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Rule2024-08791

Renewable Energy Modernization Rule

Primary source

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Published

May 15, 2024

Effective

July 15, 2024

Issuing agencies

Interior DepartmentOcean Energy Management BureauSafety and Environmental Enforcement Bureau

Abstract

The Department of the Interior (the Department or DOI), acting through the Bureau of Ocean Energy Management (BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE) ("the agencies"), is finalizing regulatory amendments to its renewable energy regulations under the authority of the Outer Continental Shelf Lands Act (OCSLA). The notice of proposed rulemaking (NPRM) for this final rule was published in the Federal Register on January 30, 2023. While the NPRM contemplated amendments only to the Department's existing renewable energy regulations that are administered by BOEM, this final rule also finalizes regulatory amendments previously proposed by BOEM that are now administered by BSEE and includes amendments to regulations resulting from the "Reorganization of Title 30--Renewable Energy and Alternative Uses of Existing Facilities on the Outer Continental Shelf" direct final rule, issued by the Department on January 31, 2023. This final rule eliminates unnecessary requirements for the deployment of meteorological (met) buoys; increases survey flexibility; improves the project design and installation verification process; establishes a public Renewable Energy Leasing Schedule; reforms BOEM's renewable energy auction regulations; tailors financial assurance requirements and instruments; clarifies safety management system regulations; revises other provisions; and makes technical corrections. This final rule advances the Department's energy policies in a safe and environmentally sound manner that will provide a fair return to the U.S. taxpayer.

Full Text

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[Federal Register Volume 89, Number 95 (Wednesday, May 15, 2024)]
[Rules and Regulations]
[Pages 42602-42762]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08791]

[[Page 42601]]

Vol. 89

Wednesday,

No. 95

May 15, 2024

Part II

Department of the Interior

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Bureau of Ocean Energy Management

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30 CFR Part 585

Bureau of Safety and Environmental Enforcement

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30 CFR Part 285

Renewable Energy Modernization Rule; Final Rule

Federal Register / Vol. 89 , No. 95 / Wednesday, May 15, 2024 / Rules
and Regulations

[[Page 42602]]

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DEPARTMENT OF THE INTERIOR

Bureau of Ocean Energy Management

30 CFR Part 585

Bureau of Safety and Environmental Enforcement

30 CFR Part 285

[Docket No. BOEM-2023-0005]
RIN 1010-AE04

Renewable Energy Modernization Rule

AGENCY: Bureau of Ocean Energy Management and Bureau of Safety and
Environmental Enforcement, Interior.

ACTION: Final rule.

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SUMMARY: The Department of the Interior (the Department or DOI), acting
through the Bureau of Ocean Energy Management (BOEM) and the Bureau of
Safety and Environmental Enforcement (BSEE) (``the agencies''), is
finalizing regulatory amendments to its renewable energy regulations
under the authority of the Outer Continental Shelf Lands Act (OCSLA).
The notice of proposed rulemaking (NPRM) for this final rule was
published in the Federal Register on January 30, 2023. While the NPRM
contemplated amendments only to the Department's existing renewable
energy regulations that are administered by BOEM, this final rule also
finalizes regulatory amendments previously proposed by BOEM that are
now administered by BSEE and includes amendments to regulations
resulting from the ``Reorganization of Title 30--Renewable Energy and
Alternative Uses of Existing Facilities on the Outer Continental
Shelf'' direct final rule, issued by the Department on January 31,
2023. This final rule eliminates unnecessary requirements for the
deployment of meteorological (met) buoys; increases survey flexibility;
improves the project design and installation verification process;
establishes a public Renewable Energy Leasing Schedule; reforms BOEM's
renewable energy auction regulations; tailors financial assurance
requirements and instruments; clarifies safety management system
regulations; revises other provisions; and makes technical corrections.
This final rule advances the Department's energy policies in a safe and
environmentally sound manner that will provide a fair return to the
U.S. taxpayer.

DATES: This final rule is effective on July 15, 2024.

ADDRESSES: The Bureau of Ocean Energy Management (BOEM) has established
a docket for this action under Docket ID No. BOEM-2023-0005. All
documents in the docket are listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a>
website and can be found by entering the Docket ID No. in the ``Enter
Keyword or ID'' search box and clicking ``search''.

FOR FURTHER INFORMATION CONTACT: For questions about this final action
regarding 30 CFR parts 585 and 586, contact Nabanita Modak Fischer,
Office of Regulations, BOEM, 45600 Woodland Road, Sterling, Virginia
20166, at email address <a href="/cdn-cgi/l/email-protection#1d537c7f7c7374697c335072797c765b746e7e75786f5d7f727870337a726b">[email&#160;protected]</a> or at telephone
number (703) 787-1415; and Karen Thundiyil, Chief, Office of
Regulations, BOEM, 1849 C Street NW, Washington, DC 20240, at telephone
number (202) 742-0970 or email address <a href="/cdn-cgi/l/email-protection#cd86acbfa8a3e399a5b8a3a9a4b4a4a18dafa2a8a0e3aaa2bb">[email&#160;protected]</a>. For
questions about this final action regarding 30 CFR part 285, contact
Kirk Malstrom, Chief, Regulations and Standards Branch, BSEE, at
telephone number (202) 258-1518 or email address <a href="/cdn-cgi/l/email-protection#4b392e2c380b29382e2e652c243d">[email&#160;protected]</a>.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. These
services are available 24 hours a day, 7 days a week, to leave a
message or question with the point-of-contact. You will receive a reply
during normal business hours. Individuals outside the United States
should use the relay services offered within their country to make
international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. Multiple acronyms and
abbreviations are included in this preamble. While this list may not be
exhaustive, to ease the reading of this preamble and for reference
purposes, the agencies define the following terms and acronyms here:

ANCSA Alaska Native Claims Settlement Act of 1971
ANSI American National Standards Institute
API American Petroleum Institute
ASLM Assistant Secretary for Land and Minerals Management
ASSP American Society of Safety Professionals
BOEM Bureau of Ocean Energy Management
BSEE Bureau of Safety and Environmental Enforcement
CAA Clean Air Act of 1970
CAB Conformity Assessment Body
CBA Community Benefit Agreement
CEQ Council on Environmental Quality
CFR Code of Federal Regulations
COP Construction and Operations Plan
CRA Congressional Review Act
CSSCR Critical Safety Systems Commissioning Records
CSSE Critical Safety Systems and Equipment
CVA Certified Verification Agent
CZM Coastal Zone Management
CZMA Coastal Zone Management Act of 1972
Department U.S. Department of the Interior
DNCI Determination of No Competitive Interest
DNV Det Norske Veritas
DM Departmental Manual
DOE U.S. Department of Energy
DOI U.S. Department of the Interior
EA Environmental Assessment
EBM Ecosystem-based Management
EIS Environmental Impact Statement
E.O. Executive Order
EPAct Energy Policy Act of 2005
ESA Endangered Species Act of 1973
ESP Environmental Studies Program
FCC Federal Consistency Certification
FDR Facility Design Report
FERC Federal Energy Regulatory Commission
FIR Fabrication and Installation Report
FOIA Freedom of Information Act
FOWT Floating Offshore Wind Turbines
FR Federal Register
FSN Final Sale Notice
G&G Geological and Geophysical
GAP General Activities Plan
GHG Greenhouse Gas
IBLA Interior Board of Land Appeals (U.S. Department of the
Interior)
IC Information Collection
IEC Inclusive Engineering Consortium
IECRE IEC System for Certification to Standards Relating to
Equipment for Use in Renewable Energy
IRA Inflation Reduction Act
ISO Independent System Operator
LPA Labor Peace Agreement
MACO Mid-Atlantic Council on the Ocean
MMS Minerals Management Service
MOU Memorandum of Understanding
NAGPRA Native American Graves Protection and Repatriation Act
NCCOS National Centers for Coastal Ocean Science
NEPA National Environmental Policy Act of 1969
NHPA National Historic Preservation Act of 1966
NMFS National Marine Fisheries Service
NMSA National Marine Sanctuaries Act of 1972
NOAA National Oceanic and Atmospheric Administration
NONC Notice of Noncompliance
NROC Northeast Regional Ocean Council
NPRM Notice of proposed rulemaking
NRSRO Nationally Recognized Statistical Rating Organization
NTL Notice to Lessee
NWP Nationwide Permit
OCS Outer Continental Shelf
OCSLA Outer Continental Shelf Lands Act
OEM Original Equipment Manufacturer
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
ONRR Office of Natural Resources Revenue
OSRP Oil Spill Response Plan
OSW Offshore Wind

[[Page 42603]]

PATON Private Aids to Navigation
PDE Project Design Envelope
PEIS Programmatic Environmental Impact Statement
PLA Project Labor Agreement
PPA Power Purchase Agreement
PRA Paperwork Reduction Act of 1995
PSN Proposed Sale Notice
Pub. L. Public Law
PVR Project Verification Report
RFA Regulatory Flexibility Act of 1995
RFI Request for Information
RHA Rivers and Harbors Act of 1899
RIA Regulatory Impact Analysis
RNA Rotor-nacelle Assembly
ROP Regional Ocean Partnerships
ROW Right-of-Way
RTO Regional Transmission Organization
RUE Right-of-Use-and-Easement
S&P Standard and Poor's
SAP Site Assessment Plan
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
SIEBA Standardizing Integrated Ecosystem-Based Assessments
SME Subject Matter Expert
SMS Safety Management System
UMRA Unfunded Mandates Reform Act of 1995
USACE U.S. Army Corps of Engineers
U.S.C United States Code
USCG U.S. Coast Guard
USEPA U.S. Environmental Protection Agency
WCOA West Coast Ocean Alliance
WTG Wind Turbine Generator

Background information. On January 30, 2023, the Department issued
an NPRM to modernize its regulations to facilitate the development of
offshore wind (OSW) energy resources (88 FR 5968). On January 31, 2023,
the Department issued the ``Reorganization of Title 30--Renewable
Energy and Alternative Uses of Existing Facilities on the Outer
Continental Shelf'' direct final rule (88 FR 6376) following the
delegation of authority to BSEE to administer some of the regulations
addressed in the NPRM.\1\ The agencies have summarized the significant
comments received on the proposed rule and have provided responses to
them in this preamble.
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\1\ 219 DM 1, DOI Departmental Manual (Sept. 14, 2022).
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Organization of this document. The information in this preamble is
organized as follows:

I. General Information
A. Executive Summary
B. Does this action apply to me?
C. Where can I get a copy of this document and other related
information?
II. Background
A. BOEM and BSEE Statutory and Regulatory Authority and
Responsibilities
B. History of Renewable Energy Modernization Rule
C. Purpose of This Rulemaking
D. Summary of the Proposed Renewable Energy Modernization Rule
III. Summary of the Significant Provisions
A. Site Assessment Facilities
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
B. Project Design Envelope
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
C. Geophysical and Geotechnical Surveys
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
D. Certified Verification Agent and Engineering Report
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
E. Renewable Energy Leasing Schedule
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
F. Lease Issuance Procedure
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
G. Risk Management and Financial Assurance
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
H. Safety Management Systems (SMS)
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
I. Inspections
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
J. Other Proposed Changes in Part 285
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
K. Other Proposed Changes in Part 585
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
L. Potential Revisions to Regulations Governing Research
Activities
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
M. Potential Revisions to Regulations Governing Transmission
1. What did the Department propose?
2. What are the key public comments?
3. What is the Department finalizing?
N. General Comments and Responses
IV. Summary of Cost, Economic Impacts, and Additional Analyses
Conducted
A. What are the affected resources?
B. What are the economic impacts?
C. What are the benefits?
D. What Tribal engagement activities were conducted?
V. Section-by-Section Analysis
A. 30 CFR Part 285
B. 30 CFR Part 585
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, as
Amended by Executive Order 14094: Modernizing Regulatory Review, and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Regulatory Flexibility Act (RFA)
C. Small Business Regulatory Enforcement Fairness Act (SBREFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 12630: Governmental Actions and Interference
With Constitutionally Protected Property Rights
F. Executive Order 13132: Federalism
G. Executive Order 12988: Civil Justice Reform
H. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
I. Paperwork Reduction Act (PRA)
J. National Environmental Policy Act (NEPA)
K. Data Quality Act
L. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
M. Congressional Review Act (CRA)

I. General Information

A. Executive Summary

1. Purpose of This Regulatory Action
Congress authorized the Secretary of the Interior to grant Outer
Continental Shelf (OCS) leases for renewable energy activities when it
enacted the Energy Policy Act of 2005. The Secretary delegated
authority to BOEM and BSEE to carry out development and oversight of
the Nation's offshore energy resources.
This action finalizes certain provisions proposed in the Renewable
Energy Modernization Rule (88 FR 5968, January 30, 2023). A summary of
the key provisions is included below. This final rule facilitates the
development of OCS renewable energy and supports the Department's
commitment to ensuring safe and responsible domestic energy production.
The final rule modernizes the offshore renewable energy regulations,
streamlines processes, clarifies regulatory provisions, enhances
compliance provisions, and corrects technical errors and
inconsistencies. Through these changes, the Department aims to reduce
administrative burdens and reduce cost and uncertainty while creating
greater regulatory flexibility in a rapidly evolving industry. This
final rule updates OCS renewable energy regulations to reflect lessons
learned since the regulations were originally promulgated in 2009. The
Department projects this action will save the renewable energy industry
$1 billion over 20 years.
2. Summary of the Key Provisions
The final rule contains eight key provisions:
(1) Eliminating unnecessary requirements for the deployment of met
buoys (30 CFR part 585, subpart G).

[[Page 42604]]

This action finalizes the elimination of the existing regulations
that required on-lease site assessment plans (SAPs) and BOEM permitting
for met buoys. However, deployment of met buoys that qualify as
obstructions deployed in U.S. navigable waters under section 10 of the
Rivers and Harbors Act (RHA) would continue to require US Army Corps of
Engineers (USACE) permits. Met buoys are also typically required to be
marked and lighted in accordance with a U.S. Coast Guard private aids
to navigation (PATON) approval. Met buoys will continue to require U.S.
Coast Guard PATON approval under 33 CFR part 66 and 14 U.S.C. 545. This
final rule clarifies that the elimination of the Department's
regulations requiring SAPs and BOEM permitting for met buoys does not
reduce or eliminate the need for BOEM's environmental review of site
characterization (geotechnical and geophysical surveys, biological
surveys) and site assessment activities (deployment of met towers and
buoys). This final rule also notes that the USACE may incorporate its
own decommissioning requirements in permits applicable to met buoys but
BSEE's decommissioning requirements in part 285 will apply to met buoys
if the USACE has not required a decommissioning obligation. BSEE
expects to utilize its regulatory authority for decommissioning of
buoys in limited circumstances.
(2) Increasing survey flexibility (30 CFR part 585, subpart G).
This action finalizes the provision allowing deferral of some
geotechnical surveys until the submission of the Facility Design Report
(FDR). This change is being finalized to allow more time to complete
the required geotechnical surveys and provide greater flexibility in
designing projects. At the same time, this action clarifies that the
submission of geophysical data, including subsea archaeological
surveys, cannot be deferred to the FDR and will continue to be required
in a construction and operations plan (COP).
(3) Improving the project design and installation verification
process (30 CFR part 285, subpart G).
This action finalizes the provisions that expanded the role of the
certified verification agent (CVA) to include verification of the
design and commissioning of the Critical Safety Systems and Equipment
(CSSE) to ensure that any activities authorized by BSEE are carried out
safely. The reliance on CVAs will provide an independent source of
review for key stages of project development and help to establish
public confidence in the renewable energy industry. Also, to reduce
confusion and ambiguity, the final rule clarifies BSEE's expectations
for CVA ``verification'' and ``certification'' that are practical and
consistent with the policy goal of promoting safety.
(4) Establishing a Public Renewable Energy Leasing Schedule (30 CFR
part 585, subpart B).
This rule finalizes the renewable energy leasing schedule
amendments as proposed. The schedule for leasing will provide increased
certainty and enhanced transparency and is intended to facilitate
planning by industry, the States, and other stakeholders. The schedule
of anticipated leasing would be updated at least once every 2 years.
This final rule provides clarification that the offshore wind leasing
schedule should not be confused with BOEM's National Outer Continental
Shelf Oil and Gas Leasing Program schedule and explains that BOEM is
committed to following the Department's policy on consultation with
Tribes where there are Department actions that may have a substantial
direct effect on a Tribe(s).
(5) Reforming BOEM's renewable energy auction regulations (30 CFR
part 585, subpart C).
This rule finalizes the pre- and post-auction procedure amendments
as proposed, with added clarifications. These amendments address the
use of bidding credits and more clearly outline auction processes and
requirements. This final rule describes how BOEM operationalizes its
commitment to coordinate with Tribes and conduct consultation with the
Tribal leadership for Tribes that may be affected by any leases,
easements, or right-of-way (ROWs); and notes that the regulations
require Tribal consultation prior to the issuance of a lease and during
area identification before competitive leasing.
Additionally, in this final rule, BOEM finalizes the auction
process as proposed, including providing clarification for how BOEM
will consider the use of bidding credits on a case-by-case basis
specific to the lease sale conditions.
(6) Financial assurance requirements and instruments (30 CFR part
585, subpart F).
This action finalizes the use of credit ratings, requiring
financial assurance at a more relevant time, allowing for staged
funding of decommissioning accounts, and adding letters of credit as an
acceptable financial assurance instrument. In addition, this final rule
allows for a lessee to demonstrate its capacity to meet financial
assurance requirements for lease or grant activities based on
electricity sales contracts and net income projections.
(7) Clarifying safety management system regulations (30 CFR part
285, subpart H).
This final rule clarifies the information requirements for safety
management systems (SMS) and expectations regarding SMS standards. It
adds a provision to incentivize lessees and grantees to obtain a safety
management certification from recognized accreditation organizations to
reduce the frequency and intensity of regulatory oversight activities.
The final rule also clarifies that lessees and grantees are required to
have and use an SMS for all OCS activities undertaken pursuant to a
lease, from site assessment through decommissioning. The final rule
also establishes a performance-based approach to promote flexibility in
determining the best way to ensure the safety of personnel on and near
OCS renewable energy facilities during activities covered by the SMS.
(8) Other provisions.
This action finalizes all technical corrections as proposed. The
most significant of these provisions will 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
constitute a threat of 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.
3. Costs and Benefits
The Regulatory Impact Analysis (RIA) estimates the costs and
benefits of the rule. The RIA can be found in the rulemaking docket
(Docket No. BOEM-2023-0005). BOEM, on behalf of the Department,
conducted a Regulatory Impact Analysis to consider the costs and
benefits of the rule. Most of the revisions in the rule have negligible
or no cost impact, while others may have second-order benefits that are
difficult to quantify. BOEM identified four elements of the rule that
have quantifiable effects. Three of those changes (met buoy
requirements, financial assurance, and geotechnical survey revisions)
provide compliance cost savings and one, SMS reporting, has minor
compliance cost burdens. In net, BOEM estimates these changes could
save the OCS renewable energy industry approximately $127 million in
annualized cost savings over the 20-year period of analysis (3 percent
discounting). In addition to these

[[Page 42605]]

quantitative costs and benefits, the rule also provides qualitative
benefits. This rule provides additional clarity and certainty, while
streamlining the regulatory framework. The changes from this rule will
facilitate more expedient and responsible development of offshore
renewable energy projects.

B. Does this action apply to me?

Entities potentially affected by this action include, but are not
limited to, all current and future OCS renewable energy lessees,
grantees, and operators.

C. Where can I get a copy of this document and other related
information?

In addition to being available in the docket, an electronic copy of
this final rule will also be available on the internet. Following
signature by the Principal Deputy Assistant Secretary of Land and
Minerals Management (ASLM), BOEM will post a copy of this final rule
at: <a href="https://www.boem.gov/about-boem/regulations-guidance/published-rules">https://www.boem.gov/about-boem/regulations-guidance/published-rules</a>. Following publication in the Federal Register (FR), the
published version of the final rule will be available on BOEM's and
BSEE's respective websites.

II. Background

A. BOEM and BSEE Statutory and Regulatory Authority and
Responsibilities

Congress authorized the Secretary to grant OCS leases for renewable
energy activities when it enacted the Energy Policy Act of 2005, which
amended OCSLA by adding a new subsection 8(p).\2\ Subsection 8(p) of
OCSLA authorizes the Secretary to award OCS leases, ROWs, and right-of-
use and easement grants (RUEs) for activities not otherwise authorized
by other applicable law, if those activities ``produce or support
production, transportation, storage, or transmission of energy sources
other than oil or gas.'' Subsection 8(p) requires the Secretary to
award such leases, ROWs, and RUEs on a competitive basis 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 delegated that authority to BOEM's and BSEE's
predecessor, the Minerals Management Service (MMS). Subsection 8(p)(8)
of OCSLA (43 U.S.C. 1337(p)(8)) authorizes the Secretary to ``issue any
necessary regulations to carry out this subsection.'' Subsection
8(p)(10) (43 U.S.C. 1337(p)(10)) of OCSLA states ``this subsection does
not apply to any area on the Outer Continental Shelf within the
exterior boundaries of any unit of the National Park System, National
Wildlife Refuge System, or National Marine Sanctuary System, or any
National Monument.'' NOAA may consider authorizing renewable energy
activities, and/or activities in support of the development of
renewable energy, under the authority of the National Marine
Sanctuaries Act, through one or more of the following mechanisms--
General Permits, Authorizations, Certifications, and Special Use
Permits.
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\2\ Codified at 43 U.S.C. 1337(p).
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B. History of Renewable Energy Modernization Rule

On March 20, 2006, the Secretary delegated the responsibility for
regulating OCS renewable energy activities to MMS,\3\ the predecessor
agency to BOEM and BSEE. MMS promulgated the first OCS renewable energy
regulations on April 29, 2009 (74 FR 19638). Between May 19, 2010, and
August 29, 2011, Secretary Salazar issued Secretary's Order 3299 and
two amendments that ultimately divided MMS into three separate
agencies: BOEM, BSEE, and the Office of Natural Resources Revenue
(ONRR). The Secretary emphasized the importance of separate and
independent safety and environmental oversight when testifying before
Congress on May 26, 2010:
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\3\ 218 DM 1-6; 218 DM 8.
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The Deepwater Horizon tragedy and the massive spill have made the
importance and urgency of a reorganization of this nature ever more
clear, particularly the creation of a separate and independent safety
and environmental enforcement entity. We will responsibly and
thoughtfully move to establish independence and separation for this
critical mission so that the American people know they have a strong
and independent organization ensuring that energy companies comply with
their safety and environmental protection obligations.\4\
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\4\ Minerals Management Service Reorganization: Special Hearing
Before the Subcomm. on Dept. of the Interior, Environment & Related
Agencies of the S. Comm. On Appropriations, S. Hrg. 111-1035, at 12
(2010) (statement of Ken Salazar, Sec'y of the Interior).
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Pursuant to section 3 of Secretary's Order 3299, Amendment No. 2,
BOEM ``exercise[s] the conventional (e.g., oil and gas) and renewable
energy-related management functions of the [MMS] not otherwise
transferred pursuant to this Order including, but not limited to,
activities involving resource evaluation, planning, and leasing.'' \5\
Under section 4 of Secretary's Order 3299, Amendment No. 2, BSEE
exercises ``safety and environmental enforcement functions,'' including
``the authority to inspect, investigate, summon witnesses and produce
evidence, levy penalties, cancel or suspend activities, and oversee
safety, response, and removal preparedness.'' \6\
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\5\ Sec'y of the Interior Order 3299, as amended and issued Aug.
29, 2011, available at <a href="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">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</a>.
\6\ Id.
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Section 4 of Secretary's Order 3299, Amendment 2, assigned the
renewable energy program to BOEM ``until such time that the [ASLM]
determines that an increase in activity justifies transferring the
inspection and enforcement functions to [BSEE].'' On October 18, 2011,
the Department's regulations that were administered by BOEM were
codified at 30 CFR chapter V, and its renewable energy regulations were
located in 30 CFR part 585.\7\ Subsequently, in September 2013, the DOI
Office of Inspector General (OIG) issued a report supporting the policy
of independent regulatory oversight and enforcement in the renewable
energy program and recommending implementation of that policy through a
transfer of those responsibilities from BOEM to BSEE.\8\ The OIG noted
that ``allowing the bureau responsible for planning and leasing
renewable energy projects [i.e., BOEM] to also formulate the policies
for inspection and enforcement is contrary to the independent oversight
and separation of duties envisioned in [Secretary's Order 3299] as
originally issued.'' \9\ In the years since the 2009 rulemaking and the
DOI OIG report in 2013, the renewable energy industry and BOEM's and
BSEE's renewable energy programs have grown substantially.
Consequently, the Department promulgated a rule of agency organization
and procedure entitled ``Reorganization of Title 30--Renewable Energy
and Alternate Uses of Existing Facilities on the Outer Continental
Shelf'' (``Reorganization Rule'') that transferred existing safety and
environmental oversight and enforcement regulations governing OCS
renewable energy activities from 30 CFR

[[Page 42606]]

part 585, administered by BOEM, to 30 CFR part 285, administered by
BSEE.
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\7\ Reorganization of Title 30: Bureaus of Safety and
Environmental Enforcement and Ocean Energy Management, 76 FR 64432
(Oct. 18, 2011).
\8\ Office of Inspector Gen., Dept of Interior, U.S. Department
of the Interior's Offshore Renewable Energy Program 9 (2013) (Report
No. CR-EV-BOEM-0001-2013).
\9\ Id.
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Over the past decade, BOEM has conducted twelve competitive
renewable energy lease sales and administered thirty-four commercial
leases. Through these activities and working actively with relevant
stakeholders, the Department identified opportunities to modernize its
regulations and better facilitate the development of offshore wind
energy resources. BOEM held multiple public meetings and engaged in
significant stakeholder engagement and received recommendations from
industry, technical and scientific organizations, other government
agencies and other stakeholders on the reform of the renewable energy
program. Since then, the Department has refined its goals for meeting
U.S. climate and renewable energy objectives.
The Department determined that aspects of its renewable energy
regulations could be streamlined and improved since the last
rulemaking.
On January 30, 2023, the Department proposed the Renewable Energy
Modernization Rule to reduce regulatory burdens and streamline the
regulations, incorporate the recommendations from the stakeholders, and
achieve the U.S. climate and renewable energy goals. 88 FR 5968. The
proposed Renewable Energy Modernization Rule was the result of over ten
years of effort by the Department and industry to identify and resolve
the obstacles to establishing an effective and commercially viable
offshore renewable energy industry on the OCS.

C. Purpose of This Rulemaking

This final rule includes regulations administered by BOEM (30 CFR
parts 585 and 586) and BSEE (30 CFR part 285), as identified in the
Reorganization Rule. A summary of key provisions is provided below. The
Department believes that this final rule will facilitate the
development of OCS renewable energy and 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. The final rule
reforms the renewable energy regulations, streamlines processes,
clarifies ambiguous provisions, enhances compliance provisions, and
corrects technical errors and inconsistencies. Through these changes,
the Department aims to reduce administrative burdens, reduce costs and
uncertainty, and introduce greater regulatory flexibility in a rapidly
evolving industry to foster the growth of OCS renewable energy, while
maintaining environmental safeguards. The Department's regulatory
changes in this final rule are not intended to contradict, preempt,
supersede, alter, or otherwise be incompatible with the authority and
jurisdiction of other Federal agencies or entities or their
regulations. Rather, the Department's purpose for these changes is to
ensure the development of renewable energy on the OCS is carried out in
a manner that provides for safety and protection of the environment, in
addition to the other factors as specified in OCSLA Section 8(p).

D. Summary of the Proposed Renewable Energy Modernization Rule

On January 30, 2023, the Department published the NPRM, which
proposed amendments to 30 CFR part 585. The NPRM proposed key
provisions that would accomplish the following:
(1) Eliminate SAP 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 assurance requirements 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 the Department's OCS renewable energy regulatory program.

III. Summary of the Significant Provisions

The following section provides a summary of key comments and
responses regarding significant provisions and the Department's
rationale for the final decisions and amendments in those significant
provisions.

A. Site Assessment Facilities

1. What did the Department propose?
(a) 30 CFR 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?
The proposed rule clarified that off-lease site assessment
facilities would not require a limited lease and the Department would
not conduct any case-by-case determinations regarding whether off-lease
site assessment activities require a lease. This proposed clarification
of BOEM's authority over off-lease site assessment activities applied
to both met buoys and met towers. Although met towers have greater
environmental impacts than met buoys, BOEM did not believe this
proposed regulatory change would increase environmental risk due to
USACE permitting requirements, common use of met buoys, and BOEM's
existing practice.
(b) 30 CFR 585.113 Definitions.
The Department proposed to define the following terms:
Bidding credit(s), commercial activities, commercial operations,
critical safety system, engineered foundation, fabrication, lease area,
multiple factor auction, project design envelope, provisional winner,
receipt, and site assessment activities.
(c) 30 CFR 585.600 What plans must I submit to BOEM before I
conduct activities on my lease or grant?
The existing regulations required lessees to submit an SAP for BOEM
approval before conducting any site assessment activities on their
commercial leases. The proposed rule proposed to exempt floating site
assessment facilities, such as met buoys, from the SAP requirement.
Under the proposed rule, a lessee planning to install an industry-
standard met buoy using a gravity anchor for site assessment would not
require an SAP.
The proposal intended to allow lessees to deploy met buoys more
efficiently and at a reduced cost given that an SAP would no longer be
required. Instead, a met buoy would generally be authorized by USACE
permitting requirements under section 10 of the Rivers and Harbors Act
(such as Nationwide Permit (NWP) 5 that applies to Scientific
Measurement Devices, see 86 FR 73522, or a similar USACE general permit
or individual permit). Under the proposed rule, BOEM would no longer
authorize met buoys on the OCS. Consequently, the proposed rule would
have also eliminated the need for a Clean Air Act (CAA) air quality
permit from the U.S. Environmental Protection Agency (USEPA) for on-
lease met buoys with backup diesel generators because these buoys would
fall outside the CAA definition of an ``OCS source.'' To accommodate
the SAP changes, BOEM proposed several ancillary regulatory changes,
including eliminating deadlines for SAP submittals, decoupling the
requirement to operate under a Safety Management System (SMS) from SAP
submission, and removing references to terminology that relates
primarily to buoys (e.g., anchors,

[[Page 42607]]

chains, moorings) in the SAP regulations.
USACE NWP 5 or a similar USACE general permit complies with current
Federal environmental laws and governs deployment of devices whose
purpose is to measure and record scientific data and that result in no
more than minimal individual and cumulative adverse environmental
impacts. Under the proposed rule, site assessment activities would
still require an SMS, and the Department would still maintain oversight
of site assessment activities.
(d) 30 CFR 585.900(c) Who must meet the decommissioning obligations
in this subpart?
The proposed rule also proposed to amend the decommissioning
regulations to avoid duplicative or conflicting requirements for the
removal of met buoys. Under the proposed rule, a lessee would
decommission its met buoys according to the USACE requirements of an
issued permit. In these circumstances, USACE would be responsible for
determining on a case-by-case basis if financial assurance is required
at the time of buoy installation. If for some reason the USACE did not
require its buoy decommissioning, BSEE retains the authority to require
decommissioning of the buoys. BSEE expects to utilize its regulatory
authority for decommissioning of buoys in limited circumstances. In
addition, BOEM may request additional financial assurance under Sec.
585.517(b), or if necessary, apply financial assurance held under Sec.
585.516(a)(1). Further, BOEM retains the authority to require
decommissioning financial assurance for buoy(s) that remain in place
when the agency authorizes subsequent construction and operations on
the OCS under a COP or GAP. Under the proposed rule, the buoys would be
authorized and installed pursuant to USACE regulations and USACE would
assume responsibility for ensuring that any required removal takes
place in accordance with the terms and conditions of the permit and at
USACE's discretion. In these circumstances, the USACE would be
responsible for determining on a case-by-case basis if financial
assurance is required.
2. What are the key public comments?
(a) On-lease met buoys.
Comment: Several commenters expressed concern or opposition to the
proposal. A commenter discussed the impact that BOEM's proposal to
delay the SAP to be concurrent with the COP would have on the planning
process. The commenter stated that the proposal delays public awareness
of the plan and an opportunity to ``affect it early in the planning
process.'' The commenter also stated that if BOEM were to merge the SAP
and COP phases, then a project Environmental Impact Statement (EIS)
would have to be prepared prior to lease award.
Response: The purpose of an SAP is to describe proposed data
collection facilities, such as a meteorological (met) tower or buoy.
Such facilities are often--but not always--needed to collect the data
required for inclusion in a COP. Under the existing regulations, an SAP
is superfluous for a proposed project that does not include
installation of a met tower or buoy, yet the existing regulations still
require the submittal and approval of such plans. The final rule
eliminates this formal requirement but does not affect BOEM's
responsibilities to conduct environmental reviews or consultations.
Therefore, this change does not require preparation of an EIS prior to
a lease award.
Comment: Several commenters expressed concern with the language
under Sec. 585.600(b)(4) stating that BOEM would have discretion to
waive certain information or analysis requirements in a proposed SAP if
the applicant can demonstrate that the information is not needed or
required by a state's coastal management program. According to the
commenters, the language implies that BOEM can make decisions on behalf
of coastal states regarding what information is sufficient for Federal
consistency review. In an effort to promote cooperation among BOEM,
lessees, and coastal states, a commenter suggested BOEM revise the
amended language to limit the exemption provision to the necessary data
and information required to initiate Federal consistency review; make
explicit reference to National Oceanic and Atmospheric Administration
(NOAA) Federal consistency regulations; and involve States in the
decision-making process for information waiving requirements. Another
commenter suggested that BOEM revise the amended language to limit the
exemption provision, noting that without the identified data and
information described in 15 CFR 930.58 and in a state's approved
enforceable policies, a State would not be able to conduct a Federal
consistency review and be required to request this information, further
delaying the Federal consistency review process.
Response: The commenters are correct that neither the applicant nor
BOEM can dictate what data and information is deemed necessary to
conduct an adequate consistency review based on the enforceable
policies of a State's coastal management program. The final rule,
however, would not have that effect. As noted in the proposed rule
preamble, the applicant would need to ``demonstrate that . . . the
information is not needed or required by a State's coastal management
program'' before BOEM would grant a waiver and this demonstration would
entail confirmation with the affected State.
Comment: BOEM received other comments opposing the proposed
revisions and stating that the proposal not to require an SAP for met
buoys pursuant to Sec. 585.600 may limit environmental review, data
collection, siting considerations, and buoy removal planning
requirements for developers. Commenters also offered suggestions
regarding anchor abandonment and duplication in buoy siting. Commenters
requested more information from BOEM on how these concerns would be
addressed under this proposed change. The commenter also stated they,
``look forward to contributing to defining `unnecessary requirements'
within the Makah area of sovereign interest.''
Response: This rulemaking does not reduce or eliminate BOEM's
environmental review of site characterization (geotechnical and
geophysical surveys, biological surveys) and site assessment activities
(deployment of met towers and buoys). This review takes place during
BOEM's development of an Environmental Assessment (EA) pursuant to
NEPA, which begins with a Notice of Intent to prepare a NEPA analysis
(and related public comment period) and concludes during the period
between publication of a Proposed Sale Notice (PSN) and a Final Sale
Notice (FSN) (i.e., prior to issuing a lease). These EAs analyze
potential environmental impacts of activities expected to take place
following lease issuance, including site characterization and site
assessment activities. BOEM also notes that USACE may have
decommissioning requirements applicable to met buoys, depending on the
type of permit used and subject to district review and discretion.
Finally, BSEE has authority to require lessees to decommission
facilities installed within their leases under 30 CFR 285.900 and
285.90. BSEE expects to utilize its regulatory authority for
decommissioning of buoys in limited circumstances. This decommissioning
authority is not constrained or affected by BOEM's changes to the SAP
regulations. Since this comment was submitted, BOEM conducted
government-to-government consultations with this commenter on the
proposed rule generally and this comment in particular. BOEM also has

[[Page 42608]]

initiated and held government-to-government consultations and staff-
level meetings with the commenter and four additional Indian Tribes to
discuss potential impacts and to solicit and fully consider their views
on the proposed rulemaking.
Comment: Another commenter stated the proposal would give greater
jurisdiction and flexibility to BOEM and allow for more self-regulation
of OSW developers. Further, the commenter stated that permitting met
buoys and eliminating SAPs by delegating the responsibility to USACE
would reduce public review and transparency, remove met buoys from
OCSLA jurisdiction, and strip the requirement of CAA permits being
issued for met buoys, which use diesel fuel for energy backup systems.
Response: BOEM's proposed removal of the SAP requirement for met
buoys simply resolves a significant regulatory overlap. The proposed
rule would not delegate any authority to USACE that it does not already
possess and exercise. The proposed removal of the SAP requirement would
subject buoys installed for OSW purposes to all of the USACE
requirements that currently apply to buoys installed on the OCS for any
other purpose. It should also be noted that BOEM prepares an EA prior
to lease issuance where impacts resulting from site characterization
and site assessment activities are discussed and presented to the
public for public comment and consideration before finalizing the EA.
The final rule will not change this practice.
Comment: Several commenters expressed concern regarding delegation
of review to USACE. A commenter inquired about how BOEM will work with
USACE to ensure that OSW data buoys are properly permitted and noticed
to mariners and how BOEM will ensure stakeholders are informed about
OSW leases in a single location. Another commenter noted the SAP
process was more transparent to the public regarding the components of
a lease area survey and equipment that will be used.
Response: Stakeholder and public input is channeled through the
NEPA review rather than through the review of an individual SAP. The
proposed rule does not reduce or eliminate BOEM's environmental review
of site characterization and site assessment activities (geotechnical
and geophysical surveys, site assessment, and deployment of met buoys
and/or met towers). This review occurs during BOEM's development of an
EA which typically concludes with the release of a Final EA and a
Finding of No Significant Impact during the period between the issuance
of a PSN and an FSN. These EAs analyze all anticipated environmental
impacts of activities expected to take place following lease issuance,
including site characterization and site assessment activities.
Comment: A commenter expressed opposition to the proposal to
eliminate the SAP requirements for met buoys stating that further
segmentation of the project review process will make stakeholder
participation and awareness more burdensome than it already is.
Response: Stakeholder and public input is channeled through the
leasing EA rather than through the review of an individual SAP. The
rule does not reduce or eliminate BOEM's environmental review of site
characterization and site assessment activities (geotechnical and
geophysical surveys, site assessment, and deployment of met buoys and/
or met towers). This review is completed during BOEM's development of
an EA under NEPA which typically concludes with the release of a Final
EA and a Finding of No Significant between the issuance of a PSN and an
FSN. BOEM's leasing EAs analyze all anticipated impacts from site
characterization and site assessment activities, including the
deployment of met buoys and, in some cases, towers.
Comment: A commenter stated that permits for lease SAP approvals of
met buoys by the USACE must include decommissioning requirements and
BOEM must guarantee the continuity of OSW decommissioning processes so
that commercial fishing industry is ``not left with a cluttered benthic
habitat without any Federal agency responsible for removal of
structures within the Exclusive Economic Zone.''
Response: USACE may incorporate its own decommissioning
requirements in permit approvals of met buoys. For example, USACE NWP 5
requires that ``upon completion of the use of the device to measure and
record scientific data, the measuring device [i.e., met buoy] and any
other structures or fills associated with that device (e.g.,
foundations, anchors, buoys, lines, etc.) must be removed to the
maximum extent practicable and the site restored to pre-construction
elevations.'' However, USACE decommissioning requirements are dependent
on the type of permit used and subject to district review and
discretion. Overall, USACE decommissioning requirements, coupled with
the final rule's provision in 30 CFR 285.900(c) reserving to BSEE the
authority to require decommissioning in the event that USACE does not
require it and the relatively low number of met buoys should ensure
that the Exclusive Economic Zone will not result in the ``cluttered
benthic habitat'' that the commenter is concerned about. Overall, BSEE
expects to utilize its regulatory authority for decommissioning of
buoys in limited circumstances.
Comment: A commenter stated that if a met tower or met buoy is part
of the BOEM OSW leasing process, BOEM should conduct the permitting.
Response: BOEM's leases do not authorize deployment of met buoys
and grant the lessee only the exclusive right to submit plans for
BOEM's approval. BOEM analyzes the impacts of deploying buoys at the
lease sale stage because this activity is expected to take place
following lease issuance. In this regard, following publication of the
final rule, the deployment of met buoys will be considered in the same
fashion as other reasonably foreseeable activities, the impacts of
which are analyzed in BOEM's NEPA documents and consultations but
require no direct authorization from BOEM (e.g., the use of port
facilities and vessels). BOEM will concentrate on permitting more
complex facilities and remove the unnecessary overlap in permitting
requirements that was in place for met buoys.
Comment: One commenter noted that under Sec. 585.600(a)(1), SAPs
would be required only for site assessment activities involving an
engineered foundation and that off-lease and on-lease site assessment
activities for facilities without foundations would be authorized under
USACE permitting requirements under section 10 of the Rivers and
Harbors Act. The commenter stated that USACE NWPs are subject to
regional conditions and are not used in all offshore areas and that
this region-specific difference should be noted in the final rule.
Response: The commenter is correct that USACE permits may be
subject to regional conditions, and the requirements for deploying a
buoy may vary regionally. However, BOEM's regulations are not the
appropriate vehicle for providing guidance applicable to permits issued
by other agencies.
Comment: Regarding SAPs submitted before lease issuance being
subject to Federal consistency reviews under 15 CFR part 930, subpart D
(not subpart E), and noncompetitive lease sales reviewed under 15 CFR
part 930, subpart D (not subpart C), two commenters suggested BOEM
clarify language at Sec. 585.612 to account for these scenarios.

[[Page 42609]]

Response: BOEM has considered the commenter's suggestions and notes
that such clarifying language has already been proposed. Proposed
revisions to Sec. 585.612(a) clarify that an SAP submitted before
lease issuance would be subject to 15 CFR part 930, subpart D.
Likewise, proposed revisions to Sec. 585.231(f) clarify that a
noncompetitive lease is subject to 15 CFR part 930, subpart D. Although
BOEM appreciates suggestions that may provide more clarity, the
suggested revisions to include clarifying language on noncompetitive
leases at Sec. 585.612 would be duplicative of the language that is
already provided at Sec. 585.231(f), which is similar to BOEM's
requirements for offshore oil and gas and marine minerals activities.
BOEM cannot hold an OSW lease auction (Federal action, under 15 CFR
part 930, subpart C), nor permit activities (federally permitted
activities or plans, 15 CFR part 930, subparts D and E), without
concurrence or presumed concurrence from the State coastal management
programs with reasonably foreseeable coastal effects or for which the
activities are within their geographic location description or have
been awarded a consistency review through the unlisted activity review
process from NOAA's Office of Coastal Management.
Comment: A commenter expressed opposition to BOEM's proposal to
change the SAP process to rely on USACE NWPs stating that, because of
regional differences in offshore areas, transferring permit authority
to the USACE may not streamline the process and may trigger additional
Federal Consistency Certification (FCC) review.
Response: BOEM is not transferring authority to USACE, as USACE
generally has regulatory authority over deployment of met buoys in OCS
areas. Any regional differences, as the commenter asserts, would exist
regardless of whether BOEM exercises additional jurisdiction over the
same buoys. The 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
subject to the same Federal environmental laws applicable to BOEM's SAP
process. The USACE statutory authorities under section 404 of the CWA
and/or section 10 of the Rivers and Harbors Act of 1899 require
compliance with Federal environmental laws similar to BOEM's SAP
process.
As for BOEM, expected site characterization and site assessment
activities on the lease will continue to be analyzed as part of the
environmental review performed prior to a lease sale.
USACE currently issues approval of installation of buoys for
multiple purposes for which BOEM is not consulted and which are
unrelated to OSW. Current lessees need to perform met buoy deployment
and installation activities in compliance with USACE's NWP 5 or another
applicable general permit or individual permit. In addition, BOEM has
coordinated with USACE to ensure that the final rule addresses the
concerns raised by the commenter.
Comment: A commenter recommended that BOEM retain involvement in
the permitting process by the USACE and United States Coast Guard
(USCG) and retain involvement in geophysical and geotechnical site
characterization survey activities.
Response: BOEM would retain involvement in the permitting process
through its environmental review process. This review is completed
during BOEM's development of an EA under NEPA which typically concludes
with the release of a Final EA and a Finding of No Significant Impact
between the issuance of a PSN and an FSN (i.e., prior to lease
issuance). BOEM's EAs analyze environmental impacts of activities
expected to take place following lease issuance, including site
characterization and site assessment activities. Further, BOEM is not
proposing to alter its involvement in geophysical and geotechnical site
characterization survey activities. BOEM's OSW leases include
stipulations that require the submission of geological and geophysical
(G&G) survey plans for review by BOEM prior to the commencement of
survey activities. Moreover, BOEM's leasing EAs analyze potentially
significant impacts from G&G survey activities.
Comment: A commenter recommended that BOEM establish a clear
framework and mechanisms for interagency consultation prior to the
deployment of site assessment facilities with novel anchoring
technologies that do not have a BOEM-approved SAP.
Response: If a novel anchoring technology was proposed that was not
analyzed in the BOEM leasing EA, or if USACE determined that effects of
the novel anchoring technology had more than minimal adverse
environmental effects, additional environmental review would be needed,
and USACE may require an individual permit application. The types of
technology permitted without further environmental review would be
limited to those that are within the scope of the EA and any associated
consultations.
Comment: A commenter recommended the addition of language regarding
the mechanism for financial assurance regarding decommissioning if
USACE does not require site clearance ahead of site assessment
activities.
Response: BOEM would not hold decommissioning financial assurance
for facilities, like a met buoy, for which the agency did not issue an
approval. The lessee may have decommissioning obligations under its
USACE authorization, but BOEM would not hold financial assurance
guaranteeing that obligation. Although BOEM would not hold
decommissioning financial assurance directly related to the buoy,
BSEE's regulations still require that the buoy be decommissioned (30
CFR 285.902). BSEE expects to utilize its regulatory authority for
decommissioning of buoys in limited circumstances.
Comment: A commenter recommended deleting the definition of
``engineered foundation'' from Sec. 585.600(a)(1) to ``avoid
confusion, given that it only applies to met towers and no other
structures.''
Response: BOEM agrees with this approach given that the term
``engineered foundation'' was intended to be used only in the SAP
provisions of the rule. Therefore, this definition has been deleted in
the final rule (Sec. 585.113) and Sec. 585.600(a)(1) is revised
accordingly.
Comment: A commenter suggested the following revisions to BOEM's
proposed language in Sec. 585.600(a)(1), which provides that SAPs
would be required only for site assessment activities involving an
engineered foundation:
Before you:
Conduct any site assessment activities on your commercial lease,
involving [delete: an engineered foundation, such as] meteorological
towers or other facilities that are installed [add: on the seabed]
using a fixed-bottom foundation requiring professional engineering
design and assessment of sediment, meteorological, and oceanographic
condition [add: as part of the design].
You must submit, and obtain approval [strikethrough: for] of, your
SAP [strikethrough: according to] under Sec. Sec. 585.605 through
585.613.
Response: BOEM agrees in part with the commenter and is revising
Sec. 585.600(a)(1) to provide that:
Before you:
Conduct any site assessment activities on your commercial lease,
involving meteorological towers or other facilities that are installed
on the seabed using a fixed- bottom foundation requiring professional
engineering design and assessment of sediment, meteorological,

[[Page 42610]]

and oceanographic condition as part of the design.
You must submit, and obtain approval for your:
SAP under Sec. Sec. 585.605 through 585.613.
Comment: A commenter asked BOEM to consider if the definition of
``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))'' should be
modified to apply to all substructures whether fixed or floating. A
commenter raised concerns that changes to deployment requirements for
meteorological buoys should be reconsidered, reasoning that such
changes would limit environmental review, data collection, siting, and
buoy removal efforts.
Response: Met buoys have minimal environmental impact and SAPs are
not submitted for public review. All structures, including met buoys
and their mooring and anchors, are still required to be decommissioned
with the seabed cleared. SAPs may be used for other purposes such as
testing new technologies, so the standard in Sec. 585.600(a) applies
to more than met towers. Met buoys with more complex foundations such
as piles or suction buckets will still require an SAP if they are
``installed on the seabed using a fixed-bottom foundation requiring
professional engineering design and assessment of sediment,
meteorological, and oceanographic conditions as part of the design.''
(b) Off-lease met buoys.
Comment: A couple of commenters opposed BOEM's proposal related to
off-lease site assessments due to potential impacts to the environment
and fisheries. A commenter wrote that disassociating met towers and
buoys from leases would lead to more deployment of the devices,
creating additional hazards for mariners as navigable waters are
already decreased by wind farms. The commenter asked how fishermen
would be impacted from a posited increased in the number of buoys and
towers.
Response: BOEM does not believe that the marginal change in
regulatory approach BOEM has proposed will lead to an appreciable
increase in the number of buoys and other devices deployed--either on-
lease or off-lease. Lessees are not likely to deploy any more
meteorological buoys than are reasonably necessary to collect the data
needed to support a project due to logistical and economic constraints.
BOEM will continue to evaluate the effects of such deployments under
NEPA analyses of reasonably foreseeable outcomes of the issuance of OSW
leases. Moreover, the deployment of these devices would be subject to
existing regulations with which other sectors of the economy engaged in
oceanographic research must comply.
Comment: A commenter called BOEM's proposal arbitrary and
capricious, stating that BOEM's rationale for eliminating review for
off-lease met buoys/towers contradicts its reasoning for continuing to
require SAPs for on-lease met towers.
Response: BOEM will no longer require SAPs for the deployment of
standard buoys and off-lease met towers. However, BOEM will retain the
requirement for on-lease activities involving ``facilities that are
installed using a fixed-bottom foundation requiring professional
engineering design and assessment of sediment, meteorological, and
oceanographic conditions as part of the design.'' Likewise, BOEM
retains the SAP requirement for on-lease met towers, because their
potential impacts are expected to be more significant than a standard
met buoy. In both cases, BOEM is choosing to retain the SAP requirement
for on-lease activities that are more likely to cause impacts. This
division reflects the relatively tenuous nexus between an off-lease met
tower and offshore wind development and the sheer unlikelihood of
lessees installing and using such towers. BOEM has not processed a
limited lease request since the regulations were first promulgated in
2009.
Comment: Additionally, the same commenter stated that, ``BOEM's
primary rationale for such a change to regulations regarding off-lease
met buoys/towers is also irrational. On the one hand, BOEM states that
it intends to accomplish this change by stating that site assessment
activities do not produce or support energy generation. Yet its
rationale for making the change is to accelerate OSW development.''
Similarly, a commenter ``disagree[ed] with BOEM's finding that site
assessment activities do not produce, transport, or support the
generation of any energy project.'' Alternatively, a commenter agreed
with BOEM that no lease or other authorization is required, because
off-lease site assessment activities do not ``produce or support
production, transportation, storage, or transmission of energy from
sources other than oil or gas'' within the meaning of 43 U.S.C.
1337(p)(1)(C).
Response: These comments seem to suggest that BOEM must require
authorizations for any activities within its statutory jurisdiction.
However, it is neither irrational nor arbitrary for the agency to
choose to require an authorization for activities within its
jurisdiction that it finds more likely to be impactful, and to choose
not to require an authorization for activities within its jurisdiction
that it finds less likely to be impactful and that are permitted by
other Federal agencies in compliance with Federal statutes and
regulations. BOEM need not require leases for such buoys any more than
it needs to require a specific authorization for buoys deployed by a
BOEM lessee.
Comment: A commenter stated that under the proposal, BOEM would no
longer have the authority to deny a limited lease for off-lease met
towers. The commenter said that under the existing requirements,
developers must remain accountable to tribes and non-sovereign
stakeholders who have interests in environmental protection.
Response: BOEM agrees that, under the proposed and final rules, it
would no longer have the authority to deny a limited lease for off-
lease met towers, because BOEM would not require a limited lease for
such structures. However, the construction of a met tower on the OCS
will continue to be governed by a host of Federal regulations and
authorizations. In addition, environmental review under NEPA,
consultations under section 106 of the National Historic Preservation
Act (NHPA) and other authorities, as well as the need for tribal
government-to-government consultations remain in place. Such projects
would be subject to the same regulatory requirements as needed to
construct a met tower for any other purpose. In particular,
installation of a met tower on the Pacific OCS would be a very
significant undertaking, including opportunities for input,
participation and government-to-government consultations attendant
thereto.
Comment: A commenter urged BOEM to ``reconsider its proposed rule
determining that off-lease site assessment facilities do not require a
limited lease.'' Here, the commenter expressed disagreement with the
agency's finding that ``site assessment activities do not produce,
transport, or support the generation of any energy products.''
Referencing 88 FR 5968, 5976, the commenter asserted that site
assessment activities, including the operation of met buoys, support
generation of energy products. The commenter further asserted that BOEM
makes a similar finding with respect to met towers, stating that the
agency's ``decision not to seek to eliminate the

[[Page 42611]]

limited lease requirement for off-lease met-buoys is incongruous with
its proposal to eliminate the limited lease requirement for off-lease
met towers.''
Response: BOEM acknowledges that the existing approach treats on-
lease and off-lease activities differently in some cases. Historically,
BOEM required an authorization for on-lease buoys, but not off-lease
buoys. The final rule standardizes the approach by not requiring an
authorization for buoys in either case, subject to limited exceptions.
Because buoys are preferred over towers, BOEM expects this will result
in a consistent approach in the majority of situations--particularly on
the Pacific OCS where deeper water will favor the preference for met
buoys over towers even more strongly.
BOEM agrees with the commenter that site assessment activities like
buoys and towers may support the generation of electricity or other
energy product, and Sec. 585.104 is revised accordingly. Historically,
BOEM would require an authorization for on-lease met towers, and off-
lease towers if their purpose was to support OSW. In practice, BOEM has
received very few proposals for an on-lease met tower, and no proposals
for off-lease met towers. Under the revised regulations, BOEM will
require an approved SAP for on-lease met towers, but not off-lease met
towers. BOEM believes that requiring an SAP for on-lease met towers is
justified because potential environmental impacts of met towers and
facilities with engineered foundations are both more variable and more
significant for certain marine resources. However, BOEM is not
requiring an SAP for off-lease met towers because the nexus between an
off-lease met tower and offshore wind is likely to be more attenuated
than an on-lease met tower. Also, BOEM estimates that such towers are
likely to be so uncommon as not to merit specific treatment under our
regulations.
Comment: A commenter requested clarification on the review process
and timeline for off-lease site assessment activities. The commenter
said that these activities, particularly met buoys, may have
significant impacts to features including natural hard bottoms and
artificial reefs. The commenter stated that State agencies must be
given sufficient opportunity to review activities due to potential
impacts on bat and bird migrations.
Response: USACE evaluates applications to install met buoys on a
case-by-case basis. An application for a USACE authorization would
require compliance with the same Federal environmental laws (e.g., the
Endangered Species Act) applicable to BOEM's SAPs; that compliance may
result in measures to avoid or minimize impacts to environmental
resources.
Comment: Multiple commenters discussed the limited opportunities
for State engagement and public participation if the proposal is
finalized. A commenter stated that BOEM should clarify how off-lease
site assessment facilities will be managed where USACE's NWPs are
suspended due to regional conditions. The commenter also recommended
that BOEM provide a grace period prior to implementation to align with
State and USACE permit renewals and provide time for states to
coordinate procedural matters with USACE districts.
Response: Under the current regulatory regime for the OCS, off-
lease site assessment activities may occur without BOEM approval and
with USACE authorization (under either a nationwide, regional or
general permit) unless the purpose of the activities is to collect data
for renewable energy, in which case BOEM makes a case-by-case
determination as to whether a lease and GAP would be required. Given
that this distinction is only about the purpose of the data collection,
rather than the type of activities or their potential impacts, BOEM
cannot justify the higher burdens placed solely on those interested in
site assessment data to inform renewable energy. This suggests BOEM
should either require an SAP for all buoys, regardless of the purpose
for which they are proposed, or none. However, because OCSLA would not
permit BOEM to regulate buoys installed regardless of purpose (and
because there is another agency with precisely that mandate), we have
opted not to regulate buoys. Further, BOEM disagrees that the proposal
will result in limited opportunities for State and public participation
in BOEM's process, as a large number of public engagement opportunities
remain \10\ and will continue under the final rule. BOEM coordinates
extensively with states and consults with State authorities through
BOEM's Intergovernmental Task Forces and through regular ad hoc
meetings. Opportunities for public engagement are likewise plentiful;
BOEM typically holds dozens of meetings with different stakeholder
groups, both virtual and in-person, as well as public comment
opportunities associated with the RFI, the Call, the draft Area
Identification, scoping for the lease sale Environmental Assessment,
PSN, and scoping for the project EIS. The Department coordinated the
finalization of this provision with USACE. Given that USACE has a well-
established permitting program and because the Department is providing
regulatory relief with this final rule, BOEM does not find a grace
period to be necessary. Applicants who wish to deploy off-lease site
assessment facilities to collect data for renewable energy can follow
the existing well-established USACE processes to obtain general or
individual permits, as appropriate. Where a general permit is not
available, the USACE district may evaluate activities under an
individual permit.
---------------------------------------------------------------------------

\10\ See A Citizen's Guide to the Bureau of Ocean Energy
Management's Renewable Energy Authorization Process, Dec. 2016,
available at <a href="https://www.boem.gov/sites/default/files/renewable-energy-program/KW-CG-Broch.pdf">https://www.boem.gov/sites/default/files/renewable-energy-program/KW-CG-Broch.pdf</a>.
---------------------------------------------------------------------------

Comment: A commenter recommended the following revisions to the
rulemaking text:
<bullet> Sec. [thinsp]585.611: Clarify that information about
sites that have religious or cultural significance to Tribes, including
viewsheds and traditional cultural landscapes and properties, must be
included with the information an applicant must submit with an SAP to
assist BOEM in complying with NEPA and other applicable laws.
<bullet> Sec. [thinsp]585.617: Paragraph (e)(1) should be revised
to add ``culturally significant sites, including viewsheds and
traditional cultural landscapes and properties; or subsistence rights
of a federally-recognized Tribe.''
<bullet> Sec. [thinsp]585.606: Paragraph (e) should be revised to
add ``culturally significant sites, including viewsheds and traditional
cultural landscapes and properties; or subsistence rights of a
federally recognized Tribe.''
Response: BOEM reviewed these requests for additions to BOEM's SAP,
COP, and GAP requirements, and determined that BOEM's regulations, as
amended in this final rule, will require this information to be
included in such plans. The regulations in 30 CFR 585.627 require
lessees to submit detailed information and analysis ``to assist BOEM in
complying with NEPA and other applicable laws.'' This includes
information about ``archaeological resources use, or historic property
use, Indigenous traditional cultural use, or use pertaining to treaty
and reserved rights with Native Americans or other Indigenous peoples,
including required information to conduct review of the [plan] under
the NHPA or other applicable laws or policies, including treaty and
reserved rights with Native Americans or other Indigenous peoples.''
We have not adopted the precise wording proposed in the comment,
but we believe the language, as revised, will achieve the same result.

[[Page 42612]]

3. What is the Department finalizing?
(a) 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?
This rule finalizes that off-lease site assessment facilities would
not require a limited lease and the Department would not conduct any
case-by-case determinations regarding whether off-lease site assessment
activities require a lease. This applies to both met buoys and met
towers. This final rule does not adopt the language from the proposed
rule stating 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.'' (88 FR 5992)
That language implied that such activities would not be covered under
BOEM's authority under OCSLA. While it is true that in this rule, BOEM
has excluded buoys from the description of activities for which an
approved SAP would be required, it would be an overstatement to say
that such activities do not support the generation of energy. Please
refer to Section V of this preamble for a detailed discussion on this
section.
(b) Sec. 585.113 Definitions.
BOEM is not including its proposed definition of ``engineered
foundation'' in the final rule because the definition was intended to
be used only in the SAP provisions of the rule. However, the final rule
retains the same standard (meteorological or other facilities that are
installed on the seabed using a fixed-bottom foundation requiring
professional engineering design and assessment of sediment,
meteorological, and oceanographic conditions as part of the design) in
30 CFR 585.600 for determining whether an SAP is needed for proposed
site assessment activities on a commercial lease.
(c) Sec. 585.600 What plans must I submit to BOEM before I conduct
activities on my lease or grant?
BOEM is finalizing this portion of the rule about site assessment
facilities as proposed in Sec. 585.600. BOEM concludes that its
previous SAP requirement was unreasonably burdensome and redundant with
some of USACE's permit process and, therefore, unnecessary. Under the
final rule, lessees would deploy a met buoy following the existing
well-established USACE processes to obtain a general or individual
permit, as appropriate. USACE permits may be subject to regional and
special conditions, and the requirements for deploying a buoy may vary
regionally. The USACE permitting authority stems from section 10 of the
RHA and section 404 of the Clean Water Act (CWA). Under these
authorities, the USACE renders decisions for certain offshore
activities affecting navigable waters.\11\ BOEM does not anticipate
gaps in Federal oversight of met buoys deployed for measuring renewable
energy resources will result from this rulemaking. Equivalent met buoys
and other scientific research buoys deployed for reasons unrelated to
BOEM's OCSLA authority are already deployed routinely under other
Federal authorities and programs, including NOAA's National Data Buoy
Center program. BOEM is retaining the SAP process for facilities
installed on a commercial lease using a fixed-bottom foundation
constructed according to a professional engineering design (based on an
assessment of relevant sedimentary, meteorological, and oceanographic
conditions), including met towers.
---------------------------------------------------------------------------

\11\ Including the extension of the RHA to the limits of the
outer continental shelf by the Outer Continental Shelf Lands Act at
43 U.S.C. 1333(a)(1).
---------------------------------------------------------------------------

(d) Sec. 285.900 Who must meet the decommissioning obligations in
this subpart?
BOEM coordinated extensively with the USACE to ensure adequate
regulatory coverage for met buoys on the OCS. For example, on
decommissioning, BOEM anticipates that met buoys permitted under USACE
authority will be subject to USACE decommissioning requirements, as
applicable. However, to provide a backstop, BSEE revised its
decommissioning regulations to ensure that if, in the event, USACE does
not impose decommissioning requirements on a met buoy, BSEE retains the
authority to require it to be safely decommissioned. BSEE expects to
utilize its regulatory authority for decommissioning of buoys in
limited circumstances.

B. Project Design Envelope

1. What did the Department propose?
(a) Sec. 585.112 Definitions.
BOEM proposed to add a definition for ``Project Design Envelope
(PDE)'' as part of its proposal to codify the use of a PDE throughout
the NPRM subpart F (Plans and Information Requirements). The NPRM
proposed to add language to include the use of a PDE, which includes a
range of design parameters and construction and operation activities.
The NPRM also proposed the addition of language to clarify the ability
of lessees and grantees to submit plans using a PDE. The use of a PDE
is a proven approach to provide lessees and grantees with flexibility
throughout the permitting process while still complying with NEPA and
other statutory and regulatory obligations.
(b) Sec. 585.610 What must I include in my SAP?
The NPRM proposed that SAP information may be provided using a PDE
with BOEM reserving the right ``to determine what range of values for
any given parameters are acceptable.''
(c) Sec. 585.626 What must I include in my COP?
The NPRM proposed that COP information may be provided using a PDE
with BOEM reserving the right ``to determine what range of values for
any given parameters are acceptable.''
(d) Sec. 585.645 What must I include in my GAP?
The NPRM proposed that GAP information may be provided using a PDE
with BOEM reserving the right ``to determine what range of values for
any given parameter are acceptable.''
2. What are the key public comments?
Comment: Some commenters asserted that the proposed PDE approach
does not provide enough detailed information for various stakeholders,
such as fishing communities, the public, or permitting and consulting
agencies, to provide meaningful evaluation of potential impacts and
conduct Federal consistency reviews.
A couple of commenters suggested that mitigation measures should be
defined and made clear in the PDE. A commenter said that stakeholders
cannot effectively comment on unclear mitigation measures, nor can the
effectiveness of such mitigation measures be evaluated.
A commenter stated that BOEM should be allowed to provide direction
and articulate preferences for products, mitigation approaches, and
installation methods included in the PDE. The commenter discussed the
need to examine the range of impacts that could occur within the PDE,
not just the maximum, to identify technologies and approaches that
provide benefits or lessen the impact of a project. The commenter
warned that a PDE approach may undermine meaningful public evaluation
of likely design parameters if there are other contractual obligations
in place to use a specific technology from States or other sources.
Response: BOEM's existing EIS analyses use several methods to
ensure sufficiently detailed information is provided to stakeholders
about the range of impacts that may occur from a project that uses a
PDE. For example, BOEM may develop comparisons between different
options within a PDE

[[Page 42613]]

as part of the reasonable range of alternatives analyzed in detail in a
COP EIS. This analysis of alternatives allows for comparison of impacts
across design options within the PDE (e.g., foundation type) that
inform the public about the trade-offs between different technologies.
Moreover, the maximum impact scenario is not necessarily the same for
every resource, thus, BOEM's EISs typically assess impacts from a
variety of designs, techniques, layouts, and cable routes within the
PDE.
Comment: One commenter voiced support for the proposal but
requested that BOEM remove the language in Sec. 585.626(a) that ``BOEM
reserves the right to determine what range of values for any given
parameter are acceptable.'' Another commenter stated that BOEM should
provide guidance on the range of parameters it is prepared to review
through the process rather than requiring multiple rounds of PDE
submissions to narrow the scope. The commenter suggested a new
interagency memorandum of understanding under which consulting agencies
align and prepare to complete their review processes and avoid
utilizing PDEs as a tool for crafting EIS analyses from a range of
component options.
Response: BOEM needs the authority to review and request revisions
to a PDE that is unreasonably broad or vague. For example, BOEM may
request a revision when the PDE is too broad to be effectively analyzed
by NEPA or consulted upon with another agency, or there is not enough
detail in the COP to ensure sufficient safety and technical feasibility
to support a COP approval. The PDE approach is considered necessary to
allow for rapidly changing technologies in OSW. BOEM can use updated
COP and PDE Guidelines to set recommended limits on the PDE.
3. What is the Department finalizing?
(a) Sec. 585.113 Definitions.
BOEM is finalizing the definition of PDE as proposed. The final
rule will clarify the process for lessees and other stakeholders by
explicitly integrating PDE principles into the regulatory text,
primarily by referencing ``ranges'' of design parameters or locations.
In this final rule, BOEM recognizes that a PDE should not be overly
broad to avoid not defining the project well enough for meaningful
analysis.
(b) Sec. 585.610 What must I include in my SAP?
BOEM is finalizing that SAP information may be provided using a PDE
with BOEM reserving the right ``to determine what range of values for
any given parameter are acceptable.''
(c) Sec. 585.626 What must I include in my COP?
BOEM is finalizing that COP information may be provided using a PDE
with BOEM reserving the right ``to determine what range of values for
any given parameter are acceptable.''
(d) Sec. 585.645 What must I include in my GAP?
BOEM is also finalizing that GAP information may be provided using
a PDE with BOEM reserving the right ``to determine what range of values
for any given parameter are acceptable.''

C. Geophysical and Geotechnical Surveys

1. What did the Department propose?
(a) Sec. 585.626 What must I include in my COP?
The NPRM proposed to provide more flexibility and clarify existing
flexibility in COP requirements. BOEM proposed to shift the
geotechnical survey and data collection requirements from the largely
prescriptive standards to performance-based standards. These
performance-based standards would give lessees the leeway to
demonstrate that their selected combination of geotechnical and
geophysical surveys would provide BOEM the data at the COP review stage
to determine whether the project as designed could be constructed
safely in the proposed range of locations. Lessees could then determine
their own balance between geotechnical and geophysical surveys at the
COP stage. Through a COP sufficiency determination, BOEM would still
ensure that the COP contains information sufficient to complete its
environmental review and required consultations.
BOEM proposed to allow the submission of geotechnical data for an
engineering assessment of the proposed turbine foundations with a
lessee's FDR in lieu of the results of in situ boring and sampling at
each foundation location in the COP.
The NPRM also proposed to grant the Department the flexibility to
allow a lessee to submit subsea archaeological surveys at the FDR stage
on a case-by-case basis, subject to terms and conditions of COP
approval.
The proposal put forward clarifications that 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. The proposal also stated that the vast majority
of the data that would be deferred to the FDR and Fabrication and
Installation Report (FIR) stage is used solely for engineering
purposes. If the COP needs to be modified as a result of information
gathered from the deferred surveys, the Department would require the
lessee to revise the COP under the regulations at Sec. 585.634. The
Department believed that the proposed changes introduced flexibilities
and 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.
(b) Sec. 585.645(b) What must I include in my GAP?
The NPRM proposed similar changes to the General Activities Plan
(GAP) requirements for limited leases and grants to be consistent with
the proposed changes to COP data requirements. Specifically, the NPRM
proposed revisions of the geotechnical, shallow hazards and geological
survey information requirements in the GAP at Sec. 585.645(a).
(c) Solicitation of comments concerning a potential new permit
requirement for conducting geological and geophysical surveys for
renewable energy activities.
BOEM considered whether there was a need for a future rulemaking
intended to regulate surveys associated with OCS renewable energy
activities. To that effect, the proposed rule solicited 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 surveys?
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 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? Is there a greater
need for specific advance notice requirements 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 might be negatively impacted by the
activities in renewable energy survey activities? Can these
improvements replace the need to promulgate regulations

[[Page 42614]]

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
to minimize the adverse interaction between those conducting surveys
and other users of the OCS?
2. What are the key public comments?
(a) COP data requirements.
Comment: Several commenters supported the proposed changes allowing
certain archeological data to be submitted with the FDR and indicated
this would save time and money by eliminating the need to collect more
data than is necessary due to uncertainties in design. One commenter
suggested that BOEM offer two submittals for developers to: (1) submit
archeological survey information at the COP stage and (2) provide other
survey information at a later date on a component-by-component basis.
However, another commenter opposed the flexibility for the completion
of archeological surveys. Several commenters argued that if
archeological resource surveys are allowed to be deferred, BOEM should
work to facilitate agreements or memoranda of understanding among
National Historic Preservation Act (NHPA) section 106 consulting
parties to establish strong communication and design mitigation
approaches.
Response: Based on comments received, BOEM will continue to require
archeological surveys and analyses to be conducted prior to the FDR/FIR
stage because sufficient geophysical data is necessary to assess
potential impacts from offshore wind activities on cultural resources
and the introduction of a case-by-case deferral of certain marine
archaeological surveys would have created uncertainty for all parties
participating in consultations conducted according to section 106 of
the NHPA.
Comment: Several commenters suggested that BOEM should set specific
regulatory timelines for the COP review process, including a 20-day
preliminary review, a matrix of the subject matter expert comments
within 45 days, and an updated FAST-41 dashboard for communication with
project developers. A commenter also recommended that developers should
be required to begin consultation with State programs as early as
possible, not just upon the issuance of the Draft EIS, and should be
required to include the results of this consultation to State coastal
programs, fisheries users, and other coastal and marine users, as part
of the COP.
Response: In August 2023, BOEM released final guidance, entitled
Information Needed for Issuance of a Notice of Intent (NOI) Under the
National Environmental Policy Act (NEPA) for a Construction and
Operations Plan (COP), which establishes a non-binding framework
similar to the regime proposed by the commenter. BOEM prefers to focus
on implementing the current guidance, with its inherent flexibilities,
adaptability, and exceptions, as opposed to issuing a formal, rigid
rulemaking to address these issues.
Comment: One commenter stated, ``BOEM proposes to clarify the
language of Sec. 585.627 concerning the information to be submitted
alongside the COP, not to satisfy OCSLA but to assist BOEM in complying
with other statutory responsibilities, including NEPA.'' The commenter
also found it notable that BOEM stated, ``[t]he 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.''
The commenter supported the proposed clarifications and further
recommended revising the regulation to focus the requirement on
information regarding the potential for significant impacts. They
stated that doing so would be consistent with NEPA and the NHPA, as
well as various species-protection statutes that require interagency
consultation. The commenter stated that tailoring the information to
the statutory need would assist both BOEM and the COP applicant to
manage their shared responsibilities for developing data and analyses.
Response: BOEM incorporated responsive edits into Sec. 585.627(a)
in the final rule because they more accurately mirror the text in the
NEPA statute and regulations, which focus on significant effects of a
Federal action. BOEM added the phrase ``(or the potential significance
of the effect is unknown)'' to fully reflect Sec. 106 of NEPA, as
amended by the Fiscal Responsibility Act of 2023. BOEM also added the
phrase ``or such information is otherwise required by another statute
or regulation'' to emphasize that some of the requirements in Sec.
585.627(a) are subject to additional authorities beyond NEPA, which may
require the submission of additional information. BOEM also made
parallel edits to the relevant SAP regulations at Sec. 585.611(b) and
the relevant GAP regulations at Sec. 585.646(a)-(b) because BOEM's
plan requirements have parallel structures regarding NEPA. To
illustrate the edits made, the regulatory text in the final rule for
Sec. 585.627(a) provides, in part, that your COP must contain detailed
information and analysis necessary 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 table in
paragraph (a) that your proposed activities may significantly affect,
or that may have a significant effect on your proposed activities
(including where the potential significance of the effect is unknown)
and must contain any other information required by law.
Comment: A commenter expressed support for the proposal to submit
some archaeological surveys with the FDR, stating that this would
reduce vessel time in the water and associated environmental impacts.
The commenter stated that the requirement to submit geotechnical
surveys at each foundation location at COP submittal is ``at best
unrealistic and premature and at worst wasteful and inefficient,''
because ``only some geotechnical survey[s] together with geophysical
and archaeological surveys are necessary to inform the public
environmental review process.'' Another commenter requested that BOEM
provide more detail about which surveys would be acceptable at the pre-
COP stage to avoid duplicative survey work.
Response: The final rule clarifies which surveys are acceptable at
the pre-COP stage and which surveys are acceptable at the FDR/FIR
stage. Specifically, in the final rule geophysical survey data is
required at each foundation and cable location in the COP to develop
the geologic model as well as for environmental reviews. In addition,
while the NPRM would have allowed deferral of some geophysical surveys,
BOEM declined to carry forward that proposal in the final rule.
Consistent with the proposed rule, under the final rule
geotechnical data at each foundation location can be deferred to FDR
for final foundation design provided the data submitted in the COP is
otherwise sufficient for evaluation of geologic hazards and foundation
feasibility. Final assessment of geohazards and feasibility may be
deferred to the FDR stage by the lessee, at which time this information
will also be subject to review and certification by the CVA.
Consequently, the current requirement to submit site-specific
geotechnical data at the COP stage under 30 CFR 585.626(a) is modified
by both agencies in this final rule. Consistent with the proposed rule,
BSEE

[[Page 42615]]

and BOEM are relocating review of this site-specific data from 30 CFR
585.626(a) to 30 CFR 285.700(b) and (c).
Comment: A commenter expressed disagreement with the note in the
proposed rule suggesting that delayed archaeological surveys could
lengthen the NHPA section 106 review process. The commenter asserted
that the proposed rule is in line with industry standards and suggested
that BOEM clarify in the final rule whether any supporting
documentation would be required to get a survey strategy approved under
the performance-based standard. The commenter also suggested that BOEM
clarify in the final rule that phased geotechnical identification
represents a reasonable and good faith effort under the NHPA and future
project-specific Memoranda of Agreement and Programmatic Agreements
should include stipulations related to post-review discoveries. The
commenter also recommended that BOEM match the cultural resources
survey requirement language for GAPs to the corresponding requirement
language for COPs.
Response: BOEM's NPRM Sec. 585.626(b)(3) stated that ``[o]n a
case-by-case basis and subject to terms and conditions of COP 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).'' Upon further consideration of comments
received, particularly from federally recognized Tribes, BOEM is
eliminating this language. BOEM agrees that sufficient geophysical data
is necessary to assess potential impacts from offshore wind activities
on cultural resources and the introduction of a case-by-case deferral
of certain marine archaeological surveys could create uncertainty for
some parties participating in consultations conducted according to
section 106 of the NHPA. BSEE has removed the referenced regulatory
text in Sec. 585.701(a).
Comment: A commenter suggested developers be allowed to submit
geophysical data pertaining to inter-array cables (IACs) after the COP,
at the FDR/FIR Stage because the IAC layout is uncertain until the
turbine generators have been selected, and delaying submission would
allow for targeted collection of data.
Response: Developers may request a departure for submitting
geophysical survey data for IACs and BOEM will evaluate the request
based on the site-specific conditions and project details.
Comment: A commenter suggested BOEM establish a de minimus
threshold or more specific details for when project revisions after a
COP approval are needed as the current proposed text is broad. The
commenter further stated that COP revisions should not be required
unless the changes occur outside of the PDE. A commenter proposed
detailed regulatory text changes to several sections including
additional review actions BOEM may take in relation to a COP that
proposes to develop a lease in phases or segregate a lease, changes to
the activities that trigger a revision to the COP and the timeline for
approval, and the timing to commence operations on a commercial lease.
Response: While a de minimis threshold has not been specifically
added to Sec. 585.617, Sec. 585.634, or Sec. 585.655, as the
provision in the final rule reads, minor deviations from an approved
SAP, COP, or GAP should not require a plan revision. BOEM added a
reference to the PDE as relevant to a determination of whether a
revision is required. BOEM selectively adopted part of the
recommendation regarding phased development in Sec. 585.238 (which
appeared as Sec. 585.629 in the NPRM) by accepting the recommendation
regarding conditioned approvals that account for subsequent phased
development. BOEM protected its discretion by adding that it may take
other actions within its authority, but determined that the proposed
revision specifying that BOEM may ``bifurcate its pending review of a
Plan where a lease is segregated'' was potentially confusing.
(b) Other comments on policies or requirements BOEM should consider
related to geophysical or geotechnical surveys.
Comment: Several commenters expressed concern that proposed changes
to survey requirements may result in less information being available
at the earliest stages of leasing and permitting and would affect
consulting parties' review of proposed projects. One such commenter
recommended revising Sec. [thinsp]585.103(a)(4) by adding,
``culturally significant sites, including viewsheds and traditional
cultural landscapes and properties, and subsistence rights of a
federally-recognized Tribe'' at the end of the paragraph.
Response: The concerns expressed in this comment are noted and
well-received. BOEM will not, as proposed in the NPRM, modify existing
requirements for geophysical survey results to be submitted with the
COP. Consistent with the proposed rule, the final rule permits deferred
submittal of site-specific deep borings from geotechnical surveys.
However, the geotechnical surveys that may be deferred are not
necessary to assess impacts to cultural or other environmental
resources.
Comment: A couple of commenters stated that industry should be
required to share geological and geophysical data from exploratory
surveys. A commenter discussed OCS sand resources for beach nourishment
projects and requested that BOEM balance lease issuance with non-energy
uses. The commenter expressed concern that BOEM's mandate to protect
sand resources is not given equal importance as its role in energy. The
commenter stated that internal and external agency coordination for
sand resources is needed to conduct a baseline assessment on sediment
resources. The commenter also requested that BOEM define ``competing
uses'' to include a phrase like ``such as offshore sand resources.''
Response: BOEM understands that the survey data generated by
offshore developers is of great interest to other communities,
including academic communities and those investigating other resources,
such as sand and mineral resources. Such issues must be weighed against
developers' justifiable business interest in keeping information
confidential that has been developed at great cost. BOEM agrees with
the importance of understanding the implications to all offshore
resources. The provisions of 30 CFR 585.626 and 585.627, and 585.645
and 585.646 (equivalent in COP and GAP frameworks) ensure that lessees
and ROW holders will evaluate and describe the implication to offshore
resources as part of plan preparation.
Comment: A commenter said that BOEM should consider requiring
compensation to the commercial fishing industry as mitigation for the
impacts of site investigations on vessels and gear. A commenter said
that BOEM should acknowledge that noise produced from survey equipment
may result in temporary decreased catch rates.
Response: BOEM is actively pursuing mechanisms to promote the
compensation of impacted fishers. BOEM is aware of potential impacts to
the fishing industry as a result of noise produced from survey
equipment. The agency has devoted significant resources to avoiding and
minimizing potential impacts and will continue to do so outside of the
current rulemaking process.
3. What is the Department finalizing?
(a) Sec. 585.626 What must I include in my COP?
BOEM is finalizing its proposal to allow submission of the results
of in situ

[[Page 42616]]

boring and sampling at each foundation location with a lessee's FDR, in
lieu of requiring that information to be included in the COP. To
effectively implement this rule, BOEM revised the recommended level of
geotechnical data required in the COP to match the scope described in
BOEM report 2018-054 by DNV.\12\ BOEM requires this level of data in
each COP to ensure there is sufficient data and analysis for evaluation
of geologic hazards and a foundation feasibility assessment.
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\12\ See <a href="https://www.boem.gov/sites/default/files/environmental-stewardship/Environmental-Studies/Renewable-Energy/Data-Gathering-Process.pdf">https://www.boem.gov/sites/default/files/environmental-stewardship/Environmental-Studies/Renewable-Energy/Data-Gathering-Process.pdf</a>.
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However, BOEM decided against allowing geophysical surveys to be
deferred on a case-by-case basis. With this final rule, BOEM will not
allow a lessee to submit the results of certain detailed subsea
archaeological surveys with the FDR. BOEM reasoned that sufficient
geophysical data is necessary to assess potential impacts from offshore
wind activities on cultural resources and the introduction of a case-
by-case deferral of certain marine archaeological surveys would create
uncertainty for all parties participating in consultations conducted
according to section 106 of the NHPA. Under the final rule, geophysical
survey data continues to be required in the COP to develop the geologic
model as well as for environmental reviews. BOEM also determined that
sufficient geophysical data is necessary to assess potential impacts
from offshore wind activities on cultural resources and the
introduction of a case-by-case deferral of certain marine
archaeological surveys creates uncertainty for all parties
participating in consultations conducted pursuant to section 106 of the
NHPA. Finally, BOEM considered concerns raised by federally recognized
Tribes who opposed deferring submittal of geophysical data to the FDR
stage.
(b) Sec. 585.645(b) What must I include in my GAP?
BOEM is finalizing its proposed revisions of the geotechnical,
shallow hazards and geological survey information requirements in the
GAP regulations at Sec. 585.645(a). To effectively implement this
rule, BOEM revised the recommended level of geotechnical data required
in the GAP to match the scope described in BOEM report 2018-054 by
DNV.\13\ BOEM requires this level of data in each GAP to ensure there
is sufficient data and analysis for evaluation of geologic hazards and
a foundation feasibility assessment.
---------------------------------------------------------------------------

\13\ See <a href="https://www.boem.gov/sites/default/files/environmental-stewardship/Environmental-Studies/Renewable-Energy/Data-Gathering-Process.pdf">https://www.boem.gov/sites/default/files/environmental-stewardship/Environmental-Studies/Renewable-Energy/Data-Gathering-Process.pdf</a>.
---------------------------------------------------------------------------

(c) Sec. 285.701 What must I include in my Facility Design Report?
BOEM is finalizing its proposed revisions that would defer the
submission of some geotechnical information, previously submitted as
part of the COP--or GAP for facilities deemed complex and significant--
to be submitted as part of the FDR under Sec. 285.701(a)(10).

D. 30 CFR part 285, subpart G, Certified Verification Agent and
Engineering Report

1. What did the Department propose?
(a) Sec. Sec. 285.700 through 285.710, 285.712, and 285.714
Improving the project design and fabrication/installation verification
process.
BOEM and BSEE concurrently review reports for design and
construction of the facilities on the OCS. Rather than relying solely
on agency engineering expertise, the agencies also require lessees to
use a CVA to provide independent third-party review of a project's FDR
and FIR. The NPRM addressed the CVA's integral role in determining that
a proposed OCS renewable energy facility is designed and constructed
safely using best engineering practices in accordance with Sec. Sec.
[thinsp]285.707 and 285.712. The CVA would also be expected to monitor
fabrication and installation activities and to submit a final report to
BOEM and BSEE, as applicable, before the start of commercial operations
or other approved activities in accordance with Sec. Sec.
[thinsp]285.637(a)(2) and (3) and 285.708-285.712.
Under the proposed rule Sec. 285.708(a)(2) and (b), the CVA would
be required to evaluate the commissioning of any Critical Safety
Systems and Equipment, such as equipment designed to prevent or reduce
major accidents that could result in harm to health, safety, or the
environment associated with facilities. The NPRM proposed to add
flexibility to the CVA nomination process. Currently, a lessee or a
grantee must submit its CVA nominations with its SAP, COP, or GAP. In
the NPRM, the Department would approve or disapprove CVA nominations as
part of its plan review. Multiple lessees have expressed a desire to
have an approved CVA 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 has concluded 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 grantee may need to nominate new
CVAs as the project progresses (for instance, if a design parameter
changes at a later stage) or to request replacement of an approved CVA
if that CVA is ineffective or can no longer perform their duties. As a
result, the proposed rule would have provided flexibility for the
Department, lessees, and grantees by decoupling the CVA nomination and
approval process from plan submittal and approval. The proposed rule
also clarified that a lessee or a grantee could nominate separate CVAs
to review different components of a project.
A 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, fabrication, and
installation of the Critical Safety Systems and Equipment to assist the
Department in meeting requirements of OCSLA and its implementing
regulations to ensure that any authorized activities are carried out
safely. The Department's existing regulations require CVAs to
``certify'' projects, and the Department supports this approach as
applied to the FDR and FIR stages of wind power development.
2. What are the key public comments?
(a) Purpose, Role, and Scope of CVA.
Comment: Several commenters expressed disagreement with the
proposed changes to the CVA requirements, stating that the changes may
lead to a reduction in safety and recommending that the Department
carefully consider concerns about impacts to mariners. A commenter
stated opposition to the proposed waiver process for a CVA and use of a
lessee's engineer as they viewed the project engineer designation as a
lessening of responsibility and could produce conflicts of interest in
reviewing components. Another commenter opposed the use of multiple
CVAs for various components insofar as it could lead to inconsistencies
in the verification of a project. Finally, a commenter opposed the
changes in the ``verification'' and ``certification'' language,
suggesting that these changes would not be in line with industry
standards.
Response: CVA roles and responsibilities are now regulated by BSEE.
BSEE defines the role of the CVA in Sec. Sec. 285.707 and 285.708.
Changes to the rule on CVA roles and responsibilities will not reduce
the level

[[Page 42617]]

of safety on a project and will not reduce the safety of mariners or
other OCS users. The CVA must meet BSEE requirements for qualifications
and experience, and their scope of work will address safety concerns
through commissioning of the facility. Waiver requirements were already
included in the regulations. Any waiver of the CVA requirement will be
rigorously reviewed to ensure there is no reduction in safety prior to
accepting the use of a project engineer. The final rule adds stricter
requirements for project engineers when a waiver is requested. If
multiple CVAs are used on a project, BSEE will require one CVA to
oversee the entire facility design, fabrication, and installation and
to ensure continuity across all project components.
BSEE understands that the terms ``verification'' and
``certification'' are not consistently defined across published
standards. Accordingly, BSEE is defining each term based on the Oxford
Dictionary and contextual usage in relevant standards. The terms
``certify'' or ``certification'' describes how the CVA ``recognizes
that (someone or something) possesses certain qualifications or meets
certain standards.'' BSEE may thus require a CVA to ``certify'' that a
design or safety component conforms to a defined certification protocol
based on criteria from specific quality assurance standards or
recognized accepted engineering practices. The terms ``verify'' or
``verification'' describes how the CVA demonstrates that something is
true, accurate, or justified. BSEE has evaluated each of the CVAs
actions, as required by the regulations, and updated the regulations to
use the appropriate term.
Comment: Multiple commenters favored the proposed changes to CVA
requirements. Several commenters expressed support for the proposed
revisions to the role of a CVA, stating that the revisions align with
best engineering practices and BOEM and BSEE policy goals of
encouraging safety. One commenter stated support for the inclusion of
flexibility, pragmatism, durability, and performance-based standards
and suggested that the Department include a supporting discussion in
the preamble detailing the approach to these concepts. A commenter
expressed support for the CVA role revisions and the approval of CVA
nomination prior to COP submittal to create flexibility for both
lessees and the Department.
Response: BSEE has determined that reliance on CVAs will provide an
independent source of review for key stages of project development and
help to establish public confidence in the renewables industry. BSEE
defines the role of the CVA in Sec. Sec. 285.707 through 285.712. CVAs
play a role throughout the development of a project, including design,
fabrication, installation, and commissioning of Critical Safety Systems
and Equipment through verifications and certifications. The CVA
nomination now occurs within BSEE's oversight, therefore, the CVA
nomination has been decoupled from the COP. BSEE has taken a
performance-based approach and declined to incorporate new industry
standards in the regulations at this point in time as standards are
changing and still being developed, especially U.S.-specific standards.
The process implemented here provides flexibility regarding standard
selection but also provides BSEE the opportunity to review the
standards chosen by the lessee and CVA during the FDR review process.
Comment: Several commenters suggested changes that would enable the
Department to approve separate FDRs and FIRs for major project
components. The commenters stated that 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.
Response: BSEE already allows and encourages separated FDR/FIR
submittals of integrated asset packages to allow for flexibility
pursuant to Sec. 285.700(b). BSEE has made rule changes related to the
role and responsibilities of the CVA for the purpose of advancing
overall levels of safety in Sec. Sec. 285.707 and 285.708. If multiple
CVAs are used on a facility, BSEE will still require one CVA to oversee
the entire facility design, fabrication, and installation and ensure
the compatibility of each facility component. All CVAs must meet BSEE
requirements for qualifications and experience during the nomination
process and BSEE will ensure the CVA scope of work addresses safety
concerns throughout the commissioning of the facility.
(b) Clarification of Rule Terminology.
Comment: A commenter requested that the Department clarify the
phrase ``all incidents'' that affect the design, fabrication, and
installation of the project and its components that the CVA is required
to report in Sec. 285.705. The commenter further requested that the
proposed rule change the burden of reporting incidents from the CVA to
the lessee, who has site control, and allow a CVA to verify any
modifications needed to address the incident. Another commenter
suggested that the Department change the definition for professional
engineers that are allowed to replace CVAs to ``licensed professional
engineer'' rather than ``registered,'' as it is the more common form in
the United States. A commenter suggested that the Department explicitly
define ``installation'' and ``commissioning'' in a similar manner to
the definition of ``fabrication'' and explain in more detail what is
included in the Critical Safety Systems and Equipment to better define
what is required to be verified by a CVA.
Response: The regulations at Sec. 285.705(a)(3) require the lessee
to use CVA(s) to immediately notify BSEE of incidents that affect the
design, fabrication, and installation of the project and its
components. The lessee is also responsible for reporting certain
incidents as required in Sec. Sec. 285.815 and 285.831, and the lessee
is responsible for accepting any fabrication or installation
modifications and notifying BSEE as provided in Sec. 285.703.
BSEE ensures that the lessee upholds its reporting requirements
(including the requirement to use a CVA to report certain incidents)
and can take enforcement action if the lessee fails to meet these
requirements. The use of the CVA for reporting incidents as a part of
their oversight responsibilities enables their participation in
evaluating such incidents and providing an independent analysis to BSEE
and is thus preferable to having the lessee solely report incidents.
``Incidents that affect the design, fabrication, and installation
of the project and its components'' is an intentionally broad phrase
that includes but is not limited to design changes or events that occur
prior to the final project verification report (PVR) that affect the
design, fabrication, or installation of the project or its components
such that the original design envelope, standards, or functionality has
been changed from what was originally reviewed. BSEE notes the rest of
the comments and may take them into consideration in the event that
BSEE initiates a relevant rulemaking process in the future.
(c) Scope and Role of CVAs and Project Engineers.
Comment: Several commenters provided feedback on the proposed
revisions to the role of a CVA in Sec. 285.705. Some commenters asked
that the Department specify the qualifications required of a ``project
engineer'' that is allowed to stand in for a CVA as it would assist
developers in determining if a waiver could be pursued.

[[Page 42618]]

Other commenters suggested adding language to indicate that the CVA
scope of work must be in accordance with project certification schemes
generally accepted and used in industry, such as International
Electrical Code Renewable Energy (IECRE) OD-502. A commenter also
requested that the Department clarify the responsibility of a General
Project CVA to avoid conflicts and misunderstandings that may result in
the incorrect completion or non-performance of verification tasks.
Another commenter suggested that the Department adopt an independent
process to review and approve a company's credentials for CVA
nomination rather than project-specific approach proposed by the
Department, to decouple CVA nomination from the project approval
processes and encourage new participants in the CVA market.
Response: A CVA must be both competent and independent. A proposed
waiver and substitution of project engineers for CVAs will be evaluated
by BSEE on a case-by-case basis. The lessee must submit the project
engineer's qualifications to BSEE as a part of their waiver request to
demonstrate that the project engineer is a professional engineer with
relevant experience and expertise in the facilities they will be
verifying/certifying. The waiver must demonstrate that the project
engineer is qualified to perform the requirements of Sec. Sec. 285.708
through 285.713. BSEE may evaluate this waiver requirement in future
rulemakings. BSEE disagrees with the commenters' suggestion to
incorporate any specific project certification standard, such as IECRE
OD-502. BSEE has taken a performance-based approach and declined to
incorporate new industry standards in the regulations at this point in
time as standards are changing and still being developed, especially
U.S.-specific standards. The process implemented here provides
flexibility while still allowing BSEE to evaluate the CVA scope of work
to ensure that it fully describes the CVA's verification and
certification approach.
When multiple CVA's are nominated for a project, a general project
CVA must be nominated to manage the overall project verification and
certification approach to ensure consistency and oversight among the
other CVAs, especially in transition areas between different CVAs.
BSEE disagrees with the commenters' suggestion to adopt an
independent process to review and approve a company's credentials for
CVA nomination because BSEE reviews each CVA nomination to make sure
that the nominated CVA has the technical expertise, experience, and
capacity for the specific project. A specific company may be an
acceptable CVA for one project and not another depending on the
technologies involved in the project, technical expertise of the
company, number of projects the company is overseeing, and several
other factors. BSEE will continue to review the CVA nomination for each
specific project.
(d) Monitoring and Witnessing of Project Stages by CVA.
Comment: A commenter provided specific regulatory text revisions
for Sec. Sec. 285.708 and 285.710 regarding when a CVA is needed on a
project and how to nominate a CVA for the Department's approval,
including a suggestion that CVAs may periodically monitor fabrication
and installation of a facility and utilize type-approved procedures
rather than ``proper'' procedures to verify a design.
A commenter requested additional guidance on how a CVA may verify
safety and suggested that a ``design-basis'' approach as described in
BOEM's 2020 COP Guidelines Attachment C could be applied.
A commenter stated that the ``Background'' section of the proposed
rule should be revised to reflect the current expectations for third-
party witnessing of certain commissioning activities, as recently
issued in a COP Approval Letter Terms and Conditions.
Another commenter stated that attending and witnessing of
commissioning activities of safety and protection functions by the CVA
is not necessary as these functions are already type-certified as part
of the IECRE-OD501 process. The commenter instead provided several
regulatory text revisions to Sec. 285.710 to recommend that
verification by a CVA be limited to a review of completeness of
commissioning records and systems and remove the requirement of a
review for type-certified components.
Response: As to the first comment described above, BSEE agrees that
the procedures used and validated during the type-approval process
should be used for type-approved components. For other components, OEM
procedures should be used when applicable as per Sec. 285.710. The
specific regulatory text recommendations were not all incorporated;
however, those recommendations were used to update the final regulatory
text.
In response to the second comment described above, BSEE is not
employing a ``design basis'' for the FDR and FIR. The CVA must certify
and/or verify the contents of the FDR and the FIR. The FDR contains
specific engineering and design information, including Critical Safety
Systems and Equipment. The FIR contains specific fabrication and
installation information. Project ``design bases'' tend to be broad and
less specific, and therefore not meet the criteria for an FDR or FIR.
CVA verification must address specific hazards identified via a risk
assessment and what mitigations (or design changes) were implemented to
minimize or alleviate the hazards.
As to the third comment described above, BSEE did not make changes
based on the comment, but BSEE did meet the intent of the comment in
the proposed and final rule by including requirements for commissioning
activities that are similar to those in the COP terms and conditions in
Sec. Sec. 285.705, 285.708, and 285.710. BSEE will also work with the
CVA to make sure expectations for commissioning are clear.
Finally, as to the fourth comment described above, BSEE disagrees
that there is no need for witnessing of the commissioning of Critical
Safety Systems and Equipment and has not implemented the proposed
revisions to Sec. 285.710. One of the roles of the CVA, as described
in Sec. 285.710, is to certify that engineering procedures are
executed as designed. BSEE has determined that periodic witnessing of
commissioning operations (inclusive of Critical Safety Systems and
Equipment commissioning) in addition to reviewing completeness records
is necessary to ensure conformance with submitted plans and that all
Critical Safety Systems and Equipment are functioning as intended and
installation is completed as designed.
Comment: Multiple commenters requested that the Department further
clarify the role of the CVA in verifying a facility's safety by
incorporating appropriate consideration for human and occupational
safety through verification of adherence to industry codes and
standards to reduce confusion regarding CVA review of a facility.
Response: BSEE has declined to incorporate new standards into these
regulations because BSEE has determined that the proposed processes
adequately account for human health and occupational safety. Human and
occupational safety must be considered during the risk assessments that
identify the Critical Safety Systems and Equipment as is required by
Sec. 285.701. The CVA will review the risk assessments and the
standards proposed as a part of the FDR and FIR for adequacy, will
certify adherence to the standards, and will certify that the risk

[[Page 42619]]

assessment outcomes have been integrated into the project design. BSEE
will review the risk assessment, FDR, FIR, and CVA submissions to
ensure that appropriate standards are being utilized.
Comment: A commenter stated that the removal of mooring and
anchoring systems from CVA verification presents an increase to risk
and safety of a project and requests that the Department reinstate the
requirement. The commenter also discussed the need for a CVA to verify
any self-inspection plans submitted for facilities in development.
Response: Mooring and anchoring systems have not been removed from
the CVA verification process. For floating facilities, the CVA or
project engineer must verify their structural integrity, stability,
ballast, and that proper procedures were used during, inter alia,
installation of the mooring and tethering systems described at Sec.
285.710(d)(3). For fixed bottom foundations for non-FOWTs, a CVA or
project engineer is required to inspect and verify mooring, tendon, and
tethering systems under Sec. 285.710(b)(6).
BSEE will be evaluating self-inspection plans throughout the life
of the project. The self-inspection plan includes an evaluation of the
Critical Safety Systems and Equipment identified and the associated
inspection criteria as well as the self-inspection criteria related to
structural, mooring, and monitoring of corrosion protection. Due to the
performance monitoring that BSEE will be conducting throughout the life
of the project, BSEE is best suited to perform this work as opposed to
a CVA.
(e) Other Comments.
Comment: A commenter suggested that the Department formalize the
Project Verification Report using a consistent term, ``PVR.'' The
commenter requested that the Department clarify whether some or all
Critical Safety Systems and Equipment are referenced in existing 30 CFR
585.710 and clarify that the periodic inspection referenced in proposed
30 CFR 585.710(a) is applicable to the entire scope described by
paragraph (b).
Response: The term ``PVR'' is defined as an abbreviation for
Project Verification Report in this preamble. BSEE has formalized the
minimum requirements of a Project Verification Report in Sec. 285.708.
BSEE understands that technologies will undergo frequent changes in a
new industry; accordingly, BSEE declines to provide a list of Critical
Safety Systems and Equipment which could limit future innovation. The
regulation requires that the lessee do a risk assessment of their
specific facilities and identify the Critical Safety Systems and
Equipment, with oversight from the CVA. The CVA's periodic inspections,
as referenced in 30 CFR 285.710(a), are applicable to the entire scope
of the CVA's oversight in 30 CFR 285.710(b), which includes Critical
Safety Systems and Equipment.
Comment: A commenter suggested that the proposed text does not
clearly state who will prepare the PVR at Sec. 585.704.
Response: BSEE agrees with the comment and has amended the
equivalent provisions in Sec. 285.708(a)(5) to designate a CVA to
prepare the PVR. BSEE realizes there may be multiple PVRs for a project
and has formalized the minimum requirements of a PVR in Sec.
285.708(a)(5).
Comment: A commenter stated that the ``Background'' section in the
NPRM (Section IV.B.6, 88 FR 5974) states that ``[t]he CVA must also use
good engineering judgment and practice in conducting independent
assessments of the commissioning of critical safety systems.'' However,
the commenter stated that this language is not included in existing 30
CFR part 585 (2011), although it can be found in recently issued COP
Approval Letter Terms and Conditions. The commenter urged the
Department to clarify ``witnessing'' requirements to be performed by
the CVA, as proposed in 30 CFR 585.705(b)(2). They suggested that the
Department revise the ``Background'' section of the rule preamble to
reflect the current expectations for 3rd-party witnessing of certain
commissioning activities.
Response: BSEE has revised Sec. 285.708 to clarify that the CVA's
primary duties for fabrication and installation are to: (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 and Equipment; (2) monitor the
fabrication and installation of the facility and the commissioning of
Critical Safety Systems and Equipment; (3) assess the facility design
to withstand the environmental and functional load conditions
appropriate for the intended service life at the proposed location; and
(4) certify in Project Verification Reports that project components are
fabricated and installed in accordance with accepted engineering
practices and to a nationally or internationally recognized quality
assurance standard or to an equivalent alternate means of quality
assurance considered on a case-by-case basis.
The regulatory text at Sec. 285.710(a) provides that ``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.''
BSEE added another witnessing expectation for the CVA or project
engineer to make periodic onsite inspections to witness the
commissioning of Critical Safety Systems and Equipment at Sec.
285.710(f). Specific witnessing expectations may be included and
approved by BSEE as part of the CVA scope of work.
Comment: A commenter asked that the Department clarify the CVA's
duties for facility design review at Sec. 585.708 to include within
the usage of ``good engineering judgment and practices'' specific
language that the facility ``will 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.''
Response: BSEE agrees with this comment in theory, but Sec.
285.708 contains requirements for fabrication and installation review.
BSEE has included language in Sec. 285.707(a) to require the CVA to
verify a 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 minimize risk to
personnel as required by Sec. 285.105(a).
Comment: A commenter proposed to add a new section entitled ``What
must I include in my as-built submissions?'' with content as follows:
``(a) Your as-fabricated drawings and documents of any facilities that
are outlined in your FDR and FIR, must be made available to DOI prior
to PVR non-objection and must include the following items:
Required documents: (1) Complete set of cable drawing(s), Required
documents: (2) Electrical one-line drawing(s).''
Response: BSEE is considering publishing guidance regarding as-
built drawings and professional engineer stamping expectations but has
not made changes in this final rule as a result of these comments.
BSEE notes the rest of the comments and may take them into
consideration in the event that BSEE initiates a relevant rulemaking
process in the future.
3. What is the Department finalizing?
(a) Sec. 285.700 What reports must I submit to BSEE before
installing facilities described in my approved SAP, COP, or GAP?
The Department is finalizing the language in Sec. 285.700, as was
proposed Sec. 585.700, with clarifying revisions. In

[[Page 42620]]

final Sec. 285.700(a), BSEE requires that lessees submit an FDR and an
FIR before installing facilities described in the approved COP (Sec.
[thinsp]585.632(a)) and, when required by your SAP (Sec.
[thinsp]585.614(b)), or GAP (Sec. [thinsp]585.651). You may submit
your FDRs and FIRs to BSEE pursuant to revisions made to Sec. Sec.
285.700, 285.701, and 285.702 before or after SAP, COP, or GAP
approval.
As provided in final Sec. 285.700(b), if you submit separate FDRs
and FIRs by asset package (e.g., wind turbine generator (WTG), offshore
substation/electrical service platform, etc.), you must ensure major
integrated asset package(s) are complete (e.g., the WTG package
includes the rotor-nacelle assembly (RNA), blades, tower, foundation,
and transition piece, if applicable), and explain to BSEE how all asset
packages will function together effectively in an integrated manner in
accordance with your project design. You must also demonstrate that
such integration has been verified by your CVA.
Subject to these requirements, you may proceed with fabrication and
installation, under Sec. 285.700(d), when (1) BSEE 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 within 60 business
days of SAP, COP, or GAP approval; or (2) BSEE 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 business days of the report being deemed submitted.
The existing requirement to submit site-specific geotechnical data
at the COP stage under 30 CFR 585.626(a) is being modified by both
agencies. BSEE and BOEM are relocating review of this site-specific
data from 30 CFR 585.626(a) to 30 CFR 285.701(a). Within this
provision, BSEE is clarifying that the 60-day FDR and FIR review period
in the existing regulation is 60 business days. BSEE determined that a
60-business day review period, rather than the proposed 60-calendar day
review period, is necessary to ensure that BSEE has sufficient time to
review these complicated and lengthy technical documents.
Section 285.700(e) has also been revised to state that 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 FDR or FIR under
Sec. 285.700(a) or any plans required under 30 CFR parts 585 and 586.
The procurement and fabrication of facility components are subject to
verification and certification by your CVA, and BSEE may object to
their installation if the components or their fabrication are
inconsistent with accepted industry or engineering standards, the
approved SAP, COP, or GAP, the FDR or FIR, or BSEE's regulations.
Under final Sec. 285.700(f), if BSEE requires additional
information or has objections, we will notify you in writing within 60
business days of the FDR or FIR being deemed submitted for FDRs and
FIRs submitted after plan approval, or within 60 business days of plan
approval for FDRs and FIRs submitted before plan approval. Following
initial notification of any objections, BSEE may follow up with a
letter or email detailing its objections to the report and requesting
that certain actions be undertaken. Final paragraph (f) in this section
also states that you cannot commence fabrication or installation
activities on the OCS until you resolve all objections in such reports
to BSEE's satisfaction.
(b) Sec. 285.701 What must I include in my Facility Design Report?
The Department is finalizing the language in proposed Sec.
585.701, including revisions to Sec. 285.701(a)(1) through (10), the
addition of paragraphs (a)(11) through (13) and removal of paragraph
(e). In this section, BSEE addresses how the design report demonstrates
that the design conforms to key responsibilities listed in Sec.
285.105(a). In paragraph (a) of this section, the required documents in
the report include a cover letter; location plat; front, side, and plan
view drawings; structural drawings; summary of environmental data used
for design; summary of engineering design data; design calculations;
project-specific studies used in the facility design or installation;
description of the loads imposed on the facility; geotechnical reports;
design standards; Critical Safety Systems and Equipment; and other
information required by BSEE. BSEE is not finalizing proposed changes
to paragraph (b) and is keeping the provision in the existing
regulation with the exception of adding ``tendon'' to paragraph (b)(2).
BSEE is revising paragraph (c) to include what was proposed in
paragraph (b) that requires submission of the FDR to BSEE according to
Sec. 285.110. Under paragraph (d) of this section, if you are required
to use a CVA, the design report must include a certification statement
with accompanying justification attesting that the design of the
structure has been certified by a BSEE-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
certification statement should also identify a location where the
certified design and as-built plans and specifications will be on file.
The Department proposed in the January 30, 2023, NPRM to change the
regulatory language defining the CVA's role from ``certify'' and
``certification'' to ``verify'' and ``verification'' in Sec.
285.701(d). The Department ultimately decided to maintain the use of
``certify'' and ``certification'' in this regulation. BSEE evaluated
each use of the words ``certify,'' ``certification,'' ``verify,'' and
``verification'' and updated the regulations as appropriate. In this
case, ``certify'' and ``certification'' are appropriate because the
terms describe how the CVA ``recognizes that (someone or something)
possesses certain qualifications or meets certain standards.'' The CVA
must, for example, ``certify'' that a design or safety component
conforms to a defined certification protocol based on criteria from
specific quality assurance standards or recognized accepted engineering
practices.
(c) Sec. 285.702 What must I include in my Fabrication and
Installation Report?
The Department is finalizing this regulation, consistent with
proposed Sec. 585.702. BSEE is revising Sec. 285.702(a)(1) through
(7); removing the existing paragraph (d); redesignating existing
paragraphs (b) and (c) as paragraphs (c) and (d), respectively; adding
paragraphs (a)(8) through (10) and (b); and revising the newly
redesignated paragraph (d). BSEE added new documents that must be
included in the fabrication and installation report, including quality
assurance information, which includes certificates ensuring adherence
to nationally or internationally recognized assurance standards;
commissioning procedures for Critical Safety Systems and Equipment,
including OEM procedures or other BSEE accepted engineering practices
for commissioning of Critical Safety Systems and Equipment as
identified in Sec. 285.701(a)(12); project easement; and other
information. A similar attestation to Sec. 285.701 must accompany the
filing of fabrication and installation reports. For purposes of quality
assurance, BSEE requires that certificates ensuring adherence to
nationally or internationally recognized standards be included in the
FIR, pursuant to Sec. 285.702(a)(6). Additionally, the NPRM proposed
to change the regulatory language defining the CVA's role from
``certify'' and

[[Page 42621]]

``certification'' to ``verify'' and ``verification'' in Sec.
285.702(d). The Department ultimately decided to maintain the use of
``certify'' and ``certification'' in this regulation. In this case, the
terms ``certify'' or ``certification'' are appropriate because they
describe how the CVA ``recognizes that (someone or something) possesses
certain qualifications or meets certain standards.'' BSEE may require a
CVA to ``certify'' that a design or safety component conforms to a
defined certification protocol based on criteria from specific quality
assurance standards or recognized accepted engineering practices. The
terms ``verify'' or ``verification'' describes how the CVA demonstrates
that something is true, accurate, or justified. BSEE has evaluated each
of the CVAs actions, as required by the regulations, and updated the
regulations to use the appropriate term.
(d) Sec. 285.703 What reports must I submit for project
modifications and repairs?
The Department is finalizing paragraphs (a) and (c) of Sec.
285.703, consistent with proposed Sec. 585.703. With respect to
repairs and modifications, BSEE revised the term ``major repair'' to
provide for substantial repair of a Critical Safety Systems or
Equipment, including those identified in your FDR. The term ``major
modification'' is revised to contain similar language of ``substantial
alteration'' of Critical Safety Systems and Equipment, including those
identified in your FDR. A similar attestation to Sec. 285.701 must
accompany the filing of repair and modification reports. CVAs will also
be required to ``certify'' that major repairs or modifications of
renewable energy structures and crucial components to a completed
project conform to accepted engineering practices, in the FDR and the
BOEM-approved plan, as applicable.
(e) Sec. 285.704 After receiving the FDR, FIR, or project
verification reports, what will BSEE do?
The Department is finalizing this regulation, consistent with
proposed Sec. 585.704, with revisions to Sec. 285.704(a), (b), and
(c). In this final rule, BSEE-administered rules for determining if
reports are ``deemed submitted'' or in need of correction for
``problems and deficiencies'' track similar BOEM-administered rules.
BSEE will have 20 business days to deem a report submitted or to notify
a lessee of problems or deficiencies that prevent BSEE from determining
that the reports are ``deemed submitted'' such as the submission being
incomplete or files being unopenable or corrupted.
(f) Sec. 285.705 When must I use a Certified Verification Agent
(CVA)?
The Department is finalizing paragraphs (a) through (d) of Sec.
285.705, consistent with proposed Sec. 585.705, with minor revisions.
This regulation has been updated to allow for multiple CVAs, if
approved by BSEE. The roles of the CVAs have been updated to add that
the CVAs must (1) ensure that the design of the facilities is suitable
for the location where they will be installed, (2) ensure Critical
Safety Systems and Equipment are commissioned in accordance with the
procedures identified in Sec. 285.702(a)(8), and (3) provide BSEE and
the lessee with reports of all incidents that affect the facility
design, fabrication, and installation, including the commissioning of
Critical Safety Systems and Equipment, for the project and its
components.
Waivers from CVA requirements must include a demonstration that the
facility design conforms to a standard design that has been used
successfully in a similar environment, the relevant fabricator has
successfully fabricated similar facilities, the installation company
has successfully installed similar facilities in a similar offshore
environment, and the facility will be fabricated or that major
modification or major repairs were completed in conformance with
accepted engineering practices and to a nationally or internationally
recognized quality assurance standard.
Finally, if BSEE waives the requirement for a CVA, lessees must
demonstrate that their project engineer can perform the same duties and
responsibilities as the CVA. The lessee must submit the project
engineer's qualifications to BSEE as part of their waiver request to
demonstrate that the project engineer is a professional engineer with
relevant experience and expertise in the facilities they will be
verifying/certifying.
(g) Sec. 285.706 How do I nominate a CVA for BSEE approval?
The Department is finalizing Sec. 285.706(b)(2) and (7), (c), and
(d), consistent with proposed Sec. 585.706. BSEE is removing Sec.
285.706(e) because the Reorganization Rule transferred authority for
approving a CVA from BOEM to BSEE. The final rule modifies proposed
paragraph (a) of this section to require that a CVA must be nominated
by the lessee and approved by BSEE before conducting any verification
activities for which they have been nominated. Under this revised
provision, if you intend to use multiple CVAs, you must nominate a
general project CVA who will manage the overall project verification
and certification approach and who will ensure consistency and
oversight among multiple CVAs. The general project CVA must be
nominated no later than the COP submission date. Paragraph (c) of this
section also includes conflict of interest provisions to ensure chosen
CVA(s) were not directly involved in the design, fabrication,
installation, modification, or repair for which they are asked to
provide an independent oversight.
Section 285.706 also requires that all verifications and
certifications must be conducted under the direct supervision of a
registered professional engineer.
(h) Sec. 285.707 What are the CVA's primary duties for facility
design review?
The Department is finalizing Sec. 285.707(a) and (b) consistent
with proposed Sec. 585.707 (a) and (b), with a few minor revisions.
BSEE has made minor changes to the description of CVA duties in final
Sec. 285.707(a) to require CVAs to verify to BSEE that the facility is
designed not only to withstand the environmental and functional load
conditions appropriate for the intended service life at the proposed
location, but also to minimize safety risk to personnel as required in
Sec. 285.105(a). Also, the regulation at paragraph (b)(9) is added to
provide that the CVA must conduct an assessment supporting the design
for human safety and how the results were used in the design. The
Department is not finalizing the proposed Sec. 285.707(c).
(i) Sec. 285.708 What are the CVA's or project engineer's primary
duties for fabrication and installation review?
The Department is finalizing Sec. 285.708, consistent with
proposed Sec. 585.708, with minor revisions. BSEE has updated
expectations for the CVA's oversight of fabrication and installation to
add in paragraph (a) that the CVA must 1) use good engineering
judgement and practice in conducting an independent assessment of the
fabrication and installation activities and of the commissioning of
Critical Safety Systems and Equipment, and 2) monitor the fabrication
and installation of the facility and the commissioning of Critical
Safety Systems and Equipment. Under paragraph (a)(5) in this section,
the CVA must certify in a project verification report that project
components are fabricated and installed in accordance with accepted
engineering practices and to a nationally or internationally recognized
quality assurance standard (or to an equivalent alternate means of
quality assurance considered on a case-by-case basis), the lessee's
BOEM-approved SAP, COP, or

[[Page 42622]]

GAP (as applicable), and the lessee's FIR. As provided in paragraph
(a)(5), the project verification report must also identify the location
of all records pertaining to facility fabrication and installation. In
paragraph (a)(6), the CVA must provide records documenting that
Critical Safety Systems and Equipment are commissioned in accordance
with the procedures identified in Sec. [thinsp]285.702(a)(8); and,
under paragraph (a)(7), identify the location of all records pertaining
to commissioning of Critical Safety Systems and Equipment, as required
in Sec. [thinsp]285.714(c).
Under paragraph (b), the CVA or project engineer must now also
monitor the fabrication and installation of the facility and the
commissioning of Critical Safety Systems and Equipment to certify that
they have been built and installed in accordance with the lessee's
FDR(s) and FIR(s). According to final paragraph (b)(1), the CVA or
project engineer must inform the lessee and BSEE if the fabrication and
installation procedures or Critical Safety Systems and Equipment
commissioning procedures have changed or design specifications have
been modified and, under paragraph (b)(2), if the lessee accepts the
modifications, the lessee must also inform BSEE.
(j) Sec. 285.709 When conducting onsite fabrication inspections,
what must the CVA or project engineer verify?
The Department is finalizing Sec. 285.709(a), consistent with
proposed Sec. 585.709 with minor edits. BSEE is not finalizing
paragraph (b) as proposed and is keeping the provision in the existing
regulation.
(k) Sec. 285.710 When conducting onsite installation inspections,
what must the CVA or project engineer do?
The Department is finalizing Sec. 285.710, consistent with
proposed Sec. 585.710. For inspections of installation activity on
floating facilities, BSEE is adding commissioning of Critical Safety
Systems and Equipment to the scope of work performed by a CVA or
project engineer in Sec. 285.710(b)(9). Content of their work will
include onsite inspections to verify, witness, survey, or check the
installation and commissioning of Critical Safety Systems and Equipment
to verify the equipment functions as designed and that all records
associated with commissioning of Critical Safety Systems and Equipment
are complete. The final rule expands the scope of CVA or project
engineer activity to verify that proper procedures are used for
commissioning of Critical Safety Systems and Equipment for both fixed
and floating facilities at Sec. 285.710(c). For floating facilities,
the CVA or project engineer must verify their structural integrity,
stability, ballast, and that proper procedures were used during (1)
loadout of the facility, (2) installation of foundation pilings,
templates, and anchoring systems, and (3) installation of the mooring,
tendon, and tethering systems as required by final Sec. 285.710(d).
The CVA or project engineer must also conduct an onsite inspection of
the installed facility as approved, as provided in final Sec.
285.710(e) and witness the commissioning of Critical Safety Systems and
Equipment, as provided in final Sec. 285.710(f).
(l) Sec. 285.712 What are the CVA's or project engineer's
reporting requirements?
The Department is finalizing Sec. 285.712, consistent with
proposed Sec. 585.712, with one edit. With this final rule, reports
prepared by a CVA or project engineer will summarize issues involving
the designs, and any incidents during facility fabrication and
installation or Critical Safety Systems and Equipment commissioning,
and how those issues were resolved, pursuant to Sec. 285.712(b)(5).
(m) Sec. 285.713 [RESERVED]
BSEE is removing and reserving this section, consistent with the
NPRM.
(n) Sec. 285.714(a)(4) What records relating to FDRs, FIRs, and
Project Modification and Repair Reports must I keep?
The Department is finalizing Sec. 285.714, consistent with
proposed Sec. 585.714. Additional recordkeeping measures are required
for the commissioning of Critical Safety Systems and Equipment and the
location of records identified in the certification statement, as set
out in Sec. Sec. [thinsp]285.701(c), 285.703(b), and 285.708(a)(5) and
(a)(7). These additional recordkeeping measures include providing BSEE
with the location of these records in the certification statements
associated with these regulations.

E. Renewable Energy Leasing Schedule

1. What did the Department propose?
(a) Sec. 585.150 What is the renewable energy leasing schedule?
BOEM proposed to include a new Sec. 585.150 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 the 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. For more details on the proposed renewable energy
leasing scheduled, see 88 FR 5984.
BOEM specifically solicited comment on ``its proposal to publish a
proposed Renewable Energy Leasing Schedule and what information should
be provided as part of this schedule.'' It also specifically solicited
comments ``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.''
2. What are the key public comments?
Comment: Some commenters expressed opposition to BOEM's proposed
renewable energy leasing schedule. A commenter said that based on their
experience with the oil and gas 5-year program, the 5-year leasing
schedule would not be transparent, in the public interest, or
protective of the marine ecosystem and public health. The commenter
said the schedule would undermine due process and meaningful public
involvement. A commenter stated that a schedule by rulemaking would
give BOEM the authority to further curtail public engagement and
stakeholder input and avoid waiting for studies that could impact
decisions. The commenter recommended that BOEM establish the schedules
outside of the rulemaking process.
Response: The OSW leasing schedule in this rule should not be
confused with BOEM's National Outer Continental Shelf Oil and Gas
Leasing Program, which is different in many ways. BOEM does not agree
that including in our discretionary decision-making process a
requirement for greater public transparency about the agency's leasing
intentions could undermine due process or meaningful public
involvement, as the commenter asserts. The regular dissemination of a
schedule indicating

[[Page 42623]]

areas where the agency intends to focus future area identification
efforts will not affect the actual process that BOEM employs to
evaluate potentially suitable areas for leasing.
While we commit in this rulemaking to periodically publishing an
OSW leasing schedule, that aspirational schedule is independent from
BOEM's area identification and leasing process. The schedule will
simply summarize the agency's future plans for the consideration of
areas for leasing. For leasing scheduled in the first year or two of
the five-year period, BOEM may have completed some of the milestones
toward leasing development (area identification, sale notices, etc.).
For leasing scheduled later in the five-year period, BOEM may not have
completed or even begun such steps.
Comment: A commenter expressed support for additional requirements
associated with stakeholder engagement and government coordination. A
couple of commenters said BOEM should consider allowing public input
when changes are made to the schedule. A commenter expressed concern
that the proposed rule would not include a requirement for public
engagement or comment periods on the leasing schedule, stating that
public engagement should be required. Similarly, a few commenters
recommended that in creating a schedule, BOEM should lay out a
comprehensive process for engagement that would also vet alternatives
and promote the most appropriate areas for development of OSW.
Response: BOEM has not included a requirement for a comment period
prior to publishing the leasing schedule every two years. The leasing
schedule is meant to shed light on the state of BOEM's current thinking
rather than being the culmination of a detailed decision-making
process. Note that areas identified in a leasing schedule will likely
not see actual development for at least another 10-15 years, during
which many comment periods, public meetings, consultations, government-
to-government consultations, meetings, publications, studies, plans and
other activities must take place. The leasing plan sits at the
beginning of this process and is intended merely to let the public know
where BOEM plans to focus its attention on the consideration of new
areas.
Comment: One commenter requested additional information regarding
how BOEM will integrate Tribal consultation with the development of the
schedule before it is released to the public. Another commenter
requested that Tribal consultation be triggered whenever there is a
change to the lease schedule.
Response: BOEM is committed to following the Department's policy on
Consultation with Indian Tribes and Alaska Native Claims Settlement Act
(ANCSA) Corporations and will consult with Tribes where there are
departmental actions that may have a substantial direct effect on a
Tribe(s) (512 DM4; 512 DM 6). BOEM declines to commit to public comment
periods to inform the leasing schedules introduced in this rule.
Comment: A commenter proposed revisions to the regulatory text at
Sec. 585.150 to ``ensure that the leasing schedule is focused on
relevant objectives, is realistically achievable, and fosters
transparency for all stakeholders.'' A few commenters said the text
should identify specific considerations to be reflected in the leasing
schedule, including State and Federal renewable energy goals and
mandates, renewable energy supply chain needs, comparative needs of
regional and national energy markets, and the intersection of energy
generation potential and commercial development interest.
Response: The items mentioned in the comment will almost certainly
be considered in creating the leasing schedule, however, BOEM is not
committing in this rulemaking to publishing a discussion of how
considerations were balanced to obtain the announced leasing schedule.
3. What is the Department finalizing?
(a) Sec. 585.150 What is the renewable energy leasing schedule?
The final rule creates a new subpart B comprised of Sec. 585.150
that establishes a leasing schedule, essentially as proposed in the
NPRM. The schedule is published at least every two years, which covers
the five-year period following the schedule's publication. The schedule
will describe a general description of the area covered by each
proposed lease sale, the calendar year in which it is projected to
occur, and reasons for any changes to the previously published
schedule. BOEM did not add any mandatory comment periods or specific
outreach to the leasing schedule requirement.

F. Lease Issuance Procedures

BOEM proposed to revise several aspects of renewable energy auction
regulations in the NPRM. These revisions would provide simplification,
clarification, and conformance with existing agency practice.
1. What did the Department propose?
(a) Sec. 585.106 What happens if I fail to comply with this part?
BOEM proposed clarification to the process surrounding the
imposition of civil penalties.
(b) Sec. 585.210 What are the steps in BOEM's competitive lease
award process?
BOEM proposed to reorganize, simplify, and clarify the regulatory
section Sec. 585.210 that detail the steps leading to an OCS renewable
energy auction.
(c) Sec. 585.213 What information is included in the PSN?
BOEM proposed to simplify and clarify the auction regulations by
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 surrounding each individual auction.
Consistent with BOEM's existing practice, the proposed sale notice
(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.
(d) Sec. 585.214 What information is included in the FSN?
BOEM proposed to publish the final auction format and procedures in
the final sale notice (FSN). This would allow BOEM greater flexibility
to tailor each auction to fit the particular circumstances.
(e) Sec. 585.216 How are bidding credits awarded and used?
As discussed in the NPRM preamble at 88 FR 5985, BOEM proposed 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 proposal
clarified that a bidder may be eligible for bidding credits based on
actions the bidder has already undertaken or for commitments to future
actions. In addition, at 30 CFR 585.225(g), BOEM proposed 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 plus interest. BOEM would also reserve
the right to impose civil penalties pursuant to the provisions of
subpart N of 30 CFR

[[Page 42624]]

part 550 for failure to comply with the terms or provisions of a lease,
easement, or right-of-way. According to the provisions of the proposed
rule, a multiple factor auction could take one or more non-monetary
factors into consideration, including: (1) power purchase agreements
(PPAs); (2) eligibility for, or applicability of, renewable energy
credits or subsidies; (3) development agreements by a potential lessee
that would 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 OCSLA 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.
In the NPRM, BOEM solicited 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.
BOEM was specifically ``interested in obtaining comments on how bidding
credits or factors might be tailored to mitigate possible adverse,
project-related impacts. For example, BOEM was interested in receiving
comments 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 (CBA)
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.''
(f) Sec. 585.222 Improper or Inappropriate Bidder Communications.
BOEM proposed to 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 could prevent the
United States from obtaining a fair return on a prospective lease. The
proposal also outlined the rules applicable to all auctions and the
processes BOEM would use to disqualify a bidder that no longer meets
qualification requirements or who engages in specified improper
conduct. Additionally, it specified how a disqualified bidder might
seek to be re-qualified as a bidder.
(g) Sec. 585.224 What will BOEM do after the auction?
The proposal added 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. As
proposed, the provisional winner would become the winning bidder upon
favorable completion of these reviews and appeals. Additionally, as
discussed in the NPRM preamble (88 FR 5985), BOEM proposed to
consolidate the reconsideration and appeal provisions in Sec. 585.118
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.
BOEM proposed to simplify and clarify post-auction procedures in
Sec. 585.224 by outlining what BOEM and a provisional winner must do
between the auction and lease execution. Additionally, the proposal
eliminated the term ``request for interest'' and proposed to replace it
with a broader term ``request for information'' (RFI). Finally, in
Sec. 585.225, BOEM proposed to 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 from BOEM.
(h) Sec. 585.225 What happens if BOEM accepts a bid?
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 was proposed at Sec.
585.225(g), 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.
(i) Sec. 585.226 What happens if the provisional winner fails to
meet its obligations?
As discussed in the preamble of the proposed rule (88 FR 5987),
BOEM proposed to define the term ``provisional winner'' and to 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. It included a list of actions that BOEM would
be authorized to take if a provisional winner fails to fulfill its
obligations.
(j) Sec. 585.438 What happens to leases or grants (or portions
thereof) that have been relinquished, contracted, or cancelled?
BOEM proposed language in the NPRM (88 FR 5996) that 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, BOEM proposed that if a lessee relinquishes its lease
or BOEM contracts or cancels a lease in whole or in part, BOEM could
re-offer the area previously covered by the lease.
2. What are the key public comments?
(a) Pre- and Post-Auction Procedures.
Comment: A commenter said that, in the area identification process,
BOEM does not explicitly consider the energy potential of the areas or
the current and future renewable energy goals of the proximate states.
Therefore, the commenter suggested that BOEM add a factor to the list
in Sec. 585.211(a) ``to indicate that the Call might include an
indicative power (MW) capacity of the given area(s) . . . informed by
Federal, State, and local clean energy goals, supply chain
considerations, and commercial interest.'' Additionally, the commenter
said the regulatory text should require the consideration of commercial
viability and prevention of waste during the area identification
process. The commenter provided revised regulatory text for Sec. Sec.
585.211 and 585.212 to reflect these suggestions. The commenter further
expressed support for:
<bullet> ``Simplification and clarity added to the lease process
regulations that make them both more readable and easier to follow;
<bullet> Changes to Call and Area Identification procedures at 30
CFR 515.211 and 585.212 that clarify factors BOEM considers in
determining whether specific OCS areas are suitable for further
consideration for renewable energy development, including the area's
feasibility for development;
<bullet> Consideration as to whether an area is technically and
economically viable for industry is critical to determining if an
auction should move forward;
<bullet> Clarity provided related to the auction format that
provides BOEM with the flexibility to adjust its format as industry
evolves; and
<bullet> Clarity regarding post auction procedures at 30 CFR
515.224.''
To further transparency, a commenter recommended providing more
information at the Call for Information and Nominations stage,
including the target capacity or acreage that may be

[[Page 42625]]

offered, and preliminary information on the auction format.
Response: BOEM does consider the goals and mandates of coastal
states adjacent to areas under consideration for OSW leasing in the
area identification process. For example, BOEM typically does not move
forward with leasing offshore of states that actively oppose OSW
development, and BOEM has offered multiple rounds of leasing in areas
with strong regional interest in OSW, such as southern New England and
the New York Bight. However, BOEM does not offer a specific leasing
``target'' in the area identification process because doing so would
require BOEM to pre-determine results and BOEM does not do that. BOEM
feels it is important to consistently convey to the public that the
decision-making process occurs through public outreach. Public outreach
is more than simply a process that BOEM must go through to get to
already-desired outcomes. It may be possible to establish a target--
informed by State objectives--in a way that makes clear that the
decision has not already been made to find a given amount of acreage,
whatever the consequences. However, the existence of such a target
could lead to an impression that, once formed, could be difficult to
rectify.
Comment: A commenter recommended revising paragraph (b)(2) of Sec.
[thinsp]585.211 to include ``archaeological and/or culturally
significant sites on the seabed or nearshore, including viewsheds and
traditional cultural landscapes and properties.'' The commenter said
this paragraph should also ``provide that BOEM request additional
socio-economic information such as potential impacts associated with
housing, Tribal revenues, worker's camps traditional gathering, first
foods, other disproportionate impacts felt by Tribal citizen members.''
Response: Section 585.211(b)(2) pertains to resources on which BOEM
requests comment in a Call for Information and Nominations, and states
that BOEM may request comments on ``archaeological sites on the seabed
or nearshore.'' The comment requests that BOEM specify that it may also
request information on ``culturally significant sites, including
viewsheds and traditional cultural landscapes and properties.''
Certainly, with or without the addition of this language,
commenters may submit such information. Indeed, BOEM's Calls for
Information and Nominations are open-ended and request whatever
information commenters care to share. Listing other regulatory
categories of information that BOEM may specifically request is
unlikely to result in the generation of more data.
As a practical matter, BOEM does request such information (and much
more) when it issues such Calls. For example, in the Call for the
Central Atlantic, published April 29, 2022, BOEM requested information
on ``known archaeological and cultural resource sites on the seabed,''
``the identification of historic properties or potential effects to
historic properties,'' ``visual resources and aesthetics, the potential
impacts of wind turbines and associated infrastructure to those
resources, and potential strategies to help mitigate or minimize any
visual effects,'' and ``other relevant socioeconomic, cultural,
biological, and environmental data and information.''
Comment: The commenter also recommended increasing the time between
the FSN and the auction to 60 days to strike a balance between an
efficient auction schedule and orderly development.
Response: As a practical matter, BOEM ordinarily schedules more
than the currently required 30 days between the FSN and the sale.
However, increasing the minimum time between the FSN and the sale would
eliminate BOEM's discretion to use a shorter waiting period and is not
likely to enhance orderly development. Typically, the PSN is published
several months before the FSN, and potential bidders are provided a 60-
day period to review and comment on the proposed terms and conditions
of the sale. By the time BOEM issues the FSN, the terms and conditions
of the sale are well known. There are circumstances where BOEM may need
to limit the time between the FSN and the sale, for example, to permit
scheduling flexibility related to holidays, the scheduling of other
lease sales, or other potential conflicts.
Comment: A commenter recommended amending Sec. 585.235(a)(4) so
the operations period does not begin until the commissioning of the
final power producing facility or power distribution system is
complete. The commenter said that commercial operations must be allowed
to begin as wind turbines are installed and commissioned, as is the
standard practice in the industry. The commenter recommended approving
commercial operations prior to installation of power producing
facilities based on the approved FDR/FIR, with the ability for BOEM/
BSEE to revoke permission for commercial operation if conditions are
not being met. Additionally, the commenter suggested providing lessees
the opportunity to remedy errors before permission for commercial
operations is revoked. The commenter reasoned that early commercial
operations provide economic benefits, including a cashflow balance
``for the lessee during the installation stage where substantial outlay
of capital is being made,'' early revenue that incentivizes early
installation, and safety benefits, including aerodynamic dampening that
counteracts hydrodynamic loading on the tower and foundation,
maintaining the structural fatigue lifetime of the structure.
Response: BOEM and BSEE considered many alternative ways to
structure the commercial operations issues identified in the NPRM,
including the one suggested in this comment. BOEM and BSEE agree that
assuming BSEE and the CVA are satisfied that the installation and
commissioning process is proceeding smoothly, turbines should be
permitted to run and generate electricity as part of the testing and
commissioning process. BOEM and BSEE, therefore, tied the commencement
of commercial operations with the submission of required information
under 30 CFR 285.637, including the ability to submit interim
documentation, to facilitate testing and continuous operations as
facilities reach first power. Under the revised Sec. 285.637, the CVA
may submit interim PVRs for subdivisions of a project's facilities
installed prior to commencing commercial operations. Assuming no
objections from BSEE, the lessee may begin commercial operations on
that portion of the lease and continue commercial operations on that
portion as other subdivisions of the project are brought online in the
same way. This is meant to accommodate industry norms for commissioning
projects safely and economically, while retaining BSEE oversight over
the entire process. With the revisions made to Sec. 285.637 in place,
BOEM and BSEE decided to keep ``commercial operations'' tied to the
``generation of electricity or other energy product for commercial use,
sale, transmission or distribution from a commercial lease.''
Comment: To provide clarity and predictability, a commenter
proposed revised text at Sec. [thinsp]585.628(c), eliminating the
stipulation that it applies only to post-lease submissions, and adding
explicit references to subparts D and E of the CZMA.
Response: BOEM has referenced both 15 CFR part 930, subparts D and
E, in the proposed rule under Sec. 585.627(b)(9). The provisions set
forth in 15 CFR part 930, subpart D are applicable to a COP that is
submitted prior to lease issuance

[[Page 42626]]

and the provisions of 15 CFR part 930, subpart E, are applicable to a
COP that is submitted after lease issuance. As noted in the CZMA
regulations, 15 CFR part 930, subpart D, requires the applicant/lessee
to submit all of the necessary data and information as well as the
consistency certification to both BOEM and the State's coastal
management program at the same time. In addition, as stated in proposed
Sec. 585.628(c), under 15 CFR part 930, subpart E, the applicant/
lessee would submit the necessary data and information as well as the
consistency certification directly to BOEM and BOEM will forward the
COP, consistency certification, and associated data and information to
the applicable State CZMA agencies.
Comment: A commenter expressed general support for the proposed
rule for re-offering leases at auction or when a lease area is
relinquished, contracted or canceled.
Response: BOEM is finalizing the referenced proposal re-offering
leases at auction or when a lease area is relinquished, contracted or
canceled.
(b) Auction Processes and Rules.
Comment: A commenter requested additional information on the
proposed changes to auctions. The commenter requested that more project
information be made available to the commenter, a Tribal Nation, as
early as possible, and recommended that BOEM build in clear triggers
for tribal consultation at every stage.
Response: BOEM currently works to make project information publicly
available as quickly as practicable. The comment did not specify what
project information BOEM should release sooner. The commenter's
location on the Pacific Coast suggests that it may believe that BOEM is
withholding project information related to California leases, but no
projects have been proposed on those leases and BOEM has no project
information in its possession. Regarding consultations, BOEM is
committed to honoring its Tribal consultation obligations. The
regulations require Tribal coordination and consultation with the
Tribal leadership for Tribes that may be affected by any leases,
easements, or ROWs BOEM may issue (Sec. 585.102(e)). This occurs
before the Call Area is identified, the earliest stage of the OSW lease
process. BOEM invites representatives of affected Tribes to
intergovernmental task forces, or other joint planning agreements. The
regulations also require Tribal consultation prior to the issuance of a
lease (Sec. 585.203), and during area identification prior to the
competitive issuance of leases (Sec. 585.211(b)). BOEM also consults
on a government-to-government basis at the request of any Tribe, and on
actions that have Tribal implications. We did not revise the
regulations to add triggers for consultations because this issue is
beyond the scope of the current rulemaking.
Comment: A commenter said BOEM needs to adopt a permanent supply
chain mechanism to reduce uncertainty and give companies the confidence
to invest in the domestic production supply chain, arguing that
inconsistent lease stipulations confuse market signals necessary to
spur investment.
Response: BOEM believes the Bureau can best support a domestic OSW
supply chain through predictable lease sale schedule and permitting
timeframes. The supply chain and workforce bidding credits and related
lease stipulations are not targeted or restricted to localized entities
but intended to incentivize domestic investments in the supply chain
and training. However, the comments did not suggest, and BOEM did not
adopt, regulatory changes in response to this comment.
Comment: A commenter encouraged BOEM to explicitly state a
preference for minimizing changes to bidding credits between the PSN
and the FSN.
Response: BOEM acknowledges the challenge that modifying bidding
credit provisions between the PSN and the FSN may be more time
consuming for companies preparing bids. However, BOEM also seeks to be
responsive to regional stakeholder interests and comments received
during regional Task Force meetings and the PSN comment period. This is
primarily a program implementation issue, and so it has not been
addressed in the current rulemaking.
(c) Multiple Factor Auctions and Bidding Credits.
Comment: A commenter requested that the final rule clarify that the
use of bidding credits in auctions must remain optional for
participating bidders. The commenter stated that mandating that bidders
accept the terms of bidding credits could reduce competitive interest.
Response: Bidding credits or other factors in a renewable energy
multi-factor auction have always been optional. The final rule remains
silent on the mandatory versus optional nature of bidding credit or
factors to provide future Department decisionmakers flexibility.
Comment: A commenter opposed the non-monetary factors listed in the
proposed Rule (30 CFR 585.216(b)(3)) due to the short auction period
and potential difficulty of being able to commit to shared
transmission. The commenter asserted that there is a need for criteria
for transmission-related credits and suggested that BOEM consider
alternative methods to promote shared transmission, such as conditions
of State procurement and non-binding lease stipulations that require
reasonable efforts to utilize shared transmission.
Response: BOEM appreciates the comments on bidding credits. The
list of bidding credits in Sec. 585.216(b) is intended to be
representative and not exhaustive. The decision of whether to use
bidding credits in a particular auction, and if so, which ones, is not
governed by the regulations. Accordingly, BOEM has not revised the
list, even though examples, such as the commenter has proposed, may be
possible to investigate further and include in a future lease sale.
Comment: A commenter asked for clarity in the final rule regarding
the number of proposed penalties in the event that a lessee fails to
comply with easement and right-of-way terms. A few commenters suggested
modifying the definition of ``bidding credit'' to include a financial
commitment attached to the bidding credits, for example, if a bidder
receives a bidding credit for a CBA, the bidder should be required to
expend a ``significant portion'' of the credit in funding those
agreements. Without recommending revisions to the definition of a
``bidding credit,'' a couple of commenters similarly recommended that
all future bidding credits contain a financial commitment requirement.
Response: BOEM has required an explicit financial commitment for
some bidding credits in renewable energy lease sales. Attachment of a
financial commitment to the definition of bidding credit would prohibit
some kinds of bidding credit that the agency may want to consider in
future auctions, like a bidding credit rewarding development experience
or innovative project design. BOEM has no current plans to use such
bidding credits, but the agency does not wish to constrain its
discretion to do so in the future. The design of any bidding credits
offered in a multi-factor auction is determined based on a balancing of
regional and national needs consistent with BOEM's authority under the
OCS Lands Act.
Comment: A commenter said the added flexibility for BOEM to
consider factors besides price in auctions has the potential for abuse.
A couple of commenters asked BOEM to clarify how factors and their
respective weights

[[Page 42627]]

would be determined, and how BOEM would assess whether the factors are
in accord with the goals of the OCS Lands Act.
Response: BOEM sets bidding credits in advance of each lease sale.
Bidding credits are designed to be consistent with the OCS Lands Act.
BOEM describes proposed bidding credits in the PSN, allowing for public
comment, and provides all the information about applicable bid credits
in the FSN prior to the lease sale. We do not agree that this final
rule adds additional flexibility to the non-price factors that BOEM may
use. BOEM had discretion under the previous regulations to hold
auctions that recognize non-monetary factors, and BOEM retains that
discretion in the final rule. In addition, the final rule more
accurately describes how BOEM intends to use non-price factors in
holding auctions. Accordingly, BOEM sees no potential for abuse in the
final rule.
Comment: Some commenters stated that bidding credits should not be
based on or require that actions be taken in advance, rather, they
should allow for identification of actions to be taken that are in
alignment with BOEM's goals. A commenter said that bidding credits for
actions a bidder has already taken would create unfair advantages and
reduce competitive interest. Additionally, the commenter said it would
reward past conduct, rather than incentivizing desired actions.
Response: The requirements for BOEM's bidding credits are outlined
in the specific FSN, lease, and Bidder's Financial Form Addendum. BOEM
designs multiple-factor bidding credits to maintain a level playing
field for all auction participants, but declines to address this issue
in the regulations.
Comment: A commenter expressed concern that two of the proposed
categories for bidding credits (power purchase agreements, and pre-
established renewable energy credit eligibility) could limit
competition and favor larger organizations with existing facilities.
The commenter expressed support for the BOEM's goal to facilitate
efficient development of OSW energy resources and encouraged BOEM to
continue seeking opportunities to improve the regulatory permitting
process, stating that the biggest gains in facilitating efficient
development of OSW energy resources may be made there as opposed to the
use of bidding credits.
Response: We appreciate the input regarding bidding credits for
power purchase agreements and pre-established renewable energy credit
eligibility. BOEM sets bidding credits for each sale in the FSN. BOEM
limits the bidding credit percentage, in part, to ensure the auction is
still efficient. Through this rulemaking and other initiatives, BOEM
seeks to improve its regulatory permitting process even as it evaluates
potential bidding credits.
Comment: A commenter expressed concern that it would be difficult
for BOEM to implement the proposed bidding credits in Sec.
585.216(b)(6) in a way that substantially benefits the public or
furthers development of OCS renewables because many of the proposed
credits are subject to uncertainty at the lease sale stage, which could
lead to vague promises from bidders and distort the market with
uncertain benefits to the public.
Response: BOEM designed the bidding credits it has used in recent
sales to include upfront commitments for investments, with follow-
through later in the lease term. This ability to refine planned
investments over time to what is most needed in the future should help
ensure that investments from the bidding credits are spent efficiently.
Comment: A commenter suggested expanding the workforce development
bidding credit program to allow for a bonus bidding credit if a
developer commits to both utilizing a PLA and employing a workforce in
which a significant majority of workers constructing and maintaining
wind farms are United States citizens or permanent residents. The
commenter also recommended extending the credit program to pre-existing
lessees by allowing developers to take a credit against future
operating fees, which would fulfill the Administration's goals of
``increasing the likelihood or pace of development.'' According to the
commenter, BOEM has authority to amend the regulation under 30 CFR
585.506 to establish such an operating fee credit under applicable
statutes and regulations, and it would be consistent with the IRA's
apprenticeship requirement for renewable energy facilities. Another
commenter also recommended revising Sec. 585.506 to clarify that BOEM
may award operating fee credits in future lease sales and existing
leases. The commenter provided revised regulatory text reflecting these
proposed changes.
Discussing the potential rewards for each credit in the recent
California and Gulf of Mexico lease sales, a commenter recommended that
future lease sales decrease disparities between bidding credits for the
fishing community and others.
Response: With regard to the workforce development and PLA bidding
credit, BOEM already has the ability to implement such a bidding credit
should it want to and no modification of the regulations is needed to
permit BOEM to use such a credit. Commenters requested that BOEM add
many examples to the representative list of bidding credits in Sec.
585.216(b). Adding additional representative examples neither expands
nor diminishes BOEM's bidding credit authority. BOEM has not added any
of the requested examples because to do so could beg the question why
other examples were excluded.
Regarding operating fee credits, although BOEM used such credits in
the New York Bight lease sale, it has not used them since them. BOEM
has not ruled out using them in the future and has tools necessary to
do so if desired. The revision requested in Sec. 585.506 would be
needed were BOEM to amend existing leases to conditionally reduce the
operating fee payments of existing lessees. This was not the purpose of
the rulemaking, and BOEM has no current plans to offer such amendments
to existing lessees. Accordingly, there is no need to revise the
regulations as recommended by the commenter.
Comment: Some commenters expressed opposition to a cap on bidding
credits because it would curtail public policy priorities (e.g.,
advancing a domestic supply chain), BOEM's stated goals of flexibility,
and it would narrow the OCSLA definition of ``fair return.'' A
commenter said the final rule should allow a bidder to pursue multiple
bidding credits at once, thus bidding credits should be capable of
stacking. Likewise, the commenter opposed an ``artificial cap'' on the
number of bidding credits a bidder can take, to ensure a fair return to
the United States. A commenter wrote that BOEM ``should allow for
stackable credits reflecting a bidder's commitment to provide workforce
training, supply chain development, fisheries compensatory mitigation,
and financial support for habitat and wildlife monitoring as eligible
bidding credits at Sec. 585.216(b).''
Response: BOEM sets bidding credits in advance of each lease sale
and designs credits to ensure they are consistent with the OCSLA. BOEM
has limited the non-monetary portion of its auctions to 25 percent of
the asking price in past lease sales. Limiting the bidding credits to a
percentage of the asking price promotes efficiency of the auction,
ensures a fair return to the Government for OSW leases, and is
consistent with Congress's intent to direct wind energy leasing
revenues to the General Fund while also allowing

[[Page 42628]]

BOEM to use monetary bidding incentives to further OCSLA goals.
However, nothing in the regulations imposes a specific limit on the
percentage credit, and no regulatory revision would be needed to use a
higher amount. Accordingly, no revision has been made.
(c)(i) How bidding credits or factors might be tailored to mitigate
possible adverse, project-related impacts.
Comment: A commenter said developers should adhere to standard
mitigation hierarchy by minimizing potential impacts prior to
mitigation considerations. The commenter encouraged BOEM to establish
lease stipulations and bidding credits to support activities including
workforce development, local job creation, energy access and
reliability, enhancing engagement and capacity building in communities,
sustainable development, circular economy methods, and fisheries
resiliency and/or compensatory mitigation.
Response: BOEM appreciates this comment and will strive to avoid or
minimize potential project impacts prior to considering mitigations. In
addition, BOEM will continue to seek additional avenues for
incentivizing accomplishment of worthy policy goals like those
enumerated. Lease stipulations and bidding credits are determined on a
case-by-case basis for specific lease sales, and not programmatically
through regulations. Since this comment does not request any revision
to BOEM's regulations, it is beyond the scope of the current
rulemaking.
Comment: A commenter recommended that BOEM add a credit to its non-
exclusive list in Sec. 585.216(b) for funding commitments for affected
ocean users. A commenter recommended BOEM allow bidders to earn up to
75% of cumulative credits for nonmonetary factors to ensure successful

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