due from the winning bid. Second, this proposed
section would permit BOEM to extend the 10-business-day deadline for
the completion of the provisional winner's obligations to allow greater
flexibility in addressing unforeseen situations, such as a Federal
Government shutdown or pandemic. This proposed section would require
payment of the first 12 months' rent within 45-calendar days after the
provisional winner receives the executed lease from BOEM as opposed to
45-calendar days after receiving the three unexecuted lease copies as
provided under the existing regulations. Finally, under this proposed
section, the provisional winner would become the winning bidder when
BOEM executes the lease after any properly filed appeals under proposed
Sec. 585.118(c) have been resolved. The effective date of the lease
would continue to be governed by Sec. 585.237.
[[Page 5997]]
Sec. 585.226 What happens if the provisional winner fails to meet its
obligations?
The existing regulations at Sec. 585.224(d) state that a winning
bidder will forfeit its bid deposit if it fails to execute and return
the lease within 10-business days or otherwise fails to comply with
applicable regulations or terms of the FSN. While no winning bidder has
failed to meet its post-auction obligations thus far, BOEM recognizes
the potential for such a situation and seeks to provide flexibility in
its response to such a possibility.
Proposed Sec. 585.226 would specify that, if BOEM determines that
a provisional winner has failed to meet its obligations under Sec.
585.225(b) or Sec. 585.316, or has otherwise failed to comply with
applicable laws, regulations, BOEM may require forfeiture of the bid
deposit. In the event the bid deposit exceeds the winning bid, BOEM
would limit the required forfeiture amount to the lower value, that of
the winning bid.
Proposed Sec. 585.226 would also set forth the additional actions
BOEM could take if a provisional winner fails to meet its obligations.
These possible actions would include refusal to award other leases won
by the provisional winner in the auction and referral to DOI's
Administrative Remedies Division for suspension or debarment review
pursuant to 2 CFR part 180 as implemented at 2 CFR part 1400. This
section also would specify that if the provisional winner fails to meet
its obligations or is otherwise unable to execute a lease, BOEM could
select a new provisional winner by either repeating the auction,
selecting the next best bid, or using other criteria specified in the
FSN.
Noncompetitive Lease Award Process
Sec. 585.231 Will BOEM issue leases noncompetitively?
BOEM proposes several modifications, both significant and minor, to
its noncompetitive leasing process. First, this proposed rule would
clarify paragraph (a) to re-affirm that BOEM will only use the
noncompetitive process if it ``determines after public notice of a
proposed lease, easement, or right-of-way that there is no competitive
interest.'' \83\
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\83\ 43 U.S.C. 1337(p)(3).
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Second, in the event that a company submits a request for BOEM to
issue a lease and submits the required acquisition fee, BOEM may issue
a request for information in the Federal Register to determine whether
any other companies also have an interest in that area. In the event
that BOEM issues such a request for information and no responses are
received, BOEM may issue a lease noncompetitively. The proposed rule
would revise paragraph (b) to clarify that BOEM has discretion to
determine whether an unsolicited lease request should be the subject of
a request for information. BOEM occasionally receives unsolicited
requests for areas that it may deem inappropriate for leasing without
seeking public input (e.g., previously leased areas or areas that
straddle a USCG traffic separation scheme). In the event that BOEM
elects not to issue a request for information in response to the
unsolicited lease request, BOEM would not issue a lease
noncompetitively and will refund the acquisition fee. BOEM occasionally
receives unsolicited requests for areas that it may deem inappropriate
for leasing without seeking public input (e.g., previously leased areas
or areas that straddle a USCG traffic separation scheme).
Third, the proposed rule would add a timeline and sunset provision
to BOEM's noncompetitive leasing processes. The existing regulations
establish neither an expiration date for a DNCI nor deadlines for the
noncompetitive leasing process. If BOEM were to leave the regulations
in the current form, this could allow a company to obtain a
noncompetitive lease in situations where there may potentially be other
interested lessees in the future (due to changes in circumstances).
Accordingly, proposed paragraphs (d) and (e) would create the following
milestones for the noncompetitive leasing process:
After publication of the DNCI, BOEM would prepare and
provide the beneficiary with a written estimate of the fees for
conducting an environmental review of lease issuance.
The beneficiary has 90-calendar days from receipt of the
fee estimate to pay the fee.
The DNCI would expire within 2 years of publication,
unless BOEM determines, on a case-by-case basis, that this timeframe
should be extended.
BOEM specifically seeks comment on the reasonableness of its
proposed schedule and timeframes for a DNCI.
Fourth, the proposed rule in paragraph (d)(3) would clarify that
BOEM would conduct an environmental review of a noncompetitive lease
request that it determined had no competitive interest and which BOEM
intends to process. Fifth, the proposed rule would specify that BOEM
will make a decision whether to issue a noncompetitive lease after the
completion of its environmental review and other reviews required by
Federal law (e.g., CZMA). BOEM, in Sec. 585.231(f), clarifies that for
noncompetitive leases, CZMA concurrences would be processed pursuant to
15 CFR part 930 subpart D. Based on current experience, BOEM expects
this to be a rare occurrence.
Finally, the proposed rule would make several miscellaneous
technical corrections and clarifications to this section. The proposed
rule would revise the existing section heading to more accurately
reflect the scope of this section. The proposed rule would replace the
``request for interest'' referenced in Sec. 585.231(b) with a request
for information consistent with the proposed revisions to Sec.
585.116. The proposed rule would make administrative changes to Sec.
585.231(c)(1) and (g)(1)(ii) to reflect updated cross-references in the
proposed rule. This proposed rule also would revise the payment due
date for the first 12 months' rent on a lease consistent with proposed
changes to Sec. Sec. 585.225 and 585.503. The remainder of the
noncompetitive lease issuance process would remain substantially the
same as in the existing regulations.
Sec. 585.232 May I acquire a lease noncompetitively after responding
to a request for information or a Call for Information and Nominations?
The proposed rule would revise the existing section heading of
Sec. 585.232 to reflect the change in nomenclature in proposed Sec.
585.116 from ``request for interest'' to ``request for information.''
It would also revise paragraph (c) to incorporate changes to the cross-
referenced provisions associated with the proposed rule.
Commercial and Limited Lease Periods
Sec. 585.235 What are the lease periods for a commercial lease?
BOEM proposes to overhaul the organization and duration of its
commercial leases as well as the triggers that move a lease from one
period of a lease to another. These changes are responsive to industry
comments, reflect BOEM's experience administering its leasing program,
and arise from other aspects of this proposed rulemaking--particularly
the elimination of the SAP for met buoys.
Under the existing regulations, BOEM's commercial leases comprise
three ``terms'':
A preliminary term of 12 months, starting at lease
execution and typically ending with the submission of a SAP.
[[Page 5998]]
A site assessment term of 5 years, starting at SAP
approval and ending with the submission of a COP.
An operations term of 25 years, typically starting at COP
approval.
BOEM automatically tolls the preliminary and site assessment terms
during its review of submitted plans; a lessee may request additional
time extensions if it does not timely file a plan.
The proposed rule would make numerous changes to the text and
structure of Sec. 585.235(a). First, BOEM proposes to rename its lease
``terms'' as lease ``periods'' to more appropriately describe the
progression of its commercial leases. This change in nomenclature is
intended to more accurately distinguish between the lease term (which
is the entire duration of the lease) and its constituent parts.
Next, BOEM proposes to merge the preliminary and site assessment
terms into one 5-year preliminary period that commences at the lease
effective date and ends either with the submittal of a COP to BOEM for
its review or 5 years after the lease effective date. This change flows
directly from BOEM's proposal to eliminate the SAP requirement for met
buoys.\84\ Given that most lessees are not expected to submit a SAP if
the proposed rule is finalized, BOEM believes it would no longer make
sense for a lease to contain a deadline for SAP submittal--much less to
use that deadline to trigger a new phase of the lease. (As discussed in
the section-by-section analysis of Sec. 585.601 in section VI.G.
below, BOEM also proposes to remove all deadlines for SAP submittal.)
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\84\ See supra section V.A, entitled ``Site Assessment
Facilities,'' for complete discussion.
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The proposed rule also would create two new lease periods between
the submission of the COP and the commencement of operations: the COP
review period, which starts at COP submittal and ends upon BOEM's
decision on whether to approve or disapprove the COP, or approve the
COP with modifications; and the design and construction period, which
starts at COP approval and ends at the commercial operations start date
or at the expiration of the period set forth in the approved COP as
modified. BOEM does not propose a fixed length for the COP review
period in order to preserve regulatory flexibility and to allow for
harmonization with recent government-wide permit review streamlining
initiatives (e.g., FAST-41).\85\ The approved COP will include a
timeline for the design and construction period, subject to
modification as mutually agreed to by BOEM and the lessee.
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\85\ Fixing America's Surface Transportation Act Title 41, 42
U.S.C. 4370m et seq.
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BOEM also proposes to set a 1-year time limit on a lessee after its
initial COP submission to resolve issues identified by BOEM and to
finalize its COP in order to incentivize lessees to submit properly
completed COPs that are ready for BOEM review and to encourage lessees
to make COP revisions diligently in response to BOEM comments.
BOEM seeks public comment regarding the need and means to set
specific regulatory timelines while preserving sufficient flexibility
within the COP review period and the design and construction period.
Lastly, BOEM proposes that the operations period commence at the
commercial operations start date and remain in effect for 30 years.
Presently, the 25-year operations term includes the time required for a
lessee to prepare and BOEM to review its FDR and FIR plus the time
required to construct the project--both of which significantly subtract
from the time available for commercial operations. BOEM believes that
its proposed revision would create certainty and facilitate project
financing by providing a fixed period of time in the lease dedicated to
commercial operations. BOEM also proposes to extend the operations
period to 30 years based on industry comments that this timeframe
better reflects the design life of an offshore wind facility.
BOEM recognizes that if this rule is finalized as proposed,
existing lessees may request modification of their leases to conform to
the new lease periods. BOEM intends to address these requests on a
case-by-case basis but understands that these new lease periods might
be advantageous to current lessees and that there are administrative
benefits to standardizing lease terms. BOEM seeks comment on whether
the final rule should contain a provision setting forth a process by
which existing lessees can request lease amendments to conform their
leases to the structure proposed in the amended Sec. 585.235 and,
potentially, to other regulatory changes in this proposed rule.
In addition to revamping the structure of its commercial leases,
BOEM proposes several provisions aimed at granting a lessee more
flexibility throughout the development process. First, BOEM proposes
expanding the criteria in Sec. 585.235(b) for granting extensions of
lease periods. Currently, the only enumerated basis for extending the
preliminary term or the site assessment term is if a lessee submits a
plan late. BOEM proposes to clarify that it has discretion to extend
any lease period for good cause. Second, BOEM proposes a new Sec.
585.235(c) clarifying that a lessee may propose an alternative lease
period schedule if it chooses to develop its lease in phases. Numerous
lessees have expressed interest in phased development of their leases,
but the existing regulations do not explicitly set forth a process for
modifying the default lease schedule if a lessee intends to defer
development on portions of its lease area. Third and relatedly, BOEM
proposes a new Sec. 585.235(d) providing that a lessee may seek
modification of the default lease schedule in its application to
segregate its lease or consolidate two adjacent leases. As discussed in
the section-by-section analyses of Sec. Sec. 585.410 and 585.413 in
section VI.E. below, BOEM previously has approved lease segregation and
consolidation requests and anticipates more such requests in the
future. However, the existing regulations do not explicitly address the
effects these actions might have on lease schedules.
Sec. 585.236 If I have a limited lease, how long will my lease remain
in effect?
BOEM proposes to substitute the word ``period'' for ``term'' to
ensure consistency with its proposed changes to Sec. 585.235.
Additionally, because limited leases may allow a wide range of
activities, the proposed rule would replace the existing 5-year
operations term with an operations period of a duration determined by
BOEM prior to auction (if the lease is issued competitively) or
negotiated with the applicant (if the lease is issued
noncompetitively). In either case, the length of the term will depend
on the intended use of the lease. The existing regulations specify that
extensions of the preliminary term if the GAP for the limited lease was
not submitted in a timely manner and was submitted late without
specifying any reason. BOEM proposes to allow extensions of a limited
lease's preliminary period only if the requested extension can be
justified for ``good cause,'' consistent with its proposed changes to
Sec. 585.235, BOEM also proposes to allow extensions of a limited
lease's operations period if the requested extension can be justified
for ``good cause.''
D. 30 CFR Part 585, Subpart D--Rights-of-Way Grants and Right-of-Use
and Easement Grants for Renewable Energy Activities
Subpart C, Rights-of-Way Grants and Right-of-Use and Easement
Grants for Renewable Energy Activities, is being redesignated as
subpart D to accommodate the addition of a new
[[Page 5999]]
subpart B, as noted in section VI.B above.
ROW Grants and RUE Grants
Sec. 585.301 What do ROW grants and RUE grants include?
BOEM proposes to remove the prescribed width of ROWs, in order to
implement the PDE approach discussed above in sections V.B, entitled
``Project Design Envelope,'' and V.C., entitled ``Geophysical and
Geotechnical Surveys,'' and to maintain consistency with BOEM's
proposed revisions to Sec. 585.628(g) for project easements. BOEM also
proposes a technical change to clarify that a subsea cable ROW may need
to accommodate multiple associated facilities.
Sec. 585.302 What are the general requirements for ROW grant and RUE
grant holders?
BOEM proposes a technical correction to update the cross references
in this section, reflecting that an applicant must meet the
qualifications set forth in Sec. Sec. 585.106 and 585.107 in order to
acquire a ROW or RUE.
Sec. 585.303 How long will my ROW grant or RUE grant remain in effect?
BOEM proposes to substitute the word ``period'' for ``term'' to
ensure consistency with its proposed changes to Sec. 585.235. By
renaming the preliminary term of a ROW and RUE as the preliminary
period, BOEM intends to more accurately distinguish between the entire
term of a ROW and RUE and its constituent parts. As with proposed Sec.
585.235, BOEM also anticipates that this proposed revision would
clarify whether and when a grant holder has control of its ROW or RUE.
BOEM also proposes to provide the same flexibility for the operations
period of its grants as it has with the operations period for its
limited leases in proposed Sec. 585.236(a)(2), both in terms of start
date and duration. Finally, BOEM proposes to allow extensions of either
grant period, consistent with its proposed changes to Sec. 585.235.
The existing regulations specify that the GAP must be submitted no
later than the end of the preliminary period in order for the grant to
remain in effect. BOEM proposes that the preliminary period may be
extended if the requested extension can be justified for ``good
cause.''
Current regulations specify that the ROW grant or RUE grant will
remain in effect for as long as it is being used for the purpose for
which it was granted. This proposed rule would modify that provision by
introducing an operations period as set by BOEM (if the grant is issued
competitively) or negotiated by the parties (if the grant is issued
noncompetitively). The duration of the operations period will depend on
the intended use of the grant. BOEM also proposes to allow extensions
of a ROW grant or RUE grant operations period if the requested
extension can be justified for ``good cause'' as determined by BOEM.
Obtaining ROW Grants and RUE Grants
Sec. 585.305 How do I request a ROW grant or RUE grant?
BOEM proposes to eliminate the paper copy requirement, consistent
with its proposed changes to Sec. 585.110.
Sec. 585.306 What action will BOEM take on my request?
Proposed Sec. 585.306 would add the two provisions to paragraph
(b) from the existing Sec. 585.309 and would remove the existing Sec.
585.309. This consolidation would simplify and clarify this subpart.
The remaining proposed changes are editorial in nature.
Sec. 585.309 When will BOEM issue a noncompetitive ROW grant or RUE
grant?
This section would be removed by the proposed rule as redundant
(see analysis of Sec. 585.306).
Sec. 585.310 What is the effective date of a ROW grant or RUE grant?
This section would be re-numbered in the proposed rule as Sec.
585.309. The substance of this section would remain unchanged.
Sec. 585.316 What payments are required for ROW grants or RUE grants?
BOEM proposes a technical correction to reflect that ONRR is the
appropriate payee.
E. 30 CFR Part 585, Subpart E--Lease and Grant Administration
Subpart D, Lease and Grant Administration, is being redesignated as
subpart E to accommodate the addition of a new subpart B, as noted in
section VI.B above.
Noncompliance and Cessation Orders
Sec. 585.400 What happens if I fail to comply with this part?
BOEM proposes to amend this section to ensure that its civil
penalty authority for OCS renewable energy activities addresses a more
complete range of violations and is coextensive with the authority that
Congress granted it in the OCS Lands Act. Section 24 of the OCS Lands
Act authorizes the Secretary to assess civil penalties for failure to
remedy the violation of a regulation, lease, or permit condition, as
well as for a violation that threatens ``serious, irreparable, or
immediate harm or damage to life (including fish and other aquatic
life), property . . . or the marine, coastal, or human environment.''
\86\
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\86\ 43 U.S.C. 1350(b).
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Section 585.400(f) currently states that BOEM may assess civil
penalties ``as authorized by section 24 of the OCS Lands Act, if you
fail to comply with any provision of this part or any term of a lease,
grant, or order issued under the authority of this part, after notice
of such failure and expiration of any reasonable period allowed for
corrective action.'' This section also states that ``[c]ivil penalties
will be determined and assessed in accordance with the procedures set
forth in 30 CFR part 550, subpart N.'' Located in BOEM's OCS minerals
regulations, subpart N permits BOEM to assess civil penalties on
``[v]iolations that you do not correct within the period BOEM grants''
and ``[v]iolations of the oil spill financial responsibility
requirements at 30 CFR part 553.'' \87\
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\87\ 30 CFR 550.1404.
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BOEM's existing renewable energy regulations do not explicitly
authorize assessment of civil penalties for the full range of
violations envisioned under the OCS Lands Act, such as those for which
notice of the violation and an opportunity to correct is not required.
BSEE's OCS oil, gas, and sulfur regulations, on the other hand, allow
immediate civil penalties for violations that ``constitute, or
constituted, a threat of serious, irreparable, or immediate harm or
damage to life . . ., property, any mineral deposit, or the marine,
coastal, or human environment'' or that ``cause serious, irreparable,
or immediate harm'' to the same.\88\ BOEM is proposing to add a new
paragraph (f)(2) to cover these situations and to allow BOEM to take
appropriate action by assessing civil penalties in the event that a
lessee or operator commits such failures.
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\88\ 30 CFR 250.1404(b)-(c).
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Designation of Operator
Sec. 585.405 How do I designate an operator?
BOEM proposes technical edits to this section to maintain
consistency with proposed changes in the organization of Sec. Sec.
585.626 and 585.645.
[[Page 6000]]
Lease or Grant Assignment, Segregation, and Consolidation
Sec. 585.408 May I assign my lease or grant interest?
BOEM proposes to eliminate specific elements of the regulatory
requirements for an assignment application in paragraph (b) that are
already provided in the form that is currently on the BOEM website for
leases (Form BOEM-0003) and grants (Form BOEM-0002). BOEM proposes to
retain the paper copy requirement for assignment applications. The
proposed rule would also clarify that paragraph (e) refers to business
mergers and not to lease consolidations that are discussed in proposed
Sec. 585.413.
Lease or Grant Assignment
The proposed rule would add a new section 585.410 to explain when
an assignment would result in a segregated lease. Sections 585.410 and
585.411 would be renumbered to Sec. Sec. 585.411 and 585.412,
respectively.
Sec. 585.410 When will my assignment result in a segregated lease?
BOEM's existing regulations authorize approval of requests to
segregate its leases into multiple smaller leases under Sec.
585.408(a), which allows lessees to ``assign all or part of your lease
or grant interest . . . subject to BOEM approval under this subpart.''
BOEM previously has approved lease segregation and anticipates
receiving more requests as some lessees may decide to develop their
leases in a phased fashion. Accordingly, BOEM proposes to clarify the
process for segregating leases by adopting language from the lease
segregation provision in its OCS mineral resources regulations at 30
CFR 556.702.
Sec. 585.411 How does an assignment affect the assignor's liability?
This section is re-numbered to reflect addition of the proposed
Sec. 585.410 regarding lease segregation.
Sec. 585.412 How does an assignment affect the assignee's liability?
This section is re-numbered to reflect addition of the proposed
Sec. 585.410 regarding lease segregation. The proposed rule would
correct the extent of an assignee's regulatory liability by replacing
``subchapter'' with ``part'' in the first sentence of paragraph (b).
Sec. 585.413 How do I consolidate leases or grants?
BOEM proposes to add procedures for consolidating two or more
adjacent leases or grants. BOEM currently has the authority to approve
lease consolidations by mutual agreement under the terms of its
existing leases (and has already done so once), but no regulatory
provision directly addresses such requests. Proposed Sec. 585.413
would codify BOEM's existing practices in the regulations by
establishing a procedure for requesting and approving consolidations of
leases and grants. BOEM notes that adjacent leases or grants may have
different terms and be at differing stages of development.
BOEM proposes to harmonize such differences as explained below. If
the time remaining in the relevant lease periods differs between the
leases or grants to be consolidated, BOEM will default to the shorter
remaining periods in the new lease or grant. The lessee or grant holder
may request an extension pursuant to the proposed Sec. 585.235(b). If
other terms and conditions differ between the leases or grants to be
consolidated, BOEM will default to the most recently issued terms and
conditions contained in the leases or grants to be consolidated. The
lessee or grant holder may request modifications to such terms and
conditions. BOEM will consider and, in its discretion, approve such
requests on a case-by-case basis for good cause. BOEM also proposes to
assess the need to modify existing financial assurances before
approving a proposed consolidation and to terminate any lease or grant
that has been consolidated fully into a new lease.
Lease or Grant Suspension
Sec. 585.415 What is a lease or grant suspension?
BOEM proposes to change the word ``term'' to ``period'' in light of
its proposed changes to Sec. 585.235. This change would not alter the
substance of this section.
Sec. 585.416 How do I request a lease or grant suspension?
BOEM proposes several technical corrections and clarifications to
this section. First, BOEM has reorganized the contents of a suspension
application for clarity and added a catch-all category to provide BOEM
with additional flexibility. Second, BOEM proposes to add a new
paragraph (b) to be consistent with its proposed revisions to Sec.
585.235(b). Other proposed changes are for editorial clarity.
Sec. 585.417 When may BOEM order a suspension?
BOEM proposes to eliminate the paper copy requirement for this
regulation, consistent with its proposed changes to Sec. 585.110.
Sec. 585.420 What effect does a suspension order have on my payments?
BOEM proposes technical edits to this section to combine paragraphs
(b) and (c), and would modify the requirement that directed suspensions
would always be accompanied by a fee suspension. As a result, all
payment suspensions would be at the discretion of BOEM. BOEM also
proposes to clarify that regardless of whether a lease or grant
suspension is approved or ordered, BOEM has discretion to ``waive or
defer'' (rather than ``suspend'') payments while the lease or grant is
suspended. BOEM believes that more flexibility is needed than its
existing regulations provide regarding its treatment of such payments,
given the wide range of potential justifications for a suspension.
Lease or Grant Renewal
Sec. 585.425 May I obtain a renewal of my lease or grant before it
terminates?
BOEM proposes a technical change to conform to its proposed changes
to Sec. 585.235 by changing the word ``term'' to ``period'' wherever
it appears.
Sec. 585.426 When must I submit my request for renewal?
BOEM proposes a technical change to conform to its proposed changes
to Sec. 585.235 by changing the word ``term'' to ``period'' wherever
it appears.
Sec. 585.427 How long is a renewal?
BOEM proposes technical changes to conform to its proposed changes
to Sec. 585.235 by changing the word ``term'' to ``period'' wherever
it appears.
Sec. 585.429 What criteria will BOEM consider in deciding whether to
renew a lease or grant?
BOEM proposes adding a catch-all provision to the list of criteria
in this section that it will use in determining whether to renew a
lease or grant. BOEM's discretion to consider relevant factors that may
not be enumerated is particularly important, given the difficulty of
foreseeing what issues may arise in the future when BOEM begins to
receive lease renewal requests.
Lease or Grant Termination
Sec. 585.432 When does my lease or grant terminate?
BOEM proposes technical changes to conform to its proposed changes
to Sec. 585.235 by changing the word ``term'' to ``period'' wherever
it appears.
[[Page 6001]]
Lease or Grant Relinquishment, Contraction, or Cancellation
BOEM proposes to consolidate the three undesignated subheaders in
the existing regulations into one, for clarity and efficiency. The
existing separate undesignated subheaders denote lease or grant
relinquishment, lease or grant contraction, and lease or grant
cancellation.
Sec. 585.435 How can I relinquish a lease or a grant or parts of a
lease or grant?
The proposed rule would make a lease or grant relinquishment
effective on the date BOEM receives a properly completed relinquishment
form. Under the existing Sec. 585.435(a), a lease or grant
relinquishment is effective on the date BOEM approves a relinquishment
application. This change would conform with BOEM's approach to mineral
resource lease relinquishments in 30 CFR 556.1101, under which a
relinquishment takes effect as soon as the lessee or grant holder files
the necessary information with BOEM in a form available on BOEM's
website. Relinquishment would no longer require BOEM approval. As in
the existing regulations, relinquishment of a lease or grant would have
no impact on a lessee's or grant holder's obligations accrued under
those instruments before relinquishment. After BOEM receives the
properly completed relinquishment form, ONRR will bill the lessee or
grant holder the amount due on any outstanding obligations that accrued
under the relinquished lease or grant.
Sec. 585.438 What happens to leases or grants (or portions thereof)
that have been relinquished, contracted, or cancelled?
The existing regulations do not provide a process by which BOEM can
reissue a lease or grant for an area (or portions thereof) previously
covered by a lease or grant that has been relinquished under Sec.
585.435, contracted under Sec. 585.436, or cancelled under Sec.
585.437. Proposed Sec. 585.438 would allow BOEM to restart the
competitive leasing process at any point it deems reasonable after a
lease or grant (or portion thereof) is relinquished, contracted, or
cancelled. In such situations under the proposed rule, BOEM would be
obligated to engage in additional environmental analysis and
consultation, if necessary, due to elapsed time or changed conditions.
The proposed rule also would allow BOEM to reoffer the lease or grant
to the next best bidder if a competitively issued lease or grant (or
portion thereof) is relinquished or cancelled within 6 months of the
auction. BOEM believes that within 6 months, the next best bid may
still be deemed sufficient to constitute fair return under 43 U.S.C.
1337(p)(2)(A).
F. 30 CFR Part 585, Subpart F--Payments and Financial Assurance
Requirements
Subpart E, Payments and Financial Assurance Requirements, is being
redesignated as subpart F to accommodate the addition of a new subpart
B, as noted in section VI.B above.
Payments
Sec. 585.500 How do I make payments under this part?
The proposed rule would replace the due date in paragraph (c)(1)
for the bonus balance payment on a competitively issued lease from
``[l]ease issuance'' to ``[w]ithin 10-business days of receiving the
unsigned lease'' and would add the section reference. The proposed rule
also would replace the word ``issuance'' with ``execution'' in the
``Due date'' column of (c)(3) and (c)(8). These changes would provide
clarity and would give a lessee or a grant holder more time to make the
required payments. The proposed rule also would substitute the word
``period'' for ``term'' in paragraphs (a) and (c) to ensure consistency
with proposed changes to Sec. 585.235. The proposed rule also would
replace the annual ROW rent of $70 per mile with an annual rent of $5
per acre as determined by proposed Sec. 585.301(a). This change would
provide BOEM consistency in pricing OCS usage for RUEs and ROWs. See
further discussion below in the section-by-section analysis of Sec.
585.508. Finally, the proposed rule would eliminate the word
``statute'' in the phrase ``statute mile'' in the ``Amount'' column of
(c)(8) because ``miles'' is defined as nautical miles in Sec. 585.112.
Sec. 585.501 What deposits must I submit for a competitively issued
lease, ROW grant, or RUE grant?
Existing Sec. 585.501 describes the deposit a bidder must submit
to participate in specific types of auctions for a lease, RUE, or ROW.
Proposed Sec. 585.501 would eliminate provisions specifying deposits
by auction type and would provide BOEM with discretion to establish bid
deposit requirements in the FSN. This proposal would ensure consistency
with proposed Sec. 585.220.
Sec. 585.503 What are the rent and operating fee requirements for a
commercial lease?
Proposed Sec. 585.503 would revise the payment due date for the
first 12 months' rent on a commercial lease. The winning bidder would
have to pay the rent no later than 45-calendar days after receiving a
copy of the executed lease from BOEM. The existing regulations state
that the rent payment is due no later than 45-calendar days after BOEM
sends the unsigned copies of the lease to the provisional winner. This
proposed section effectively would give lessees slightly more time to
pay the first 12 months' rent.
BOEM also proposes several technical corrections to conform to the
definition of ``commercial operations'' in Sec. 585.112 and BOEM's
proposed changes to Sec. 585.235 as well as to provide more
specificity regarding the regulations that govern payments to ONRR.
Sec. 585.504 How are my payments affected if I develop my lease in
phases?
BOEM proposes a technical change to provide a more specific
citation to the regulations that govern payments to ONRR.
Sec. 585.505 What are the rent and operating fee requirements for a
limited lease?
BOEM proposes technical changes to provide a more specific citation
to the regulations that govern payments to ONRR and to conform to the
proposed nomenclature change from ``term'' to ``period'' in Sec.
585.235.
Sec. 585.506 What operating fees must I pay on a commercial lease?
BOEM proposes to amend the introductory paragraph to clarify that
operating fees are triggered at the start of commercial operations as
defined in Sec. 585.112, rather than at the start of energy
generation. Under the current regulations, generation of electricity
during testing would be subject to operating fees. This rule would
exempt electricity generated for testing purposed from operating fees.
BOEM typically does not consider energy generated during testing
periods, prior to final project verification under Sec. 585.708(a)(5),
to constitute commercial operations. BOEM also proposes technical
changes to provide a more specific citation to the regulations that
govern payments to ONRR; to conform to the definition of ``commercial
operations'' in Sec. 585.112; to identify ONRR as the correct payee
for operating fees; and to define ``DOE.''
[[Page 6002]]
Sec. 585.507 What rent payments must I pay on a project easement?
BOEM proposes technical changes to provide a more specific citation
to the regulations that govern payments to ONRR and to conform to
proposed changes to Sec. Sec. 585.235 and 585.628(g).
Sec. 585.508 What rent payments must I pay on ROW grants or RUE grants
associated with renewable energy projects?
BOEM proposes technical changes to provide a more specific citation
to the regulations that govern payments to ONRR; to remove the word
``nautical'' as redundant given the definition of ``miles'' in Sec.
585.112; and to make minor editorial adjustments that enhance
readability. BOEM also proposes to simplify ROW rental payments to
reflect that, under the proposed rule, ROW corridors would have
sufficient width to accommodate all planned grant activities. BOEM
believes that most grant holders would prefer an initially wider
corridor that would encompass all areas of actual seabed disturbance,
rather than the existing regulations limiting corridors to a 200-foot
width with a subsequent determination of the ``affected area'' outside
that corridor. Grant holders would be able to relinquish unused
portions of the right-of-way corridor after construction, as set forth
in proposed Sec. 585.301, and would be relieved of their obligation to
pay rent subsequently for those relinquished areas.
To promote consistency in BOEM's valuation of OCS rental pricing
across RUEs and ROWs, the proposed rule also would replace the annual
ROW rent of $70 per mile with an annual rent of $5 per acre as
determined by the proposed Sec. 585.301(a). This change would
streamline BOEM's existing rental fee calculations and ensure
consistent valuation of all OCS acreage for grants. Under existing
regulations, a ROW grant holder pays an annual rent of about $2.89 per
acre and a RUE grant holder, $5 per acre.\89\ BOEM has determined that
no compelling reason supports this differential between RUE and ROW
annual rental rates.
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\89\ An annual ROW rent of $2.89 per acre for a one-mile, 200-
foot-wide corridor is derived as follows: A 1-mile, 200-foot-wide
corridor has an area equivalent to 1,056,000 square feet or 24.24
acres (43,560 square feet per acre); $70 divided by 24.24 acres is
$2.89 per acre.
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Sec. 585.509 Who is responsible for submitting lease or grant payments
to ONRR?
The proposed rule makes a technical correction to the section
heading by replacing ``BOEM'' with ``ONRR'' as the correct payee.
Sec. 585.510 May BOEM defer, reduce, or waive my lease or grant
payments?
BOEM proposes to change the regulations to allow that BOEM may
grant requests for deferral of rental and operating fee payments, in
addition to reductions or waivers. BOEM seeks to avoid confusion by
explicitly including this authority in the proposed rule. BOEM also
proposes a technical change to conform to BOEM's proposed changes to
Sec. 585.235.
Sec. 585.515 What financial assurance must I provide when I obtain my
commercial lease?
This section is removed in the proposed rule as explained in the
analysis of Sec. 585.516.
Financial Assurance Requirements for Commercial Leases
Sec. 585.516 What are the financial assurance requirements for each
stage of my commercial lease?
The proposed rule would amend several key aspects of this section.
As discussed in section V.G.3(b) above, entitled ``Revision of Lease-
Specific Financial Assurance Amount,'' BOEM proposes to replace the
existing $100,000 lease-specific bond required before BOEM will execute
a commercial lease or approve an assignment of an existing commercial
lease with a bond or other authorized financial assurance in the amount
of 12 months' rent to ensure BOEM and the U.S. taxpayers are not under-
bonded during the preliminary term of a lease if annual rent exceeds
$100,000, which it often does. BOEM proposes to remove the existing
Sec. 585.515 as surplusage in light of this proposed change, as that
section relates to a ``flat-fee'' bond that would no longer be
required. Section 585.515 currently subjects the minimum base bond to
adjustment every 5 years based on changes to the Consumer Price Index--
All Urban Consumers, but such adjustment is no longer necessary if the
initial bond is tied to the annual rent for the lease. Under the
proposed rule, Sec. 585.515 would be reserved.
Second, BOEM proposes to amend the timing of the SAP
decommissioning bond in paragraph (a)(2) so that it is due before the
installation of SAP facilities, rather than at the time of SAP
approval. This change is proposed in recognition of the fact that
liability for SAP facilities does not accrue until installation.
Third, BOEM proposes to eliminate the bond or other financial
assurance that is presently due before COP approval, for the reasons
set forth in section V.G.3(a) above, entitled ``Elimination of COP
Approval Financial Assurance Requirement.''
Fourth, BOEM proposes several revisions to the decommissioning
financial assurance requirement. Most importantly, the proposed rule
would establish that a lessee may propose--and BOEM may approve or
disapprove--incremental funding of a financial assurance instrument
that satisfies this requirement. This proposal would allow BOEM to
approve the incremental provision of financial assurance during the
operation of the facility for the reasons set forth in section V.G.3(d)
above, entitled ``Staged Funding of Decommissioning Accounts.'' The
proposed rule would provide more flexibility than BOEM's existing
regulatory authority, which allows decommissioning financial assurance
to be provided ``in accordance with the number of facilities installed
or being installed.'' \90\
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\90\ 30 CFR 585.516(a)(4).
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The remaining proposed changes to this section are intended for
clarification and organizational purposes. For instance, BOEM proposes
to adopt the term ``supplemental'' to describe all financial assurance
for obligations other than the first 12 months' rent. BOEM also would
remove language in paragraph (b) regarding a lessee's ability to
increase its financial assurance. The text is redundant of Sec.
585.517 requirements that a lessee must provide financial assurance to
cover all lease obligations and that BOEM may require additional
financial assurance at any time during the lease after providing a
lessee notice and an opportunity to be heard. BOEM also proposes to
change the timing for providing supplemental financial assurance for
marine hydrokinetic projects in paragraph (c) in recognition that
obtaining a Federal Energy Regulatory Commission (FERC) license, like
the approval of a COP, may not itself result in the accrual of
obligations. The additional flexibility regarding the timing of
financial assurance will assist BOEM in coordinating with FERC.
Sec. 585.517 How will BOEM determine the amounts of the supplemental
financial assurance requirements associated with commercial leases?
This section describes BOEM's general requirements for assessing
supplemental financial assurance. BOEM proposes several technical
revisions to streamline the processes set forth in this section and to
maintain consistency with other proposed changes. First, the proposed
rule would
[[Page 6003]]
simplify terminology by renaming as ``supplemental financial
assurance'' every type of financial assurance required after the
initial financial assurance is provided. BOEM also proposes to combine
paragraphs (a) and (b). Under the new paragraph (a), BOEM proposes to
clarify that the obligation to maintain supplemental financial
assurance for 12 months of rent applies only to the extent the rent is
not covered in the initial financial assurance provided under Sec.
585.516(a)(1). This language would ensure that BOEM does not require a
lessee to provide more financial assurance than necessary to secure the
rent obligation. Additionally, BOEM proposes to eliminate most of the
existing paragraph (c)(2) as duplicative of the proposed paragraph (a);
BOEM would simply cross-reference to the list of obligations that must
be bonded in proposed paragraph (a).
Sec. 585.520 What financial assurance must I provide when I obtain my
limited lease, ROW grant, or RUE grant?
BOEM proposes to adopt an approach to calculate the initial
financial assurance for limited leases, ROWs, and RUEs that is
analogous to the proposed approach for commercial leases in Sec.
585.516. Instead of the existing fixed dollar amount ($300,000), the
proposed rule would require financial assurance in an amount equal to
12 months' rent before BOEM will execute the limited lease, ROW, or
RUE. The rationale for this proposed change is that unpaid rental
payments are the only liability that a limited lessee \91\ or grant
holder accrues at that stage of development. As with the proposed
elimination of Sec. 585.515, inflationary (or deflationary)
adjustments would be obsolete if the minimum bond is based only on
rental obligations. BOEM believes this rule change will decrease the
initial cost burden on limited lessees and grant holders in most
instances because 12 months of rent for these areas is likely to be
less than $300,000. At all times, financial assurance would still be
required to be sufficient to cover a limited lessee's obligations
pursuant to Sec. 585.521.
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\91\ Throughout section VI, the term ``limited lessee'' means a
holder of a limited lease.
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Sec. 585.521 Do my financial assurance requirements change as
activities progress on my limited lease or grant?
BOEM proposes revisions to better align limited lease and grant
financial assurance requirements with those proposed for a commercial
lease. Proposed language in paragraph (a) clarifies that BOEM may
increase or decrease the amount of a limited lessee's or a grant
holder's financial assurance depending on the estimated costs to meet
its accrued obligations. The proposed rule would clarify that the
amount of financial assurance provided must be no less than the amount
required to meet a limited lessee's or a grant holder's obligations.
Additionally, BOEM would revise this section to clarify that payments
are due to the ``United States'' rather than the ``Government.'' This
section includes new language providing for notice and opportunity to
object if BOEM proposes to adjust the financial assurance requirements
on a limited lease or grant. The proposed rule would allow a limited
lessee or a grant holder to request reduction of its financial
assurance requirement if the amount assured continues to be greater
than the sum of the accrued obligations. Under the proposed rule, BOEM
would have sole discretion to approve such a request. BOEM proposes to
substitute ``supplemental financial assurance'' for ``decommissioning
bond'' consistent with the proposed terminology changes discussed in
the Sec. 585.516 analysis. Finally, the proposed rule would add a
provision to the effect that a limited lessee or a grant holder may
fund its financial assurance incrementally. In its discretion, BOEM
would approve or disapprove such a request and the schedule for
providing the financial assurance. The added provision for incremental
funding of the financial assurance is intended to reduce the costs
associated with building and developing the lease or grant in
situations where the amount of financial assurance provided would be
delayed until it became necessary.
BOEM would require financial assurance prior to the net present
value of the project turning negative when factoring in decommissioning
costs. This calculation would change based upon actual operating
efficiency of the project (both at start-up and throughout its
lifecycle) and realized prices obtained through the PPA based upon the
local market. BOEM would require an annual re-evaluation of the
financial condition of the project and would adjust the timing of
required financial assurance accordingly.
Requirements for Financial Assurance Instruments
Sec. 585.526 What instruments other than a surety bond may I use to
meet the financial assurance requirement?
BOEM proposes to revise this section to clarify that a lessee and a
grant holder have choices in proposing alternative instruments to
satisfy their financial assurance obligations. As discussed in section
V.G.3(c) above, entitled ``Additional Authorized Financial Assurance
Instruments,'' BOEM reads the existing section as allowing a lessee and
a grant holder to propose financial assurance instruments that are not
specifically enumerated in the regulations. The proposed rule would
explicitly authorize BOEM to approve non-listed instruments or
combinations of instruments. Responding to recent requests by several
lessees, the proposed rule specifically would identify letters of
credit as acceptable financial assurance instruments but would
condition their use. The proposed conditions for letters of credit
would include a minimum credit rating, a minimum term of 1 year,
automatic renewal in the absence of a notice of cancellation to BOEM,
and a venue provision requiring adjudication of any dispute in U.S.
district court. These conditions would ensure that letters of credit
provide protection to the U.S. taxpayer to the same extent as a surety
bond. Additionally, the proposed rule would remove the provision in
paragraph (a)(2) stating that cash financial assurance is to be
deposited and maintained in the U.S. Treasury by BOEM.
Sec. 585.528 May I use a third-party guaranty to meet the financial
assurance requirement for lease or grant activities?
The proposed rule would grant BOEM the authority to allow a third-
party guarantor to cap its liability on a guaranty provided to meet
lessee and grant holder financial assurance obligations. As discussed
in section V.G.3(c) above, entitled ``Additional Authorized Financial
Assurance Instruments,'' BOEM's existing regulations require a third-
party guaranty to cover all obligations. BOEM believes that lessees and
grant holders would benefit if a third-party guarantor could cap its
liability. BOEM proposes to allow this increased flexibility by adding
language in paragraph (a) stating that a third-party guaranty may be
``in an amount determined by BOEM'' and by stating in paragraph (c)(5)
that a guarantor must either take corrective action or provide, within
7-calendar days or other agreed upon time period, sufficient funds ``up
to the value of the guaranty'' to enable BOEM to remedy the violation.
BOEM also proposes to clarify that a guarantor must satisfy only the
legal and financial aspects of Sec. Sec. 585.106 and 585.107; because
a guarantor only provides financial assurance, it does not need to be
technically qualified. Additionally,
[[Page 6004]]
BOEM proposes a technical correction to remove the term ``operating
rights owner,'' a legal status that exists in the offshore oil and gas
regulatory framework but not in the legal framework for OCS renewable
energy.
Sec. 585.529 Can I use a lease- or grant-specific decommissioning
account to meet the financial assurance requirements related to
decommissioning?
As discussed further in section V.G.3(d) above, entitled ``Staged
Funding of Decommissioning Accounts,'' BOEM proposes to allow a lessee
or grant holder to fund a decommissioning account in stages over the
term of a lease or grant. This authority would be set forth in a
revised paragraph (a)(2) stating that a lessee or grant holder ``must
fund the account in the amount determined by and according to the
funding schedule approved by BOEM'' and in a new paragraph (a)(3)
stating that a decommissioning account ``may be funded in whole or in
part during the operations period of a lease or grant.'' A proposed
funding schedule would be subject to BOEM's approval (and potential
modification) after BOEM conducts the appropriate risk analysis.
Changes in Financial Assurance
Sec. 585.532 What happens if my surety wants to terminate the period
of liability of my financial assurance?
In the section heading and paragraph (a), BOEM proposes to
substitute the term ``financial assurance'' for ``bond'' because
financial assurance is inclusive of all types of security--including,
but not limited to, surety bonds--that BOEM allows under this subpart.
To be responsive to the question posed in the section heading, BOEM
also proposes to remove ``a'' and add ``your'' before ``financial
assurance'' in paragraph (a).
BOEM also proposes to revise paragraph (b) by introducing a time
constraint for when your surety must submit to BOEM its request to
terminate the period of liability under its financial assurance and
notify you of that request. The time constraint proposed in this rule
is no less than 90 days before the proposed termination date. BOEM
requests comment on whether the 90-day time frame is appropriate. BOEM
also proposes to remove the clause ``or have not met all obligations of
your lease or grant,'' and to add the words ``on your lease or grant''
to recognize that the surety continues to be responsible for
obligations and liabilities that accrued during the period of liability
and before the date on which BOEM terminated the period of liability.
Therefore, the lessee or grant holder must provide replacement
financial assurance only if it intends to continue activities on its
lease or grant.
Sec. 585.533 How does my surety obtain cancellation of my financial
assurance?
BOEM proposes to substitute the term ``financial assurance'' for
``bond'' in the section heading for the reasons set forth in the
analysis of Sec. 585.532 and to use ``cancel'' throughout this section
to avoid confusion arising from the use of ``release.'' In addition,
BOEM proposes to revise this section by replacing the ``only if''
conditional at the end of the existing paragraph (a), which limits the
cancellation of a financial assurance whose period of liability has
terminated to two situations, with a timing clause stating when
cancellation would occur and by adding two additional situations when
cancellation would be appropriate. The first added situation would
cover the circumstance when the period of liability is terminated for
financial assurance, but the provider of replacement financial
assurance does not agree to assume the liabilities of the terminated
period of liability. In such a situation, the proposed rule would
provide that the financial assurance would be cancelled 7 years after
the termination of the period of liability. The second situation would
cover the circumstance when the financial assurance obligations are the
subject of an appeal or judicial litigation. In such a situation, the
proposed rule would provide that the financial assurance would be
cancelled upon completion of the appeals process or judicial
litigation.
BOEM also proposes to streamline this section by removing
surplusage in the existing paragraph (b) that is redundant with the
requirements and procedures set forth in proposed Sec. 585.534.
Sec. 585.534 When may BOEM cancel my financial assurance?
BOEM proposes significant organizational and substantive revisions
to this section. First, BOEM proposes to substitute ``financial
assurance'' for ``bond'' and ``pledged security'' for the reasons set
forth in the analysis of Sec. 585.532 and to use ``cancel'' throughout
this section to avoid confusion arising from the use of ``release.''
Second, the proposed rule would amend the first column of the chart
(which would be part of a new paragraph (a)) to collapse the
distinction between different types of financial assurance for
commercial leases, supplemental or decommissioning obligations, limited
leases, and grants. BOEM has concluded that the cancellation of
financial assurance for different types of leases and grants should be
subject to the same regulatory requirements.
Third, the proposed rule would remove the existing second column of
the chart referring to the ``period of liability'' associated with
BOEM's financial assurance cancellation; this column is unnecessary
because the final column contains all needed information regarding when
BOEM may cancel lessees' and grant holders' financial assurance.
Termination of the period of liability is addressed adequately in Sec.
585.532.
Fourth, BOEM would revise the first sentence of the third column in
the existing paragraph (a) to provide that financial assurance will not
be cancelled until 7 years after all operations and activities under
the lease or grant cease, including decommissioning and site clearance,
or a longer period as necessary to complete any appeals or judicial
litigation related to a surety's financial assurance obligation. This
change recognizes the statutes of limitations on claims after all
operations and activities cease under the lease or grant, including
decommissioning and site clearance. BOEM also proposes to introduce
more flexibility to cancel financial assurance under certain
circumstances not covered under existing regulations. For example, the
proposed rule would give BOEM additional flexibility to cancel
financial assurance before the termination of a lease or grant when the
assurance is no longer needed, the operations for which the
supplemental financial assurance was provided ceased prior to accrual
of any decommissioning obligation, or BOEM determines that the
assurance was erroneously assessed. BOEM proposes this change in
response to requests from lessees to depart from BOEM's existing
requirement that lessees hold financial assurance for 7 years after a
lease ends. BOEM believes the proposed language would provide needed
flexibility to release a lessee's or a grant holder's financial
assurance whenever BOEM determines that it is no longer needed.
Finally, BOEM proposes to further protect the U.S. taxpayer against
certain risks by adapting language from the equivalent oil and gas
regulations at 30 CFR 556.906(e). The proposed rule would allow BOEM to
require reinstatement of a financial assurance instrument as if no
cancellation occurred if an obligor's payment under a lease or grant is
rescinded due to insolvency or bankruptcy, or if the
[[Page 6005]]
responsible party represents to BOEM that it has discharged its
obligations under the lease or grant, and the representation was
materially false when the bond was cancelled.
Sec. 585.535 Why might BOEM call for forfeiture of my financial
assurance?
For the reasons set forth in the section-by-section analysis of
Sec. 585.532 above, BOEM proposes a technical correction to substitute
the phrase ``financial assurance'' for the word ``bond.''
Revenue Sharing With States
Sec. 585.541 What is a qualified project for revenue sharing purposes?
BOEM proposes a technical correction to remove the word
``nautical'' as redundant given the definition of ``miles'' in Sec.
585.112.
Sec. 585.542 What makes a State eligible for payment of revenues?
BOEM proposes a technical correction to remove the word
``nautical'' as redundant given the definition of ``miles'' in Sec.
585.112.
G. 30 CFR Part 585, Subpart G--Plans and Information Requirements
Subpart F, Plans and Information Requirements, is being
redesignated as subpart G to accommodate the addition of a new subpart
B, as noted in section VI.B above.
Sec. 585.600 What plans and information must I submit to BOEM before I
conduct activities on my lease or grant?
The existing regulations require lessees to submit a SAP for BOEM
approval before conducting any site assessment activities on their
commercial leases. Under proposed Sec. 585.600(a)(1), SAPs would be
required only for site assessment activities involving an engineered
foundation. This change is intended to exempt floating site assessment
facilities, such as met buoys, from the SAP requirement, and is being
proposed for the reasons set forth in section V.A. above, entitled
``Site Assessment Facilities.'' Changes to these regulatory provisions
would not affect the applicability of other agencies' statutory and
regulatory requirements. The term ``engineered foundation'' would be
defined in this section to include met towers or other structures that
are installed using a fixed-bottom foundation requiring professional
engineering design and assessment of sediment, meteorological, and
oceanographic condition.\92\ A lessee planning to install an industry-
standard met buoy using a gravity anchor for site assessment would not
require a SAP. If a lessee is uncertain whether its proposed site
assessment facility had an engineered foundation that would trigger SAP
requirements, it would be encouraged to consult with BOEM at the
earliest opportunity. BOEM seeks public comment on whether the
definition of ``engineered foundation'' is appropriate (and, if not,
what that definition should be) or whether a different term should be
used to determine whether a facility requires a SAP.
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\92\ See supra note 28 for additional discussion of engineered
foundations.
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BOEM also proposes to add language that would allow it the
discretion to waive certain information or analysis requirements in a
proposed plan if the applicant can demonstrate that, among other
things, the information or analysis is known to BOEM, the relevant
resource is not present or affected, or the information is not needed
or required by a State's coastal management program. The language in
this provision is modeled on BOEM's oil and gas regulations at 30 CFR
550.201(c) and would grant BOEM more flexibility to tailor its plan
requirements to unique elements of a specific proposal without needing
to issue regulatory departures under Sec. 585.103.
Sec. 585.601 When must I submit my plans to BOEM?
The existing regulation requires submittal of any SAPs either
before or within 12 months after the date of lease or grant issuance.
BOEM sees no persuasive reason for this requirement and removing it
could give useful flexibility to lessees and grant holders without any
notable downside. Some lessees have chosen to file a COP prior to a
SAP, and there may be other instances where additional data collection
methods that would require a SAP are undertaken after the filing of the
COP. Additionally, BOEM expects that the requirement would have little
application if SAPs are no longer required for met buoys as proposed,
because nearly all SAPs submitted to date have been for met buoys.
BOEM, therefore, proposes to allow a lessee or grant holder to submit a
SAP anytime during the life of its lease or grant, but would continue
to require a lessee or grant holder to submit a SAP before conducting
any activities that require a SAP.
BOEM also proposes revising the timing for COP submittal to be
consistent with proposed changes to the lease periods in Sec. 585.235.
Under the proposed rule, a COP is due within 5 years of the lease
effective date. BOEM proposes to clarify that the 12-month period for
GAP submittal starts at the effective date of the limited lease or
grant consistent with the existing Sec. 585.236 and the proposed Sec.
585.303(a). The remaining proposed changes to this section are edits
for clarity.
Sec. 585.602 What records must I maintain?
The proposed rule would expand the recordkeeping requirements,
which currently only refer to data and information related to plan
compliance. Under the proposed rule, lessees and grant holders would
also be required to retain records relating to lease or grant
compliance, including SMS requirement. This change is proposed to
ensure a fuller compliance record is available to monitor trends and to
ensure safety and SMS effectiveness.
Site Assessment Plan and Information Requirements for Commercial Leases
Sec. 585.605 What is a Site Assessment Plan (SAP)?
BOEM proposes revising Sec. 585.605(a) to be consistent with its
proposed changes to Sec. 585.600(a)(1) and to delete text that it
views as duplicative of the requirements set forth in proposed
Sec. Sec. 585.606 through 585.613 (describing the SAP submittal and
review process). BOEM's proposed changes to the renumbered paragraphs
(b) and (c) are editorial in nature and intended to clarify the
existing text.
Sec. 585.606 What must I demonstrate in my SAP?
BOEM proposes to delete the requirement that a lessee demonstrate
that its site assessment activities will collect the necessary
information and data required for a COP as covered in Sec. 585.626.
BOEM has determined that this requirement is unnecessary because it is
not BOEM's responsibility to ascertain at this stage if site assessment
data will be sufficient to meet the needs of the COP review; rather,
BOEM intends to focus its review on the potential environmental impacts
of the site assessment facility itself. Other edits in this section are
technical corrections or are intended to further clarify the text.
Sec. 585.607 How do I submit my SAP?
BOEM proposes to eliminate the paper copy requirement, consistent
with its proposed changes to Sec. 585.110.
[[Page 6006]]
Contents of the Site Assessment Plan
Sec. 585.610 What must I include in my SAP?
BOEM proposes to clarify and streamline the data requirements for
SAP submission. Most of these proposed changes are driven by proposed
changes to the COP requirements (as discussed in section V.C. above,
entitled ``Geophysical and Geotechnical Surveys''); BOEM proposes
making similar changes across the corresponding SAP and GAP regulations
for purposes of consistency. A more detailed description of the
rationale for these proposed revisions can be found in section V.C. and
the analysis of proposed Sec. 585.626.
First, the proposed rule would add language in paragraph (a)
intended to clarify that a lessee may use a PDE in its SAP (see section
V.B). The introductory language in proposed paragraph (a) \93\ would
clarify that project specific information may be provided as a range of
parameters. While BOEM is not specifying in this proposed rule what
that range should be, BOEM's requirement cannot be met without
providing both a minimum and a maximum value. For example, a lessee
would not satisfy this requirement by saying, for example, that at
least 200 turbines would be installed. For example, a lessee could
propose two types of met tower foundations in its SAP, but would need
to describe which foundation type is expected to have the greatest
impact on each affected resource. Paragraph (a)(5) would include
language clarifying that a lessee can propose a range of potential
locations for its site assessment facility as well as an indicative
layout (i.e., a less detailed design) as an alternative to a location
plat. Paragraph (a)(6) would clarify that only preliminary design
information is required. Such drawings would be submitted with the FDR
under Sec. 585.701 if the project is deemed complex and significant
under Sec. 585.613(a).
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\93\ For clarity, BOEM proposes standardizing the presentation
of the required content for a SAP, COP, and GAP so that paragraph
(a) outlines the general informational requirements and paragraph
(b) outlines the survey and investigations data requirements. The
equivalent COP and GAP sections would be re-arranged under the
proposed rule consistent with this approach.
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Second, BOEM proposes to eliminate the existing requirement in
paragraph (a)(9) that a CVA nomination (if necessary under Sec.
585.613(a)) be included with the SAP; instead, a lessee would be able
to nominate a CVA before or after SAP submittal under proposed Sec.
585.706. As described further in section V.D.3(a) above, entitled
``Certified Verification Agent Roles and Flexibility,'' the intent of
delinking the CVA nomination from the SAP, COP, or GAP is to allow a
lessee or grant holder to obtain the benefits of CVA review at the
earliest feasible opportunity. In lieu of a CVA nomination, a lessee
would need only to describe its project verification strategy for
proposed activities that would require a SAP. For a SAP, this would
include an analysis of whether a lessee believes the project should be
considered complex or significant, thereby triggering the design,
fabrication, and installation requirements in proposed subpart H. Under
the proposed rule, in the event that a lessee or a grant holder under
proposed Sec. 585.645(c)(4) recommends that its project be designated
complex or significant, the lessee or grant holder would include a
general description of its strategy for complying with the requirements
of the proposed subpart H.
Third, BOEM proposes clarifying and technical edits to several
other informational requirements in paragraph (a), including adopting
language from the existing COP informational requirements (Sec.
585.626) regarding decommissioning; documents incorporated by
reference; and lists of Federal, State, and local permits.
Fourth, the proposed rule would rewrite the SAP data requirements
in paragraph (b) to mirror its proposed changes to the COP and GAP
regulations. The reasons for these changes are described in more detail
in section V.C. above, entitled ``Geophysical and Geotechnical
Surveys,'' and in the description of proposed Sec. 585.626(b). Note
that the detail and thoroughness of these data requirements would be
commensurate with the scope and complexity of the proposed activities.
Under proposed Sec. 585.600(b), lessees could seek waivers of certain
data requirements by providing their rationale for why that data is
unnecessary.
Finally, BOEM proposes deleting the existing paragraph (c), which
concerns the simultaneous submittal of a SAP and either a COP or (for a
marine hydrokinetic project) FERC license application. BOEM believes
that paragraph (c) is unnecessary because such simultaneous submittals
still would be permitted under other provisions of this subpart in the
proposed rule and because much of this paragraph is repetitive of
proposed Sec. 585.601(b).
Sec. 585.611 What information and certifications must I submit with my
SAP to assist BOEM in complying with NEPA and other applicable laws?
BOEM proposes clarifications to the following informational
requirements in this section. These proposed clarifications are
consistent with BOEM's present expectations for SAP submittals and,
therefore, should not create additional burdens on lessees:
Water quality information would explicitly include impacts
from vessel discharges, as is already required under the Clean Water
Act.
Archaeological resources information would explicitly
include information on all types of historic properties, as is already
required under the NHPA.
Coastal and marine uses information would explicitly
include assessments of fisheries and navigational safety risk. Lessees
would be required to submit the latter assessment to the USCG.
Additionally, in the section heading and regulatory text, the more
appropriate phrase ``applicable laws'' would replace ``relevant laws.''
The remaining proposed changes to this section are edits for improved
organization, clarity, or consistency, including moving most of the
language from the existing paragraph (b) into a new paragraph (c).
Sec. 585.612 How will my SAP be processed for Federal consistency
under the Coastal Zone Management Act?
BOEM proposes to modify paragraph (a) to add that the submittal to
BOEM must conform with the requirements of Sec. 585.110. BOEM proposes
to clarify in paragraph (b) that lessees need to submit a consistency
certification for their SAPs under 15 CFR part 930, subpart E, only if
BOEM has not previously submitted a consistency determination to that
State under 15 CFR part 930, subpart C, that covered the proposed site
assessment activities, as opposed to always providing the submittal as
described in the current regulations. The existing regulations require
lessees to submit a consistency certification in all cases.
BOEM, in consultation with NOAA, finds that implementation of the
OCS renewable energy program thus far shows that there are three
potential CZMA Federal consistency reviews under BOEM's actions: (1)
when BOEM conducts a lease sale and awards a lease, ROW, or RUE and
provides a State or States with a CZMA consistency determination under
15 CFR part 930, subpart C; (2) when an applicant
[[Page 6007]]
submits a CZMA consistency certification to BOEM for a COP, if required
by 15 CFR part 930, subpart E; and (3) when the activity is located
outside a geographic location described in the State's coastal
management program pursuant to 15 CFR 930.52, and an applicant, on its
own accord, submits a consistency certification to a State or States
through BOEM under 15 CFR part 930, subpart E. For the lease sales held
so far, States have reviewed associated SAP or GAP activities through
the review of BOEM's consistency determination under 15 CFR part 930,
subpart C. BOEM and NOAA expect that this will continue and that it
should be the rare case where a separate CZMA consistency review is
required for a SAP or GAP.
Sec. 585.613 How will BOEM process my SAP?
BOEM proposes to harmonize the existing language in paragraph
(e)(2) with the equivalent provision in Sec. 585.628(f)(2) regarding
actions lessees may take in the event of COP disapproval. BOEM also
proposes to clarify that SAP resubmission must occur within a
reasonable time and proposes to make analogous changes to the
equivalent COP and GAP requirements in Sec. Sec. 585.628 and 585.648.
Activities Under an Approved SAP
Sec. 585.614 When may I begin conducting activities under my approved
SAP?
BOEM proposes a minor edit to paragraph (b) by adding the word
``description'' after Safety Management System to clarify that it is a
description of the Safety Management System that must be submitted, in
conformance with the requirements outlined in Sec. 585.810.
Sec. 585.617 What activities require a revision to my SAP, and when
will BOEM approve the revision?
The proposed changes include the addition of a new paragraph (b) to
clarify that revisions to a lessee's SAP may trigger a reassessment of
the significance and complexity of the proposed activities. The
proposed revisions under paragraph (d) would eliminate unnecessary
verbiage in the list of changes or modifications that could trigger the
revision of an approved SAP by merging the substance of existing
paragraphs (c)(4), (5), and (6) into revised paragraphs (d)(2) and (3).
BOEM also proposes to align this section with the PDE concept as
described in section V.B. above, entitled ``Project Design Envelope,''
and to ensure consistency with the proposed Sec. 585.610(a)(5). The
proposed rule would make minor editorial changes to improve clarity and
readability.
Sec. 585.618 What must I do upon completion of approved site
assessment activities?
BOEM proposes technical edits in paragraph (a) to ensure
consistency with proposed changes to Sec. 585.235 eliminating the site
assessment term of a commercial lease. The proposed paragraph (a) would
apply only if site assessment facilities are installed before COP
submittal.
Paragraph (e) of the existing regulation states that ``you must
initiate the decommissioning process [for your site assessment
activities] . . . upon termination of your lease.'' However, the
proposed subpart J of the regulations contemplates that lessees will
initiate the decommissioning process by submitting a decommissioning
application as much as 2 years before the lease expires. BOEM proposes
to revise this section for clarity and consistency with Sec. Sec.
585.905 and 585.906.
Construction and Operations Plan for Commercial Leases
Sec. 585.621 What must I demonstrate in my COP?
The proposed changes are technical edits to ensure consistency with
certain proposed changes to Sec. 585.606 for SAPs.
Sec. 585.622 How do I submit my COP?
BOEM proposes to eliminate the paper copy requirement, consistent
with its proposed changes to Sec. 585.110.
Contents of the Construction and Operations Plan
Sec. 585.626 What must I include in my COP?
BOEM proposes to clarify and streamline the data requirements for
COP submission in several key respects.
First, the proposed rule would add language in paragraph (a)
intended to clarify that a lessee may use a PDE in its COP, as further
discussed above in section V.B, entitled ``Project Design Envelope,''
section V.C., entitled ``Geophysical and Geotechnical Surveys,'' and
the analysis of Sec. 585.610.
Second, BOEM proposes replacing the existing obligation in
paragraph (a)(18) to submit a CVA nomination with the COP with a
requirement to submit a ``project verification strategy'' describing
the lessee's plan for complying with the CVA regulations at Sec. Sec.
585.705 through 585.714. As discussed further in section V.D.3(a)
above, entitled ``Certified Verification Agent Roles and Flexibility,''
this proposed amendment is intended to provide lessees with the
flexibility to nominate (and for BOEM to approve) a CVA either before
or after COP submittal.
Third, the proposed rule would make both clarifying and substantive
changes to the data submittal requirements in this section. Most of the
proposed changes relate to nomenclature and organization and are
intended to more precisely reflect BOEM's expectations for a lessee's
COP surveys. For instance, BOEM proposes to merge the existing
``shallow hazards,'' ``geological,'' ``geotechnical,'' and ``site
investigation'' survey requirements in paragraphs (a)(1), (2), (4), and
(6) into ``geological and geotechnical'' survey requirements set forth
in a new Sec. 585.626(b)(1). BOEM believes this change would clarify
any stakeholder confusion and would reduce redundancy. The shallow
hazards survey is part of both geological and geotechnical surveys (and
thus does not actually constitute an independent survey), geological
and geotechnical surveys have overlapping purposes, and the ``site
investigation'' is effectively an amalgam of the above-described
surveys.
BOEM intends the proposed geological and geophysical survey
provisions in Sec. 585.626(b)(1) to replace the existing prescriptive
requirements with performance-based standards focused on the
sufficiency of information regarding geological site conditions that
BOEM needs in order to adequately review a COP. In particular, BOEM
proposes to eliminate the requirements in the existing Sec.
585.626(a)(1) regarding shallow hazard surveys as well as the
requirements in the existing Sec. 585.626(a)(4) that lessees submit
``[t]he results of adequate in situ testing, boring, and sampling at
each foundation location'' and ``[t]he results of a minimum of one deep
boring (with soil sampling and testing) at each edge of the project
area.'' Instead, BOEM proposes to require geophysical data sufficient
to ``define the geological conditions of the site's seabed that could
impact, or be impacted by, the proposed project'' and geotechnical data
sufficient to ``ground truth the geophysical surveys; support
development of a geological model; assess potential geological hazards
that could impact the proposed project; and provide geotechnical data
for preliminary design of the facility, including type and approximate
dimensions of the foundation.''
BOEM believes that these new standards will provide it with
flexibility to tailor its data requirements to site- and project-
specific conditions without
[[Page 6008]]
needing to issue regulatory departures under Sec. 585.103. To ensure
BOEM will continue to have sufficient information to conduct an
environmental analysis and the necessary interagency consultations,
BOEM will continue performing a sufficiency review after receipt of a
COP and notifying the lessee of any additional outstanding information
requirements prior to completing the COP review. More importantly, the
elimination of the in situ boring requirement will address the concerns
raised by lessees and described in detail in section V.C. As discussed
in section V.C., the proposed rule would not reduce the quality of
geotechnical data that BOEM will review before the start of
construction. Geophysical surveys would still need to identify all
relevant shallow hazards, and the results of certain detailed
geotechnical surveys to inform engineering decisions would now need to
be submitted with the FDR as set forth in proposed Sec. 585.701.
BOEM also proposes to add flexibility to the timing for when the
required archaeological surveys as currently set forth in Sec.
585.626(a)(5) are submitted. Under the existing regulations, a lessee
must submit archaeological survey data at the same time it submits a
COP. BOEM proposes to allow a lessee to submit the results of certain
detailed subsea archaeological surveys with the FDR under the proposed
Sec. 585.701(a)(11). BOEM would allow the deferral of these surveys on
a case-by-case basis. As discussed further in section V.C., the purpose
of this proposed amendment is to facilitate additional flexibility in
finalizing project design, recognizing that the flexibility could
result in a lessee assuming additional permitting and business risk. As
in its proposed changes to Sec. 585.610, BOEM also proposes to clarify
that required reports under paragraph (b)(3) of this section include
information on all historic properties listed or eligible for listing
on the National Register of Historic Places in accordance with the NHPA
and its implementing regulations.
The proposed rule also would add Sec. 585.626(b)(4), clarifying
BOEM's need for desktop data on oceanographic and meteorological
conditions sufficient to ``support preliminary design of the facility
and support the analysis of wake effects, sediment mobility and scour,
and navigational risks.'' The existing Sec. 585.627(a)(1) requires the
submittal of similar data on conditions that could create hazards for a
project. BOEM believes obtaining more generalized meteorological and
oceanographic information to better inform modeling, design, and
environmental reviews is also necessary and appropriate. BOEM proposes
only clarifying edits to the existing biological survey requirements in
this section. BOEM proposes analogous changes, where appropriate, in
the equivalent regulations for SAPs and GAPs in Sec. Sec. 585.610 and
585.645 respectively.
The remaining proposed changes to this paragraph are edits for
organization and clarity.
Sec. 585.627 What information and certifications must I submit with my
COP to assist BOEM in complying with NEPA and other applicable laws?
BOEM proposes clarifications to the informational requirements in
paragraph (a) consistent with the proposed changes to Sec. 585.611(a).
BOEM also proposes to clarify the wording of the consistency
certification required in paragraph (b)(1) by revising the language to
provide that the applicant must certify that the proposed activities
described in detail in the applicant's plan comply with ``the
enforceable policies of the applicable States' approved coastal
management programs (as opposed to ``the State(s) approved coastal
management program(s)'') and will be conducted in a manner that is
consistent with such programs.'' This change limits BOEM's interest to
the enforceable policies of the applicable States' programs, not to the
CZMA as a whole.
BOEM also proposes a technical correction to paragraph (c). That
provision requires a lessee to submit an oil spill response plan (OSRP)
with its COP ``as required by 30 CFR part 254.'' Because the cross-
referenced regulations apply only to OCS oil and gas activities, BOEM
proposes to require that a lessee submit an OSRP ``in compliance with
33 U.S.C. 1321, including information identified in 30 CFR part 254
that is applicable to your activities.'' This statutory provision is
not limited to oil and gas activities, and grants BOEM and its lessees
more flexibility to craft OSRPs that are commensurate with the
estimated worst-case discharge from a renewable energy facility. The
regulation clarifies that the OSRP must include information identified
in 30 CFR part 254 that is applicable to the lessee's activities. BOEM,
in consultation with BSEE, intends to issue guidance regarding the
recommended contents of an OCS renewable energy OSRP.
Additionally, in the section heading and regulatory text, the more
appropriate phrase ``applicable laws'' would replace ``relevant laws.''
The proposed rule would eliminate the paper copy requirement consistent
with BOEM's proposed changes to Sec. 585.110 and would make minor
editorial changes to improve clarity and readability.
Sec. 585.628 How will BOEM process my COP?
BOEM proposes to add a provision to paragraph (c) stating that,
after all information requirements for the COP are met and after the
appropriate environmental assessment or draft environmental impact
statement, if required, has been published, the lessee or grant holder
would be required to submit its COP consistency certification and
associated data and information under 15 CFR part 930, subpart E to the
applicable State CZMA agencies through BOEM. BOEM has determined that
submitting the COP to the States for Federal consistency review prior
to the publication of a draft NEPA analysis would be premature because
the States would not have all the relevant information at their
disposal to make a State's consistency decision.
In practical terms, this would change the date on which a COP is
considered an ``active application'' under 15 CFR 930.51(f). Therefore,
the CZMA review period (or the start of the 30-day time period for a
State to submit an unlisted activity review request to NOAA under 15
CFR 930.54) would start on the date BOEM issues the notice of
availability for the draft NEPA analysis instead of the date BOEM
issues the notice of intent to publish a draft NEPA analysis. For CZMA
regulatory purposes, this change would make the draft NEPA analysis
``necessary data and information'' under 15 CFR 930.58.
BOEM proposes several changes to the project easement requirements
in paragraph (g). Section 585.112 of the existing regulations defines a
``project easement'' to mean ``an easement to which, upon approval of
your COP or GAP, you are entitled as part of the lease for the purpose
of installing, gathering, transmission, and distribution cables,
pipelines, and appurtenances on the OCS as necessary for the full
enjoyment of the lease.'' Section 585.628(g) provides that if BOEM
approves your project easement, it will issue an addendum to your lease
specifying the terms of the project easement. Under the existing
regulations at Sec. 585.628(g), a project easement may include off-
lease areas that contain the sites on which cable, pipeline, or
associated facilities are located and ``do not exceed 200 feet (61
meters) in width, unless safety and environmental factors during
construction and maintenance of the associated cables or pipelines
require a
[[Page 6009]]
greater width[.]'' However, though a lessee will have gathered
sufficient data to know the general route (or routes) of its cables by
the COP-approval stage, the precise cable route may not be known until
a lessee has conducted detailed surveys of hazards, such as unexploded
ordnance, following COP approval. A lessee occasionally may discover
potential hazards while conducting installation activities that may
necessitate a deviation from the proposed route. Consequently, a 200-
foot-wide easement may be too narrow at the COP-approval stage to
accommodate a reasonable degree of uncertainty regarding the final
export cable route and could result in time-consuming amendments to the
project easement before or after cable installation.
In order to provide flexibility to the lessee and minimize the need
for subsequent project easement amendments, BOEM proposes to amend
paragraph (g) to allow BOEM to issue project easements of ``sufficient
off-lease area to accommodate potential changes at the design and
installation phases of the project for locating cables, pipelines, and
other appurtenances necessary for your project.'' Although a larger
easement would result in greater rental fees under Sec. 585.507, a
lessee may relinquish any unused portions of the easement after
construction is completed. BOEM believes that this approach will allow
a lessee to right-size the width of its project easements on a case-by-
case basis, depending on site conditions and a lessee's particular
needs. This revision would be consistent with the PDE strategy
described in section V.B. above because it maximizes a lessee's ability
to make design choices later in the development process without
revising its COP or reopening the permit review process. BOEM would
still require that a COP include sufficient survey data for whatever
project easement areas are requested. The proposed rule also would not
affect the quantity and quality of data that BOEM presently requires
before the lessee may commence installation of the export cable.
BOEM also proposes a technical correction to paragraph (g) that
would make project easements subject to the same conditions as ROWs and
RUEs under Sec. 585.302(b): that the United States can grant rights in
the area to other lessees or grant holders that do not unreasonably
interfere with operations on the easement. Among other reasons, these
provisions are critical to ensure that nearby existing or future
offshore wind lessees are not definitively foreclosed from using the
same general cable routes established by an earlier lessee. In the long
run, cable routes shared by multiple projects could result in lower
environmental impacts, streamlined permitting, and economic
efficiencies.
Other remaining proposed changes to this section are edits for
clarification, better organization, and consistency with changes to the
equivalent SAP and GAP regulations.
Activities Under an Approved COP
Sec. 585.634 What activities require a revision to my COP, and when
will BOEM approve the revision?
The proposed revisions under paragraph (c) maintain consistency
with proposed changes to Sec. 585.617 for SAPs by eliminating
unnecessary verbiage in the list of changes or modifications that could
trigger the revision of an approved COP and by merging the substance of
existing paragraphs (c)(4), (5), and (6) into revised paragraphs (c)(2)
and (3). BOEM also proposes to incorporate in paragraph (c)(3) the PDE
concept for a ``range'' of facility locations for the reasons set forth
above in sections V.B, entitled ``Project Design Envelope,'' and V.C,
entitled ``Geophysical and Geotechnical Surveys,'' and to ensure
consistency with proposed Sec. 585.626(a). By incorporating the PDE,
BOEM believes it can be less prescriptive regarding the threshold that
would trigger a COP revision and can allow that threshold to be
proportionate to the magnitude of the proposed project changes. BOEM
seeks comments on what threshold should trigger COP revision regarding
changes in position or layout of bottom disturbances. The remaining
proposed revisions to this section are edits for clarity.
Sec. 585.637 When may I commence commercial operations on my
commercial lease?
Paragraph (a) of the existing section provides that commercial
operations may commence 30-calendar days after ``the CVA or project
engineer has submitted to BOEM the final Fabrication and Installation
Report for the fabrication and installation review, as provided in
Sec. 585.708.'' However, Sec. 585.708(a)(5)(ii) allows the lessee to
commence commercial operations 30-calendar days after BOEM receives the
CVA verification report unless BOEM raises objections with the lessee
during that time. The proposed rule would remedy this inconsistency by
moving the existing Sec. 585.708(a)(5)(ii) provision into section
585.637 and would change ``certification'' to ``verification'' to
maintain consistency with other provisions of the proposed rule. The
proposed rule also would clarify that commercial operations may
commence 30-calendar days after BOEM deems submitted--rather than
receives--the final project verification report as described in the
proposed Sec. Sec. 585.704 and 585.708(a)(5) provided that BOEM has
not notified you within that time frame of any objections to the
verification report and that BOEM has confirmed receipt of critical
safety systems commissioning records, as described in Sec.
585.708(a)(6). This proposed change is designed to ensure that BOEM is
in possession of complete and accurate submissions prior to the
commencement of its limited review period. Finally, to improve
organization, the proposed rule would move the existing Sec. 585.713
requirement to notify BOEM within 10-business days of starting
commercial operations into section 585.637.
BOEM is aware that electricity may be generated and distributed
during testing activities conducted by a Lessee prior to submitting the
proposed reports in this section (required as a prerequisite to
beginning commercial operations). Under the existing regulations,
electricity generation and distribution meets the definition of
commercial operations, at Sec. 585.112. BOEM has proposed an edit to
the definition of commercial operations whereby the generation of
electricity needed for the preparation of the final FIR, or the
generation of electricity for testing purposes, would be excluded from
the definition of commercial operations provided that such electricity
is not sold on a commercial basis.
BOEM is soliciting comment on the proposed revisions to the
provisions of Sec. 585.637 for required submissions prior to
commencing commercial operations, and on the revisions to the
definitions of commercial activities and commercial operations in Sec.
585.112.
Sec. 585.638 What must I do upon completion of my commercial
operations as approved in my COP or FERC license?
The existing regulation, under paragraph (a), states that you must
``initiate the decommissioning process'' upon completion of your
approved COP activities. However, the proposed subpart J of the
regulations contemplates that lessees would initiate the
decommissioning process by submitting a decommissioning application as
much as 2 years before the lease expires. BOEM proposes to revise this
section for clarity and
[[Page 6010]]
consistency with Sec. Sec. 585.905 and 585.906.
General Activities Plan Requirements for Limited Leases, ROW Grants,
and RUE Grants
Sec. 585.640 What is a General Activities Plan (GAP)?
The proposed rule would eliminate the second sentence in paragraph
(b) because it is redundant with the requirements found in the existing
and proposed Sec. 585.303(a) regarding the due date for GAP
submission.
Sec. 585.641 What must I demonstrate in my GAP?
The proposed changes include technical edits to ensure consistency
with proposed changes to existing provisions of Sec. Sec. 585.606 and
585.621, as appropriate.
Sec. 585.642 How do I submit my GAP?
BOEM proposes to eliminate the paper copy requirement for this
regulation, consistent with its proposed changes to Sec. 585.110.
Contents of the General Activities Plan
Sec. 585.645 What must I include in my GAP?
BOEM proposes changes to this section consistent with its proposed
revisions to Sec. 585.610 for SAPs and Sec. 585.626 for COPs, as
appropriate.
Sec. 585.646 What information and certifications must I submit with my
GAP to assist BOEM in complying with NEPA and other applicable laws?
BOEM proposes clarifications to the informational requirements in
paragraph (b) of this section similar to those proposed for SAPs in
Sec. 585.611 and COPs in Sec. 585.627, as appropriate. As in those
sections, these clarifications are consistent with BOEM's present
expectations for GAP submittals and, therefore, should not create
additional burdens on lessees.
Additionally, in the section heading and regulatory text, the more
appropriate phrase ``applicable laws'' would replace ``relevant laws.''
Sec. 585.647 How will my GAP be processed for Federal consistency
under the Coastal Zone Management Act?
BOEM is proposing minor changes to provide clarity and consistency
with other proposed changes.
Sec. 585.648 How will BOEM process my GAP?
BOEM proposes minor editorial changes to this section to improve
clarity, eliminate redundancy, enhance readability, and provide
consistency with proposed changes to the equivalent SAP and COP
regulations.
Activities Under an Approved Gap
Sec. 585.652 How long do I have to conduct activities under an
approved GAP?
BOEM proposes a technical revision to paragraph (a) to maintain
consistency with its proposed modifications to the limited lease
periods in Sec. 585.236.
Sec. 585.655 What activities require a revision to my GAP, and when
will BOEM approve the revision?
BOEM proposes clarifications and technical edits to the provisions
regarding GAP revisions in paragraphs (a) and (c) that are analogous to
the ones BOEM proposes in Sec. 585.617 for SAP revisions and Sec.
585.634 for COP revisions.
Sec. 585.657 What must I do upon completion of approved activities
under my GAP?
BOEM proposes a clarification analogous to proposed changes to the
corresponding SAP and COP requirements in Sec. Sec. 585.618(e) and
585.638 respectively.
Cable and Pipeline Deviations
Sec. 585.659 What requirements must I include in my SAP, COP, or GAP
regarding air quality?
BOEM proposes a technical correction to reflect Congress' 2011 CAA
amendment expanding BOEM's air quality jurisdiction to offshore of the
North Slope Borough of Alaska.\94\
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\94\ 42 U.S.C. 7627.
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H. 30 CFR Part 585, Subpart H--Facility Design, Fabrication, and
Installation
Subpart G, Facility Design, Fabrication, and Installation, is being
redesignated as subpart H to accommodate the addition of a new subpart
B, as noted in section VI.B above.
Reports
Sec. 585.700 What reports must I submit to BOEM before installing
facilities described in my approved SAP, COP, or GAP?
BOEM proposes to amend this section first to clarify that BOEM has
the authority to allow lessees to submit their FDRs and FIRs for BOEM's
review by stage or component. As discussed in section V.D.3(b) above,
entitled ``Staged Submittal of the Facility Design Report and
Fabrication and Installation Report,'' this proposed change is intended
to affirm that lessees and grant holders have flexibility in certain
circumstances to commence fabrication or construction of project
components while other aspects are still under review. Under the
proposed rule, a lessee's or a grant holder's ability to avail itself
of this flexibility would be contingent on providing an adequate
explanation to BOEM that all components will function together in an
integrated manner in accordance with its project design basis--which
identifies all requirements, assumptions, and methodologies essential
for the project design--as verified by the project CVA. If multiple
FDRs and FIRs were submitted, each component report would have its own
60-day period for BOEM to review and respond with objections once BOEM
deems the report submitted, consistent with the new Sec. 585.704. BOEM
proposes to clarify that FDRs and FIRs may be submitted before or after
SAP, COP, or GAP approval, though BOEM's 60-day review period will not
start until the report is deemed submitted and the plan is approved.
BOEM believes this proposed change is necessary to ensure that its
limited period for review and objection does not begin until it has
determined that the submission is complete, accurate, and ready for
consideration. The changes described above are achieved by the
inclusion of new paragraphs (b) and (c), and revised language to
existing paragraphs (b) and (c), which BOEM proposes to redesignate as
paragraphs (d) and (f).
Second, as discussed in section V.D.3 above, entitled ``Definition
of `Fabrication' and Early Fabrication of Facility Components,'' BOEM
is also revising this section to address industry concerns with long
lead times associated with the procurement and fabrication of facility
components. To address these concerns, BOEM is proposing revisions to
the language in paragraph (b) of the existing regulations (redesignated
as paragraph (d)), and to add a new paragraph (e). Paragraph (d)
clarifies that fabrication and installation activities on the OCS may
only commence once a lessee or grant holder has received BOEM's non-
objection to the FDR and FIR or if no objections were made by the end
of BOEM's 60-day review. Proposed new paragraph (e) would clarify that
(i) procurement of discrete parts of the project that are commercially
available in standardized form and type-certified components, or
fabrication activities that do not take place on the OCS, may commence
prior to the submittal of the FDR and FIR or any plans required under
BOEM's regulations; and (ii) any procurement or
[[Page 6011]]
fabrication of facility components prior to BOEM's non-objection to the
FDR and FIR, or the end of BOEM's 60-day review without objections, is
subject to verification by the CVA and to possible objection by BOEM
prior to the installation of said components on the OCS.
In addition to the foregoing, BOEM also proposes to add in Sec.
585.112 a definition for the term ``fabrication,'' since the existing
regulations do not define ``fabrication.'' The proposed rule would
define fabrication as the ``cutting, fitting, welding, or other
assembly of project elements of a custom design conforming to project-
specific requirements,'' while excluding from this definition ``the
procurement of discrete parts of the project that are commercially
available in standardized form and type-certified components.''
Finally, BOEM proposes to revise existing paragraph (c), which is
proposed to be redesignated as paragraph (f), to clarify that it has 60
calendar days to object to an FDR or FIR or to request additional
information. BOEM believes this proposed change is necessary to
emphasize that additional time may be needed for its review if key
information is missing from a report.
These proposed changes would bring BOEM's regulations in line with
industry practices and would allow orderly and efficient BOEM and CVA
supervision of a project's technical development without sacrificing
safety. These proposed changes also would afford greater flexibility to
lessees and grant holders to begin certain procurement and fabrication
(e.g., manufacturing) activities at an earlier stage.
Sec. 585.701 What must I include in my Facility Design Report?
BOEM proposes several modifications to the FDR submission
requirements. The proposed rule would replace the requirements for
floating turbines in the existing paragraph (b) with a reworded
requirement in proposed paragraph (a)(6), partly for organizational
purposes and partly as a technical correction because USCG regulations
regarding structural integrity and stability do not apply to floating
offshore wind facilities. To maintain consistency with its proposed
changes to Sec. 585.626, BOEM proposes that the FDR include the
results of any detailed geotechnical surveys that were deferred as a
result of proposed Sec. 585.626(b)(1)(iii). Similarly, BOEM proposes
that the FDR include the results of any archaeological surveys that
were deferred on a case-by-case basis under proposed Sec.
585.626(b)(3). To maintain consistency with the FIR and to provide
flexibility, BOEM is adding a requirement in new paragraph (a)(12) for
the lessee to include design standards in the FDR. This would allow the
lessee to propose design standards specific to their project instead of
BOEM incorporating standards by reference into the regulations. Also,
BOEM is proposing a new requirement in paragraph (a)(13) for the lessee
to include information on critical safety systems, including a risk
assessment that identifies the critical safety systems and a
description of the identified critical safety systems. This information
is necessary for the CVA to verify the commissioning of critical safety
systems, as required by proposed Sec. 585.705. The proposed rule would
require the CVA to verify that the facility has been designed to
provide for safety. By allowing the lessee to conduct a risk assessment
to identify critical safety systems for the individual project, BOEM is
providing increased flexibility for the types of equipment that can be
used, especially considering the rapid pace of technology development.
Finally, for regulatory flexibility, BOEM proposes a catch-all category
to cover necessary project-specific information that may not be
contained within the listed categories. BOEM also proposes to eliminate
the third column of the table in paragraph (a) as superfluous given
BOEM's proposed elimination of the paper copy requirement and to
replace that column's content with a new paragraph (b) consistent with
the proposed Sec. 585.110.
The remaining proposed changes are technical corrections and
include: removal of the word ``proposed'' from the project easement
requirement in paragraph (a)(2)(iii) because the project easement would
be approved already at the time of BOEM's FDR review; substitution of
``verification'' for ``certification'' in the description of the CVA's
duties, as discussed in section V.D.1; addition to the CVA verification
statement that the facility has been designed to provide for safety, in
keeping with other proposed changes; and removal of the trade secrets
provision as redundant of Sec. 585.113.
Sec. 585.702 What must I include in my Fabrication and Installation
Report?
BOEM proposes several modifications to the FIR submission
requirements. The proposed rule would add a requirement in new
paragraph (a)(6) that lessees and grant holders submit any certificates
documenting that they are adhering to a recognized quality assurance
standard. This regulatory change would conform with industry practice
and would allow alternate means of compliance on a case-by-case basis.
BOEM also proposes to clarify that any environmental information
contained in a previously submitted corresponding plan may be
incorporated by reference in an FIR to the extent that information
satisfies the requirements of proposed paragraphs (a)(7)(i) through
(iv). BOEM is also proposing to add a requirement in paragraph (a)(8)
for the submittal of commissioning procedures for critical safety
systems. This information is necessary for the CVA to verify the
commissioning of critical safety systems, as required by proposed Sec.
585.705. The proposed rule would clarify that commissioning procedures
include original equipment manufacturer or other procedures for
commissioning of critical safety systems. BOEM also proposes to
eliminate the third column of the table in paragraph (a) as superfluous
given BOEM's proposed elimination of the paper copy requirement and to
replace that column's content with a new paragraph (b) consistent with
the proposed Sec. 585.110. The proposed paragraph (c) would provide
clarity and added flexibility regarding project easement information
submittals and requests. Finally, as with its proposed changes to the
FDR requirements in Sec. 585.701, BOEM proposes a catch-all category
for necessary project-specific information that may not be covered by
the listed categories.
The remaining proposed changes are largely the same as the
technical corrections to Sec. 585.701.
Sec. 585.703 What reports must I submit for project modifications and
repairs?
BOEM proposes to eliminate language in paragraph (a) indicating
that major repairs or modifications must be ``certified,'' consistent
with the proposed changes to Sec. Sec. 585.701 and 585.702. To promote
safety, BOEM also proposes that any major modification or repair report
contain a CVA verification statement analogous to the one required for
FDRs in Sec. 585.701 and for FIRs in Sec. 585.702. BOEM is also
proposing to clarify the definition of a ``major repair'' in paragraph
(a)(1) to include substantial repairs to critical safety systems and
the definition of a ``major modification'' in paragraph (a)(2) to
include a substantial alteration of a critical safety system. It is
essential that BOEM is made aware of major repairs and modifications to
these systems and that the repairs and modifications are done in
accordance with an accepted engineering practice. The remaining
proposed changes are similar to technical corrections to Sec. 585.701.
[[Page 6012]]
Sec. 585.704 After receiving the FDR, FIR, or project verification
reports, what will BOEM do?
Over the past few years, BOEM has received numerous incomplete COPs
and other documents that it could not properly evaluate. This has
created many issues between the lessees and BOEM with respect to the
status of the applications. In order to address this, BOEM is proposing
to make a determination as to the completeness of the application
before its review period begins. The proposed rule would provide that
BOEM will have 20-calendar days to make this determination. Under the
proposed rule, once BOEM makes a determination that any given report is
sufficiently accurate and complete, it would deem it submitted, which
would begin the applicable period of time for BOEM to review and
object, as necessary.
This procedure is similar to the practice described in Sec.
550.231 for exploration plans under the oil and gas program, which BOEM
has implemented successfully for many years. BOEM is proposing to add
this regulation to clarify that the reports (e.g., FDR, FIR, and
project verification reports) must be deemed submitted before the 60-
calendar day or 30-calendar day review ``clock'' begins.
Certified Verification Agent
Sec. 585.705 When must I use a Certified Verification Agent (CVA)?
The proposed rule explicitly would allow the use of multiple CVAs
on a project. This change would enable a lessee or grant holder to
assign the expertise of specific CVAs to the corresponding project
component. This change is further discussed in the analysis of Sec.
585.706.
BOEM proposes several modifications, clarifications, and technical
corrections to this section. First, the proposed rule would add a
requirement for the CVA to ensure critical safety systems are
commissioned in accordance with the procedures identified in the FDR,
FIR, and the project modification and repair reports and for the CVA to
provide BOEM with immediate reports of incidents that affect the
commissioning of critical safety systems. This addition is necessary
for BOEM to meet the requirement in Sec. 585.102(a)(1) to ensure any
authorized activity is carried out in a manner that provides for
safety. Also, BOEM is currently requiring a qualified third party to
ensure critical safety systems are commissioned in accordance with the
procedures identified in the FDR, FIR, and the project modification and
repair reports. This addition will clarify that the qualified third
party should be the CVA, who is already familiar with the project.
Second, the proposed rule would clarify that the CVA requirement
applies unless it is waived under paragraph (c) of this section. Third,
BOEM proposes to clarify that, just as multiple CVAs may be nominated
for different project elements (see Sec. 585.706 analysis), BOEM may
grant partial waivers of the CVA requirement for discrete elements of a
project. For instance, BOEM could determine that a hypothetical
project's electrical service platform has a standard design that does
not require CVA review, while the remainder of the project still
warrants such review. Fourth, the proposed rule would substitute
``fabricator'' and ``fabricated'' for ``manufacturer'' and
``manufactured'' to avoid confusion and maintain consistency with Sec.
585.700. Fifth, the proposed rule would add a requirement that
fabrications, repairs, or modifications that are the subject of a CVA
waiver nonetheless must adhere to a recognized quality assurance
standard. This regulatory change would maintain consistency with
proposed revisions to Sec. 585.702(a) and would conform to industry
practice while still allowing for alternative compliance standards on a
case-by-case basis. Sixth, the proposed rule would eliminate the
requirement that waiver requests be submitted with plans, thus
relieving BOEM of the obligation to consider such waiver requests as
part of its plan reviews. This change would maintain consistency with
other proposed changes intended to decouple the CVA nomination process
from plan approval as discussed in section V.D.1. Finally, the proposed
rule would change ``certify'' to ``verify'' as also discussed in
section V.D.1.
The remaining proposed changes to this section are edits for
clarity and consistency.
Sec. 585.706 How do I nominate a CVA for BOEM approval?
This section would be amended to eliminate the requirement that a
lessee or grant holder nominate a CVA with its COP, SAP, or GAP.
Instead, BOEM would require only that a CVA be nominated and approved
before conducting the relevant verification activities. As discussed in
section V.D.3(a) above, entitled ``Certified Verification Agent Roles
and Flexibility,'' the purpose of this proposed change is to allow a
lessee and a grant holder greater flexibility to onboard CVAs earlier
in the project development process so they may provide independent
review of design concepts before COP submittal--as well as to replace
or nominate new CVAs as needed following COP submittal. Additionally,
the proposed rule would require that if a lessee or grant holder seeks
to use multiple CVAs, it must nominate a general project CVA no later
than COP submittal to manage the project verification strategy, to
ensure CVAs are conducting their reviews in a consistent manner, and to
oversee the transition areas between various project components and
their associated CVAs. BOEM recognizes that the various components of
an offshore wind facility must function as an integrated whole and
believes this requirement for a general project CVA will help ensure
that third-party verification is coordinated.
The existing regulation bars CVAs from acting in a capacity that
would create a conflict of interest or the appearance of one. Because
objectivity is at the core of the CVA role, BOEM proposes to clarify
that the nominated CVA must not have been involved in preparing the
plans, reports, analyses, or other technical submittals that it will
verify. While this requirement is encompassed in the existing
regulations, BOEM believes this clarification responds to inquiries it
has received from industry. The remaining proposed changes to this
section are technical corrections or edits for clarity.
Sec. 585.707 What are the CVA's primary duties for facility design
review?
The proposed rule would change ``certify'' to ``verify'' as
discussed in section V.D.1. Additionally, this section would mirror
proposed changes to Sec. 585.701 by replacing the requirements for
floating turbines in the existing paragraph (c) with a reworded
requirement in proposed paragraph (b)(10). The proposed rule would
allow, but not require, the CVA to utilize the FDR defined in proposed
Sec. 585.700. In addition to the current ``verification''
requirements, the proposed rule would require the CVA to verify that
the facility has been designed to provide for safety and to conduct an
independent assessment of the design for human safety and accident
prevention. This addition is necessary for BOEM to meet the requirement
in Sec. 585.102(a)(1) to ensure any authorized activity is carried out
in a manner that provides for safety.
Sec. 585.708 What are the CVA's or project engineer's primary duties
for fabrication and installation review?
The proposed rule would update existing paragraphs (a)(5) and (b)
by replacing the terms ``certify'' and ``ensure'' with ``verify'' for
consistency
[[Page 6013]]
with the proposed changes to the CVA standard of review as discussed
further in section V.D.3(a) above, entitled ``Certified Verification
Agent Roles and Flexibility.'' The proposed rule would add a
requirement in paragraph (a)(1) for the CVA to use good engineering
judgment and practice when conducting an independent assessment of the
commissioning of critical safety systems, would require that the
commissioning of critical safety systems be consistent with Sec.
585.705, and would require that the CVA monitor the commissioning of
critical safety systems in paragraph (a)(2). Similar to paragraph
(5)(i), BOEM is proposing to add paragraph (a)(6) to require the CVA to
provide records documenting that critical safety systems are
commissioned in accordance with the procedures identified in Sec.
585.702(a)(8) and to identify the location of all records pertaining to
commissioning of critical safety systems, as described in Sec.
585.714(c). Unlike paragraph (5)(i), BOEM is not expecting a full
report of the commissioning of critical safety systems. BOEM expects a
report with the relevant data, showing the successful completion of the
commissioning, test date, and signature of the CVA.
Additionally, the proposed rule would add language regarding
quality assurance standards to ensure consistency with Sec.
585.702(a)(6). For clarity and organization, BOEM also proposes to move
the requirement in the existing paragraph (a)(5)(ii) regarding
commencement of commercial operations to Sec. 585.637. Additionally,
BOEM proposes to add a requirement that if multiple CVAs are used--thus
necessitating multiple verification reports for different project
components--the general project CVA must submit the final verification
report for the entire project prior to the commencement of commercial
operations under Sec. 585.637.
The remaining proposed changes to this section are edits for
clarity and consistency.
Sec. 585.709 When conducting onsite fabrication inspections, what must
the CVA or project engineer verify?
This section would be revised to mirror the proposed changes to
Sec. 585.701 by modifying the existing paragraph (b) to remove the
references to the U.S. Coast Guard and by specifying the CVA must
verify the structural integrity, stability, and ballast of a floating
facility. In addition, paragraph (b) is being modified to remove the
requirement for consideration of foundations, foundation pilings and
templates, and anchoring systems, as well as mooring or tethering
systems, because those requirements are addressed in Sec. 585.710.
Sec. 585.710 When conducting onsite installation inspections, what
must the CVA or project engineer do?
BOEM proposes to simplify this section to require only that the CVA
``verify'' the enumerated items. BOEM intends for this change to ensure
consistency with the emphasis on the ``verification'' standard for CVA
activities discussed in section V.D.1 and reflected in other proposed
changes in this subpart. BOEM also believes the terms proposed for
removal are redundant of ``verification.'' BOEM is also proposing to
add language in several locations requiring the CVA to verify the
commissioning of critical safety systems to be consistent with Sec.
585.705. A new paragraph (f) would clarify BOEM's expectation that the
CVA make periodic on-site inspections to verify: (1) the systems and
equipment function as designed; and (2) the final commissioning records
are complete during periodic on-site inspections. Both the OCS Lands
Act and the regulations at Sec. 585.102(a)(1) require that lessees
ensure permitted activities are conducted in a manner that provides for
safety. BOEM will rely on the CVA to verify that the commissioning of
critical safety systems meets this obligation. The remaining changes
are proposed to enhance organization, clarity, or consistency with
amendments to other sections of this subpart.
Sec. 585.712 What are the CVA's or project engineer's reporting
requirements?
The proposed rule would eliminate the paper copy requirement,
consistent with BOEM's proposed changes to Sec. 585.110.
The proposed rule also would add a requirement that the CVA report
summarize any issues with facility design, fabrication, or
installation, or the commissioning of critical safety systems. This
requirement would allow BOEM to catalog a history of successfully
resolved issues and lessons learned, enabling BOEM to assess and
facilitate the improvement and evolution of the OCS renewable energy
industry and the CVA program. Adding this provision to the CVA report
also would codify a standard industry practice.
Sec. 585.713 [Reserved]
Section 585.713 in the existing regulations is entitled ``What must
I do after the CVA or project engineer confirms conformance with the
Fabrication and Installation Report on my commercial lease?'' Under
this section in the existing regulations a lessee must notify BOEM
within 10-business days of commencing commercial operations. For
clarity and better organization, BOEM proposes moving that requirement
from Sec. 585.713 in the existing regulations to Sec. 585.637 in the
proposed rule to consolidate this provision with the other requirements
in Sec. 585.637 related to the commencement of commercial operations.
As that was the sole provision under Sec. 585.713, this section title
would be deleted and the section would be reserved for future use.
Sec. 585.714 What records relating to FDRs, FIRs, and Project
Modification and Repair Reports must I keep?
BOEM proposes adding a requirement that the records of the
commissioning of critical safety systems must also be kept and made
available to BOEM representatives until BOEM releases the lessee from
its financial assurance. The proposed rule would also require the
lessee to provide BOEM with the location of the records of the
commissioning of its critical safety systems. This revision would help
ensure the availability of proper records prior to release of the
financial assurance.
BOEM proposes a technical correction to this section to clarify
that the recordkeeping requirements apply to the design, engineering,
and modification and repair reports regulated in this subpart.
Reference to recordkeeping requirements for SAPs, COPs, and GAPs are
removed because they are addressed in the existing and proposed Sec.
585.602. BOEM also proposes to add records of commissioning of critical
safety systems to the list of records to reflect changes proposed
elsewhere.
I. 30 CFR Part 585, Subpart I--Environmental and Safety Management,
Inspections, and Facility Assessments for Activities Conducted Under
SAPs, COPs, and GAPs
Subpart H, Environmental and Safety Management, Inspections, and
Facility Assessment for Activities Conducted Under SAPs, COPs, and
GAPs, is being redesignated as subpart I to accommodate the addition of
a new subpart B, as noted in section VI.B above.
[[Page 6014]]
Sec. 585.803 How must I conduct my approved activities to protect
essential fish habitats identified and described under the Magnuson-
Stevens Fishery Conservation and Management Act?
The proposed rule would correct a typographical error in paragraph
(b).
Safety Management Systems
Sec. 585.810 When must I submit a Safety Management System (SMS) and
what must I include in my SMS?
The existing Sec. 585.810 broadly outlines the elements that must
be described in the SMS. BOEM is proposing changes that would provide
greater detail regarding what the SMS must include without changing the
substantive requirements. The complexity of the SMS would be dependent
on the complexity of the underlying activities that it covers and
proportionate to the scope of the activity being evaluated.
As discussed in section V.H above, entitled ``Safety Management
Systems,'' two factors prompted these proposed changes. First, the
offshore wind energy industry repeatedly has requested additional
detail regarding BOEM's expectations of what must be included in the
SMS. Second, in coordination with OSHA and USCG, DOI has assumed
primary Federal regulatory responsibility for worker safety on OCS
renewable energy facilities. Both of these factors highlight the need
for BOEM to elaborate on its expectations for what must be included in
the SMS. The proposed rule would provide such elaboration.
The proposed rule would require a lessee to use an SMS for
activities conducted on the OCS to develop or operate a lease, from met
buoy placement and site assessment work through decommissioning, and to
provide its SMS to BOEM upon request. The lessee would also be required
to submit a detailed description of the SMS with its COP (as provided
under Sec. 585.627(d)), SAP (as provided in Sec. 585.614(b)), or GAP
(as provided in Sec. 585.651). This addition clarifies that a
structured approach to safety is both expected and required for all
lease-associated work. This structured approach should take into
account the risks to personnel and the environment associated with work
undertaken on the OCS. The SMS is intended to increase awareness and
communication of those risks, mitigate those risks, and implement a
disciplined organizational approach for ensuring effective risk
mitigation. The proposed regulation provides a more robust framework
for the SMS submission to provide clarification of BOEM's expectations,
facilitate compliance review, and to ensure the submitted SMS addresses
critical subjects such as the safety of personnel, remote monitoring,
control and shut down capabilities, emergency response procedures, fire
suppression equipment, testing of the SMS, and proper personnel
training.
The SMS is required to cover only those activities that are to take
place on the OCS at any given time, from met buoy placement and site
assessment work through decommissioning. Each SMS needs to be only as
complex as the activities with which it is associated. Should incidents
occur, investigations can focus on the role and success of the SMS with
the purpose of guiding continual improvement. The requirement to have
an SMS in place before placement of a met buoy or engaging in site
assessment activities may create a small additional burden. However,
BOEM's obligations under the OCS Lands Act to provide for personnel
safety and protection of the environment justify the inclusion of such
a requirement.
Sec. 585.811 Am I required to obtain a certification of my SMS?
The proposed rule would add a new Sec. 585.811 stating that third-
party SMS certification may be obtained from accredited safety and
environmental CABs. Such certification would possibly benefit a lessee
or a grant holder through reduced frequency or scope of BOEM's safety
inspections and oversight of corrective actions arising from lessee or
grant holder self-inspections. As discussed in section V.H. above,
entitled ``Safety Management Systems,'' BOEM could rely on such third-
party certifications for assurance of SMS compliance in lieu of direct
inspection on the part of BOEM. Additionally, BOEM believes that a
CAB's use of a consensus safety standard--such as ANSI Z10 or ISO/IEC
45001--would allow the incorporation of the most current safety
approaches in a rapidly evolving industry without the need for
additional rulemaking.
Sec. 585.812 How must I implement my SMS?
BOEM proposes to revise the section heading to reflect its expanded
scope, to eliminate the word ``fully'' from the current ``fully
functional'' requirement, to add the phrase ``and must remain
functional while you perform'', and to abbreviate ``Safety Management
Systems'' as ``SMS'' to improve readability. The proposed rule also
would redesignate the existing regulatory text as paragraph (a) and
modify it to be consistent with the clarifications in proposed Sec.
585.810.
The proposed rule would also add a new paragraph (b) containing two
reporting requirements. The first proposed report would be an annual
summary of safety performance data due March 31 covering the previous
calendar year during which site assessment, construction, operations,
or decommissioning activities occurred, using a form available on the
BOEM website.\95\ That form is similar to the one currently required in
BSEE's OCS oil, gas, and sulfur regulations. The second proposed report
would be a summary of the most recent SMS audit, corrective actions
implemented or pending as a result of that audit, and an updated SMS
description highlighting changes made since the last report. This
report would be due every 3 years or upon BOEM's request.
---------------------------------------------------------------------------
\95\ The proposed form is posted to this proposed rule's docket
at https://www.regulations.gov/docket?D=BOEM-2020-0033. To access
the form as part of the information collection review, see infra
note 94.
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The proposed revisions to this section would allow DOI and relevant
stakeholders to measure the success of the SMS approach to ensure
safety. It also would provide credible data for comparisons of an
individual project's safety performance to that of the overall OCS
renewable energy industry.
Equipment Failure and Adverse Environmental Effects
Sec. 585.815 What must I do if I have facility damage or an equipment
failure?
The proposed rule would correct an erroneous cross-reference in
paragraph (a) and would make other minor edits to enhance readability.
Inspections and Assessments
Sec. 585.820 Will BOEM conduct inspections?
The proposed rule would update the regulations so that BOEM's
conduct of an inspection of any OCS facilities and vessels engaged in
activities under this subpart is optional, to complement changes being
proposed to the industry self-inspection requirements under Sec.
585.824. The proposed rule would clarify that during the inspections
BOEM would verify that activities are conducted in compliance with the
OCS Lands Act; the regulations in this part; the terms, conditions, and
stipulations of the lease or grant; approved plans; and other
applicable laws and regulations. BOEM would also determine whether
proper safety equipment has been installed and is operating properly
according to the
[[Page 6015]]
SMS, as required in Sec. 585.810. These revisions would provide
clarity and transparency to the BOEM inspections process.
Sec. 585.821 Will BOEM conduct scheduled and unscheduled inspections?
The proposed rule would clarify that BOEM may conduct both
scheduled and unscheduled inspections. This revision would provide
greater flexibility for how BOEM conducts inspections.
Sec. 585.822 What must I do when BOEM conducts an inspection?
BOEM proposes a technical correction to clarify that, for BOEM
inspections, access for BOEM inspectors must be provided to all
facilities and vessels used for activities authorized under this
subpart. The proposed rule would also require that certain records be
retained until BOEM releases the associated financial assurance and
that the lessee make these records available to BOEM upon request. This
revision would help ensure the availability of proper documentation
during inspection.
Sec. 585.824 How must I conduct self-inspections?
The proposed rule would require that you conduct an onsite
inspection of each of your facilities at least once a year. This
revision would allow BOEM to have flexibility in conducting the annual
onsite inspection required under the OCS Lands Act by allowing BOEM to
rely upon the lessee's self-inspection to fulfill this requirement in
the event BOEM does not inspect a particular facility in a given year.
The proposed rule provides that the inspection must include, but is not
limited to, all safety equipment designed to prevent or ameliorate
fires, spillages, or other major accidents. The proposed rule would
also require that the lessee maintain records of the facility
inspections, summarize the results of those inspections, and provide
the records and result summaries to BOEM upon request.
Incident Reporting and Investigation
Sec. 585.830 What are my incident reporting requirements?
The proposed rule would correct an erroneous cross-reference in
paragraph (d) to provide the appropriate BSEE regulatory citation for
reporting oil spills.
J. 30 CFR Part 585, Subpart J--Decommissioning
Subpart I, Decommissioning, is being redesignated as subpart J to
accommodate the addition of a new subpart B, as noted in section VI.B
above.
Decommissioning Obligations and Requirements
Sec. 585.900 Who must meet the decommissioning obligations in this
subpart?
Proposed subpart J contains requirements for decommissioning all
facilities and obstructions on a lease, RUE, or ROW issued under BOEM's
renewable energy regulations. BOEM proposes to add a new paragraph (c)
establishing a limited exception to its proposed subpart J requirements
for facilities that are approved by, and subject to the decommissioning
requirements of, another Federal authority. This proposed amendment is
primarily intended to cover met buoys that would no longer require a
SAP under proposed Sec. 585.600. Such buoys would be subject to the
site clearance requirements in USACE's NWP 5 and may be subject to
financial assurance requirements, prior to deployment, at the
discretion of USACE. The USACE permit requires that met buoys that are
no longer in use are removed within 30 days. Noncompliance with the
site clearance requirements would be dealt with in accordance USACE
regulations at 33 CFR part 326, which provide for administrative
penalties and/or legal actions in conjunction with the appropriate U.S.
Attorney's Office.
BOEM believes that the USACE procedures for met buoys are an
adequate substitute for any requirements that BOEM would have otherwise
imposed under this subpart.\96\ However, in the event that USACE did
not require the removal of a met buoy deployed under a BOEM lease, BOEM
would exercise its authority to enforce the decommissioning
requirements in proposed subpart J and its enforcement options for
noncompliance by lessees in proposed subpart E.\97\
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\96\ USACE procedures are described in detail in the Permit 10
requirements contained in the final rule ``Issuance and Reissuance
of Nationwide Permits'' (82 FR 4, Jan. 6, 2017), available at the
following URL: https://www.swf.usace.army.mil/Portals/47/docs/regulatory/Permitting/Nationwide/NWP10TX.pdf.
\97\ This proposed rule also would allow FERC to substitute its
own decommissioning obligations for marine hydrokinetic projects
that it has licensed. Such projects would be sited on leases issued
by BOEM, which would retain the authority to require supplemental
financial assurance under 30 CFR 585.516(c).
---------------------------------------------------------------------------
Sec. 585.902 What are the general requirements for decommissioning for
facilities authorized under my SAP, COP, or GAP?
The proposed rule would allow BOEM to order decommissioning of
facilities earlier than 2 years following lease termination if the
facilities are no longer useful for operations. This mirrors the
corresponding ``idle iron'' authority found in the OCS oil and gas
regulations at 30 CFR 250.1703 and described for those purposes in NTL
No. 2018-G03. Idle facilities pose potential threats to the OCS
environment and potential financial liabilities if destroyed or damaged
in a future event, such as a hurricane. The cost and time to remove
damaged facilities are significantly higher than decommissioning
undamaged facilities. These increased costs have potential
ramifications on financial assurance requirements and may impact the
future financial viability of a lessee or operator.
BOEM is soliciting comments on the meaning of the term ``no longer
useful for operations'' and whether this is the best or most
appropriate standard for BOEM to use to describe facilities that should
be required to be decommissioned.
Decommissioning Applications
Sec. 585.905 When must I submit my decommissioning application?
BOEM proposes to add paragraph (e) to address the timing of
applications pursuant to the proposed ``idle iron'' authority under
Sec. 585.902.
K. 30 CFR Part 585, Subpart K--Rights-of-Use and Easement for Energy-
and Marine-Related Activities Using Existing OCS Facilities
Subpart J, Rights-of-Use and Easement for Energy- and Marine-
Related Activities Using Existing OCS Facilities, is being redesignated
as subpart K to accommodate the addition of a new subpart B, as noted
in section VI.B above. BOEM proposes technical corrections to hyphenate
``rights-of-use'' in the proposed subpart K heading.
Requesting an Alternate Use RUE
Sec. 585.1005 How do I request an Alternate Use RUE?
The proposed rule would clarify the information requirements for an
alternate use RUE and would broaden the alternate use RUE
specifications to clarify that any OCS facility could be converted to
an alternate use RUE. In contrast, the existing regulations were
written in such a manner as to make the
[[Page 6016]]
provisions of this section applicable only to existing oil and gas
facilities.
Decommissioning an Alternate Use RUE
Sec. 585.1018 Who is responsible for decommissioning an OCS facility
located on an Alternate Use RUE?
The proposed rule would correct an outdated cross-reference in
paragraph (b).
VII. Procedural Matters
A. Statutes
1. National Environmental Policy Act of 1969
BOEM has concluded that this rule as proposed falls under
categorical exclusions established by DOI and BOEM, does not constitute
a major Federal action significantly affecting the quality of the human
environment, and does not require preparation of an environmental
impact statement. Most provisions of this proposed rule fall under a
DOI categorical exclusion for ``regulations . . . that are of an
administrative, financial, legal, technical, or procedural nature[.]''
\98\ Moreover, the entirety of the proposed rule fits into the BOEM
categorical exclusion for ``[i]ssuance and modification of regulations,
Orders, Standards, Notices to Lessees and Operators . . . for which the
impacts are limited to administrative, economic, or technological
effects and the environmental impacts are minimal.'' \99\ BOEM has
determined that the proposed rule does not trigger any of the
extraordinary circumstances that would require analysis under
NEPA.\100\ A final decision on the level of NEPA analysis required will
be made at the final rule stage.
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\98\ 43 CFR 46.210(i).
\99\ Dep't of the Interior, Departmental Manual part 516,
section 15.4C(1) (2004).
\100\ See 43 CFR 46.215.
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2. Paperwork Reduction Act of 1995
This proposed rule references existing and new information
collections for regulations at 30 CFR part 585. Submission to OMB for
review under the Paperwork Reduction Act of 1995 \101\ is required.
Therefore, BOEM will submit an IC request to OMB for review and
approval and will request a new OMB control number, designated in this
discussion as ``1010-NEW.'' Once the 1010-AE04 final rule is effective,
BOEM will transfer the hour burden and non-hour costs burden from 1010-
NEW to OMB Control Number 1010-0176, which expires March 31, 2023, then
discontinue the new number associated with this rulemaking. BOEM may
neither conduct nor sponsor, nor are you required to respond to, an
information collection unless it displays a currently valid OMB control
number. The proposed regulations would establish revise current
requirements and establish new requirements in 30 CFR part 585. The
proposed rule would increase annual burden hours by 588 and number of
responses by 7; the non-hour costs would remain unchanged. The
following table and narrative provides a breakdown of the paperwork
hour burdens for this proposed rule. As discussed in the section-by-
section analysis above and in the supporting statement available at
Reginfo.gov, this rule proposes to add or revise the following:
---------------------------------------------------------------------------
\101\ 44 U.S.C. 3501 et seq.
------------------------------------------------------------------------
Reporting and
Section(s) in 30 CFR 585 recordkeeping Burden changes
requirement \1\ and/or additions
------------------------------------------------------------------------
Subpart B--The Renewable Energy Leasing Schedule
------------------------------------------------------------------------
150........................... This section New Subpart B
references the added. No new
leasing schedule annual burden
published by the hours.
Secretary.
------------------------------------------------------------------------
Subpart C--Issuance of OCS Renewable Energy Leases
------------------------------------------------------------------------
231(b)........................ Submit comments in Not considered
response to Federal IC as defined
Register notice re in 5 CFR
interest of 1320.3(h)(4).
unsolicited request Therefore, the
for a lease. burden will be
0 (-16 annual
burden hours
and -4
responses from
approved OMB
control
number).
------------------------------------------------------------------------
Subpart E--Lease and Grant Administration
------------------------------------------------------------------------
413........................... Submit merger 10 hour burdens
application, x 1 request =
negotiate with BOEM 10 annual
any inconsistencies burden hours.
on terms and
conditions.
------------------------------------------------------------------------
Subpart F--Payments and Financial Assurance Requirements
------------------------------------------------------------------------
506(c)(4)..................... Submit documentation .5 hour burden x
of the gross annual 2 submissions =
generation of 1 annual burden
electricity produced hour.
by the generating
facility on the
lease--use same form
as authorized by the
Department of Energy
U.S. Energy
Information
Administration (EIA).
(OMB Control Number
1905-0129 covers
burden to gather info
and fill out form.
BOEM's burden is for
submitting a copy.).
------------------------------------------------------------------------
Subpart G--Plans and Information Requirements
------------------------------------------------------------------------
600(a); 601(a), (b); 605 thru Within time specified -240 annual
614; 238; 810. after issuance of a burden hours (-
competitive lease or 240 burden
grant, or within time hours and -1
specified after SAP from
determination of no approved OMB
competitive interest, control
submit copies of SAP, number).
including required
information to assist
BOEM to comply with
NEPA/Coastal Zone
Management Act (CZMA)
such as hazard info,
air quality, SMS, and
all required
information,
certifications,
requests, etc., in
format specified.
615(b)........................ Submit annual report -60 annual
summarizing burden hours (-
compliance from site 60 burden hours
assessment activities. and -2 reports
from approved
OMB control
number).
------------------------------------------------------------------------
[[Page 6017]]
Subpart I--Environmental and Safety Management, Inspections, and
Facility Assessments for Activities Conducted Under SAPs, COPs, and GAPs
------------------------------------------------------------------------
810; 614; 627; 632(b); 651.... Use a Safety 35 hour burdens
Management System for x 2 submissions
all activities = 70 annual
conducted pursuant to burden hours.
a lease and make
available to BOEM
upon request. Submit
safety management
system description
with a COP, or with a
SAP or GAP, if
facilities being
installed are deemed
by BOEM to be complex
or significant.
812(b)(i), Form BOEM-NEW...... Submit safety and 82 hour burdens
environmental x 10
performance data submissions =
(Form BOEM-NEW, 820 annual
Performance Data burden hours.
Measures).
812(b)(ii).................... Provide report summary 5 annual burdens
on SMS audit, hours added to
corrective actions, existing OMB
and changes to SMS. approval (no
additional
responses).
830(d)........................ Report oil spills as Burden covered
required by BSEE 30 under BSEE 1014-
CFR 250.187. 0007. (-2
annual burden
hours and -1
report).
-----------------------------------------
Total Burden.............. 7 Responses........... 588 Hours.
------------------------------------------------------------------------
Subpart B. The proposed rule would add a new subpart B for the
renewable energy leasing schedule published by the Secretary of the
Interior. BOEM estimates no burdens for this subpart.
Subpart C. Section 585.216(c) relates to eligibility for bidding
credits as set forth in the FSN before the lease auction takes place.
Bidders must establish that they are eligible for each bidding credit
that they seek. BOEM proposes to keep the annual burden hours the same
as in the 2020 approved OMB Control Number 1010-0176 (2020 approval)
but would attribute the hours to the requirements of the bidding credit
eligibility criteria.
Section 585.231(b) relates to requests for competitive interest
during the noncompetitive leasing process. Requests for competitive
interest do not constitute an information collection under the PRA
implementing regulations at 5 CFR 1320.3(h)(4). Therefore, BOEM
proposes removing 16 annual burden hours from Sec. 585.231(b).
Subpart E. Proposed Sec. 585.413 would align the regulations with
the existing practice allowing lease and grant consolidation. BOEM
proposes to add 10 annual burden hours to the 2020 approval
attributable to Sec. 585.413 to account for submission of applications
to consolidate all or part of two or more adjacent leases or grants by
the same lessee or grant holder into one new lease or grant, and to
negotiate with BOEM on inconsistencies in terms and conditions.
Subpart F. BOEM previously did not account for burden hours
relating to Sec. 585.506(c)(4) because the required reporting of gross
annual electrical production by a generating facility uses a DOE form
under OMB Control Number 1905-0129. However, BOEM would like to receive
this form already completed for DOE. BOEM proposes to add one annual
burden hour to Sec. 585.506(c)(4).
Subpart G. Proposed Sec. 585.600(a) would significantly revise the
requirement for SAPs. Under the proposed rule, a SAP would be required
only when site assessment activities involve an engineered foundation.
BOEM would not require a SAP for floating site assessment facilities,
such as met buoys. BOEM also would have the discretion to waive certain
information requirements in a proposed plan, which could add
flexibility to the permit application process. BOEM proposes to remove
240 annual burden hours from Sec. 585.600(a).
Existing and proposed Sec. 585.615(b) relates to other reports or
notices that must be submitted periodically under an approved SAP. With
the narrowing of the SAP requirement to site assessment activities
involving an engineered foundation, BOEM estimates fewer reports or
notices would be filed under this section. BOEM proposes to remove 60
annual burden hours from Sec. 585.615(b).
The proposed rule would allow the deferral of detailed geotechnical
survey reporting from COP submission under the existing Sec.
585.626(b) to FDR submission under the proposed Sec. 585.701(a). This
change would not increase annual burden hours, though it likely would
change the allocation of existing burden hours between Sec. Sec.
585.626(b) and 585.701(a). BOEM welcomes input regarding the
appropriate reallocation of geotechnical survey reporting hours.
Subpart H. Proposed Sec. 585.700(b) would allow separate FDRs and
FIRs for major project components if an explanation is included in the
reports describing how the systems comprising the project will function
together effectively in an integrated manner in accordance with the
project design basis. BOEM welcomes input regarding the number of
annual burden hours necessary to complete this integration statement if
separate FDRs and FIRs for major components are submitted. Proposed
Sec. 585.704 would allow BOEM 20-calendar days to deem the FDR and/or
FIR submitted prior to commencing the 60-calendar day review time.
Proposed Sec. 585.704 would also allow BOEM 20-calendar days to deem
the project verification reports submitted prior to commencing the 30-
calendar day review time. This would allow BOEM 20-calendar days to
ensure completeness, identify deficiencies, and would provide BOEM with
the ability to ask for clarifications in order to meet the 60-calendar
day review time for FDRs and/or FIRs or the 30-calendar-day review time
for project verification reports. Once BOEM has made the determination
that an FDR and/or FIR or project verification report is deemed
submitted, the previous 60- or 30-day review times specified in the
current regulations would continue to remain in effect.
Subpart I. Proposed Sec. 585.810 clarifies that an SMS is required
to conduct activities pursuant to a lease, from met buoy placement and
site assessment work through decommissioning. While a description of
the SMS is required to be submitted for review by BOEM with a COP, and
for review of a SAP or GAP if the facilities being installed are deemed
by BOEM to be complex or significant, this addition makes it clear that
a structured approach to safety is both expected and required for all
lease-associated work. BOEM proposes to add -70 annual burden hours to
the 2020 approval.
Proposed Sec. 585.812(b)(i) and (ii) would add new reporting
requirements. Proposed Sec. 585.812(b)(i) would require
[[Page 6018]]
an annual summary of safety performance data covering the previous
calendar year during which site assessment, construction, operations,
or decommissioning activities occurred by submitting form BOEM-NEW,
Performance Data Measures--Renewable Energy.\102\ This form would
include company identification and number of injuries, illnesses, and
hours worked by company employees and contractors. This information
would be used to develop incident rates that would help assess
workplace safety and environmental compliance across the OCS renewable
energy industry. Incident rates would enable benchmarking of individual
projects against industry-wide performance to facilitate needed
improvement. Also, these rates would allow BOEM and BSEE to better
focus their regulatory and research programs by highlighting areas
below expected safety performance. BOEM proposes to add 820 annual
burden hours to Sec. 585.812(b)(i).
---------------------------------------------------------------------------
\102\ To see a copy of the proposed form, go to https://www.reginfo.gov, select ``Information Collection Review,'' and, in
the ``Currently under Review'' heading, select Department of the
Interior, find OMB Control Number 1010-NEW, click on the ICR
Reference Number, and click on ``View Supporting Statement and Other
Documents;'' or you may obtain a copy of the proposed form from
BOEM's Information Collection Clearance Officer, whose mailing
address and email may be found in the Addresses section of the
preamble. The proposed form also is available through this proposed
rule's docket at https://www.regulations.gov/docket?D=BOEM-2020-0033.
---------------------------------------------------------------------------
Proposed Sec. 585.812(b)(ii) would require a summary of the most
recent SMS audit, corrective actions implemented or pending because of
that audit, and an updated SMS description highlighting changes made
since the last report. This report would be due every 3 years or upon
BOEM's request. BOEM proposes to add 75 annual burden hours to Sec.
585.812(b)(ii).
For Sec. 585.830(d), BOEM is proposing to remove two burden hours
since the burdens for reporting oil spills falls under OMB Control
Number 1014-0007.
Title of Collection: Renewable Energy Modernization (Notice of
Proposed Rulemaking).
OMB Control Number: 1010-NEW.
Form Numbers:
BOEM-NEW, Performance Data Measures--Renewable Energy.
Type of Review: New.
Respondents/Affected Public: Respondents primarily would be private
sector companies interested in developing or operating OCS renewable
energy leases and grants; affected State, local, and tribal
governments; and other companies that submit information regarding OCS
renewable energy projects.
Total Estimated Number of Annual Responses: 7 responses.
Total Estimated Number of Annual Burden Hours: 588 hours.
Respondent's Obligations: Responses to information collections
under this part would be mandatory to obtain, or retain, an OCS
renewable energy lease or grant.
Frequency of Collection: The frequency of collection would vary
depending upon BOEM's decisions to issue OCS leases or grants for
renewable energy development, a company's decision to seek a lease or
grant, and the manner in which the lessee or grant holder elects to
develop its lease or grant.
Total Estimated Annual Non-Hour Burden Cost: No non-hour costs.
If this proposed rule becomes effective and OMB approves the
information collection request 1010-NEW, BOEM would revise the existing
OMB Control Number 1010-0176 for the affected subparts discussed above
and would adjust the annual burden hours accordingly. The information
collections related to 30 CFR part 585 do not include questions of a
sensitive nature. BOEM will continue to protect proprietary information
according to FOIA and DOI's implementing regulations, which address
disclosure of information to the public.\103\
---------------------------------------------------------------------------
\103\ See 43 CFR part 2 and 30 CFR 585.113.
---------------------------------------------------------------------------
In addition, the PRA requires agencies to estimate the total annual
reporting and recordkeeping non-hour cost burden resulting from the
collection of information. BOEM solicits your comments regarding non-
hour cost burdens arising from this proposed rule. For reporting and
recordkeeping only, your response should split the cost estimate into
two components: (1) total capital and startup cost component, and (2)
annual operation, maintenance, and disclosure cost component to provide
the information. You should describe the methods you use to estimate
your cost components, including system and technology acquisition,
expected useful life of capital equipment, discount rate(s), and the
period over which you incur costs. Generally, your estimates should not
include equipment or services purchased: (1) before October 1, 1995;
(2) to comply with requirements not associated with the information
collection arising from this proposed rule; (3) for reasons other than
to provide information or to keep records for the U.S. Government; or
(4) as part of customary and usual business or private practices.
As part of BOEM's continuing effort to reduce paperwork and
respondent burdens, BOEM invites the public and other Federal agencies
to comment on any aspect of this information collection, including:
(1) Is the proposed information collection necessary or useful for
BOEM to properly perform its functions?
(2) Are the estimated annual burden hour increases and decreases
resulting from the proposed rule reasonable?
(3) Is the estimated annual non-hour cost burden resulting from
this information collection reasonable?
(4) Do you have any suggestions that would enhance the quality,
clarity, or usefulness of the information to be collected?
(5) Is there a way to minimize the information collection burden on
those who must respond, such as by using appropriate automated digital,
electronic, mechanical, or other forms of information technology?
3. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires Federal agencies to
prepare and to provide a regulatory flexibility impact analysis when a
regulation will have a significant economic impact on a substantial
number of small entities and to consider regulatory alternatives that
will achieve the agency's goals while minimizing the burden on small
entities.\104\
---------------------------------------------------------------------------
\104\ See 5 U.S.C. 601-612.
---------------------------------------------------------------------------
When an agency issues a notice of proposed rulemaking, the RFA
requires the agency to ``describe the impact of the proposed rule on
small entities'' in its initial regulatory flexibility impact
analysis.\105\ The RFA does not require a regulatory flexibility impact
analysis when an agency certifies that the proposed rule will not
impose a significant economic impact on a substantial number of small
entities.\106\
---------------------------------------------------------------------------
\105\ 5 U.S.C. 603(a).
\106\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------
(a) Description of and, Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Would Apply
This proposed rule would directly affect all current and future OCS
renewable energy developers.\107\
---------------------------------------------------------------------------
\107\ See supra note 1 for discussion of developers.
---------------------------------------------------------------------------
Renewable energy companies operating on the OCS are generally
organized under North American Industry Classification System (NAICS)
code 221115 Wind Electric Power Generation in Sector 22 (Utilities).
The size standard for determining a small business in this category is
250 employees or fewer. OCS renewable energy companies may be
financially
[[Page 6019]]
supported by investment fund portfolios. The revenue threshold for
determining a small Portfolio Management company, NAICS code 523940, is
$41.5 million.
The Small Business Administration's (SBA) Office of Advocacy
provides guidelines for complying with the RFA. The SBA's best practice
for understanding impacts to small businesses is to conduct analysis at
the firm level. In the case of OCS renewable energy, the 28 active
commercial OCS renewable energy leases are held by 10 lessees. All
these lessees are subsidiaries of large parent companies or are
majority-owned by portfolio management companies; none fit the
definition of a small firm or business. To date, companies that have
submitted bids in BOEM auctions are either large firms or partners with
large firms in joint ventures.
Developing and operating OCS wind sites requires significant
upfront capital typical of large firms or investment portfolios. Pilot-
scale commercial projects cost hundreds of millions of dollars to
install and operate, and utility-scale projects cost multiple billions
of dollars. As a result, it is unlikely that small entities will be
constructing or operating wind facilities on the OCS in the foreseeable
future.
The reduction in developmental and operational costs resulting from
this proposed rule would be available to all companies developing and
operating OCS renewable energy facilities, whether large or small.
Therefore, BOEM has determined that the proposed rule likely does not
have a significant adverse economic impact on a substantial number of
small entities.
Nonetheless, BOEM has prepared an initial regulatory impact
analysis (IRIA) to quantify the cost savings arising from this proposed
rule and solicit public comment.\108\
---------------------------------------------------------------------------
\108\ The IRIA is posted to this proposed rule's docket at
https://www.regulations.gov/docket?D=BOEM-2020-0033.
---------------------------------------------------------------------------
BOEM does not consider the potential impacts from this rule on
small fishing businesses or small coastal communities in the IRIA, as
they are not the regulated entity. BOEM does not anticipate that this
proposed regulation would have any positive or negative impacts to
these communities above those outlined in the baseline scenario.
However, BOEM requests that if small fishing industries businesses or
small coastal communities believe they are impacted as a result of this
proposed rule, they submit comments during the comment period.
(b) Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule
The proposed rule would add modest reporting, recordkeeping, and
other compliance requirements. Specifically, proposed Sec. 585.812
would require annual reporting of safety related information once an
OCS renewable energy project begins construction and triennial
reporting of safety audits and corrective actions. The information
collection burden of these reports is analyzed in section VII.A.2.
(c) Identification of All Relevant Federal Rules That May Duplicate,
Overlap or Conflict With the Proposed Rule
The proposed rule would neither conflict, duplicate, nor overlap
with any relevant Federal rules. Indeed, it would eliminate duplication
with USACE permitting requirements.
(d) Description of Significant Alternatives to the Proposed Rule
The regulatory alternatives are discussed in the accompanying IRIA.
4. Small Business Regulatory Enforcement Fairness Act
BOEM anticipates the proposed rule would have neither significant
employment nor small business impacts; nor cause major price increases
for consumers, businesses, or governments; nor significantly degrade
competition, employment, investment, productivity, innovation, or the
ability of U.S. businesses to compete against foreign businesses. It is
estimated to have an annual economic effect of $100 million or more
\109\ and, therefore, this proposed rule is a major rule under the
Small Business Regulatory Enforcement Fairness Act.\110\ This rule
seeks to enhance U.S. energy independence by reducing unnecessary
regulatory costs and uncertainty within the OCS renewable energy
industry while ensuring safety and appropriate environmental analyses
and mitigations and providing fair return to the U.S. taxpayer.
---------------------------------------------------------------------------
\109\ See infra section VII.B.2 discussion of E.O. 12866 and
E.O. 13563.
\110\ See 5 U.S.C. 804(2).
---------------------------------------------------------------------------
5. Unfunded Mandates Reform Act of 1995
This proposed rule would not impose an unfunded Federal mandate on
State, local, or tribal Governments, nor would it have a significant or
unique effect on State, local, or tribal Governments. Thus, the
proposed rule would not have disproportionate budgetary effects on
these governments. BOEM also has determined that this proposed rule
would not impose costs on the private sector of more than $182 million
in a single year.\111\ Therefore, the proposed rule does not trigger
the requirement to prepare a written statement under this act.\112\
---------------------------------------------------------------------------
\111\ The private-sector cost threshold established in UMRA in
1996 was $100 million. After adjusting for inflation, the 2022
private-sector threshold is $182 million.
\112\ See 2 U.S.C. 1532.
---------------------------------------------------------------------------
6. Congressional Review Act
Pursuant to the Congressional Review Act \113\ and OMB
guidance,\114\ the Office of Information and Regulatory Affairs (OIRA)
must decide whether this rule is a major rule as defined by that
act.\115\ Given its economic implications, OMB has determined that this
rule is significant and major. The rule has also been designated by OMB
as a significant rulemaking.
---------------------------------------------------------------------------
\113\ 5 U.S.C. 801 et seq.
\114\ Office of Mgmt. & Budget, Exec. Office of the President,
OMB M-19-14, Guidance on Compliance With the Congressional Review
Act (2019).
\115\ 5 U.S.C. 804(2).
---------------------------------------------------------------------------
B. Executive Orders
1. Executive Order 12630--Takings Implication Assessment
Under E.O. 12630 section 2(a)(1) criteria, this proposed rule would
not have takings implications. This proposed rulemaking is a Federal
action that would not interfere with constitutionally protected private
property rights. To the extent OCS renewable energy lessees and grant
holders possess private property rights under the terms of BOEM leases,
this proposed rulemaking is not expected to reduce the value of those
rights. A takings implication assessment is not required.
2. Executive Order 12866--Regulatory Planning and Review; and Executive
Order 13563--Improving Regulation and Regulatory Review
OIRA has determined that this proposed rule is a ``significant
regulatory action'' under E.O. 12866 section 3(f). BOEM has prepared an
IRIA that estimates a $1 billion net benefit (7 percent discounting)
over a 20-year period resulting from the compliance cost savings
realized by the OCS renewable energy industry.
This proposed rule would reform, streamline, reorganize, update,
and clarify existing regulations. As economic impact is realized in
cost savings by developers, it is not expected to have an adverse,
material effect on the economy, an economic sector,
[[Page 6020]]
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities. This
proposed rule would not create a serious inconsistency, or otherwise
interfere, with an action taken or planned by another agency. This
proposed rule would not materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of their recipients. OIRA has also determined that this
proposed rule is significant under E.O. 12866. This proposed rule is
promulgated under the authority granted to the Secretary in the OCS
Lands Act to authorize and regulate OCS renewable energy activities.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
systemic regulatory improvements to promote predictability, reduce
uncertainty, and leverage the best, most innovative, and least
burdensome tools for achieving regulatory ends. E.O. 13563 directs
agencies to consider regulatory approaches that reduce burdens, promote
flexibility, and maintain the public's freedom of choice when these
approaches are relevant, feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes that the best available science must
inform and guide new regulations and that an open exchange of ideas
benefits the rulemaking process. BOEM has developed this proposed rule
in a manner consistent with these requirements. E.O. 13563 also calls
for additional consideration of the regulatory impact on employment.
The proposed rule is not expected to impact employment within the OCS
renewable energy and associated industries in any material way.
The proposed rule includes changes across the renewable energy
regulatory framework. While these proposed changes are important for
reforming, streamlining, and clarifying the regulatory requirements,
BOEM was unable to quantify the impact of all the proposed changes.
Those deregulatory changes, including revisions to CVA requirements,
are analyzed qualitatively. Minor additional compliance costs are
estimated for SMS reporting.
The proposed changes would allow greater flexibility in using
decommissioning accounts. BOEM's existing regulations require full
funding of a decommissioning account before each OCS renewable energy
facility (i.e., wind turbine) is constructed. The proposed change to
Sec. 585.529 would allow incremental funding of a decommissioning
account under a BOEM-approved schedule during the operations period.
This would reduce a project's upfront capital costs, would enable a
lessee or a grant holder to invest available capital in planning and
construction (rather than tying up excessive capital for
decommissioning costs that will occur no less than 20-30 years in the
future), and would result in savings through the time value of money
concept.
For site assessment activities, the proposed rule would remove met
buoys--used primarily to collect energy resource, oceanographic,
meteorological, and other environmental data to assess OCS areas for
renewable energy development--from the reach of BOEM's regulations
requiring submission of a SAP (Sec. Sec. 585.600 through
585.618).\116\ Currently, both BOEM and USACE regulate met buoys. BOEM
proposes to eliminate its permitting requirements for met buoys because
they are unnecessarily burdensome and duplicative of USACE's NWP 5
permitting. BOEM estimates that this regulatory change would enable
significantly cheaper and quicker deployment of met buoys because a SAP
and BOEM approval would be no longer necessary. Instead, a USACE NWP 5
permit would be the only Federal approval necessary to deploy a met
buoy. BOEM believes that the USACE permitting process adequately
ensures met buoys are deployed in a safe and an environmentally
responsible manner.
---------------------------------------------------------------------------
\116\ The proposed rule would eliminate BOEM's approval
requirement for met buoys deployed both on and off a commercial
lease. The proposed change to off-lease met buoy deployment is not
analyzed quantifiably because historical activity is lacking.
---------------------------------------------------------------------------
The proposed rule also addresses geotechnical surveys, which are
required before COP submittal by Sec. 585.626. BOEM proposes to defer
certain detailed geotechnical survey requirements from COP submittal to
the FDR and FIR submittals, which occur subsequent to COP approval.
This change would give a lessee or a grant holder more time to complete
the surveys and would reduce upfront financial costs. BOEM recognizes
that the current timing of geotechnical survey requirements is
premature and limits flexibility. This proposed deferral would provide
time value of money savings to a lessee or a grant holder, who also
would benefit from more flexibility.
Existing regulations also require geotechnical core analysis for
each renewable energy facility foundation. The proposed rule would
allow a lessee or a grant holder--subject to BOEM approval--to provide
data from fewer than all facility foundation locations if they can
demonstrate that the project area consists of generally uniform,
predictable geophysical characteristics. This would allow a lessee and
a grant holder to potentially realize cost savings by reducing the
number of geotechnical investigations. For this analysis, BOEM
estimated a 10 percent reduction in the number of geotechnical
investigations needed.
The tables below summarize BOEM's estimated 20-year compliance cost
savings for the proposed changes related to decommissioning accounts,
met buoys, and geotechnical surveys. The IRIA contains additional
information on assumptions, compliance costs, savings, and
benefits.\117\
---------------------------------------------------------------------------
\117\ See supra note 100 for location of IRIA.
Table--20-Year (2023-2042) Net Present Value by Affected Category of
Regulatory Change
[Millions]
------------------------------------------------------------------------
Discounted at Discounted at
Proposed revisions 3% 7%
------------------------------------------------------------------------
Decommissioning Accounting Changes...... -$1,248.5 -$905.3
Meteorological Buoy Streamlining........ -16.3 -11.6
Geotechnical Regulatory Revisions....... -121.6 -88.2
Safety Management System Reporting...... 5.3 3.5
-------------------------------
Total............................... -1,381 -1.001.5
------------------------------------------------------------------------
[[Page 6021]]
Table--20-Year Annualized Cost Savings by Regulatory Provision Category
[Millions]
------------------------------------------------------------------------
Discounted at Discounted at
Proposed revisions 3% 7%
------------------------------------------------------------------------
Decommissioning Accounting Changes...... -$83.9 -$85.4
Meteorological Buoy Streamlining........ -1.1 -1.1
Geotechnical Regulatory Revisions....... -8.2 -8.3
Safety Management System Reporting...... 0.35 0.33
-------------------------------
Total............................... -92.8 -94.5
------------------------------------------------------------------------
3. Executive Order 12988--Civil Justice Reform
This proposed rule complies with E.O. 12988 sections 3(a) and
(b)(2) requirements. This rule was reviewed to eliminate technical
errors and ambiguity, simplify the existing regulatory framework,
minimize litigation, and provide clear legal standards.
4. Executive Order 13132--Federalism
This proposed rule would not have sufficient federalism
implications to warrant a summary impact statement under E.O. 13132
section 1(a) because it neither imposes direct compliance costs on
States; nor does it preempt State law; nor does it have substantial
direct effects on the States, nor on the relationship between the
Federal and State Governments, nor on the distribution of power and
responsibilities between various governmental levels in the United
States. Thus, a federalism impact statement is unnecessary.
5. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
BOEM strives to strengthen its government-to-government
relationship with American Indian and Alaska Native tribes through a
commitment to consultation with federally recognized tribes (Tribes)
and recognition of their right to self-governance and tribal
sovereignty. BOEM also is respectful of its responsibilities for
consultation with ANCSA corporations. BOEM has evaluated this proposed
rule under DOI's consultation policy,\118\ BOEM's tribal consultation
guidance,\119\ and the criteria in E.O. 13175. BOEM does not believe
that this proposed rule itself would have substantial direct effects on
Tribes or ANCSA corporations and, hence, has concluded that
consultation under the DOI and BOEM tribal consultation policies is not
required.
---------------------------------------------------------------------------
\118\ Dep't of the Interior, Departmental Manual part 512,
chapters 4 through 5 (2015).
\119\ Memorandum from William Y. Brown, Chief Environmental
Officer, Bureau of Ocean Energy Mgmt., to Bureau Program Chiefs and
Regional Directors (June 29, 2018), available at https://www.boem.gov/BOEM-Tribal-Consultation-Guidance/.
---------------------------------------------------------------------------
BOEM reached this determination in part because the requirements of
this proposed rule are, in sum, administrative, technical, procedural,
or interpretive in nature and they would not themselves have
foreseeable particular, substantial direct impacts on tribal resources.
That does not mean that future actions under the rule will not have
tribal implications requiring consultation. BOEM will review future
actions carefully and will invite Tribes and ANCSA Corporations to
consult when any such future actions may have a substantial direct
effect on them. BOEM will also continue outreach to strengthen
collaboration with Tribes and ANCSA corporations that have expressed an
interest in or concern about renewable energy activities on the OCS and
their impacts.
6. Executive Order 13211--Effects on the Nation's Energy Supply
Under E.O. 13211, agencies are required to prepare and submit to
OMB a Statement of Energy Effects for ``significant energy actions.''
This proposed rule does not add new regulatory compliance requirements
that would lead to adverse effects on the nation's energy supply,
distribution, or use. Rather, the regulatory changes would help reduce
compliance burdens on the OCS renewable energy industry that may hinder
the continued development or use of domestically produced energy
resources. Reduced regulatory burdens do not adversely affect
productivity, competition, or prices within the energy sector. This
rule is not a significant energy action under the definition in E.O.
13211. Therefore, a Statement of Energy Effects is not required.
7. Presidential Memorandum of June 1, 1998, on Regulation Clarity
Under the criteria in Presidential Memorandum of June 1, 1998, this
proposed rule is logically organized into easily read, short sections
using both sentences that are clearly written in the active voice and
common words rather than jargon. If you believe this proposed rule
fails these requirements, please send specific comments to BOEM by one
of the methods listed in the ADDRESSES section.
List of Subjects in 30 CFR Part 585
Administrative practice and procedure, Assessment plans, Coastal
zone, Compliance, Continental shelf, Electric power, Energy,
Environmental protection, Government leases, Intergovernmental
relations, Marine resources, Natural resources, Ocean resources,
Offshore energy, Offshore structures, Outer continental shelf,
Payments, Planning, Power resources, Renewable energy, Reporting and
recordkeeping requirements, Revenue sharing, Rights-of-way, Rights-of-
use-and-easement, Wind energy.
Laura Daniel-Davis,
Principal Deputy Assistant Secretary Land and Minerals Management.
For the reasons discussed in the preamble, the Bureau of Ocean
Energy Management proposes to amend 30 CFR part 585 as follows:
PART 585--RENEWABLE ENERGY AND ALTERNATE USES OF EXISTING
FACILITIES ON THE OUTER CONTINENTAL SHELF
0
1. The authority citation for part 585 is revised to read as follows:
Authority: 43 U.S.C. 1337(p).
Subpart A--General Provisions
0
2. Amend Sec. 585.102 by revising paragraph (a) introductory text to
read as follows:
Sec. 585.102 What are BOEM's responsibilities under this part?
(a) BOEM will ensure that any activities authorized in this part
are carried out in a manner that provides for and balances the
following goals, none
[[Page 6022]]
of which inherently outweighs or supplants any other:
* * * * *
0
3. Amend Sec. 585.103 by revising the section heading and paragraph
(a) to read as follows:
Sec. 585.103 When may BOEM prescribe or approve departures from the
regulations in this part?
(a) BOEM may prescribe or approve a departure from these
regulations when BOEM deems the departure necessary because the
applicable provision(s) as applied to a specific circumstance:
(1) Are impractical or unduly burdensome and the departure is
necessary to achieve the intended objectives of the renewable energy
program;
(2) Fail to conserve the natural resources of the OCS;
(3) Fail to protect life (including human and wildlife), property,
or the marine, coastal, or human environment; or
(4) Fail to protect sites, structures, or objects of historical or
archaeological significance.
* * * * *
0
4. Revise Sec. 585.104 to read as follows:
Sec. 585.104 Do I need a BOEM lease or other authorization to produce
or support the production of electricity or other energy product from a
renewable energy resource on the OCS?
Except as otherwise authorized by law, it is unlawful for any
person to construct, operate, or maintain any facility to produce,
transport, or support generation of electricity or other energy product
derived from a renewable energy resource on any part of the OCS, except
in accordance with the terms of a lease, easement, or ROW issued under
the OCS Lands Act. For the purposes of this section, site assessment
activities do not produce, transport, or support the generation of
electricity or other energy product.
0
5. Amend Sec. 585.105 by revising paragraph (d) to read as follows:
Sec. 585.105 What are my responsibilities under this part?
* * * * *
(d) Comply with all applicable laws and regulations, the terms of
your lease or grant under this part, reports, notices, and approved
plans prepared under this part, and any conditions imposed by BOEM
through its review of any of these reports, notices, and approved
plans, as provided in this part;
* * * * *
0
6. Amend Sec. 585.106 by revising the section heading, paragraphs (a)
introductory text, (a)(6), (b) introductory text, and (b)(3) and adding
paragraph (c) to read as follows:
Sec. 585.106 Who can acquire or hold a lease or grant under this
part?
(a) You may acquire or hold a lease or grant under this part if you
can demonstrate that you have the technical and financial capabilities
to conduct the activities authorized by the lease or grant and you are
a(n):
* * * * *
(6) State of the United States; or
* * * * *
(b) You may not acquire or hold a lease or grant under this part or
acquire an interest in a lease or grant under this part if:
* * * * *
(3) After written notice and your opportunity to be heard, BOEM
determines that:
(i) You no longer meet the qualification requirements for acquiring
or holding a lease or grant in paragraph (a) of this section and Sec.
585.107; or
(ii) You have:
(A) Violated an applicable law, regulation, order, lease or grant
provision, approved plan, or the prohibitions prescribed in a final
sale notice; or otherwise engaged in illegal activity, anti-competitive
or collusive behavior, fraud, or misrepresentation; and
(B) Failed to take timely remedial action as specified in the
notice of the proposed disqualification to re-establish eligibility to
participate in any BOEM lease or grant sale and eligibility to acquire
or hold an interest in a lease or grant under this part.
(c) So long as a party is ineligible to acquire or hold a lease or
grant under this part, it is also ineligible to participate in BOEM's
competitive and noncompetitive lease or grant issuance processes,
including auctions, conducted under this part, even as an agent for
another entity. A party can restore its eligibility by completing the
remedial action specified in the notice of the proposed
disqualification.
0
7. Amend Sec. 585.107 by revising paragraph (b) to read as follows:
Sec. 585.107 How do I show that I am qualified to be a lessee or
grant holder?
* * * * *
(b) An individual must submit a written statement of citizenship
status attesting to U.S. citizenship. It does not need to be notarized
nor give the age of the individual. A resident alien may submit a
photocopy of the form issued by the appropriate Federal immigration
authority evidencing legal status as a resident alien.
* * * * *
0
8. Revise Sec. 585.110 to read as follows:
Sec. 585.110 How do I submit plans, applications, reports, or notices
required by this part?
Unless otherwise stated, you must submit one electronic copy of all
plans, applications, reports, or notices required by this part to BOEM.
BOEM will inform you if it requires paper copies of specific documents.
Unless stated otherwise, documents should be submitted to the relevant
contacts listed on the BOEM website.
0
9. Amend Sec. 585.112 by:
0
a. Adding in alphabetical order a definition for ``Bidding credit(s)'';
0
b. Revising the definitions of ``Commercial activities'' and
``Commercial operations'';
0
c. Adding in alphabetical order definitions for ``Critical safety
system'', ``Engineered foundation'', ``Fabrication'', ``Lease area'',
``Multiple factor auction''. ``Project design envelope'', ``Provisional
winner'', and ``Receipt''; and
0
d. Revising the definition of ``Site assessment activities''.
The additions and revisions read as follows:
Sec. 585.112 Definitions.
* * * * *
Bidding credit(s) means the value assigned by BOEM, expressed in
monetary terms, to the factors or actions demonstrated, or committed
to, by a bidder at a BOEM lease auction during the competitive lease
award process. The type(s) and value(s) of any bidding credit(s)
awarded to any given bidder will be set forth in the Final Sale Notice.
* * * * *
Commercial activities means, under renewable energy leases and
grants, all activities associated with the generation, storage, or
transmission of electricity or other energy product from a renewable
energy project on the OCS, and where such electricity or other energy
product is intended for distribution, sale, or other commercial use,
except for electricity or other energy product distributed or sold
pursuant either to technology-testing activities on a limited lease or
facilities testing on a commercial lease needed to prepare a final FIR.
This term also includes activities associated with such development,
including initial site characterization and assessment, facility
construction, and project decommissioning.
* * * * *
Commercial operations means the generation of electricity or other
energy product for commercial use, sale, and distribution on a
commercial lease, but
[[Page 6023]]
does not mean either generation needed to prepare a final FIR or
generation for testing purposes, provided the electricity generated for
such testing is not sold on a commercial basis.
Critical Safety System means safety systems and equipment designed
to prevent or ameliorate major accidents that could result in harm to
health, safety, or the environment in the area of your facilities.
* * * * *
Engineered foundation means any structure installed on the seabed
using a fixed-bottom foundation constructed according to a professional
engineering design (based on an assessment of relevant sedimentary,
meteorological, and oceanographic conditions).
Fabrication means the cutting, fitting, welding, or other assembly
of project elements of a custom design conforming to project-specific
requirements. Fabrication does not include the procurement of discrete
parts of the project that are commercially available in standardized
form or with type-certified components.
* * * * *
Lease area means an area on the OCS that BOEM has identified for
leasing for potential development of renewable energy resources.
* * * * *
Multiple factor auction means an auction that involves the use of
bidding credits to incentivize goals or actions that support public
policy objectives or maximize public benefits through the competitive
leasing auction process. For any multiple factor auction, the monetary
value of the bidding credits, if any, would be added to the value of
the cash bid to determine the highest bidder.
* * * * *
Project Design Envelope (PDE) is means a reasonable range of design
parameters proposed in a lessee's plan for components of the project,
such as type, dimensions, and number of wind turbine generators;
foundation type; location of the export cable route; location of an
onshore substation; location of the grid connection point; and
construction methods and timing.
* * * * *
Provisional winner means a bidder that BOEM determines at the
conclusion of the auction to have submitted the winning bid. The
provisional winner becomes the winning bidder after the favorable
completion of BOEM's bid review, Department of Justice antitrust
review, bidder obligations under Sec. 585.225, and any appeals process
under Sec. 585.118(c).
Receipt, as used in this part to describe the time when a document
is received by any party in the absence of documentation to the
contrary, is deemed to have taken place: 5-business days after the date
the document was given to the U.S. Postal Service (or deposited in one
of its mailboxes), properly addressed and with proper postage affixed,
or was given to a delivery service (or deposited in one of its
receptacles), properly addressed and with the delivery cost prepaid;
or, on the date on which the document was properly addressed and sent
electronically. This definition also applies to variants of the words
``receipt'' and ``receive'' where those terms are used in this part to
describe the receipt of a document when the timing of receipt triggers
a regulatory time period or consequence.
* * * * *
Site assessment activities mean those initial activities conducted
to assess an area on the OCS, such as resource assessment surveys
(e.g., meteorological and oceanographic) or technology testing,
involving the installation of bottom-founded facilities.
* * * * *
0
10. Amend Sec. 585.113 by revising paragraph (b)(1)(i) to read as
follows:
Sec. 585.113 How will data and information obtained by BOEM under
this part be disclosed to the public?
* * * * *
(b) * * *
------------------------------------------------------------------------
Then BOEM will review data
If you have a . . . and information for possible
release:
------------------------------------------------------------------------
(1) Commercial lease...................... (i) 3 years after the
initiation of commercial
operations or.
* * * * *
------------------------------------------------------------------------
* * * * *
0
11. Amend Sec. 585.114 by revising paragraphs (e)(2) through (10) and
adding paragraph (a)(11) to read as follows:
Sec. 585.114 Paperwork Reduction Act statements--information
collection.
* * * * *
(e) * * *
------------------------------------------------------------------------
30 CFR 585 subpart, title,
and/or BOEM form (OMB Reasons for collecting information and
control No.) how used
------------------------------------------------------------------------
* * * * * * *
(2) Subpart B--The Renewable To enable BOEM to publish a proposed five-
Energy Leasing Schedule. year leasing schedule for the OCS
renewable energy program.
(3) Subpart C--Issuance of To provide BOEM with information needed
OCS Renewable Energy Leases. to determine when to use a competitive
process for issuing a renewable energy
lease, to identify auction formats and
bidding systems and variables that we
may use when that determination is
affirmative, and to determine the terms
under which we will issue renewable
energy leases.
(4) Subpart D--Rights-of-Way To issue ROW grants and RUE grants for
Grants and Rights-of-Use and OCS renewable energy activities that are
Easement Grants for not associated with a BOEM-issued
Renewable Energy Activities. renewable energy lease.
(5) Subpart E--Lease and To ensure compliance with regulations
Grant Administration. pertaining to a lease or grant,
including designation of operator,
assignment, segregation, consolidation,
suspension, renewal, termination,
relinquishment, and cancellation.
(6) Subpart F--Payments and To ensure that payments and financial
Financial Assurance assurance payments for renewable energy
Requirements. leases comply with subpart F.
(7) Subpart G--Plans and To enable BOEM to comply with the
Information Requirements. National Environmental Policy Act
(NEPA), the Coastal Zone Management Act
(CZMA), and other Federal laws and to
ensure the safety of the environment on
the OCS.
(8) Subpart H--Facility To enable BOEM to review the final
Design, Fabrication, and design, fabrication, and installation of
Installation. facilities on a lease or grant to ensure
that these facilities are designed,
fabricated, and installed according to
appropriate standards in compliance with
BOEM regulations, and where applicable,
the approved plan.
[[Page 6024]]
(9) Subpart I--Environmental To ensure that lease and grant operations
and Safety Management, are conducted in a manner that is safe
Inspections, and Facility and protects the environment. To ensure
Assessments for Activities compliance with other Federal laws,
Conducted Under SAPs, COPs, these regulations, the lease or grant,
and GAPs. and approved plans.
(10) Subpart J-- To determine that decommissioning
Decommissioning. activities comply with regulatory
requirements and approvals. To ensure
that site clearance and platform or
pipeline removal are properly performed
to protect marine life and the
environment and do not conflict with
other users of the OCS.
(11) Subpart K--Rights-of-Use To enable BOEM to review information
and Easement for Energy- and regarding the design, installation, and
Marine-Related Activities operation of RUEs on the OCS, to ensure
Using Existing OCS that RUE operations are safe and protect
Facilities. the human, marine, and coastal
environment. To ensure compliance with
other Federal laws, these regulations,
the RUE grant, and, where applicable,
the approved plan.
------------------------------------------------------------------------
0
12. Revise Sec. 585.116 to read as follows:
Sec. 585.116 Requests for information.
BOEM may publish a request for information (RFI) in the Federal
Register for the following reasons:
(a) To solicit information from industry, State and local agencies,
federally recognized Tribes, and other interested entities for
evaluating the offshore renewable energy industry, including the
identification of potential challenges or obstacles to its continued
development. An RFI may relate to the identification of environmental,
technical, regulatory, or economic matters that promote or detract from
continued development of renewable energy technologies on the OCS. BOEM
may use the information received to refine its renewable energy
program, including to facilitate OCS renewable energy development in a
safe and environmentally responsible manner and to ensure a fair return
to the United States for use of the OCS.
(b) To assess interest in leasing all or part of the OCS for
activities authorized in this part.
(c) To determine whether there is competitive interest in a
specific OCS renewable energy proposal received by BOEM, such as an
unsolicited request for a lease under Sec. 585.231(b) or a RUE or ROW
grant under Sec. 585.307(a).
(d) To seek other information that BOEM needs for this program.
0
13. Revise Sec. 585.118 to read as follows:
Sec. 585.118 What are my appeal rights?
(a) Except as stated in paragraph (c) of this section, any party
adversely affected by a final decision issued by BOEM under this part
may appeal that decision to the Interior Board of Land Appeals (IBLA),
under part 590 of this chapter and 43 CFR part 4, subpart E.
(b) Any final decision will remain in full force and effect during
the pendency of an appeal unless a stay is granted under 43 CFR part 4.
(c) A bidder adversely affected by BOEM's determination of a
provisional winner made under this part may appeal to the BOEM
Director; but decisions determining a provisional winner may not be
appealed to the IBLA.
(1) A bidder that elects to appeal a provisional winner selection
decision must file a written appeal with the Director within 15
business days after receipt of the decision.
(2) Such appeal must be accompanied by a statement of reasons.
Before reversing a provisional winner selection decision, the Director
will provide the provisional winner a reasonable opportunity to respond
in writing to the appellant's statement of reasons. The Director will
issue a written determination either affirming or reversing the
decision. The Director's decision is not appealable to the IBLA under
this section.
(3) BOEM will not execute a lease or grant until the 15-business-
day appeal period closes and all timely filed appeals are resolved.
(4) The review authority of the Office of Hearings and Appeals does
not apply to either the provisional winner selection decisions made
under this part or the Director's final determination affirming or
reversing a provisional winner selection decision.
Subparts B Through J [Redesignated as Subparts C Through K]
0
14. Redesignate subparts B through J as subparts C through K.
0
15. Add new subpart B, consisting of Sec. 585.150, to read as follows:
Subpart B--The Renewable Energy Leasing Schedule
Sec. 585.150 What is the renewable energy leasing schedule?
At least once every 2 years, the Secretary will publish a schedule
with a list of locations under consideration for leasing, along with a
projection of when lease sales are anticipated to occur for the 5-year
period following the schedule's publication. This schedule will include
a general description of the area covered by each proposed lease sale,
the calendar year in which each lease sale is projected to occur, and
the reasons for any changes made to the previous schedule. Any proposed
lease sale covered by the schedule will be subject to all applicable
regulations, including area identification, coordination with relevant
parties, and applicable environmental reviews.
Subpart C--Issuance of OCS Renewable Energy Leases
0
16. Revise Sec. 585.202 to read as follows:
Sec. 585.202 What types of leases will BOEM issue?
BOEM may issue commercial or limited leases for OCS activities
under Sec. 585.104. BOEM may issue a lease for OCS renewable energy
research activities under Sec. 585.238.
0
17. Revise Sec. 585.203 to read as follows:
Sec. 585.203 With whom will BOEM consult before issuance of leases?
For leases issued under this part, through either the competitive
or noncompetitive process, BOEM, prior to issuing the lease, will
coordinate and consult with relevant Federal agencies (including, in
particular, those agencies involved in planning activities that are
undertaken to avoid or minimize conflicts among users and maximize the
economic and ecological benefits of the OCS, including multifaceted
spatial planning efforts), the Governor of any affected State, the
executive of any affected local government, and any affected Indian
Tribe, as directed by subsections 8(p)(4) and (7) of the OCS Lands Act
or other relevant Federal laws. Federal statutes that require BOEM to
consult with interested parties or Federal agencies or to respond to
findings of those agencies, include the Endangered Species Act (ESA)
and the Magnuson-Stevens Fishery Conservation and Management Act
[[Page 6025]]
(MSA). BOEM also engages in consultation with state and tribal historic
preservation officers pursuant to the National Historic Preservation
Act (NHPA).
0
18. Revise the undesignated center heading that appears before Sec.
585.210 and revise Sec. 585.210 to read as follows:
Competitive Lease Award Process--Pre-Auction Provisions
Sec. 585.210 What are the steps in BOEM's competitive lease award
process?
(a) BOEM may publish an RFI under Sec. 585.116.
(b) BOEM will award leases through a competitive lease award
process unless competitive interest does not exist. BOEM will publish
details for each auction and lease through appropriate notices in the
Federal Register. Each competitive lease award process will include the
following steps:
(1) Call for Information and Nominations (Call). BOEM will publish
a Call in the Federal Register requesting information to determine
qualifications of prospective bidders and interest in preliminarily
identified OCS lease areas.
(2) Area Identification. BOEM will identify OCS areas for leasing
consideration and related analysis in consultation with appropriate
Federal agencies, State and local Governments, federally recognized
Tribes, Alaska Native Claims Settlement Act (ANCSA) corporations, and
other interested parties.
(3) Proposed Sale Notice (PSN). BOEM will publish a PSN, or a
notice of its availability, in the Federal Register, announcing BOEM's
intention to conduct an auction for prospective lease areas. The PSN
will set forth provisions and information concerning the proposed
auction and lease, and will invite stakeholder comments.
(4) Final Sale Notice (FSN). BOEM will publish an FSN, or a notice
of its availability, in the Federal Register setting forth final
information concerning the auction and lease.
(5) Auction. BOEM will hold an auction under the regulations in
this part and the FSN.
(6) Lease Award. BOEM will award leases subsequent to the
completion of the aforementioned steps under the regulations in this
part and the FSN.
0
19. Revise Sec. 585.211 to read as follows:
Sec. 585.211 What is the Call?
(a) The Call is a notice that BOEM will publish in the Federal
Register requesting responses from stakeholders interested in bidding
on designated OCS areas and comments from interested and potentially
affected parties. The responses may inform the area identification
process and will enable BOEM to determine whether there exists
competitive interest in the proposed lease area. BOEM may request
additional information from stakeholders related to environmental,
economic, and other issues.
(b) The Call may include the following:
(1) The areas that BOEM has preliminarily identified for leasing;
(2) A request for comments concerning geological conditions;
archaeological sites on the seabed or nearshore; multiple uses of the
proposed leasing area (including, for example, navigation, recreation,
military, and fisheries); and other socioeconomic, biological, and
environmental information;
(3) Request for comments regarding feasibility for development,
including the energy resource and opportunity for grid connection;
(4) Possible lease terms and conditions;
(5) A request to potential bidders to nominate one or more areas
for a commercial renewable energy lease within the preliminarily
identified leasing areas. Such nominations must include:
(i) The specific OCS blocks that the respondent is interested in
leasing;
(ii) A general description of the respondent's objectives and how
respondent proposes to achieve those objectives;
(iii) A preliminary schedule of the respondent's proposed
activities, including those potentially leading to commercial
operations, to the extent known;
(iv) Information regarding respondent's coordination, or intent to
coordinate, with any other entity for the purposes of acquiring a lease
from BOEM, if applicable;
(v) Documentation demonstrating the respondent's qualification to
acquire a lease or grant as specified in Sec. 585.107;
(vi) Available and pertinent information concerning renewable
energy and environmental conditions in the nominated areas, including
energy and resource data and information used to evaluate the areas;
and
(vii) Any additional information requested by BOEM in the Call;
(c) Respondents have 45 calendar days from the date the Call is
published in the Federal Register to reply, unless BOEM specifies
another time period, to be no less than 30 calendar days, in the Call.
(d) BOEM may use the information received in response to a Call to:
(1) Identify lease areas;
(2) Develop options for its lease provisions (e.g., stipulations,
payments, terms, and conditions);
(3) Inform its environmental analysis conducted under applicable
Federal requirements, including, but not limited to, NEPA, ESA, and
CZMA; and
(4) Determine whether competitive interest exists in all or a
portion of any potential lease area. If BOEM determines no competitive
interest exists, BOEM may follow the noncompetitive leasing process set
forth in Sec. 585.231(d) through (k).
0
20. Revise Sec. 585.212 to read as follows:
Sec. 585.212 What is area identification?
(a) Area identification is the process by which BOEM delineates one
or more OCS areas for leasing consideration and environmental analysis
if the areas appear appropriate for renewable energy development. This
process is based on an area's relevant attributes, such as other uses
of the area, environmental factors or characteristics, stakeholder
comments, industry nominations, feasibility for development, and other
relevant information. BOEM consults with interested parties during this
process as specified in Sec. 585.210(b)(2).
(b) BOEM may consider areas nominated by respondents to a Call and
other areas determined appropriate for leasing.
(c) For the identified areas, BOEM will evaluate:
(1) The potential effects of leasing the identified areas on the
human, marine, and coastal environments. BOEM may develop measures,
including lease stipulations, to mitigate potential adverse impacts;
and
(2) The feasibility of development.
(d) BOEM may hold public hearings on the environmental analyses
associated with leasing the identified areas, after appropriate notice.
(e) At the end of the area identification, BOEM may offer selected
areas for leasing.
0
21. Revise Sec. 585.213 to read as follows:
Sec. 585.213 What information is included in the PSN?
(a) The PSN is a notice that BOEM will publish in the Federal
Register for each prospective auction. The PSN will request public
comment on the items listed in this section. Public comments will
inform BOEM's decisions regarding auction format and lease terms and
conditions. At a minimum, the PSN will include or describe the
availability of information pertaining to:
(1) The proposed leases to be offered, including:
[[Page 6026]]
(i) The proposed lease areas, including size and location;
(ii) The proposed lease terms and conditions, including the
proposed rental rate and operating fee rate;
(iii) Other proposed payment requirements, as applicable;
(iv) Proposed requirements for performance under the lease, such as
site-specific lease stipulations and environmental mitigation measures;
(2) Steps a bidder must take to obtain and maintain eligibility to
participate in the auction (e.g., financial forms, bid deposits);
(3) The proposed availability and potential value of bidding
credit(s), if any are offered, and the actions or commitments required
to obtain them;
(4) A detailed description of the proposed auction format and
procedures as further described in Sec. 585.223;
(5) The maximum number or specific sets of lease areas that any
given bidder may be allowed to bid on or to acquire in an auction, if
applicable;
(6) Lease award procedures, including how and when a lease will be
awarded and executed, and how BOEM will address unsuccessful bids and
applications;
(7) A copy of, or a reference to, the official BOEM lease form; and
(8) Other relevant matters, as determined by BOEM.
(b) The PSN may be used to gauge competitive interest by requiring
prospective bidders to reaffirm their intent to participate in the
auction as a prerequisite for continued eligibility.
(c) A prospective bidder is encouraged to identify in its comments
any specific proposed terms and conditions in the PSN that may preclude
its participation in the auction.
(d) The PSN's public comment period is 60 calendar days from the
date of its publication in the Federal Register, unless BOEM specifies
another time period of not less than 30 calendar days in the PSN.
(e) BOEM will notify any potentially affected States, local
governments, Alaska Native and American Indian Tribes, and ANCSA
corporations of the PSN's publication, and will provide copies of the
PSN to these entities upon written request.
0
22. Revise Sec. 585.214 to read as follows:
Sec. 585.214 What information is included in the FSN?
(a) The FSN is a notice that BOEM will publish in the Federal
Register at least 30 calendar days before each prospective auction. The
FSN will describe the final auction details and will include or
describe the availability of information pertaining to:
(1) The leases to be offered, including:
(i) The lease areas, including size and location;
(ii) Lease terms and conditions, including the rental rate and the
operating fee rate;
(iii) Other payment requirements, as applicable;
(iv) Requirements for performance under the lease, including site-
specific lease stipulations and environmental mitigation measures;
(2) Steps a bidder must take to ensure eligibility to participate
in the auction (e.g., financial forms, bid deposits);
(3) The availability and potential value of bidding credit(s), if
any are offered, and the actions or commitments required to obtain
them.
(4) A detailed description of the auction format and procedures as
further described in Sec. 585.223;
(5) The maximum number or specific sets of lease areas that any
given bidder may be allowed to bid on or to acquire in an auction, if
applicable;
(6) Lease award procedures, including how and when a lease will be
awarded and executed, and how BOEM will handle unsuccessful bids and
applications;
(7) A copy of, or a reference to, the official BOEM lease form; and
(8) Other relevant matters as determined by BOEM.
(b) The terms of the FSN may differ from the proposed terms of the
PSN.
0
23. Revise Sec. 585.215 to read as follows:
Sec. 585.215 What may BOEM do to assess whether competitive interest
for a lease area still exists before the auction?
(a) At any time BOEM has reason to believe that competitive
interest in any lease area no longer exists before the area's auction,
BOEM may issue a notice in the Federal Register, as described in Sec.
585.116, requesting information regarding competitive interest in that
area. BOEM will consider respondents' comments to determine whether
competitive interest in that area remains. BOEM may decide to end the
competitive process for any area if it determines that competitive
interest no longer exists.
(b) If BOEM determines after considering respondents' comments to
such a notice that competitive interest remains, BOEM will continue
with the competitive process set forth in Sec. Sec. 585.210 through
585.226.
(c) If BOEM determines at any time before the auction that only a
single party remains interested in a lease area, BOEM may proceed
either with the auction or with the noncompetitive process set forth in
Sec. 585.231(d) through (k) following payment by that party of the
acquisition fee specified in Sec. 585.502(a).
0
24. Revise Sec. 585.216 to read as follows:
Sec. 585.216 How are bidding credits awarded and used?
(a) BOEM will determine the highest bid, taking into account the
combined value of the monetary (cash) component and the non-monetary
component(s), represented by bidding credits. The PSN and FSN will
explain the following details, if bidding credit(s) are available for
that auction:
(1) Eligibility and application requirements;
(2) The value of each available bidding credit, which will be
either a sum certain or a percentage of the cash bid; and
(3) Procedures for applying each available bidding credit to bids
submitted during the auction.
(b) Eligibility for bidding credits must be established in advance
of any lease auction, in accordance with the specifications of the FSN.
Such eligibility may be based on actions that the bidder has already
undertaken or actions that it has committed to undertake in the future,
provided that BOEM has agreed to the terms by which such a commitment
will be made. BOEM may offer bidding credits for any of the following:
(1) Power purchase agreements;
(2) Eligibility for, or applicability of, renewable energy credits
or subsidies;
(3) Development agreements by a potential lessee that facilitate
shared transmission solutions and grid interconnection;
(4) Technical merit, timeliness, or financing and economic
considerations;
(5) Environmental considerations, public benefits, or compatibility
with State and local needs;
(6) Agreements or commitments by the developer that would
facilitate OCS renewable energy development or other OCSLA goals; or
(7) Any other factor or criteria to further development of offshore
renewable energy, as identified by BOEM in the PSN and FSN.
(c) Before the auction, bidders seeking to use bidding credits must
establish that they meet the eligibility criteria for each bidding
credit according to the FSN provisions.
(d) Before the auction, BOEM will determine each bidder's
eligibility for bidding credits, and the value of those bidding
credits, and will inform each eligible bidder of the value of the
bidding credits to which it may be entitled.
[[Page 6027]]
(e) A provisional winner who is awarded bidding credits must pay an
amount equal to the cash component of its winning bid less any bid
deposit retained by BOEM under Sec. 585.501.
0
25. Revise the undesignated center heading that appears before Sec.
585.220 and revise Sec. 585.220 to read as follows:
Competitive Lease Award Process--Auction Provisions
Sec. 585.220 How will BOEM award leases competitively?
(a) BOEM will award leases competitively using an objective, fair,
reasonable, and competitive auction process that provides a fair return
to the United States. As described in the FSN, leases will be awarded
to the highest bidder.
(b) BOEM may use any analog or digital method to conduct the
auction. The specific process and procedural details for each auction
will be noticed in the PSN and finalized in the FSN.
0
26. Revise Sec. 585.221 to read as follows:
Sec. 585.221 What general provisions apply to all auctions?
(a) If BOEM determines competitive interest exists to develop a
renewable energy resource in any OCS area and decides to issue a lease
for that area, BOEM will conduct an auction to award the lease.
(b) The auction's format, procedures, and other details will be
specified in the FSN, as outlined in Sec. 585.214. Possible auction
formats include, but are not limited to, sealed bidding and ascending
bidding.
(c) The FSN will specify the potential use of alternatives if the
primary auction method, system, or mechanism malfunctions.
Alternatively, BOEM may take action consistent with paragraph (d) of
this section until the malfunction is resolved.
(d) Any time before a provisional winner is determined, BOEM may
delay, suspend, or cancel an auction due to a natural or man-made
disaster, technical malfunction, security breach, unlawful bidding
activity, administrative necessity, or any other reason that BOEM
determines may adversely affect the fair and efficient conduct of the
auction. In its discretion, BOEM may restart the auction at whatever
point it deems appropriate, reasonable, fair, and efficient for all
participants; or, alternatively, BOEM may cancel the auction in its
entirety.
(e) BOEM will determine the provisional winner for each lease area
under the auction rules and bidding procedures prescribed in the FSN.
0
27. Revise Sec. 585.222 to read as follows:
Sec. 585.222 What other auction rules must bidders follow?
(a) Bidders must submit a deposit to participate in an auction
under Sec. 585.501, unless otherwise specified in the FSN. A
provisional winner's bid deposit will be credited toward the balance
due on its bid.
(b) Only bidders qualified by BOEM under Sec. Sec. 585.106 and
585.107 are permitted to bid during an auction.
(c) Only an authorized agent may act on a bidder's behalf during an
auction. Bidders must submit the names of their authorized agents to
BOEM before the auction, as prescribed in the FSN.
(d) Each bidder must follow the auction process specified in the
FSN and may not take any action to disrupt or alter the process beyond
its intended function.
(e) A bidder is responsible for immediately contacting BOEM if it
is unable to submit its bid for any reason during an auction. If a
bidder fails to timely notify BOEM of its inability to bid, it may not
dispute the auction or lease award on that basis. If a bidder timely
notifies BOEM of its inability to submit a bid, BOEM, in its
discretion, may suspend the auction, continue the auction using an
alternative method, or continue the auction without the participation
of the affected bidder.
(f) Bidders may not disclose their auction strategies or economic
valuations of a lease area to other bidders listed in the FSN.
0
28. Revise Sec. 585.223 to read as follows:
Sec. 585.223 What supplemental information will BOEM provide in a PSN
and FSN?
(a) In addition to the information described in Sec. Sec. 585.213
and 585.214, BOEM may provide the following auction information, as
appropriate, in the PSN and FSN:
(1) Bidding instructions, procedures, and systems, including the
bid variables. How the auction will be conducted and what systems and
procedures will be utilized.
(2) Bid deposit. The amount a bidder must pay under Sec. 585.501
to be eligible to bid. The FSN will prescribe the process and deadline
for submitting a bid deposit.
(3) Mock auction. Notice of a practice auction before the actual
auction. Only bidders eligible for the actual auction will be permitted
to participate in the mock (i.e., practice) auction.
(4) Auction date, starting time and location. The starting time
will include the relevant time zone, and the location will indicate
where the auction will take place.
(5) Minimum bid. The price at which the bidding will start.
(6) Information BOEM will release to bidders between rounds. This
information may include prior round results and other updates.
(7) Tie-breaking provision. This provision describes the method
that BOEM will use to break a tie between two or more identical high
bids offered for the same lease area, or package of lease areas.
(8) Next highest bidder. The method that BOEM will use to determine
the next highest bidder of a completed auction in the event the
provisional winner fails to meet its obligations or is unable to
acquire a lease for any reason, or if a competitively issued lease or
any portion thereof is relinquished or cancelled within six months of
the auction.
(b) The list in paragraph (a) of this section is not exhaustive.
BOEM may include in the FSN any other information relevant to that
auction.
0
29. Add an undesignated center heading before Sec. 585.224 and revise
Sec. 585.224 to read as follows:
Competitive Lease Award Process--Post-Auction Provisions
Sec. 585.224 What will BOEM do after the auction?
(a) At the conclusion of the auction, BOEM will:
(1) Declare the bidding closed.
(2) Assess whether the bids meet the requirements of BOEM's
regulations and the FSN. BOEM may disqualify bids based on this review.
(3) Under 43 U.S.C. 1337(c), provide the Department of Justice, in
consultation with the Federal Trade Commission, the opportunity to
conduct an antitrust review of the lease sale results. BOEM may
disqualify bids based on the results of this review.
(4) BOEM will declare the provisional winner of each lease area.
(b) BOEM may reject any and all bids received, regardless of the
amount offered.
(c) BOEM will accept or reject bids within 90 calendar days of
auction closure; BOEM may extend that time by notice to bidders within
15 calendar days before the 90-calendar day period ends.
(d) BOEM will deem rejected any bid not accepted within the 90-
calendar-day period, or any extension. BOEM will provide each rejected
bidder a written explanation for the rejection and will refund, without
interest, any monies deposited by the rejected bidder.
[[Page 6028]]
(e) BOEM may withdraw all or part of a lease area from the lease
sale between auction closure and lease execution. In the event that a
portion of the lease area is withdrawn, the provisional winner has the
option to refuse the lease without penalty, to propose new lease terms
for BOEM's concurrence, or to accept the lease with the reduced area.
(f) BOEM may re-auction any lease area or portions thereof that
remain unsold at the conclusion of an auction. BOEM may restart the
competitive leasing process at any point in the process set forth in
Sec. 585.210 that it deems reasonable and appropriate (e.g., RFI,
Call, area identification, PSN, or FSN).
0
30. Revise Sec. 585.225 to read as follows:
Sec. 585.225 What happens if BOEM accepts a bid?
(a) BOEM will identify and notify the lease area's provisional
winner of the amount due on each winning bid, which equals the cash
component of the provisional winner's bid less its bid deposit retained
by BOEM under Sec. 585.501 and paragraph (c) of this section. BOEM
will provide three unsigned copies of the lease to the provisional
winner.
(b) Within 10 business days after receipt of the unsigned copies,
or as otherwise specified by BOEM under paragraph (d) of this section,
the provisional winner must:
(1) Execute all three copies of the lease and return them to BOEM;
(2) File financial assurance as required by Sec. Sec. 585.515
through 585.537; and
(3) Pay the amount due.
(c) When the bid deposit exceeds the amount due, BOEM will refund
the overage without interest.
(d) A provisional winner may request in writing an extension of the
10-day time limit in paragraph (b) of this section. BOEM, in its
discretion, may grant such a request.
(e) BOEM will execute the lease by signing the three returned
copies on behalf of the United States only after the provisional winner
completes the requirements in paragraph (b) of this section and any
appeals timely filed under Sec. 585.118(c)(1) have been resolved.
After BOEM executes the lease, the provisional winner becomes the
winning bidder, and BOEM will send the winning bidder one fully
executed copy of the lease. The lease takes effect as set forth in
Sec. 585.237.
(f) The winning bidder must pay the first 12 months' rent under
Sec. 585.503(a) within 45-calendar days after receiving a copy of the
executed lease from BOEM.
(g) In the event that a lessee does not meet the commitments it
made to obtain any bidding credits, the lessee will be required to
repay the value of the bidding credits that it received, adjusted for
inflation.
0
31. Add Sec. 585.226 to read as follows:
Sec. 585.226 What happens if the provisional winner fails to meet its
obligations?
(a) If BOEM determines that a provisional winner has failed to
timely complete the steps outlined in Sec. 585.225(b) or Sec.
585.316, or has otherwise failed to comply with applicable laws,
regulations, or FSN provisions, BOEM may take one or more of the
following actions:
(1) Decline to execute the applicable lease.
(2) Decline to execute the lease for any other lease areas that the
provisional winner won during the auction.
(3) Require forfeiture of the bid deposit. In the event the bid
deposit exceeds the amount of the winning bid, BOEM would limit the
required forfeiture to the lesser amount.
(4) Refer the matter to the Department of the Interior's
Administrative Remedies Division for suspension or debarment review
pursuant to 2 CFR part 180 as implemented at 2 CFR part 1400.
(5) Pursue any other remedy available.
(b) If BOEM declines to execute a lease with the provisional winner
under paragraph (a) of this section, BOEM may decide to select a new
provisional winner by either repeating the auction under Sec.
585.224(f), or pursuant to the procedures in Sec. 585.224(a)(3), by
selecting the next highest bid submitted during the auction, or by
using other procedures specified in the FSN.
(c) BOEM's decisions under this section are appealable under Sec.
585.118(a).
0
32. Revise Sec. 585.231to read as follows:
Sec. 585.231 Will BOEM issue leases noncompetitively?
(a) BOEM will consider unsolicited requests for a lease on a case-
by-case basis and may issue a lease noncompetitively in accordance with
this part. BOEM will issue a lease noncompetitively only if it has
determined after public notice that no competitive interest exists.
BOEM will not consider an unsolicited request for a lease under this
part that is proposed in a lease area that is scheduled for a lease
auction under this part.
(b) At BOEM's discretion, BOEM may issue an RFI under Sec. 585.116
relating to your unsolicited lease request and will consider comments
received to determine if competitive interest exists. If BOEM decides
not to issue an RFI and, therefore, not to continue processing your
unsolicited lease request, it will refund your acquisition fee.
(c) If BOEM determines that competitive interest exists in the
lease area:
(1) BOEM will proceed with the competitive process set forth in
Sec. Sec. 585.210 through 585.226;
(2) If you submit a bid for the lease area in a competitive lease
sale, your acquisition fee will be applied to the deposit for your
bonus bid; and
(3) If you do not submit a bid for the lease area in a competitive
lease sale, BOEM will not refund your acquisition fee.
(d) If BOEM determines that there is no competitive interest in a
lease and that further investigation of the area is in the public
interest, it will:
(1) Publish in the Federal Register a determination of no
competitive interest, and
(2) Prepare and provide you with a written estimate of the proposed
fee to pay for the processing costs under Sec. 585.111, including any
environmental review that BOEM may require before lease issuance.
(3) Conduct environmental reviews required by Federal law and
consult with affected Federal agencies, State and local governments,
and Native Alaskan and Indian Tribes.
(e) The following deadlines apply after issuance of a determination
of no competitive interest:
(1) Within 90 calendar days of receiving the written estimate of
the fee, or longer (as determined at BOEM's discretion), you must pay
the fee for any environmental review under Sec. 585.111. Failure to
pay the required fee may result in withdrawal of the determination of
no competitive interest.
(2) A determination of no competitive interest expires two years
after its publication, unless BOEM determines that it should be
extended for good cause. BOEM reserves the right to withdraw a
determination of no competitive interest before it expires if BOEM
determines that you have failed to exercise due diligence in obtaining
a lease.
(f) After BOEM publishes the determination of no competitive
interest, you will be responsible for submitting any consistency
certification and necessary data and information in a timely manner to
the applicable State
[[Page 6029]]
CZMA agencies and BOEM pursuant to 15 CFR part 930, subpart D.
(g) After completing its review of your lease request, BOEM may
offer you a noncompetitive lease.
(h) If you accept the terms and conditions of the lease, BOEM will
issue the lease. You must comply with the terms and conditions of your
lease and the applicable provisions of this part. If BOEM issues you a
lease, BOEM will send you a notice with 3 copies of the lease form.
(1) Within 10 business days after you receive the lease copies you
must:
(i) Execute all three copies of the lease; and
(ii) File financial assurance as required under Sec. Sec. 585.516
through 585.537.
(2) You must pay the first 12 months' rent no later than 45
calendar days after you receive your copy of the executed lease from
BOEM under Sec. 585.503(a)(1).
(i) BOEM will publish in the Federal Register a notice announcing
the issuance of your lease.
(j) If you do not accept the terms and conditions in a timely
manner, BOEM will not issue a lease. Additionally, if you do not comply
with the requirements for financial assurance, BOEM may decide not to
issue a lease. If BOEM does not issue a lease due to your noncompliance
or non-acceptance, BOEM will not refund your acquisition fee or any
fees paid under paragraph (e)(1) of this section.
0
33. Amend Sec. 585.232 by revising the section heading and paragraph
(c) to read as follows:
Sec. 585.232 May I acquire a lease noncompetitively after responding
to a request for information or a Call for Information and Nominations?
* * * * *
(c) After receiving the acquisition fee, BOEM will follow the
process outlined in Sec. 585.231(d) through (i).
0
34. Revise the undesignated center heading before Sec. 585.235 and
revise Sec. 585.235 to read as follows:
Commercial and Limited Lease Periods
Sec. 585.235 What are the lease periods for a commercial lease?
(a) The lease periods within the term of your commercial lease are
defined as follows:
(1) Preliminary period. Each commercial lease has a preliminary
period of up to five years. During the preliminary period, the lessee
must submit a COP. The preliminary period begins on the effective date
of the lease and ends either when a COP is received by BOEM for review
or at the expiration of five years, whichever occurs first.
(2) COP review period. A commercial lease has a COP review period.
The COP review period begins when BOEM receives a COP from the lessee
and ends upon COP approval, disapproval, or approval with modifications
pursuant to Sec. 585.628. During the COP review period, BOEM conducts
the necessary reviews and consultations associated with the COP. The
lessee must resolve issues identified as incomplete in the COP by BOEM
within the first year of the COP review period.
(3) Design and construction period. A commercial lease has a design
and construction period for the duration specified in the approved COP,
which may be modified by mutual agreement of the lessee and BOEM.
During the design and construction period, the lessee must submit its
FDR and FIR, address any issues raised by BOEM, and complete project
construction. The design and construction period begins at COP approval
and ends either when commercial operations begin or at the expiration
of the period set forth in the approved COP as modified, whichever
occurs first.
(4) Operations period. A commercial lease has an operations period
of 30 years or the duration specified in the lease. The operations
period begins at the start of commercial operations. Additional time
may be added to the operations period through a lease suspension under
Sec. 585.415 issued during this period; a lease extension requested
pursuant to paragraph (b) of this section; or a lease renewal under
Sec. 585.425.
(b) You may request an extension of any of the lease periods
outlined in paragraph (a) of this section for good cause. In its
discretion, BOEM may approve your request.
(c) If you intend to develop your lease in phases under Sec.
585.629, you may propose lease period schedules as appropriate for each
phase in your COP.
(d) If you intend to segregate or merge your lease under Sec. Sec.
585.408 through 585.413, you and your assignees may propose lease
period schedules in your segregation or merger application.
0
35. Revise Sec. 585.236 to read as follows:
Sec. 585.236 If I have a limited lease, how long will my lease remain
in effect?
(a) For limited leases, the lease periods are as shown in the
following table:
----------------------------------------------------------------------------------------------------------------
Lease period Extension or suspension Requirements
----------------------------------------------------------------------------------------------------------------
(1) Each limited lease has a preliminary period of If we receive a GAP that The GAP must meet the
12 months within which to submit a GAP. The satisfies the requirements of requirements of Sec.
preliminary period begins on the effective date of Sec. Sec. 585.640 through Sec. 585.640 through
the lease. 585.648, the preliminary 585.648
period will be automatically
extended for the period of
time necessary for us to
conduct a technical and
environmental review of the
GAP.
(2) Each limited lease has an operations period as We may order or grant a ..........................
specified by BOEM (if the lease is issued suspension of the operations
competitively) or negotiated by the parties (if period as provided in Sec.
the lease is issued noncompetitively). In either Sec. 585.415 through 585.421.
case, the duration of the operations period will
depend on the intended use of the lease. The
operations period begins on the date that we
approve your GAP.
----------------------------------------------------------------------------------------------------------------
(b) You may request an extension of any of the lease periods
outlined in paragraph (a) of this section for good cause. In its
discretion, BOEM may approve your request.
Subpart D--Rights-of-Way Grants and Rights-of-Use and Easement
Grants for Renewable Energy Activities
0
36. Amend Sec. 585.301 by revising paragraphs (a)(2) and (3) to read
as follows:
Sec. 585.301 What do ROW grants and RUE grants include?
(a) * * *
(2) Is of a width sufficient to accommodate potential changes at
the design and installation phases of the
[[Page 6030]]
project, with an option for the grant holder to relinquish unused
portions of the ROW after construction is complete;
(3) For the associated facilities, is limited to the area
reasonably necessary for a power or pumping station or other facilities
requested.
* * * * *
0
37. Amend Sec. 585.302 by revising paragraph (a) to read as follows:
Sec. 585.302 What are the general requirements for ROW grant and RUE
grant holders?
(a) To acquire a ROW grant or RUE grant, you must provide evidence
that you meet the qualifications set forth in Sec. Sec. 585.106 and
585.107.
* * * * *
0
38. Revise Sec. 585.303 to read as follows:
Sec. 585.303 How long will my ROW grant or RUE grant remain in
effect?
The periods within the term of your grant are defined as follows:
(a) Each ROW or RUE grant has a preliminary period of 12 months
from the effective date of the ROW or RUE grant within which to submit
a GAP. The preliminary period begins on the effective date of the
grant. You must submit a GAP no later than the end of the preliminary
period for your grant to remain in effect. However, you may submit a
GAP before the issuance of your ROW or RUE grant.
(b) Each ROW or RUE grant has an operations period as set by BOEM
(if the grant is issued competitively) or negotiated by the parties (if
the grant is issued noncompetitively). In either case, the duration of
the operations period will depend on the intended use of the grant. The
operations period begins on the date that we approve your GAP.
(c) You may request an extension of any of the grant periods
outlined in paragraphs (a) and (b) of this section for good cause. In
its discretion, BOEM may approve your request.
0
39. Amend Sec. 585.305 by revising the introductory text to read as
follows:
Sec. 585.305 How do I request a ROW grant or RUE grant?
You must submit a request for a new or modified ROW grant or RUE
grant to BOEM pursuant to Sec. 585.110. You must submit a separate
request for each ROW grant or RUE grant you are requesting. The request
must contain the following information:
* * * * *
0
40. Amend Sec. 585.306 by revising paragraph (b) to read as follows:
Sec. 585.306 What action will BOEM take on my request?
* * * * *
(b) If BOEM determines there is no competitive interest in a ROW or
RUE grant, BOEM will publish a notice in the Federal Register of such
determination. After BOEM publishes this notice, you are responsible
for submitting any required consistency certification and necessary
data and information under 15 CFR part 930, subpart D, to BOEM and the
applicable State CZMA agency. BOEM may establish terms and conditions
for a noncompetitive grant and offer the grant to you:
(1) If you accept the terms and conditions of the grant, BOEM will
issue the grant.
(2) If you do not accept the terms and conditions of the grant,
BOEM may agree to modify the terms and conditions or may decide not to
issue the grant.
Sec. 585.309 [Removed]
0
41. Remove Sec. 585.309.
Sec. 585.310 [Redesignated as Sec. 585.309]
0
42. Redesignate Sec. 585.310 as new Sec. 585.309.
Sec. Sec. 585.310 [Reserved]
0
43. Add new reserved Sec. 585.310
Sec. 585.316 [Amended]
0
44. Amend Sec. 585.316 in paragraph (a) by removing the acronym
``BOEM'' and adding in its place the words ``Office of Natural
Resources Revenue (ONRR)''.
Subpart D--Lease and Grant Administration
0
45a. Remove the undesignated center heading appearing before Sec.
585.436 and the undesignated heading appearing before Sec. 585.437.
0
45b. Amend Sec. 585.400 by revising paragraph (f) to read as follows:
Sec. 585.400 What happens if I fail to comply with this part?
* * * * *
(f) BOEM may assess civil penalties as authorized by section 24 of
the OCS Lands Act and as determined under the procedures set forth in
30 CFR part 550, subpart N, if you fail to comply with any provision of
this part or any term of a lease, grant, or order issued under the
authority of this part:
(1) After notice of such failure and expiration of any reasonable
period allowed for corrective action; or
(2) Without notice of such failure and expiration of a period
allowed for corrective action if BOEM determines the failure may
constitute, or constituted, a threat of serious, irreparable, or
immediate harm or damage to life (including fish and other aquatic
life), property, or the marine, coastal, or human environment.
* * * * *
0
46. Amend Sec. 585.405 by revising first sentence of paragraph (a) to
read as follows:
Sec. 585.405 How do I designate an operator?
(a) If you intend to designate an operator who is not the lessee or
grant holder, you must identify the proposed operator in your SAP
(under Sec. 585.610(a)(3)), COP (under Sec. 585.626(a)(2)), or GAP
(under Sec. 585.645(a)(2)), as applicable. * * *
* * * * *
0
47. Revise the undesignated center heading immediately before Sec.
585.408 and amend Sec. 585.408 by revising the first sentence of
paragraph (b) introductory text and first sentence of paragraph (e) to
read as follows:
Lease or Grant Assignment, Segregation, and Consolidation
Sec. 585.408 May I assign my lease or grant interest?
* * * * *
(b) You may assign a lease or grant interest by submitting one
paper copy and one electronic copy of an assignment application to
BOEM, Form BOEM-0003 for leases and Form BOEM-0002 for grants. * * *
* * * * *
(e) You do not need to request an assignment for business mergers,
name changes, or changes of business form. * * *
Sec. Sec. 585.410 and 585.411 [Redesignated as Sec. Sec. 585.411
and 585.412]
0
48. Redesignate Sec. Sec. 585.410 and 585.411 as Sec. Sec. 585.411
and 585.412, respectively.
0
49. Add new Sec. 585.410 to read as follows:
Sec. 585.410 When will my assignment result in a segregated lease?
(a) When there is an assignment by all record title owners of 100
percent of the record title to one or more aliquots in a lease, the
assigned and retained portions become segregated into separate and
distinct leases. In such a case, both the new lease and the remaining
portion of the original lease are referred to as ``segregated leases''
and the assignee becomes the record title owner of the new lease, which
is subject to all the terms and conditions of the original lease. The
financial assurance requirements of subpart F of this part apply
separately to each segregated lease.
(b) If a record title owner transfers an undivided interest of less
than 100 percent of the record title interest in any
[[Page 6031]]
given aliquot, that transfer will not segregate the portions of that
aliquot, or the whole aliquot, in which part of the record title was
transferred, into a separate lease from the portions in which no
interest was transferred. Instead, that transfer will create a joint
ownership between the assignee and assignor in the portions of the
lease in which part of the record title interest was transferred.
0
50. Amend newly redesignated Sec. 585.412 by revising the first
sentence of paragraph (b) to read as follows:
Sec. 585.412 How does an assignment affect the assignee's liability?
* * * * *
(b) Assignees are bound to comply with each term or condition of
the lease or grant and the regulations in this part. * * *
0
51. Add Sec. 585.413 to read as follows:
Sec. 585.413 How do I consolidate leases or grants?
(a) You may apply to consolidate all or part of two or more
adjacent leases or grants held by the same lessee or grant holder into
one new lease or grant, subject to BOEM's approval. The application
must include a description of the leases or grants, or portions
thereof, to be consolidated, including the relevant lease number, lease
blocks, and aliquots.
(b) An approved consolidation will create a new lease or grant that
will be subject to the terms and conditions of the consolidated leases
and grants.
(c) To the extent the leases and grants to be consolidated have
different times remaining in the relevant lease periods, BOEM will
default to using the shorter remaining periods in the new lease or
grant but will consider requests for extensions pursuant to Sec.
585.235(b).
(d) To the extent the leases and grants to be consolidated have
other different terms and conditions, BOEM will default to using the
terms and conditions in the most recently issued leases and grants to
be consolidated for the new lease. BOEM will consider requests for
modifications on a case-by-case basis and, in its discretion, approve
such requests for good cause.
(e) Before BOEM will approve your consolidation request, BOEM will
assess appropriate financial assurance obligations for the new lease or
grant per Sec. Sec. 585.516 and 585.517 or Sec. Sec. 585.520 and
585.521.
(f) Any consolidated leases and grants that have been fully
absorbed into the new lease or grant in their entirety will be
considered terminated at the time of consolidation approval.
0
52. Amend Sec. 585.415 by revising paragraph (b) to read as follows:
Sec. 585.415 What is a lease or grant suspension?
* * * * *
(b) A suspension extends the expiration date for the relevant
period of your lease or grant for the length of time the suspension is
in effect.
* * * * *
0
53. Revise Sec. 585.416 to read as follows:
Sec. 585.416 How do I request a lease or grant suspension?
(a) You must submit a written request to BOEM that includes the
following information no later than 90 calendar days before the
expiration of your appropriate lease or grant period:
(1) The reasons you are requesting suspension of your lease or
grant, including an explanation why the suspension is necessary.
(2) The length of additional time requested.
(3) An explanation why it is in the public interest to approve the
suspension.
(4) Any other information BOEM may require.
(b) If you are unable to timely submit a COP or GAP, as required,
you may request a suspension to extend the preliminary period of your
lease or grant. Your request must include a revised schedule for
submission of your COP or GAP, as appropriate.
0
54. Amend Sec. 585.417 by revising paragraph (b)(2) to read as
follows:
Sec. 585.417 When may BOEM order a suspension?
* * * * *
(b) * * *
(2) You must furnish a copy of the study and results to BOEM
pursuant to Sec. 585.110;
* * * * *
0
55. Amend Sec. 585.420 by revising paragraph (b) and removing
paragraph (c).
The revision reads as follows:
Sec. 585.420 What effect does a suspension order have on my payments?
* * * * *
(b) If BOEM approves your request for a suspension under Sec.
585.416, or orders a suspension under Sec. 585.417, BOEM may waive or
defer your payment obligations during the suspension. BOEM's decision
to waive or defer payments will depend on the reasons for the
suspension, including your responsibility for the circumstances
necessitating a suspension.
0
56. Amend Sec. 585.425 by revising the first sentence to read as
follows:
Sec. 585.425 May I obtain a renewal of my lease or grant before it
terminates?
You may request renewal of the operations period of your lease or
the original authorized period of your grant. * * *
0
57. Amend Sec. 585.426 by revising paragraph (a)(2) to read as
follows:
Sec. 585.426 When must I submit my request for renewal?
(a) * * *
(2) No later than two years before the termination date of the
operations period of your commercial lease.
* * * * *
0
58. Amend Sec. 585.427 by revising the introductory text and
paragraphs (a) and (b) to read as follows:
Sec. 585.427 How long is a renewal?
BOEM will set the length of the renewal at the time of renewal on a
case-by-case basis.
(a) For commercial leases, the length of the renewal will not
exceed the original operations period unless a longer time is
negotiated by the parties.
(b) For limited leases, the length of the renewal will not exceed
the original operations period.
* * * * *
0
59. Amend Sec. 585.429 by adding paragraph (g) to read as follows:
Sec. 585.429 What criteria will BOEM consider in deciding whether to
renew a lease or grant?
* * * * *
(g) Other relevant factors, as appropriate.
0
60. Amend Sec. 585.432 by revising paragraph (a) to read as follows:
Sec. 585.432 When does my lease or grant terminate?
* * * * *
(a) The expiration of the applicable period of your lease or grant,
unless the relevant period is extended under Sec. 585.235(b) or Sec.
585.236(b), a request for renewal of your lease or grant is pending a
decision by BOEM, or your lease or grant is suspended or renewed as
provided in this subpart, in which case it terminates on the date set
forth in the notice of suspension or renewal;
* * * * *
0
61. Revise the undesignated center heading appearing before Sec.
585.435 and revise Sec. 585.435 to read as follows:
Lease or Grant Relinquishment, Contraction, or Cancellation
Sec. 585.435 How can I relinquish a lease or a grant or parts of a
lease or grant?
(a) You may surrender a lease or grant, or a designated subdivision
thereof, by filing with BOEM a properly
[[Page 6032]]
completed official relinquishment form available on the BOEM website. A
relinquishment takes effect on the date BOEM receives your completed
form, subject to the continued obligation of the lessee or grant holder
and the surety to:
(1) Make all payments due on the lease or grant, including any
accrued rent and deferred bonuses;
(2) Decommission all facilities on the relinquished lease or grant
(or portion thereof) to BOEM's satisfaction; and
(3) Perform any other outstanding obligations under the lease or
grant.
(b) After you submit a completed relinquishment form for a lease or
grant, ONRR will bill you for any outstanding payments that have
accrued from obligations arising under the relinquished lease or grant.
0
62. Add Sec. 585.438 to read as follows:
Sec. 585.438 What happens to leases or grants (or portions thereof)
that have been relinquished, contracted, or cancelled?
(a) If a lease or grant (or portion thereof) is relinquished,
contracted, or cancelled under Sec. 585.435, Sec. 585.436, or Sec.
585.437, respectively, BOEM may restart the competitive leasing process
at any point set forth in Sec. 585.210 that it deems reasonable and
appropriate (e.g., RFI, Call, area identification, PSN, or FSN),
subject to all necessary environmental analyses and consultations.
(b) If a competitively issued lease or grant (or portion thereof)
is relinquished or cancelled under Sec. 585.435 or Sec. 585.437,
respectively, within six months of the auction, BOEM may reoffer the
lease or grant (or portion thereof) to the next highest bidder from
that auction, if one can be identified. If BOEM decides to reoffer to
the next highest bidder, the price will be the next best bid, or a
prorated amount based on the size of the relinquished share, as long as
the next best bid reflects a fair return to the government.
Subpart F--Payments and Financial Assurance Requirements
0
63. Amend Sec. 585.500 by revising paragraphs (a) and (c)(1) through
(7) and removing paragraph (c)(8).
The revsions read as follows:
Sec. 585.500 How do I make payments under this part?
(a) For acquisition fees or the initial 12 months' rent paid for
the preliminary period of your lease, you must make your electronic
payments through the Fees for Services page on the BOEM website at
https://www.boem.gov, and you must include one copy of the Pay.gov
confirmation receipt page with your unsolicited request.
* * * * *
(c) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Payment Amount Due date Payment mechanism Section reference
--------------------------------------------------------------------------------------------------------------------------------------------------------
Initial payments for leases
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) If your lease is issued Bid Deposit......... As set in Final With bid........... Pay.gov.................... Sec. 585.501.
competitively. Sale Notice/
depends on bid.
Bonus Balance....... ................... Within 10-business 30 CFR 1218.51............. Sec. 585.225.
days of receiving
unsigned lease.
(2) If your lease is issued non- Acquisition Fee..... $0.25 per acre, With application... Pay.gov.................... Sec. 585.502.
competitively. unless otherwise
set by the
Director.
(3) All leases................... Initial Rent........ $3 per acre per 45-calendar days Pay.gov.................... Sec. 585.503.
year. after lease
execution.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subsequent payments for leases and project easements
--------------------------------------------------------------------------------------------------------------------------------------------------------
(4) All leases................... Subsequent Rent, $3 per acre per Annually........... 30 CFR 1218.51............. Sec. Sec. 585.503 and
unless otherwise year. 585.504.
provided in the
terms of the lease.
(5) If you have a project Rent, unless Greater of $5 per When/operations 30 CFR 1218.51............. Sec. 585.507.
easement. otherwise provided acre per year or period for
in the terms of the $450 per year. associated lease
grant. starts, then
annually.
(6) If your commercial lease is Operating Fee....... Determined by the Annually........... 30 CFR 1218.51............. Sec. 585.506.
producing. formula in Sec.
585.506.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Payments for ROW grants and RUE grants *
--------------------------------------------------------------------------------------------------------------------------------------------------------
(7) All ROW grants and RUE grants Initial Rent........ Greater of $5 per Grant execution.... Pay.gov.................... Sec. 585.508.
acre per year or
$450 per year,
unless otherwise
established in the
grant.
Subsequent Rent..... ................... Annually or in 5- 30 CFR 1218.51.............
year batches.
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
64. Revise Sec. 585.501 to read as follows:
Sec. 585.501 What deposits must I submit for a competitively issued
lease, ROW grant, or RUE grant?
(a) For a competitively issued lease or grant, BOEM may require a
bid deposit before the auction as established in the FSN.
(b) The provisional winner of an auction must pay the balance of
its accepted bid in accordance with the FSN.
0
65. Revise Sec. 585.503 to read as follows:
[[Page 6033]]
Sec. 585.503 What are the rent and operating fee requirements for a
commercial lease?
(a) The rent for a commercial lease is $3 per acre per year, unless
otherwise established in the FSN or lease.
(1) You must pay ONRR the first 12 months' rent no later than 45
calendar days after you receive your copy of the executed lease from
BOEM under Sec. 585.500(a).
(2) You must pay ONRR as provided in 30 CFR 1218.51 the rent due at
the beginning of each subsequent 1-year period for the entire lease
area until the facility begins commercial operations as specified in
Sec. 585.506 or as otherwise specified in the FSN or lease:
(i) For leases issued competitively, BOEM will specify in the FSN
and lease any adjustment to the rent that will take effect during the
operations period and before commercial operations.
(ii) For leases issued noncompetitively, BOEM will specify in the
lease any adjustment to the rent that will take effect during the
operations period and before commercial operations.
(3) You must pay ONRR as provided in 30 CFR 1218.51 the rent due
for a project easement in addition to the lease rent as provided in
Sec. 585.507. You must commence rent payments for your project
easement upon BOEM's approval of your COP or GAP.
(b) After your lease begins commercial operations or on the date
BOEM specifies in the lease, you must pay operating fees in the amount
specified in Sec. 585.506. Regardless of whether the lease is awarded
competitively or noncompetitively, BOEM will specify in the lease the
date when operating fees commence.
0
66. Amend Sec. 585.504 by revising the introductory text to read as
follows:
Sec. 585.504 How are my payments affected if I develop my commercial
lease in phases?
If you develop your commercial lease in phases as approved by BOEM
in your COP under Sec. 585.629, you must pay ONRR as provided in 30
CFR 1218.51:
* * * * *
0
67. Amend Sec. 585.505 by revising paragraph (c) to read as follows:
Sec. 585.505 What are the rent and operating fee requirements for a
limited lease?
* * * * *
(c) You must pay ONRR as provided in 30 CFR 1218.51 the rent due at
the beginning of each subsequent 1-year period on the entire lease area
for the duration of your operations period.
* * * * *
0
68. Amend Sec. 585.506 by:
0
a. Revising the introductory text and the first sentence of paragraph
(c)(1);
0
b. Removing the acronym ``DOE'' and adding in its place the words
``Department of Energy (DOE)'' in paragraph (c)(2)(i); and
0
c. Removing the acronym ``BOEM'' and adding in its place the acronym
``ONRR'' in paragraph (d).
The revisions read as follows:
Sec. 585.506 What operating fees must I pay on a commercial lease?
Once you begin commercial operations, you must pay ONRR as provided
in 30 CFR 1218.51 operating fees on your commercial lease as described
in Sec. 585.503.
* * * * *
(c) * * *
(1) Unless BOEM specifies otherwise, the operating fee rate ``r''
is 0.02 for each year the operating fee applies when you begin
commercial generation of electricity. * * *
* * * * *
0
69. Amend Sec. 585.507 by revising paragraphs (a) introductory text,
(a)(1), and (b)(1) to read as follows:
Sec. 585.507 What rent payments must I pay on a project easement?
(a) You must pay ONRR, as provided in 30 CFR 1218.51, rent for your
project easement in the amount of $5 per acre, subject to a minimum of
$450 per year, unless specified otherwise in the lease.
(1) The size of the project easement will be determined according
to Sec. 585.628(g)(1).
* * * * *
(b) * * *
(1) You must make the first rent payment when the operations period
begins, as provided in Sec. 585.500.
* * * * *
0
70. Amend Sec. 585.508 by revising paragraph (a) and paragraph (b)
introductory text to read as follows:
Sec. 585.508 What rent payments must I pay on ROW grants or RUE
grants associated with renewable energy projects?
(a) For each ROW grant BOEM approves under subpart D of this part,
you must pay ONRR, as provided in 30 CFR 1218.51, an annual rent of $5
per acre as determined by Sec. 585.301(a), but in no case less than
$450, for use of the grant, unless specified otherwise in the grant.
(b) For each RUE grant BOEM approves under subpart D of this part,
you must pay ONRR, as provided in 30 CFR 1218.51, a rent in the amount
of:
* * * * *
Sec. 585.509 [Amended]
0
71. Amend Sec. 585.509 in the section heading by removing the acronym
``BOEM'' and adding in its place the acronym ``ONRR''.
0
72. Amend Sec. 585.510 by revising the section heading and paragraphs
(a), (b) introductory text, (b)(4)(i) and (ii), and (c) to read as
follows:
Sec. 585.510 May BOEM defer, reduce, or waive my lease or grant
payments?
(a) The BOEM Director may defer, reduce, or waive the rent or
operating fee or components of the operating fee, such as the fee rate
or capacity factor, when the Director determines that continued
activities would be uneconomic without the requested deferral,
reduction, or waiver, or that it is necessary to encourage continued or
additional activities.
(b) When requesting a deferral, reduction, or waiver, you must
submit an application to BOEM that includes all of the following:
* * * * *
(4) * * *
(i) Continued activities would be uneconomic without the requested
deferral, reduction, or waiver, or
(ii) A deferral, reduction, or waiver is necessary to encourage
additional activities; and
* * * * *
(c) No more than 6 years of your operations period will be subject
to a full waiver of the operating fee.
Sec. 585.515 [Removed and Reserved]
0
73. Remove and reserve Sec. 585.515.
0
74. Revise Sec. 585.516 to read as follows:
Sec. 585.516 What are the financial assurance requirements for each
stage of my commercial lease?
(a) The financial assurance requirements for each stage of your
commercial lease are:
------------------------------------------------------------------------
Before BOEM will . . . You must provide . . .
------------------------------------------------------------------------
(1) Execute a commercial lease or A bond or other authorized financial
approve an assignment of an assurance in the amount of 12
existing commercial lease. months' rent.
[[Page 6034]]
(2) Allow you to install A supplemental bond or other
facilities approved in your SAP. authorized financial assurance in
an amount determined by BOEM based
on the anticipated decommissioning
costs of the proposed facilities.
(3) Allow you to install A supplemental bond or other
facilities approved in your COP. authorized financial assurance in
an amount determined by BOEM based
on anticipated decommissioning
costs of the proposed facilities.
If you propose to incrementally
fund your financial assurance
instrument, BOEM must approve the
schedule for providing the
appropriate financial assurance.
------------------------------------------------------------------------
(b) Each bond or other authorized financial assurance must
guarantee compliance with this part, the applicable plan approvals, and
the terms and conditions of the lease.
(c) For hydrokinetic commercial leases, supplemental financial
assurance may be required in an amount determined by BOEM prior to
installation of facilities pursuant to a FERC license.
0
75. Revise Sec. 585.517 to read as follows:
Sec. 585.517 How will BOEM determine the amounts of the supplemental
financial assurance requirements associated with commercial leases?
(a) BOEM determines the amount of your supplemental financial
assurance based on the estimated costs to meet all accrued lease
obligations, including:
(1) The projected amount of annual rent and other payments due the
United States over the next 12 months, to the extent that amount is not
covered in the initial financial assurance provided in Sec.
585.516(a)(1);
(2) Any past due rent and other payments;
(3) Other monetary obligations; and
(4) The estimated cost of facility decommissioning required by
subpart J of this part.
(b) If your cumulative potential obligations and liabilities
increase or decrease, we may adjust the amount of the supplemental
financial assurance.
(1) If we propose adjusting your financial assurance amount, we
will notify you of the proposed adjustment and give you an opportunity
to comment; and
(2) We may approve a reduced financial assurance amount if you
request it and if the reduced amount that you request is sufficient to
cover your obligations and liabilities calculated under paragraph (a)
of this section.
0
76. Revise Sec. 585.520 to read as follows:
Sec. 585.520 What financial assurance must I provide when I obtain my
limited lease, ROW grant, or RUE grant?
Before BOEM will execute your limited lease, ROW grant, or RUE
grant, or approve an assignment of an interest therein, you or a
proposed assignee must guarantee compliance with all terms and
conditions of the lease or grant by providing a bond or other
authorized financial assurance in the amount of 12 months' rent.
0
77. Revise Sec. 585.521 to read as follows:
Sec. 585.521 Do my financial assurance requirements change as
activities progress on my limited lease or grant?
(a) BOEM may require you to increase or allow you to decrease the
amount of your financial assurance as activities progress on your
limited lease or grant based on the estimated costs to meet all accrued
lease or grant obligations.
(b) The total amount of the financial assurance must be no less
than the amount required to meet your limited lease and grant
obligations, including:
(1) The projected amount of rent and other payments due the United
States over the next 12 months;
(2) Any past due rent and other payments;
(3) Other monetary obligations; and
(4) The estimated cost of facility decommissioning as required by
subpart J of this part.
(c) If BOEM proposes adjusting the amount of your financial
assurance to ensure your limited lease and grant obligations are met,
BOEM will notify you of the proposed adjustment and will provide you an
opportunity to object.
(d) You may submit a written request to BOEM to reduce the amount
of your financial assurance if your proposed amount is not less than
the sum of your obligations listed in paragraph (b) of this section.
BOEM may approve your request in its discretion.
(e) You may satisfy the requirement for increased financial
assurance on your limited lease or grant by increasing the amount of
your existing bond or by providing a supplemental bond or other
financial assurance.
(1) The supplemental bond or other financial assurance must meet
the requirements specified in Sec. Sec. 585.525 through 585.529.
(2) If you propose to incrementally fund your financial assurance,
BOEM must approve the schedule for providing the appropriate financial
assurance.
0
78. Amend Sec. 585.526 by:
0
a. Revising paragraph (a)(2);
0
b. Removing the word ``and'' after the semi-colon at the end of
paragraph (a)(5); and
0
c. Adding paragraphs (a)(7) through (9).
The revision and additions read as follows:
Sec. 585.526 What instruments other than a surety bond may I use to
meet the financial assurance requirement?
(a) * * *
(2) A pledge of cash, in an amount equal to the required dollar
amount of the financial assurance, to be deposited and maintained in a
Federal depository account of the U.S. Treasury;
* * * * *
(7) Letters of credit, subject to the following conditions:
(i) The letter of credit provider must have an issuer credit rating
from an Nationally Recognized Statistical Rating Organization (NRSRO)
greater than or equal to investment grade from either Standard & Poor's
Ratings Service or from Moody's Investor Service, or a proxy credit
rating determined by BOEM based on audited financial information
(including an income statement, balance sheet, statement of cash flows,
and the auditor's certificate) greater than or equal to either
investment grade from Standard & Poor's Ratings Service or from Moody's
Investor Service;
(ii) The letter of credit must grant BOEM full authority to demand
immediate payment in case of default in the performance of the terms
and conditions of a lease or regulatory obligations;
(iii) The letter of credit must be irrevocable during its term and
will be subject to collection by BOEM if not replaced by another letter
of credit or other form of financial assurance at least 30 calendar
days before its expiration date;
(iv) The expiration date of the letter of credit must not be less
than 1 year following the date it becomes effective;
(v) The letter of credit must contain a provision for automatic
renewal for periods of not less than 1 year in the absence of notice of
cancellation to BOEM at least 90 calendar days before the expiration
date; and
[[Page 6035]]
(vi) The letter of credit must contain a venue provision, which
requires any disputes to be adjudicated in a U.S. Federal court that is
mutually agreed upon by BOEM and the issuers of the letter of credit.
(8) Another form of security approved by BOEM in its discretion; or
(9) A combination of paragraphs (a)(1) through (8) of this section.
0
79. Amend Sec. 585.528 by revising the first sentence of paragraph
(a), the second sentence of paragraph (c) introductory text, paragraph
(c)(4), and the first sentence of paragraph (c)(5) to read as follows:
Sec. 585.528 May I use a third-party guaranty to meet the financial
assurance requirement for lease or grant activities?
(a) You may use a third-party guaranty to secure all or part of the
obligations for which financial assurance was demanded by BOEM if the
guarantor meets the criteria prescribed in paragraph (b) of this
section and submits an agreement meeting the criteria prescribed in
paragraph (c) of this section. * * *
* * * * *
(c) * * * All parties are bound jointly and severally, and the
guarantor must meet the legal and financial qualifications set forth in
Sec. Sec. 585.106 and 585.107.
* * * * *
(4) The guaranty agreement must contain a confession of judgment
providing that, if BOEM determines that you or your operator are in
default, the guarantor must not challenge the determination and must
remedy the default.
(5) If you or your operator fail to comply with any law, term, or
regulation, your guarantor must either take corrective action or
provide, within 7 calendar days or other agreed upon time period,
sufficient funds, up to the value of the guaranty, for BOEM to complete
corrective action. * * *
* * * * *
0
80. Amend Sec. 585.529 by removing ``; and'' from the end of the
paragraph (a)(1), revising paragraph (a)(2), and adding paragraph
(a)(3).
The revision and addition read as follows:
Sec. 585.529 Can I use a lease- or grant-specific decommissioning
account to meet the financial assurance requirements related to
decommissioning?
(a) * * *
(2) You must fund the account in the amount determined by and
according to the payment schedule approved by BOEM. BOEM will estimate
the cost of decommissioning, including site clearance; and
(3) Subject to BOEM's approval, a decommissioning account may be
funded in whole or in part during the operations period of a lease or
grant.
* * * * *
0
81. Amend Sec. 585.532 by revising the section heading, the first
sentence of paragraph (a) introductory text, and the first and second
sentences of paragraph (b) to read as follows:
Sec. 585.532 What happens if my surety wants to terminate the period
of liability of my financial assurance?
(a) Terminating the period of liability of your financial assurance
ends the period during which surety liability continues to accrue. * *
*
* * * * *
(b) Your surety must submit to BOEM its request to terminate the
period of liability under its financial assurance and notify you of
that request no less than 90 days before the proposed termination date.
If you intend to continue activities on your lease or grant, you must
provide replacement financial assurance of equivalent or greater value.
* * *
0
82. Revise Sec. 585.533 to read as follows:
Sec. 585.533 How does my surety obtain cancellation of my financial
assurance?
BOEM will allow a surety to cancel financial assurance and will
relieve the surety from liability for accrued obligations on the
earliest to occur of the following:
(a) BOEM determines that there are no outstanding obligations
covered by the financial assurance;
(b) The following occurs:
(1) BOEM accepts replacement financial assurance in an amount equal
to or greater than the financial assurance to be cancelled to cover the
period of liability prior to termination; or
(2) The surety issuing the new financial assurance has expressly
agreed to assume all outstanding liabilities under the original
financial assurance that accrued during the period of liability that
was terminated;
(c) Seven years have elapsed since the termination of the period of
liability if the new surety did not assume the accrued obligations for
the terminated period of liability; or
(d) A longer period as necessary to complete any appeals or
judicial litigation related to your liabilities covered by the
financial assurance.
0
83. Revise Sec. 585.534 to read as follows:
Sec. 585.534 When may BOEM cancel my financial assurance?
(a) When your lease or grant ends, your sureties remain
responsible, and BOEM will cancel your financial assurance as shown in
the following table:
------------------------------------------------------------------------
Your financial assurance will not be
Financial assurance cancelled until . . .
------------------------------------------------------------------------
(1) Financial assurance for Seven years after all operations and
commercial leases submitted activities under the lease or grant
under Sec. 585.516(a)(1), cease, including decommissioning and
and for grants or limited site clearance, or a longer period as
leases submitted under Sec. necessary to complete any appeals or
Sec. 585.520 and 585.521. judicial litigation related to your
financial assurance obligation. BOEM may
reduce or cancel your financial
assurance or return some or all of your
security if BOEM determines that the
full amount is no longer needed.
[[Page 6036]]
(2) Supplemental financial (i) The lease or grant expires or is
assurance for commercial terminated and BOEM determines you have
leases submitted under Sec. met your secured obligations, unless
585.516 and for grants or BOEM:
limited leases submitted (A) Determines that the future potential
under Sec. Sec. 585.520 liability resulting from any undetected
and 585.521. problem is greater than the amount of
your lease-specific financial assurance;
and
(B) Notifies the provider of the
supplemental financial assurance that
BOEM will wait 7 years before cancelling
all or a part of the supplemental
financial assurance (or longer period as
necessary to complete any appeals or
judicial litigation related to your
secured obligations); or
(ii) At any time when:
(A) BOEM determines, in its discretion,
that you no longer need to provide the
supplemental financial assurance;
(B) The operations for which the
supplemental financial assurance was
provided were cancelled before accrual
of any decommissioning obligation; or
(C) Cancellation of the supplemental
financial assurance is appropriate
because, under the regulations, BOEM
determines such financial assurance
never should have been required.
------------------------------------------------------------------------
(b) BOEM may require reinstatement of your financial assurance as
if no cancellation had occurred if:
(1) A person makes a payment under the lease or grant, and the
payment is rescinded or must be repaid by the recipient because the
person making the payment is insolvent, bankrupt, subject to
reorganization, or placed in receivership; or
(2) The responsible party represents to BOEM that it has discharged
its obligations under the lease or grant, and the representation was
materially false when the financial assurance was cancelled.
0
84. Amend Sec. 585.535 by revising the section heading, paragraph (a)
introductory text, and paragraph (a)(2) to read as follows:
Sec. 585.535 Why might BOEM call for forfeiture of my financial
assurance?
(a) BOEM may call for forfeiture of all or part of your financial
assurance if:
* * * * *
(2) You default on one of the conditions under which we accepted
your financial assurance.
* * * * *
Sec. 585.541 [Amended]
0
85. Amend Sec. 585.541 by removing the word ``nautical'' from the
first sentence.
Sec. 585.542 [Amended]
0
86. Amend Sec. 585.542 by removing the word ``nautical'' from the
third sentence.
Subpart G--Plans and Information Requirements
0
87. Revise Sec. 585.600 to read as follows:
Sec. 585.600 What plans and information must I submit to BOEM before
I conduct activities on my lease or grant?
(a) You must submit a SAP, COP, or GAP and receive BOEM approval as
set forth in the following table:
------------------------------------------------------------------------
Before you: you must:
------------------------------------------------------------------------
(1) Conduct any site assessment activities on Submit, and obtain
your commercial lease involving an approval of, your SAP
engineered foundation, such as under Sec. Sec.
meteorological towers or other facilities 585.605 through 585.613.
that are installed using a fixed-bottom
foundation requiring professional
engineering design and assessment of
sediment, meteorological, and oceanographic
condition.
(2) Conduct any activities pertaining to Submit, and obtain
construction of facilities for commercial approval of, your COP
operations on your commercial lease. under Sec. Sec.
585.620 through 585.629.
(3) Conduct any activities on your limited Submit, and obtain
lease or grant in any OCS area. approval of, your GAP
under Sec. Sec.
585.640 through 585.648.
------------------------------------------------------------------------
(b) BOEM may waive certain types of information or analyses that
you otherwise must provide in your proposed plan when you demonstrate
that:
(1) Sufficient applicable information or analysis is readily
available to BOEM.
(2) The coastal or marine resources that are the subject of the
information requirement are not present or affected.
(3) Other factors affect your ability to obtain or BOEM's need for
the required information.
(4) Information is neither necessary nor required for a State to
determine consistency with its coastal management program.
0
88. Revise Sec. 585.601 to read as follows:
Sec. 585.601 When must I submit my plans to BOEM?
(a) You may submit your SAP anytime; however, your SAP must be
submitted to and approved by BOEM before you conduct activities
requiring a SAP under Sec. 585.600(a)(1).
(b) You must submit your COP within 5 years of your lease effective
date as determined by Sec. 585.237.
(1) Your COP must contain sufficient data and information for BOEM
to complete its reviews and NEPA analysis.
(2) BOEM may need to conduct additional reviews of your COP,
including environmental analysis under NEPA, if significant, new
information becomes available from your site assessment and
characterization activities or if you substantially revise your COP. As
a result of the additional reviews, BOEM may require that you modify
your COP.
(c) You must submit your GAP within 12 months of your lease
effective date as determined by Sec. 585.237 or your grant effective
date as determined by Sec. 585.303(a), as applicable.
0
89. Revise Sec. 585.602 to read as follows:
Sec. 585.602 What records must I maintain?
Until BOEM releases your financial assurance under Sec. 585.534,
you must maintain and provide to BOEM upon request all data and
information related to compliance with the required terms and
conditions of your lease, grant, and approved plans.
0
90. Revise Sec. 585.605 to read as follows:
[[Page 6037]]
Sec. 585.605 What is a Site Assessment Plan (SAP)?
(a) A SAP describes the site assessment activities meeting the
criteria in Sec. 585.600(a)(1) that you plan to perform on your
commercial lease.
(b) You must receive BOEM approval of your SAP, as provided in
Sec. 585.613, before you can begin any proposed site assessment
activities requiring such approval.
(c) If BOEM determines that your proposed site assessment facility
or combination of facilities is complex or significant under Sec.
585.613(a)(1), you must comply with the requirements in subpart H of
this part regarding facility design and construction and submit your
SMS as required by Sec. 585.810.
0
91. Revise Sec. 585.606 to read as follows:
Sec. 585.606 What must I demonstrate in my SAP?
Your SAP must demonstrate that you have planned and are prepared to
conduct the proposed site assessment activities in a manner that:
(a) Conforms to your responsibilities listed in Sec. 585.105(a);
(b) Conforms to all applicable laws, regulations, and provisions of
your commercial lease;
(c) Is safe;
(d) Does not unreasonably interfere with other uses of the OCS,
including those involved with national security or defense;
(e) Does not cause undue harm or damage to natural resources; life
(including human and wildlife); property; the marine, coastal, or human
environment; or sites, structures, or objects of historical or
archaeological significance;
(f) Uses best available and safest technology;
(g) Uses best management practices; and
(h) Uses properly trained personnel.
0
92. Revise Sec. 585.607 to read as follows:
Sec. 585.607 How do I submit my SAP?
You must submit your SAP to BOEM pursuant to Sec. 585.110.
0
93. Revise Sec. 585.610 to read as follows:
Sec. 585.610 What must I include in my SAP?
(a) Project information may be provided using a PDE. When you
provide information using a PDE, BOEM reserves the right to determine
what range of values for any given parameter are acceptable. Your SAP
must include the following project-specific information, as applicable:
------------------------------------------------------------------------
Project information Including
------------------------------------------------------------------------
(1) Contact information...... The name, address, e-mail address, and
phone number of an authorized
representative.
(2) The site assessment or A discussion of the objectives;
technology testing concept. description of the proposed activities,
including the technology you will use;
and proposed schedule from start to
completion.
(3) Designation of operator, As provided in Sec. 585.405.
if applicable.
(4) Commercial lease A description of the measures you took,
stipulations and compliance. or will take, to satisfy the conditions
of any lease stipulations related to
your proposed activities.
(5) A location plat, or The range of surface locations and
indicative layout. associated water depths for proposed
structures, facilities, and
appurtenances located both offshore and
onshore, including all anchor and
mooring data; and the location and
associated water depths of all existing
structures.
(6) General structural and Preliminary design information for each
project design, fabrication, facility associated with your site
and installation. assessment activity.
(7) Deployment activities.... A description of the safety, prevention,
and environmental protection features or
measures that you will use.
(8) Your proposed measures A description of the measures you will
for avoiding, minimizing, use to avoid or minimize adverse effects
reducing, eliminating, and and any potential incidental take,
monitoring environmental before you conduct activities on your
impacts. lease, and how you will mitigate
environmental impacts from your proposed
activities, including a description of
the measures you will use as required by
subpart I of this part.
(9) Project verification An analysis supporting your
strategy. recommendation as to whether your site
assessment activities should be
determined complex or significant. If
your recommendation supports a complex
or significant determination, describe
your strategy for compliance with Sec.
Sec. 585.705 through 585.714.
(10) References.............. A bibliographic list of any document or
published source that you cite as part
of your plan. You may reference
information and data discussed in other
plans you previously submitted or that
are otherwise readily available to BOEM.
(11) Decommissioning and site A discussion of general concepts and
clearance procedures. methodologies.
(12) Air quality information. Information as described in Sec.
585.659.
(13) A listing of all A statement indicating whether you have
Federal, State, and local applied for or obtained such
authorizations or approvals authorization or approval from the U.S.
required to conduct site Coast Guard, U.S. Army Corps of
assessment activities. Engineers, and any other applicable
Federal, State, or local authorizers.
(14) A list of agencies and Contact information and issues discussed.
persons with whom you have
communicated, or with whom
you will communicate,
regarding potential impacts
associated with your
proposed activities.
(15) Financial assurance Statements attesting that the activities
information. and facilities proposed in your SAP are
or will be covered by an appropriate
bond or other approved financial
assurance instrument as required in Sec.
585.516 and Sec. Sec. 585.525
through 585.529.
(16) Information you A list of the documents you have
incorporate by reference. incorporated by reference and their
public availability.
(17) Other information....... Additional information as required by
BOEM.
------------------------------------------------------------------------
(b) You must include reports that document the results of surveys
and investigations that characterize and model the site of your
proposed assessment activities. Your reports must address the following
topics:
[[Page 6038]]
----------------------------------------------------------------------------------------------------------------
Topic: Purpose of report: Including:
----------------------------------------------------------------------------------------------------------------
(1) Geological and geotechnical.... To define the baseline (i) Desktop studies to collect available data
geological conditions of from published sources and nearby sites.
the seabed and provide (ii) Geophysical surveys of the proposed area
sufficient data to develop with sufficient areal coverage, depth
a geologic model, assess penetration, and resolution to define the
geologic hazards, and geological conditions of the seabed at the
determine the feasibility site that could impact, or be impacted by,
of the proposed site for your proposed site assessment activities.
your assessment facility.
(iii) Geotechnical investigations of
sufficient scope and detail to: ground truth
the geophysical surveys; support development
of a geological model; assess potential
geological hazards that could impact the
proposed site assessment activities; and
provide geotechnical data for design of the
site assessment facility, including type and
approximate dimensions of the foundation.
(iv) An overall site characterization report
for your site assessment facility that
integrates the findings of your studies,
surveys, and investigations; describes the
geological model; contains supporting data
and findings; and states your
recommendations.
(2) Biological..................... To determine the presence A description of the results of biological
of biological features and surveys used to determine the presence of
marine resources. live bottoms, hard bottoms, topographic
features, and other marine resources,
including migratory populations such as fish,
marine mammals, sea turtles, and coastal and
marine birds.
(3) Archaeological resources and To provide BOEM with Archaeological resource and other historic
other historic properties. required information to property identification surveys with
conduct review of your SAP supporting data.
under NHPA.
(4) Meteorological and To provide an overall Desktop studies to collect available data from
oceanographic (metocean). understanding of the hindcast or re-analysis models and field
meteorological and measurements in sufficient detail to support
oceanographic conditions design of your facility and support the
at the site of your analysis of wake effects, sediment mobility
proposed facility, and to and scour, and navigation risks.
identify conditions that
may pose a significant
risk to your facility.
----------------------------------------------------------------------------------------------------------------
0
94. Revise Sec. 585.611 to read as follows:
Sec. 585.611 What information and certifications must I submit with
my SAP to assist BOEM in complying with NEPA and other applicable laws?
(a) Your SAP must contain detailed information and analysis to
assist BOEM in complying with NEPA and other applicable laws.
(b) When proposing site assessment activities in an area where BOEM
has no previous experience, your SAP must contain information about
resources, conditions, and activities listed in the following table
that could be affected by or that could affect your proposed
activities:
------------------------------------------------------------------------
Type of information: Including:
------------------------------------------------------------------------
(1) Hazard information....... Meteorology, oceanography, sediment
transport, geology, and shallow
geological or manmade hazards.
(2) Water quality............ Turbidity and total suspended solids from
construction; impact from vessel
discharges.
(3) Biological resources..... Benthic communities, marine mammals, sea
turtles, coastal and marine birds, fish
and shellfish, plankton, sea grasses,
and other plant life.
(4) Threatened or endangered As needed for ESA consultation.
species.
(5) Sensitive biological Essential fish habitat, refuges,
resources or habitats. preserves, special management areas
identified in coastal management
programs, nearby marine protected areas,
including State and Federal coastal and
marine protected areas, as well as
nearby national marine sanctuaries, and
nearby marine national monuments,
rookeries, hard bottom habitat,
chemosynthetic communities, calving
grounds, barrier islands, beaches,
dunes, and wetlands.
(6) Archaeological resources To provide BOEM with required information
use, other historic property to conduct review of the COP under the
use, Indigenous traditional NHPA or other applicable laws or
cultural use, or use policies, including treaty and reserved
pertaining to treaty and rights with Native Americans or other
reserved rights with Native Indigenous peoples.
Americans or other
Indigenous peoples.
(7) Social and economic Employment, existing offshore and coastal
conditions. infrastructure (including major sources
of supplies, services, energy, and
water), land use, subsistence resources
and harvest practices, recreation,
recreational and commercial fishing
(including typical fishing seasons,
location, and type), minority and lower
income groups, coastal zone management
programs, and a visual impact
assessment.
(8) Coastal and marine uses.. Military activities, vessel traffic,
fisheries, and exploration and
development of other natural resources.
This includes a navigational safety risk
assessment that provides a description
of the predicted impacts of the project
to navigation, and the measures you will
use to avoid or minimize adverse
impacts. This document must also be
submitted to the U.S. Coast Guard to
assist with its analysis if your
proposal identifies potential
impediments to safe navigation.
(9) Consistency Certification If required by CZMA, under:
(i) 15 CFR part 930, subpart D, if the
SAP is submitted before lease issuance;
(ii) 15 CFR part 930, subpart E, if the
SAP is submitted after lease issuance.
[[Page 6039]]
(10) Other resources, As identified by BOEM.
conditions, and activities.
------------------------------------------------------------------------
(c) When proposing site assessment activities in an area BOEM
previously considered, BOEM will review your SAP to determine if its
impacts are consistent with those previously considered. If the
anticipated effects of your proposed SAP activities are significantly
different than those previously anticipated, we may determine that
additional NEPA and other relevant Federal reviews are required. In
that case, BOEM will notify you of such determination, and you must
submit information required in paragraph (b) of this section as
appropriate.
0
95. Amend Sec. 585.612 by revising paragraphs (a) and (b) to read as
follows:
Sec. 585.612 How will my SAP be processed for Federal consistency
under the Coastal Zone Management Act?
* * * * *
------------------------------------------------------------------------
Consistency review of your SAP will be
If your SAP is submitted: handled as follows:
------------------------------------------------------------------------
(a) Before lease issuance.... You will furnish a copy of your SAP,
consistency certification, and necessary
data and information, to the applicable
State CZMA agencies if required by 15
CFR part 930, subpart D. Submit a copy
to BOEM in accordance with Sec.
585.110.
(b) After lease issuance..... You must submit a copy of your SAP,
consistency certification, and necessary
data and information pursuant to 15 CFR
part 930, subpart E, to BOEM only if
BOEM did not consider the proposed site
assessment activities for your lease
area under its previously submitted
consistency determination under 15 CFR
part 930, subpart C, and if required by
15 CFR part 930, subpart E. BOEM will
forward to the applicable State CZMA
agency or agencies one copy of your SAP,
consistency certification, and necessary
data and information required under 15
CFR part 930, subpart E, after BOEM has
determined that all information
requirements for the SAP are met.
------------------------------------------------------------------------
0
96. Amend Sec. 585.613 by revising paragraph (e)(2) to read as
follows:
Sec. 585.613 How will BOEM process my SAP?
* * * * *
(e) * * *
(2) If we disapprove your SAP, we will inform you of the reasons
and allow you an opportunity to submit a revised plan addressing our
concerns, and we may suspend your lease, as appropriate, to give you a
reasonable amount of time to resubmit the SAP.
0
97. Amend Sec. 585.614 by revising paragraph (b) to read as follows:
Sec. 585.614 When may I begin conducting activities under my approved
SAP?
* * * * *
(b) If you are installing a facility or a combination of facilities
deemed by BOEM to be complex or significant, as provided in Sec.
585.613(a)(1), you must comply with the requirements of subpart H of
this part and submit your Safety Management System description required
by Sec. 585.810 before construction may begin.
0
98. Revise Sec. 585.617 to read as follows:
Sec. 585.617 What activities require a revision to my SAP, and when
will BOEM approve the revision?
(a) You must notify BOEM in writing before conducting any site
assessment activities not described in your approved SAP. Your notice
must describe in detail the type of activities you propose to conduct.
We will determine whether the activities you propose require a revision
to your SAP. We may request additional information from you, if
necessary, to make this determination.
(b) If a revised SAP is required, BOEM will reassess, upon its
receipt, whether the facility or combination of facilities described in
it is complex or significant.
(1) If BOEM determines that the facilities described in your
revised SAP are not complex or significant, you may conduct your
approved activities under Sec. 585.614(a).
(2) If BOEM determines that the facilities described in your
revised SAP are complex or significant, you must comply with Sec.
585.614(b).
(c) BOEM will periodically review the activities conducted under an
approved SAP. The frequency and extent of the review will be based on
the significance of any changes in available information and on onshore
or offshore conditions affecting or affected by the activities
conducted under your SAP. If the review indicates that the SAP should
be revised to meet the requirements of this part, we will require you
to submit the needed revisions.
(d) Activities for which a proposed revision to your SAP likely
will be necessary include:
(1) Activities not described in your approved SAP;
(2) Modifications to the number, size, or type of facilities or
equipment you will use;
(3) Changes in the geographical location or layout of your bottom
disturbances, offshore facilities, or onshore support bases beyond the
range of possible locations described in your approved SAP;
(4) Structural failure of any facility; or
(5) Changes to any other activity specified by BOEM.
(e) We may begin the appropriate NEPA analysis and other relevant
consultations when we determine that a proposed revision could:
(1) Result in a significant change in the impacts previously
identified and evaluated;
(2) Require any additional Federal authorizations; or
(3) Involve activities not previously identified and evaluated.
(f) When you propose a revision, we may approve the revision if we
determine that the revision is:
(1) Designed not to cause undue harm or damage to natural
resources; life (including human and wildlife); property; the marine,
coastal, or human environment; or sites, structures, or objects of
historical or archaeological significance; and
(2) Otherwise consistent with the provisions of section 8(p) of the
OCS Lands Act.
0
99. Amend Sec. 585.618 by revising paragraphs (a) and (e) to read as
follows:
Sec. 585.618 What must I do upon completion of approved site
assessment activities?
(a) If your COP or FERC license application describes the continued
use of existing facilities approved in your SAP, you may keep such
facilities in place on your lease during the time that BOEM reviews
your COP or FERC reviews your license application.
* * * * *
(e) You must decommission your site assessment facilities as set
forth in
[[Page 6040]]
subpart J of this part upon the termination of your lease. You must
submit your decommissioning application as required in Sec. Sec.
585.905 and 585.906.
0
100. Revise Sec. 585.621 to read as follows:
Sec. 585.621 What must I demonstrate in my COP?
Your COP must demonstrate that you have planned and are prepared to
conduct the proposed activities in a manner that:
(a) Conforms to your responsibilities listed in Sec. 585.105(a);
(b) Conforms to all applicable laws, regulations, and provisions of
your commercial lease;
(c) Is safe;
(d) Does not unreasonably interfere with other uses of the OCS,
including those involved with national security or defense;
(e) Does not cause undue harm or damage to natural resources; life
(including human and wildlife); property; the marine, coastal, or human
environment; or sites, structures, or objects of historical or
archaeological significance;
(f) Uses best available and safest technology;
(g) Uses best management practices; and
(h) Uses properly trained personnel.
0
101. Amend Sec. 585.622 by revising paragraph (a) to read as follows:
Sec. 585.622 How do I submit my COP?
(a) You must submit your COP to BOEM pursuant to Sec. 585.110.
* * * * *
0
102. Revise Sec. 585.626 to read as follows:
Sec. 585.626 What must I include in my COP?
(a) Project information may be provided using a PDE. When you
provide information using a PDE, BOEM reserves the right to determine
what range of values for any given parameter are acceptable. Your COP
must include the following project-specific information, as applicable:
------------------------------------------------------------------------
Project information: Including:
------------------------------------------------------------------------
(1) Contact information...... The name, address, e-mail address, and
phone number of an authorized
representative.
(2) Designation of operator, As provided in Sec. 585.405.
if applicable.
(3) Commercial lease A description of the measures you took,
stipulations and compliance. or will take, to satisfy the conditions
of any lease stipulations related to
your proposed activities.
(4) A location plat, or The range of surface locations and
indicative layout. associated water depths for proposed
structures, facilities, and
appurtenances located both offshore and
onshore, including all anchor and
mooring data, and the location and
associated water depths of all existing
structures.
(5) General structural and Preliminary design information for each
project design, fabrication, facility associated with your project.
and installation.
(6) Deployment activities.... A description of safety, prevention, and
environmental protection features or
measures that you will use.
(7) A list of solid and Disposal methods and locations.
liquid wastes generated.
(8) A listing of chemical A list of chemical products used; the
products used (if stored volume stored on location; their
volume exceeds Environmental treatment, discharge, or disposal
Protection Agency (EPA) methods used; and the name and location
reportable quantities). of the onshore waste receiving,
treatment, and/or disposal facility. A
description of how these products would
be brought onsite, the number of
transfers that may take place, and the
quantity that will be transferred each
time.
(9) A description of any An estimate of the frequency and duration
vessels, vehicles, and of vessel, vehicle, or aircraft traffic.
aircraft you will use to
support your activities.
(10) A general description of (i) Under normal conditions.
the operating procedures and (ii) In the case of accidents or
systems. emergencies, including those that are
natural or manmade.
(11) Decommissioning and site A discussion of general concepts and
clearance procedures. methodologies.
(12) A listing of all A statement indicating whether you have
Federal, State, and local applied for or obtained such
authorizations or approvals authorization or approval from the U.S.
required to conduct the Coast Guard, U.S. Army Corps of
proposed activities, Engineers, and any other applicable
including commercial Federal, State, or local authorizers
operations. pertaining to energy gathering,
transmission or distribution (e.g.,
interconnection authorizations).
(13) Your proposed measures A description of the measures you will
for avoiding, minimizing, use to avoid or minimize adverse effects
reducing, eliminating, and and any potential incidental take before
monitoring environmental you conduct activities on your lease,
impacts. and how you will mitigate environmental
impacts from your proposed activities,
including a description of the measures
you will use as required by subpart I of
this part.
(14) Information you A list of the documents you have
incorporate by reference. incorporated by reference and their
public availability.
(15) A list of agencies and Contact information and issues discussed.
persons with whom you have
communicated, or with whom
you will communicate,
regarding potential impacts
associated with your
proposed activities.
[[Page 6041]]
(16) References.............. A bibliographic list of any document or
published source that you cite as part
of your plan. You may reference
information and data discussed in other
plans you previously submitted or that
are otherwise readily available to BOEM.
(17) Financial assurance..... Statements attesting that the activities
and facilities proposed in your COP are
or will be covered by an appropriate
bond or other approved financial
assurance instrument as required in Sec.
585.516 and Sec. Sec. 585.525
through 585.529.
(18) Project verification A list of all facilities or combination
strategy. of facilities on your approved COP that
are considered complex or significant.
You must describe your strategy for
compliance with Sec. Sec. 585.705
through 585.714.
(19) Construction schedule... A reasonable schedule of construction
activity showing significant milestones
leading to the commencement of
commercial operations consistent with
the requirements of subpart H of this
part.
(20) Air quality information. Information as described in Sec.
585.659.
(21) Other information....... Additional information as required by
BOEM.
------------------------------------------------------------------------
(b) You must include reports that document the results of surveys
and investigations that characterize and model the site of your
proposed project. Your reports must address the following topics:
----------------------------------------------------------------------------------------------------------------
Topic: Purpose of report: Including:
----------------------------------------------------------------------------------------------------------------
(1) Geological and geotechnical....... To define the baseline (i) Desktop studies to collect available data
geological conditions of from published sources and nearby sites.
the seabed and provide (ii) Geophysical surveys of the proposed area
sufficient data to with sufficient areal coverage, depth
develop a geologic penetration, and resolution to define the
model, assess geologic geological conditions of the site's seabed
hazards, and determine that could impact, or be impacted by, the
the feasibility of the proposed project.
proposed site for your (iii) Geotechnical investigations of
proposed facility. sufficient scope and detail to: ground truth
the geophysical surveys; support development
of a geological model; assess potential
geological hazards that could impact the
proposed project; and provide geotechnical
data for preliminary design of the facility,
including type and approximate dimensions of
the foundation.
(iv) An overall site characterization report
for your facility that integrates the
findings of your studies, surveys, and
investigations; describes the geological
model; contains supporting data and
findings; and states your recommendations.
(2) Biological........................ To determine the presence A description of the results of biological
of biological features surveys used to determine the presence of
and marine resources. live bottoms, hard bottoms, topographic
features, and other marine resources,
including migratory populations such as
fish, marine mammals, sea turtles, and sea
birds.
(3) Archaeological resources other To provide BOEM with Archaeological resource and other historic
historic properties. required information to property. On a case-by-case basis and
conduct review of the subject to terms and conditions of COP
COP under NHPA. approval per Sec. 585.628(f), BOEM may
permit you to submit certain surveys of the
subsea portions of the area of potential
effects with your FDR per Sec.
585.701(a)(11).
(4) Meteorological and oceanographic To provide an overall Desktop studies to collect available data
(metocean). understanding of the from hindcast or re-analysis models and
meteorological and field measurements in sufficient detail to
oceanographic conditions support preliminary design of the facility
at the site of the and support the analysis of wake effects,
proposed facility, and sediment mobility and scour, and
to identify conditions navigational risks.
that may pose a
significant risk to the
facility.
----------------------------------------------------------------------------------------------------------------
0
103. Amend Sec. 585.627 by revising the section heading and paragraphs
(a) through (c) to read as follows:
Sec. 585.627 What information and certifications must I submit with
my COP to assist BOEM in complying with NEPA and other applicable laws?
(a) Your COP must contain detailed information and analysis to
assist BOEM in complying with NEPA and other applicable laws. Your COP
must contain information about those resources, conditions, and
activities listed in the following table that could be affected by, or
that could affect, your proposed activities:
------------------------------------------------------------------------
Type of information: Including:
------------------------------------------------------------------------
(1) Hazard information............ Meteorology, oceanography, sediment
transport, geology, and shallow
geological or manmade hazards.
(2) Water quality................. Turbidity and total suspended solids
from construction; impact from
vessel discharges.
(3) Biological resources.......... Benthic communities, marine mammals,
sea turtles, coastal and marine
birds, fish and shellfish,
plankton, seagrasses, and plant
life.
(4) Threatened or endangered As required by ESA.
species.
(5) Sensitive biological resources Essential fish habitat, refuges,
or habitats. preserves, special management areas
identified in coastal management
programs, nearby marine protected
areas, including State and Federal
coastal and nearby marine protected
areas, as well as national marine
sanctuaries and nearby marine
national monuments, rookeries, hard
bottom habitat, chemosynthetic
communities, calving grounds,
barrier islands, beaches, dunes,
and wetlands.
(6) Archaeological resources use, To provide BOEM with required
other historic property use, information to conduct review of
Indigenous traditional cultural the COP under the NHPA or other
use, or use pertaining to treaty applicable laws or policies,
and reserved rights with Native including treaty and reserved
Americans or other Indigenous rights with Native Americans or
peoples. other Indigenous peoples.
[[Page 6042]]
(7) Social and economic resources. Employment, existing offshore and
coastal infrastructure (including
major sources of supplies,
services, energy, and water), land
use, subsistence resources and
harvest practices, recreation,
recreational and commercial fishing
(including typical fishing seasons,
location, and type), minority and
lower income groups, coastal zone
management programs, and a visual
impact assessment.
(8) Coastal and marine uses....... Military activities, vessel traffic,
fisheries, and exploration and
development of other natural
resources. This includes a
navigational safety risk assessment
that provides a description of the
predicted impacts of the project to
navigation, and the measures you
will use to avoid or minimize such
adverse impacts. This document also
must be submitted to the U.S. Coast
Guard to assist with its analysis.
(9) Consistency Certification..... If required by the CZMA regulations:
(i) 15 CFR part 930 subpart D, if
your COP is submitted before lease
issuance.
(ii) 15 CFR part 930 subpart E, if
your COP is submitted after lease
issuance.
(10) Other resources, conditions, As identified by BOEM.
and activities.
------------------------------------------------------------------------
(b) You must submit one copy of your consistency certification.
Your consistency certification must include:
(1) One copy of your consistency certification under either
subsection 307(c)(3)(B) of the CZMA (16 U.S.C. 1456(c)(3)(B)) and 15
CFR 930.76 or subsection 307(c)(3)(A) of the CZMA (16 U.S.C.
1456(c)(3)(A)) and 15 CFR 930.57, stating that the proposed activities
described in detail in your plans comply with the enforceable policies
of the applicable States' approved coastal management programs and will
be conducted in a manner that is consistent with such programs; and
(2) ``Necessary data and information,'' as required by 15 CFR
930.58.
(c) You must submit an oil spill response plan in compliance with
33 U.S.C. 1321, including information identified in 30 CFR part 254
that is applicable to your activities.
* * * * *
0
104. Amend Sec. 585.628 by revising the first sentence of paragraph
(a) and paragraphs (c), (f)(2), and (g) to read as follows:
Sec. 585.628 How will BOEM process my COP?
(a) BOEM will review your submitted COP, including the information
provided under Sec. 585.627, to determine if it contains the
information necessary to conduct our technical and environmental
reviews. * * *
* * * * *
(c) If your COP is submitted after lease issuance, and if your COP
is subject to Federal consistency review under the CZMA regulations at
15 CFR part 930, subpart E, you must submit your COP, consistency
certification, and associated data and information under CZMA to BOEM
after all information requirements for the COP are met, and the
appropriate environmental assessment or draft environmental impact
statement, if required, has been published. BOEM will forward the COP,
consistency certification, and associated data and information to the
applicable State CZMA agencies.
* * * * *
(f) * * *
(2) If we disapprove your COP, we will inform you of the reasons
and allow you an opportunity to submit a revised plan addressing our
concerns, and we may suspend the COP review period of your lease, as
appropriate, to give you a reasonable amount of time to submit the
revised plan.
(g) If BOEM approves your project easement, BOEM will issue an
addendum to your lease specifying the terms of the project easement.
(1) The project easement will provide sufficient off-lease area to
accommodate potential changes at the design and installation phases of
the project for locating cables, pipelines, and other appurtenances
necessary for your project.
(2) Unused portions of the project easement may be relinquished
after construction is complete.
(3) A project easement is subject to the following conditions:
(i) The rights granted will not prevent the granting of other
rights by the United States, either before or after the granting of the
project easement, provided that any subsequent authorization issued by
BOEM in the area of a previously issued project easement may not
unreasonably interfere with activities approved or impede existing
operations under the project easement; and
(ii) If the project easement is granted in an area where a lease or
ROW or RUE grant has previously been issued, the project easement
holder must agree that its activities will not interfere with or impede
existing operations under the lease or ROW or RUE grant.
0
105. Amend Sec. 585.634 by revising paragraphs (a) and (c) to read as
follows:
Sec. 585.634 What activities require a revision to my COP, and when
will BOEM approve the revision?
(a) You must notify BOEM in writing before conducting any
activities not described in your approved COP. Your notice must
describe in detail the type of activities you propose to conduct. We
will determine whether the activities you propose require a revision to
your COP. We may request additional information from you, if necessary,
to make this determination.
* * * * *
(c) Activities for which a proposed revision to your COP likely
will be necessary include:
(1) Activities not described in your approved COP;
(2) Modifications to the number, size, or type of facilities or
equipment you will use;
(3) Material changes in the geographical location or layout of
bottom disturbances, offshore facilities, or onshore support bases
beyond the range of possible locations described in your approved COP;
(4) Structural failure of any facility;
(5) Submission of an FDR or FIR that contains new information or
that is inconsistent with the COP that has been previously submitted;
or
(6) Change in any other activity specified by BOEM.
* * * * *
0
106. Amend Sec. 585.637 by revising paragraph (a) to read as follows:
Sec. 585.637 When may I commence commercial operations on my
commercial lease?
(a) If you are conducting activities on your lease that do not
require a FERC license (i.e., wind power projects), then you may
commence commercial operations 30 calendar days after:
(1) Your project verification report, described in Sec. Sec.
585.704 and 585.708(a)(5), is deemed submitted by BOEM;
(2) BOEM has confirmed receipt of critical safety systems
commissioning
[[Page 6043]]
records, as described in Sec. 585.708(a)(6); and
(3) BOEM has not notified you within that timeframe of any
objections to the verification report or the commissioning records.
(b) If you are conducting activities on your lease that do require
a FERC license or exemption, then you may commence commercial
operations when permitted by the terms of your license or exemption.
(c) You must notify BOEM within 10 business days after you commence
commercial operations.
0
107. Amend Sec. 585.638 by revising the first sentence of paragraph
(a) to read as follows:
Sec. 585.638 What must I do upon completion of my commercial
operations as approved in my COP or FERC license?
(a) Upon completion of your approved activities under your COP, you
must decommission your project as set forth in subpart J of this part.
* * *
* * * * *
0
108. Amend Sec. 585.640 by revising paragraph (b) to read as follows:
Sec. 585.640 What is a General Activities Plan (GAP)?
* * * * *
(b) You must receive BOEM approval of your GAP before you can begin
any of the proposed activities on your lease or grant.
0
109. Revise Sec. 585.641 to read as follows:
Sec. 585.641 What must I demonstrate in my GAP?
Your GAP must demonstrate that you have planned and are prepared to
conduct the proposed activities in a manner that:
(a) Conforms to your responsibilities listed in Sec. 585.105(a);
(b) Conforms to all applicable laws, regulations, and provisions of
your limited lease or grant;
(c) Is safe;
(d) Does not unreasonably interfere with other uses of the OCS,
including those involved with national security or defense;
(e) Does not cause undue harm or damage to natural resources; life
(including human and wildlife); property; the marine, coastal, or human
environment; or sites, structures, or objects of historical or
archaeological significance;
(f) Uses best available and safest technology;
(g) Uses best management practices; and
(h) Uses properly trained personnel.
0
110. Amend Sec. 585.642 by revising paragraph (a) to read as follows:
Sec. 585.642 How do I submit my GAP?
(a) You must submit your GAP to BOEM pursuant to Sec. 585.110.
* * * * *
0
111. Amend Sec. 585.645 by revising paragraphs (a) through (c) to read
as follows:
Sec. 585.645 What must I include in my GAP?
(a) Project information may be provided using a PDE. When you
provide a range of parameters using a PDE, BOEM reserves the right to
determine what range of values for any given parameter are acceptable.
Your GAP must include the following project-specific information, as
applicable:
------------------------------------------------------------------------
Project information: Including:
------------------------------------------------------------------------
(1) Contact information........... The name, address, e-mail address,
and phone number of an authorized
representative.
(2) Designation of operator, if As provided in Sec. 585.405.
applicable.
(3) The site assessment or A discussion of the objectives;
technology testing concept. description of the proposed
activities, including the
technology you will use; and
proposed schedule from start to
completion.
(4) ROW or RUE grant, or limited A description of the measures you
lease stipulations, if known. took, or will take, to satisfy the
conditions of any grant or lease
stipulations related to your
proposed activities.
(5) A location plat, or indicative The range of surface locations and
layout. associated water depths for
proposed structures, facilities,
and appurtenances located both
offshore and onshore, including all
anchor and mooring data; and the
location and associated water
depths of all existing structures.
(6) General structural and project Preliminary design information for
design, fabrication, and each facility associated with your
installation. project.
(7) Deployment activities......... A description of the safety,
prevention, and environmental
protection features or measures
that you will use.
(8) Your proposed measures for A description of the measures you
avoiding, minimizing, reducing, will use to avoid or minimize
eliminating, and monitoring adverse effects and any potential
environmental impacts. incidental take before you conduct
activities on your lease, and how
you will mitigate environmental
impacts from your proposed
activities, including a description
of the measures you will use as
required by subpart I of this part.
(9) A list of solid and liquid Disposal methods and locations.
wastes generated.
(10) A listing of chemical A list of chemical products used;
products used (if stored volume the volume stored on location;
exceeds EPA reportable their treatment, discharge, or
quantities). disposal methods used; and the name
and location of the onshore waste
receiving, treatment, and/or
disposal facility. A description of
how these products would be brought
onsite, the number of transfers
that may take place, and the
quantity that will be transferred
each time.
(11) A description of any vessels, An estimate of the frequency and
vehicles, and aircraft you will duration of vessel/vehicle/aircraft
use to support your activities. traffic.
(12) Reference information........ A bibliographic list of any document
or published source that you cite
as part of your plan. You may
reference information and data
discussed in other plans you
previously submitted or that are
otherwise readily available to
BOEM.
(13) Decommissioning and site A discussion of general concepts and
clearance procedures. methodologies.
(14) Air quality information...... As described in Sec. 585.659.
(15) A listing of all Federal, A statement indicating whether you
State, and local authorizations have applied for or obtained such
or approvals required to conduct authorization or approval from the
activities on your grant or U.S. Coast Guard, U.S. Army Corps
limited lease. of Engineers, and any other
applicable Federal, State or local
authorizers pertaining to your
activities.
[[Page 6044]]
(16) A list of agencies and Contact information and issues
persons with whom you have discussed.
communicated, or with whom you
will communicate, regarding
potential impacts associated with
your proposed activities.
(17) Financial assurance Statements attesting that the
information. activities and facilities proposed
in your GAP are, or an explanation
of how they will be, covered by an
appropriate bond or other approved
security, as required in Sec. Sec.
585.520 and 585.521.
(18) Project verification strategy An analysis supporting your
recommendation as to whether your
activities should be determined
complex or significant. If your
recommendation supports a complex
or significant determination,
describe your strategy for
compliance with Sec. Sec.
585.705 through 585.714.
(19) Information you incorporate A list of the documents you have
by reference. incorporated by reference and where
they may be publicly accessed; for
confidential information, you may
reference information and data
discussed in other plans previously
submitted or that are otherwise
readily available to BOEM.
(20) Other information............ Additional information as required
by BOEM.
------------------------------------------------------------------------
(b) You must include reports that document the results of surveys
and investigations that characterize and model the site of your
proposed activities. Your reports must cover the following topics:
------------------------------------------------------------------------
Purpose of
Topic: report: Including:
------------------------------------------------------------------------
(1) Geological and To define the (i) Desktop studies
geotechnical. baseline to collect available
geological data from published
conditions of sources and nearby
the seabed and sites.
provide (ii) Geophysical
sufficient data surveys of the
to develop a proposed area with
geologic model, sufficient areal
assess geologic coverage, depth
hazards, and penetration, and
determine the resolution to define
feasibility of the geological
the proposed conditions of the
facility. seabed at the site
that could impact,
or be impacted by,
the proposed
project.
(iii) Geotechnical
investigations of
sufficient scope and
detail to: ground
truth the
geophysical surveys;
support development
of a geological
model; assess
potential geological
hazards that could
impact the proposed
development; and
provide geotechnical
data for preliminary
design of the
facility, including
type and approximate
dimensions of the
foundation.
(iv) An overall site
characterization
report for your
facility that
integrates the
findings of your
studies, surveys,
and investigations;
describes the
geological model;
contains supporting
data and findings;
and states your
recommendations.
(2) Biological................ To determine the A description of the
presence of results of
biological biological surveys
features and used to determine
marine resources. the presence of live
bottoms, hard
bottoms, topographic
features, and other
marine resources,
including migratory
populations, such as
fish, marine
mammals, sea
turtles, and sea
birds.
(3) Archaeological resources To provide BOEM Archaeological
and other historic properties. with required resource and other
information to historic property
conduct review identification
of the GAP under surveys with
NHPA. supporting data.
(4) Meteorological and To provide an Desktop studies to
oceanographic (metocean). overall collect available
understanding of data from hindcast
the or re-analysis
meteorological models and field
and measurements in
oceanographic sufficient detail to
conditions at support preliminary
the site of the design of the
proposed facility and support
facility, and to the analysis of wake
identify effects, sediment
conditions that mobility and scour,
may pose a and navigation
significant risk risks.
to the facility.
------------------------------------------------------------------------
(c) If you are applying for a project easement, or constructing a
facility or a combination of facilities deemed by BOEM to be complex or
significant, you must provide the following additional information and
comply with the requirements of subpart H of this part:
------------------------------------------------------------------------
Project information: Including:
------------------------------------------------------------------------
(1) The construction and operation A discussion of the objectives,
concept. description of the proposed
activities, and tentative schedule
from start to completion.
(2) All cables and pipelines, The location, design, installation
including cables on project methods, testing, maintenance,
easements. repair, safety devices, exterior
corrosion protection, inspections,
and decommissioning.
(3) A general description of the (i) Under normal conditions.
operating procedures and systems. (ii) In the case of accidents or
emergencies, including those that
are natural or manmade.
(4) Construction schedule......... A reasonable schedule of
construction activity showing
significant milestones leading to
the commencement of activities
consistent with the requirements of
subpart H of this part.
(5) Other information............. Additional information as requested
by BOEM.
------------------------------------------------------------------------
[[Page 6045]]
* * * * *
0
112. Amend Sec. 585.646 by revising the section heading, introductory
text, and paragraphs (b)(2), (5), and (6) through (9) to read as
follows:
Sec. 585.646 What information and certifications must I submit with
my GAP to assist BOEM in complying with NEPA and other applicable laws?
You must submit, with your GAP, detailed information and analysis
to assist BOEM in complying with NEPA and other applicable laws.
* * * * *
(b) * * *
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * * * *
(2) Water quality................. Turbidity and total suspended solids
from construction; impact from
vessel discharges.
* * * * * * *
(5) Sensitive biological resources Essential fish habitat, refuges,
or habitats. preserves, special management areas
identified in coastal management
programs, marine protected areas,
including State and Federal coastal
and marine protected areas, as well
as nearby national marine
sanctuaries and nearby marine
national monuments, rookeries, hard
bottom habitat, chemosynthetic
communities, calving grounds,
barrier islands, beaches, dunes,
and wetlands.
(6) Archaeological resources use, To provide BOEM with required
other historic property use, information to conduct review of
Indigenous traditional cultural the COP under the NHPA or other
use, or use pertaining to treaty applicable laws or policies,
and reserved rights with Native including treaty and reserved
Americans or other Indigenous rights with Native Americans or
peoples. other Indigenous peoples.
(7) Social and economic conditions Employment, existing offshore and
coastal infrastructure (including
major sources of supplies,
services, energy, and water), land
use, subsistence resources and
harvest practices, recreation,
recreational and commercial fishing
(including typical fishing seasons,
location, and type), minority and
lower income groups, coastal zone
management programs, and a visual
impact assessment.
(8) Coastal and marine uses....... Military activities, vessel traffic,
fisheries, and exploration and
development of other natural
resources. This includes a
navigational safety risk assessment
that provides a description of the
predicted impacts of the project to
navigation, and the measures you
will use to avoid or minimize such
adverse impacts. This document also
must be submitted to the U.S. Coast
Guard to assist with its analysis
if your proposal identifies
potential impediments to safe
navigation.
(9) Consistency Certification..... If required by CZMA, under:
(i) 15 CFR part 930, subpart D, if
the GAP is submitted before lease
or grant issuance;
(ii) 15 CFR part 930, subpart E, if
the GAP is submitted after lease or
grant issuance.
* * * * * * *
------------------------------------------------------------------------
0
113. Amend Sec. 585.647 by revising paragraphs (a) and (b) to read as
follows:
Sec. 585.647 How will my GAP be processed for Federal consistency
under the Coastal Zone Management Act?
* * * * *
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * * * *
(a) Before lease or grant issuance You will furnish a copy of your GAP,
consistency certification, and
necessary data and information to
the applicable State CZMA agencies
if required by 15 CFR part 930,
subpart D. Submit a copy to BOEM
pursuant to Sec. 585.110.
(b) After lease or grant issuance. You will submit a copy of your GAP,
consistency certification, and
necessary data and information to
BOEM if required by 15 CFR part
930, subpart E. BOEM will forward
to the applicable State CZMA agency
or agencies one copy of your GAP,
consistency certification, and
necessary data and information
required under 15 CFR part 930,
subpart E, after BOEM has
determined that all information
requirements for the GAP are met.
------------------------------------------------------------------------
0
114. Amend Sec. 585.648 by revising paragraphs (a) introductory text
and (e)(2) to read as follows:
Sec. 585.648 How will BOEM process my GAP?
(a) BOEM will review your submitted GAP, along with the information
and certifications you submitted in compliance with Sec. 585.646, to
determine if it contains the information necessary to conduct our
technical and environmental reviews.
* * * * *
(e) * * *
(2) If we disapprove your GAP, we will inform you of the reasons
and allow you an opportunity to submit a revised plan addressing our
concerns, and we may suspend your lease or grant, as appropriate, to
give you a reasonable amount of time to resubmit the GAP.
0
115. Amend Sec. 585.652 by revising paragraph (a) to read as follows:
Sec. 585.652 How long do I have to conduct activities under an
approved GAP?
* * * * *
(a) For a limited lease, the time period established under Sec.
585.236(a)(2), unless we renew the term under Sec. Sec. 585.425
through 585.429.
* * * * *
0
116. Amend Sec. 585.655 by revising paragraphs (a) and (c) to read as
follows:
Sec. 585.655 What activities require a revision to my GAP, and when
will BOEM approve the revision?
(a) You must notify BOEM in writing before conducting any
activities not described in your approved GAP, describing in detail the
type of activities you propose to conduct. We will determine whether
the activities you propose are authorized by your existing
[[Page 6046]]
GAP or require a revision to your GAP. We may request additional
information from you, if necessary, to make this determination. Upon
receipt of your revised GAP, BOEM will make a determination as to
whether it deems the facility or combination of facilities described in
your revised GAP to be complex or significant.
(1) If BOEM determines that your revised GAP is not complex or
significant, you may conduct your approved activities in accordance
with Sec. 585.650.
(2) If BOEM determines that your revised GAP is complex or
significant, then you must comply with the requirements of Sec.
585.651.
* * * * *
(c) Activities for which a proposed revision to your GAP will
likely be necessary include:
(1) Activities not described in your approved GAP;
(2) Modifications to the number, size, or type of facilities or
equipment you will use;
(3) Changes in the geographical location or layout of bottom
disturbances, offshore facilities, or onshore support bases beyond the
range of possible locations described in your approved GAP;
(4) Structural failure of any facility; or
(5) Change to any other activity specified by BOEM.
* * * * *
0
117. Amend Sec. 585.657 by revising the first sentence to read as
follows:
Sec. 585.657 What must I do upon completion of approved activities
under my GAP?
Upon completion of your approved activities under your GAP, you
must decommission your project as set forth in subpart J of this part.
* * *
0
118. Amend Sec. 585.659 by revising paragraphs (a) introductory text
and (a)(1) and the second sentence of paragraph (b) to read as follows:
Sec. 585.659 What requirements must I include in my SAP, COP, or GAP
regarding air quality?
(a) Your SAP, COP, or GAP must address air quality as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * * * *
(1) In the Gulf of Mexico west of include in your plan any information
87.5[deg] west longitude (western required for BOEM to make the
Gulf of Mexico) or offshore of appropriate air quality
the North Slope Borough of Alaska. determinations for your project.
* * * * * * *
------------------------------------------------------------------------
(b) * * * In the western Gulf of Mexico (west of 87.5[deg] west
longitude) and offshore of the North Slope Borough of Alaska, you must
submit to BOEM three copies of the modeling report and three sets of
digital files as supporting information. * * *
Subpart H--Facility Design, Fabrication, and Installation
0
119. Revise Sec. 585.700 to read as follows:
Sec. 585.700 What reports must I submit to BOEM before installing
facilities described in my approved SAP, COP, or GAP?
(a) You must submit the following reports to BOEM before installing
facilities described in your approved COP (Sec. 585.632(a)) and, when
required by this part, your SAP (Sec. 585.614(b)) or GAP (Sec.
585.651):
(1) A Facility Design Report (FDR); and
(2) A Fabrication and Installation Report (FIR).
(b) You may submit separate FDRs and FIRs for the major components
of your project as agreed to by BOEM on a case-by-case basis. If you
submit separate FDRs and FIRs by major components, you must explain to
BOEM how all major components detailed in the reports will function
together effectively in an integrated manner in accordance with your
project design, and you must demonstrate that such integration has been
verified by your CVA.
(c) You may submit your FDRs and FIRs before or after SAP, COP, or
GAP approval.
(d) Subject to the requirements in paragraph (b) of this section,
you may commence fabrication and installation of the facilities on the
OCS as described in each report:
(1) If BOEM deems your report submitted before SAP, COP, or GAP
approval and notifies you of its non-objection to the FDR and FIR or
does not respond with objections within 60 calendar days of SAP, COP,
or GAP approval; or
(2) If BOEM deems your report submitted after SAP, COP, or GAP
approval and notifies you of its non-objection to the FDR and FIR or
does not respond with objections within 60 calendar days of the report
being deemed submitted.
(e) You may commence procurement of discrete parts of the project
that are commercially available in standardized form and type-certified
components, or fabrication activities that do not take place on the OCS
(e.g., manufacturing), prior to the submittal of the reports required
under paragraph (a) of this section or any plans required under this
part. The procurement and fabrication of facility components allowed
under this subsection are subject to verification by your CVA, and BOEM
may object to the installation of said components on the OCS if it
considers that the components or their fabrication is inconsistent with
accepted industry or engineering standards, the approved SAP, COP, or
GAP, the FDR or FIR, or BOEM's regulations.
(f) If BOEM requires additional information or has objections, we
will notify you in writing within 60 calendar days of the report being
deemed submitted. Following initial notification of any objections,
BOEM may follow up with written correspondence detailing its objections
to the report and requesting that certain actions be undertaken. You
cannot commence fabrication or installation activities on the OCS that
are addressed in such reports until you resolve all objections to
BOEM's satisfaction.
0
120. Amend Sec. 585.701 by:
0
a. Revising paragraphs (a)(1) through (10);
0
b. Adding paragraphs (a)(11) through (14);
0
d. Revising paragraphs (b) and (d); and
0
e. Removing paragraph (e).
The revisions read as follows:
Sec. 585.701 What must I include in my Facility Design Report?
(a) * * *
[[Page 6047]]
------------------------------------------------------------------------
Required documents Required contents
------------------------------------------------------------------------
(1) Cover letter............. (i) Proposed facility designations:
(ii) Lease, ROW grant or RUE grant
number;
(iii) Area; name and block numbers; and
(iv) The type of facility.
(2) Location plat............ (i) Latitude and longitude coordinates,
Universal Mercator grid-system
coordinates, state plane coordinates in
the Lambert or Transverse Mercator
Projection System;
ii) Distances in feet from the nearest
block lines. These coordinates must be
based on the NAD (North American Datum)
83 datum plane coordinate system; and
(iii) The location of any project
easements.
(3) Front, Side, and Plan (i) Facility dimensions and orientation;
View drawings. (ii) Elevations relative to Mean Lower
Low Water; and
(iii) Pile sizes and penetration.
(4) Complete set of The approved for construction fabrication
structural drawings. drawings should be submitted including,
e.g.,
(i) Cathodic protections systems;
(ii) Jacket design;
(iii) Pile founations;
(iv) Mooring and tethering systems;
(v) Foundations and anchoring systems;
and
(vi) Associated cable and pipeline
designs.
(5) Summary of environmental A summary of the environmental data used
data used for design. in the design or analysis of the
facility. Examples of relevant data
include information on:
(i) Extreme weather
(ii) Seafloor conditions, and
(iii) Waves, wind, current, tides,
temperature, snow and ice effects,
marine growth, and water depth.
(6) Summary of the (i) Loading information (e.g., live,
engineering design data. dead, environmental);
(ii) Structural information (e.g., design-
life; material types; cathodic
protection systems; design criteria;
fatigue life; jacket design; deck
design; production component design;
foundation pilings and templates, and
mooring or tethering systems;
fabrication and installation
guidelines);
(iii) Location of foundation boreholes
and foundation piles;
(iv) Foundation information (e.g., soil
stability, design criteria); and
(v) For a floating facility, structural
integrity, stability, and ballast
information.
(7) A complete set of design Self-explanatory.
calculations.
(8) Project-specific All studies pertinent to facility design
studiesused in the facility or installation e,g., oceanographic and
design or installation. soil reports including the results of
the survey required in Sec. Sec.
585.610(b), 585.627(a), 585.645(a).
(9) Description of the loads (i) Loads imposed by the jacket;
imposed on the facility. (ii) Decks;
(iii) Production components;
(iv) Foundations, foundation pilings and
templates, and anchoring systems; and
(v) Mooring or tethering systems.
(10) Geotechnical and All data from geotechnical and
geophysical reports. geophysical surveys, in situ
explorations, laboratory tests,
analyses, burial or drivability
assessments, and recommended design
parameters.
(11) Archaeological resources All archaeological resource and historic
reports. property identification surveys with
supporting data that BOEM has authorized
you to submit with your FDR under Sec.
585.626(b)(3).
(12) Design Standards........ The industry standards you will apply to
ensure the facilities are designed to
meet Sec. 585.105.
(13) Critical Safety System.. A risk assessment that identifies the
critical safety systems and description
of the identified critical safety
systems.
(14) Other information....... Additional information required by BOEM.
------------------------------------------------------------------------
(b) You must submit your Facility Design Report to BOEM pursuant to
Sec. 585.110.
* * * * *
(d) If you are required to use a CVA, the FDR must include the
following verification statement: ``The design of this structure has
been verified by a BOEM-approved CVA to be in accordance with accepted
engineering practices and the approved SAP, GAP, or COP, as applicable,
and has been designed to provide for safety. The verified design and
as-built plans and specifications will be on file at [provide
location].''
0
121. Amend Sec. 585.702 by:
0
a. Revising paragraphs (a)(1) through (7);
0
b. Adding paragraphs (a)(8) through (10);
0
d. Removing paragraph (d);
0
e. Redesignating paragraphs (b) and (c) as paragraphs (d) and (e),
respectively;
0
f. Adding new paragraphs (b) and (c); and
0
g. Revising newly redesignated paragraph (e).
The revisions and additions read as follows:
Sec. 585.702 What must I include in my Fabrication and Installation
Report?
(a) * * *
------------------------------------------------------------------------
Required documents Required contents
------------------------------------------------------------------------
(1) Cover letter.................. (i) Proposed facility designation,
lease, ROW grant, or RUE grant
number;
(ii) Area, name, and block number;
and (iii) The type of facility.
(2) Schedule...................... Fabrication and installation.
(3) Fabrication information....... The industry standards you will use
to ensure the facilities are
fabricated to the design criteria
identified in your Facility Design
Report.
[[Page 6048]]
(4) Installation process Details associated with the
information. deployment activities, equipment,
and materials, including onshore
and offshore equipment and support,
and anchoring and mooring patterns.
(5) Federal, State, and local Either 1 copy of the permit or
permits (e.g., EPA, Army Corps of information on the status of the
Engineers). application.
(6) Quality assurance............. Certificates ensuring adherence to a
recognized quality assurance
standard. Alternate means of
compliance must be approved on a
case-by-case basis.
(7) Environmental information..... (i) Water discharge;
(ii) Waste disposal;
(iii) Vessel information;
(iv) Onshore waste receiving
treatment or disposal facilities;
and
(v) If you submitted this data as
part of your SAP, COP, or GAP, you
may incorporate by reference.
(8) Commissioning procedures for Original equipment manufacturer
critical safety systems. procedures or other BOEM approved
procedures for commissioning of
critical safety systems as
identified in Sec.
585.701(a)(13).
(9) Project easement.............. Design of any cables, pipelines, or
facilities. Information on burial
methods and vessels.
(10) Other information............ Additional information required by
BOEM.
------------------------------------------------------------------------
(b) You must submit your FIR to BOEM pursuant to Sec. 585.110.
(c) You may submit a request for any project easement and
supporting information as part of your original FIR submission or as a
revision to it.
* * * * *
(e) If you are required to use a CVA, the FIR must include the
following verification statement: ``The fabrication and installation of
this structure has been verified by a BOEM-approved CVA to be in
accordance with accepted engineering practices, the FDR, and the
approved SAP, GAP, or COP, as applicable. The verified design and as-
built plans and specifications will be on file at [provide location].''
0
122. Amend Sec. 585.703 by revising paragraphs (a) and (c) to read as
follows:
Sec. 585.703 What reports must I submit for project modifications and
repairs?
(a) You must demonstrate in a report to us that major repairs and
major modifications to a completed project conform to accepted
engineering practices.
(1) A ``major repair'' is a corrective action involving structural
members affecting the structural integrity of all or a portion of the
facility or substantial repair of a critical safety system(s),
including those identified in your FDR.
(2) A ``major modification'' is an alteration involving structural
members affecting the structural integrity of all or a portion of the
facility or substantial alteration of a critical safety system(s),
including those as identified in your FDR.
* * * * *
(c) If you are required to use a CVA, the report described in
paragraph (a) of this section must include the following verification
statement: ``The [modification or repair] of this [structure or
critical safety system] has been verified by a BOEM-approved CVA to be
in accordance with accepted engineering practices, the FDR, and the
approved SAP, GAP, or COP as applicable.''
0
123. Add Sec. 585.704 to read as follows:
Sec. 585.704 After receiving the FDR, FIR, or project verification
reports, what will BOEM do?
(a) Determine whether the report is deemed submitted. Within 20
calendar days after receiving your proposed FDR, FIR, or project
verification report, BOEM will review your submission and deem your
FDR, FIR, or project verification report submitted provided that your
submission is sufficiently complete and accurate to fulfill the
applicable requirements of Sec. 585.701, Sec. 585.702, or Sec.
585.712.
(b) Identify problems and deficiencies. If BOEM determines that you
have not met the conditions in paragraph (a) of this section, BOEM will
notify you of the problem or deficiency within 20 calendar days after
BOEM receives your FDR, FIR, or project verification report. BOEM will
not deem your FDR, FIR, or project verification report submitted until
you have corrected all problems or deficiencies identified in the
notice.
(c) Notify you when the report is deemed submitted. BOEM will
notify you when the FDR, FIR, or project verification report is deemed
submitted. If BOEM has not notified you within 20 calendar days that
your report has problems or deficiencies, you may consider it deemed
submitted.
0
124. Revise Sec. 585.705 to read as follows:
Sec. 585.705 When must I use a Certified Verification Agent (CVA)?
(a) Unless BOEM waives this requirement under paragraph (c) of this
section, you must use one or more CVAs to review and verify your FDRs,
FIRs, and the Project Modification and Repair Reports.
(b) The purpose of a CVA is to:
(1) Ensure that your facilities are designed, fabricated, and
installed in conformance with accepted engineering practices and the
Facility Design Report and Fabrication and Installation Report;
(2) Ensure critical safety systems are commissioned in accordance
with the procedures identified in Sec. 585.702(a)(8);
(3) Ensure that major repairs and major modifications are completed
in conformance with accepted engineering practices; and
(4) Provide BOEM and you with immediate reports of all incidents
that affect the facility design, fabrication, and installation,
including commissioning of critical safety systems, for the project and
its components.
(c) BOEM may waive in whole or in part the requirement that you use
a CVA if you can demonstrate the following:
------------------------------------------------------------------------
Then BOEM may waive the
If you demonstrate that . . . requirement for a CVA for
the following:
------------------------------------------------------------------------
(1) The facility design conforms to a The design of your
standard design that has been used structure(s).
successfully in a similar environment, and
the installation design conforms to
accepted engineering practices.
[[Page 6049]]
(2) The relevant fabricator has The fabrication of your
successfully fabricated similar structure(s).
facilities, and the facility will be
fabricated in conformance with accepted
engineering practices and to a recognized
quality assurance standard. Alternate
means of quality assurance compliance must
be approved on a case-by-case basis.
(3) The relevant installation companies The installation of your
have successfully installed similar structure(s).
facilities in a similar offshore
environment, and your structures will be
installed in conformance with accepted
engineering practices.
(4) Major repairs or major modifications The major repair or major
will be completed in conformance with modification of your
accepted engineering practices and to a structure(s).
recognized quality assurance standard.
Alternate means of quality assurance
compliance must be approved on a case-by-
case basis.
------------------------------------------------------------------------
(d) You must submit a request to waive, in whole or in part, the
requirement to use a CVA to BOEM in writing.
(1) BOEM will review your request to waive, in whole or in part,
the use of the CVA and notify you of its decision.
(2) If BOEM does not waive, in whole or in part, the requirement
for a CVA, you may file an appeal under Sec. 585.118.
(3) If BOEM waives, in whole or in part, the requirement that you
use a CVA, your project engineer must perform the same duties and
responsibilities as would have the CVA, except as otherwise provided.
0
125. Amend Sec. 585.706 by revising paragraphs (a), (b)(2) and (7),
and (c) through (e) to read as follows:
Sec. 585.706 How do I nominate a CVA for BOEM approval?
(a) A CVA must be nominated and approved by BOEM before conducting
any verification activities for which it has been nominated. If you
intend to use multiple CVAs, you must nominate a general project CVA
who will manage the project verification strategy and who will ensure
consistency and oversight among the CVAs, especially in transition
areas between different CVAs. The general project CVA must be nominated
no later than COP submission.
(b) * * *
(2) Technical capabilities of the individual or the primary staff
for the specific project, including relevant professional licenses,
certifications, and accreditations;
* * * * *
(7) The scope and level of work to be performed by the CVA,
including all relevant reports and facilities that the CVA will verify.
(c) Individuals or organizations acting as CVAs must not function
in any capacity that will create a conflict of interest or the
appearance of a conflict of interest. The CVA must not have prepared,
or been directly involved in, any original work related to the
preparation of design, fabrication, installation, modification, or
repair plans for which it will provide verification services.
(d) The verification must be conducted by or under the direct
supervision of a registered professional engineer.
(e) BOEM will approve or disapprove your CVA.
* * * * *
0
126. Amend Sec. 585.707 by:
0
a. Revising the second sentence of paragraph (a);
0
b. Removing ``and'' from paragraph (b)(8);
0
c. Redesignating paragraph (b)(9) as paragraph (b)(11);
0
d. Adding new paragraph (b)(9) and paragraph (b)(10); and
0
e. Removing paragraph (c).
The revisions and additions read as follows:
Sec. 585.707 What are the CVA's primary duties for facility design
review?
(a) * * * The CVA must verify to BOEM that the facility is designed
to withstand the environmental and functional load conditions
appropriate for the intended service life at the proposed location and
has been designed to provide for safety.
(b) * * *
(9) Design for human safety and accident prevention;
(10) For a floating facility, structural integrity, stability, and
ballast; and
* * * * *
0
127. Amend Sec. 585.708 by revising paragraphs (a)(1), (2), and (5),
adding paragraphs (a)(6) and (7), and revising paragraph (b) to read as
follows:
Sec. 585.708 What are the CVA's or project engineer's primary duties
for fabrication and installation review?
(a) * * *
(1) Use good engineering judgment and practice in conducting an
independent assessment of the fabrication and installation activities
and of the commissioning of critical safety systems;
(2) Monitor the fabrication and installation of the facility and
the commissioning of critical safety systems as required by paragraph
(b) of this section;
* * * * *
(5) Verify in a report that project components are fabricated and
installed in accordance with accepted engineering practices and to a
recognized quality assurance standard or to an equivalent alternate
means of quality assurance considered on a case-by-case basis, your
approved SAP, COP, or GAP (as applicable), and your FIR. If multiple
CVAs are involved in your project, the general project CVA must submit
the final report containing such verification for the project.
(i) The report must identify the location of all records pertaining
to facility fabrication and installation as required in Sec.
585.714(c); and
(ii) You may commence commercial operations or other approved
activities 30 days after BOEM receives that verification report, unless
BOEM notifies you within that time period of its objections to the
verification report.
(6) Provide records documenting that critical safety systems are
commissioned in accordance with the procedures identified in Sec.
585.702(a)(8); and
(7) Identify the location of all records pertaining to
commissioning of critical safety systems, as required in Sec.
585.714(c).
(b) To comply with paragraph (a)(5) of this section, the CVA or
project engineer must monitor the fabrication and installation of the
facility and the commissioning of critical safety systems to verify
that it has been built and installed according to your FDRs and FIRs.
(1) If the CVA or project engineer finds that either fabrication
and installation procedures or safety system commissioning procedures,
or both, have been changed or design specifications have been modified,
the CVA or project engineer must inform you; and
(2) If you accept the modifications, you must also inform BOEM.
0
128. Revise Sec. 585.709 to read as follows:
[[Page 6050]]
Sec. 585.709 When conducting onsite fabrication inspections, what
must the CVA or project engineer verify?
(a) To comply with Sec. 585.708(a)(3), the CVA or project engineer
must make periodic onsite inspections while fabrication is in progress
and must verify the following fabrication items, as appropriate:
(1) Quality control by lessee (or grant holder) and builder;
(2) Fabrication site facilities;
(3) Material quality and identification methods;
(4) Fabrication procedures specified in your FIRs and adherence to
such procedures;
(5) Welder and welding procedure qualification and identification;
(6) Structural tolerances specified, and adherence to those
tolerances;
(7) Nondestructive examination requirements and evaluation results
of the specified examinations;
(8) Destructive testing requirements and results;
(9) Repair procedures;
(10) Installation of corrosion-protection systems and splash-zone
protection;
(11) Erection procedures to ensure that overstressing of structural
members does not occur;
(12) Alignment procedures;
(13) Dimensional check of the overall structure, including any
turrets, turret-and-hull interfaces, any mooring line and chain and
riser tensioning line segments; and
(14) Status of quality-control records at various stages of
fabrication.
(b) For a floating facility, the CVA or project engineer must
verify the structural integrity, stability, and ballast.
0
129. Revise Sec. 585.710 to read as follows:
Sec. 585.710 When conducting onsite installation inspections, what
must the CVA or project engineer do?
To comply with Sec. 585.708(a)(4), the CVA or project engineer
must make periodic onsite inspections while installation is in progress
and must, as appropriate, verify, witness, survey, or check the
installation items required by this section.
(a) To comply with Sec. 585.708(a)(4), the CVA or project engineer
must make periodic onsite inspections while installation is in progress
and must verify the installation and commissioning items required by
this section.
(b) The CVA or project engineer must verify, as appropriate, all of
the following:
(1) Loadout and initial flotation procedures;
(2) Towing operation procedures to the specified location,
including a review of the towing records;
(3) Launching and uprighting activities;
(4) Submergence activities;
(5) Pile or anchor installations;
(6) Installation of mooring and tethering systems;
(7) Final deck and component installations;
(8) Installation at the locations set forth in your FDR(s) and
FIR(s); and
(9) Commissioning of critical safety systems.
(c) For a fixed or floating facility, the CVA or project engineer
must verify that proper procedures were used during the following:
(1) The loadout of the jacket, decks, piles, or structures from
each fabrication site;
(2) The actual installation of the facility or major modification
and the related installation activities; and
(3) Commissioning of critical safety systems.
(d) For a floating facility, the CVA or project engineer must
verify that proper procedures were used during the following:
(1) The loadout of the facility;
(2) The installation of foundation pilings and templates, and
anchoring systems; and
(3) The installation of the mooring and tethering systems.
(e) The CVA or project engineer must conduct an onsite inspection
of the installed facility.
(f) The CVA or project engineer must make periodic onsite
inspections to witness the commissioning of critical safety systems in
order to verify that:
(1) The systems and equipment function as designed; and
(2) The final commissioning records are complete.
(g) The CVA or project engineer must spot-check the equipment,
procedures, and recordkeeping as necessary to determine compliance with
the applicable documents incorporated by reference and the regulations
under this part.
0
130. Amend Sec. 585.712 by:
0
a. Revising paragraph (a) and the first sentence of paragraph (b)
introductory text;
0
c. Removing ``and'' at the end of paragraph (b)(3);
0
d. Removing the period at the end of paragraph (b)(4) and adding in its
place ``; and''; and
0
e. Adding paragraph (b)(5).
The revisions and addition read as follows:
Sec. 585.712 What are the CVA's or project engineer's reporting
requirements?
(a) The CVA or project engineer must prepare and submit to you and
BOEM all reports and records required by this subpart. The CVA or
project engineer must also submit interim reports to you and BOEM, as
requested by BOEM.
(b) For each report required by this subpart, the CVA or project
engineer must submit the final report to BOEM pursuant to Sec.
585.110. * * *
* * * * *
(5) Summarize any issues with the design and any incidents during
facility fabrication and installation, or critical safety system
commissioning, and how those issues were resolved.
Sec. 585.713 [Reserved and Reserved]
0
131. Remove and reserve Sec. 585.713.
0
132. Amend Sec. 585.714 by:
0
a. Revising the section heading;
0
b. Redesignating paragraphs (a)(4) and (5) as paragraphs (a)(5) and
(6), respectively;
0
c. Adding new paragraph (a)(4); and
0
d. Revising paragraph (c).
The revisions and addition read as follows:
Sec. 585.714 What records relating to FDRs, FIRs, and Project
Modification and Repair Reports must I keep?
(a) * * *
(4) The records of the commissioning of critical safety systems;
* * * * *
(c) You must provide BOEM with the location of these records in the
certification statement, as required in Sec. Sec. 585.701(c),
585.703(b), and 585.708(a)(5)(i) and (a)(6).
Subpart I--Environmental and Safety Management, Inspections, and
Facility Assessments for Activities Conducted Under SAPs, COPs, and
GAPs
Sec. 585.803 [Amended]
0
133. Amend Sec. 585.803 in the first sentence of paragraph (b) by
removing the word ``affects'' and adding in its place the word
``effects''.
0
134. Revise Sec. 585.810 to read as follows:
Sec. 585.810 When must I submit a Safety Management System (SMS) and
what must I include in my SMS?
You are required to use a Safety Management System (SMS) for
activities conducted on the OCS to develop or operate a lease, from met
buoy placement and site assessment work through decommissioning, and to
provide your SMS to BOEM upon request. You must also submit a detailed
description of the SMS with your COP (as provided under Sec.
585.627(d)) and,
[[Page 6051]]
when required by this part, your SAP (as provided in Sec. 585.614(b))
or GAP (as provided in Sec. 585.651). Your SMS must address:
(a) How you will ensure the safety of your personnel or anyone else
on or near your facilities, such as:
(1) Health and safety risks that anyone on or near your facilities
are likely to face during activities covered by the SMS;
(2) Policies and strategies that will be used to control such
risks;
(3) Procedures and published standards that will be followed to
ensure the safety of the activities covered by the SMS;
(4) Tools that will be used to monitor the implementation of the
SMS and maintain the safety of activities covered by the SMS, including
management of change and stop work practices; and
(5) Procedures for personnel to report unsafe work conditions both
to the lessee or its designated operator and to BOEM.
(b) Remote monitoring, control, and shut down capabilities, such
as:
(1) Aspects of operations and mechanical and structural integrity
that will be monitored remotely;
(2) Circumstances under which remote monitoring will be activated
and how it will be maintained;
(3) Maintenance of the security of the remote sensing and control
capabilities;
(4) Monitoring of conditions if remote sensing equipment fails; and
(5) Conditions that will result in the shut-down of one or more
facilities.
(c) Emergency response procedures, such as:
(1) Types of incidents to be addressed (e.g., serious injury to
workers during maintenance, unexploded ordnance encountered during
construction, damage due to hurricane or allision by vessels or
aircraft, unauthorized access into remote monitoring capabilities);
(2) Potential response activities, including contractor support,
for each category of incident;
(3) Management controls, authorities, and reporting to be employed
for each response;
(4) Locations from which emergency response will be controlled; and
(5) Resources available to assist in the response.
(d) Fire suppression equipment, such as a description of how and
when it will be used, if needed;
(e) How and when you will test your SMS, such as:
(1) Plans, processes, and schedules for:
(i) Self or third-party auditing of the SMS; and
(ii) Regular testing of certain SMS components, including remote
shut-down capabilities and emergency response readiness; and
(2) Corrective action processes to improve the effectiveness of
your SMS based on the results of audits, tests, investigations of
incidents (including near-misses), feedback from the field, and other
information sources.
(f) How you will ensure personnel who conduct activities on your
facilities are properly trained and have the capability to safely
perform duties, such as:
(1) Required training for personnel who conduct activities on your
facilities; and
(2) Mechanisms to ensure that personnel have the required knowledge
and skills to perform duties safely for the duration of activities.
0
135. Revise Sec. 585.811 to read as follows:
Sec. 585.811 Am I required to obtain a certification of my SMS?
You are not required to obtain a certification that your SMS meets
acceptable health and safety standards (e.g., ANSI Z10, ISO/IEC 45001)
from a recognized accreditation organization. However, BOEM will
consider such certification in determining the frequency and scope of
SMS-related inspections that it conducts under this subpart, as well as
the scope and nature of its oversight over any audit-induced corrective
actions.
0
136. Add Sec. 585.812 to read as follows:
Sec. 585.812 How must I implement my SMS?
(a) Your SMS must be functional before you begin, and must remain
functional while you perform, any activity on the OCS pursuant to a
lease, including met buoy placement and site assessment work, or for
any activities described in your approved SAP, COP, or GAP. You must
conduct all activities described in your approved SAP, COP, or GAP in
accordance with the SMS you described under Sec. 585.810.
(b) You must regularly demonstrate to BOEM that your SMS is being
implemented effectively by submitting the following to BOEM in
accordance with Sec. 585.110:
(1) By March 31 of each year, summarize safety, work hour, and
electric generation performance data for the prior calendar year in
which you conducted site assessment, construction, operations, or
decommissioning activities in accordance with your lease terms, using a
form available on the BOEM website; and
(2) Once every 3 years or upon BOEM's request, provide a report to
BOEM summarizing the results of your most recent SMS audit, corrective
actions implemented or being implemented as a result of that audit, and
an updated description of your SMS highlighting changes that were made
since the last such submission to BOEM.
0
137. Amend Sec. 585.815 by revising the second sentence of paragraph
(a) to read as follows:
Sec. 585.815 What must I do if I have facility damage or an equipment
failure?
(a) * * * If you have a major repair, you must submit a report to
BOEM under Sec. 585.703.
* * * * *
0
138. Revise Sec. 585.820 to read as follows:
Sec. 585.820 Will BOEM conduct inspections?
BOEM may inspect OCS facilities and any vessels engaged in
activities authorized under this part. When we conduct these
inspections, we will:
(a) Verify that you are conducting activities in compliance with
subsection 8(p) of the OCS Lands Act; the regulations in this part; the
terms, conditions, and stipulations of your lease or grant; approved
plans; and other applicable laws and regulations.
(b) Determine whether proper safety equipment has been installed
and is operating properly according to your SMS, as required in Sec.
585.810.
0
139. Revise Sec. 585.821 to read as follows:
Sec. 585.821 Will BOEM conduct scheduled and unscheduled inspections?
BOEM may conduct both scheduled and unscheduled inspections.
0
140. Amend Sec. 585.822 by revising paragraphs (a)(1) and (b) to read
as follows:
Sec. 585.822 What must I do when BOEM conducts an inspection?
(a) * * *
(1) Provide access to all facilities on your lease (including your
project easement) or grant and any vessels engaged in activities
authorized under this part; and
* * * * *
(b) You must retain the records referenced in paragraph (a)(2)(iii)
of this section until BOEM releases your financial assurance under
Sec. 585.534, and provide them to BOEM upon request within the time
period specified by BOEM.
* * * * *
0
143. Revise Sec. 585.824 as follows:
Sec. 585.824 How must I conduct self-inspections?
(a) You must develop a comprehensive self-inspection plan
[[Page 6052]]
covering all of your facilities. You must keep this self-inspection
plan wherever you keep your records and make it available to BOEM upon
request. Your self-inspection plan must specify:
(1) The type, extent, and frequency of inspections that you will
conduct for both the above-water and the below-water structures of all
facilities and pertinent components of the mooring systems for any
floating facilities;
(2) How you will monitor the corrosion protections for both above-
water and below-water structures; and
(3) How you will fulfill the requirement for annual on-site
inspection of all safety equipment designed to prevent or ameliorate
fires, spillages, or other major accidents under paragraph (b) of this
section.
(b) You must conduct an onsite inspection of each of your
facilities at least once a year. This inspection must include, but is
not limited to, all safety equipment designed to prevent or ameliorate
fires, spillages, or other major accidents.
(1) You must develop and retain summary reports for all such
inspections for each calendar year. The summary report must note any
failures of operability, required maintenance of critical safety
equipment, or required replacement of the critical safety equipment
identified during inspection.
(2) You must retain records of inspections and summary reports for
the previous 2 calendar years and make them available to BOEM on
request.
(c) You must submit a report annually to us no later than November
1 that must include:
(1) A list of facilities inspected for structural condition and
corrosion protection in the preceding 12 months;
(2) The type of inspection employed, (i.e., visual, magnetic
particle, ultrasonic testing); and
(3) A summary of the inspection indicating what repairs, if any,
were needed and the overall structural condition of the facility.
Sec. 585.830 [Amended]
0
142. Amend Sec. 585.830 in paragraph (d) by removing ``30 CFR 254.46''
and adding in its place ``30 CFR 250.187(d)''.
Subpart J--Decommissioning
0
143. Amend Sec. 585.900 by adding paragraph (c) to read as follows:
Sec. 585.900 Who must meet the decommissioning obligations in this
subpart?
* * * * *
(c) If a lessee or grant holder has installed a facility on a lease
or grant that was authorized by an authority other than BOEM and that
approving authority has imposed a decommissioning obligation, such
obligation will substitute for the requirements of this subpart. The
decommissioning requirements in this subpart will apply to such a
facility if the authorizing agency has not imposed or enforced a
decommissioning obligation.
0
144. Amend Sec. 585.902 by revising paragraph (a) introductory text to
read as follows:
Sec. 585.902 What are the general requirements for decommissioning
for facilities authorized under my SAP, COP, or GAP?
(a) Except as otherwise authorized by BOEM under Sec. 585.909,
within 2 years following termination of a lease or grant, or earlier if
BOEM determines a facility is no longer useful for operations, you
must:
* * * * *
0
145. Amend Sec. 585.905 by adding paragraph (e) to read as follows:
Sec. 585.905 When must I submit my decommissioning application?
* * * * *
(e) Ninety (90) days after BOEM determines a facility is no longer
useful for operations.
Subpart K--Rights-of-Use and Easement for Energy- and Marine-
Related Activities Using Existing OCS Facilities
0
146. Revise the heading of newly redesignated subpart K to read as set
forth above.
0
147. Amend Sec. 585.1005 by revising paragraphs (a) and (b)(2) and (3)
to read as follows:
Sec. 585.1005 How do I request an Alternate Use RUE?
* * * * *
(a) The name, address, email address, and phone number of each
owner and an authorized representative, if applicable.
(b) * * *
(2) A description of the existing OCS facility, including a map
providing its location on the OCS and the relevant lease block or lease
area, as applicable;
(3) If the facility is an oil, gas, or sulfur facility, provide the
name of each operator, lessee, and any owner of operating rights, as
defined in 30 CFR 550.105; for any other type of facility, provide the
name of any operators, a description of the facility, and its use;
* * * * *
Sec. 585.1018 [Amended]
0
148. Amend Sec. 585.1018 in paragraph (b) by removing ``30 CFR part
250'' and adding in its place ``30 CFR part 556''.
[FR Doc. 2023-00668 Filed 1-27-23; 8:45 am]
BILLING CODE 4340-98-P