Renewable Energy Modernization Rule

Federal RegisterMay 15, 2024

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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.

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

https://www.regulations.gov

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

Nabanita.ModakFischer@boem.gov

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

Karen.Thundiyil@boem.gov

. 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

regs@bsee.gov

. 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

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.

The agencies have summarized the significant comments received on the proposed rule and have provided responses to them in this preamble.

219 DM 1, DOI Departmental Manual (Sept. 14, 2022).

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).

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

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:

https://www.boem.gov/about-boem/regulations-guidance/published-rules

. 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).

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.

Codified at 43 U.S.C. 1337(p).

B. History of Renewable Energy Modernization Rule

On March 20, 2006, the Secretary delegated the responsibility for regulating OCS renewable energy activities to MMS,

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:

218 DM 1-6; 218 DM 8.

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.

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).

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.”

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.”

Sec'y of the Interior Order 3299, as amended and issued Aug. 29, 2011, available at

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

Id.

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.

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.

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.”

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

part 585, administered by BOEM, to 30 CFR part 285, administered by BSEE.

Reorganization of Title 30: Bureaus of Safety and Environmental Enforcement and Ocean Energy Management, 76 FR 64432 (Oct. 18, 2011).

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).

Id.

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.

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,

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 § 585.517(b), or if necessary, apply financial assurance held under § 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 § 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 § 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

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 § 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 § 585.612 to account for these scenarios.

Response:

BOEM has considered the commenter's suggestions and notes that such clarifying language has already been proposed. Proposed revisions to § 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 § 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 § 585.612 would be duplicative of the language that is already provided at § 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 § 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 (§ 585.113) and § 585.600(a)(1) is revised accordingly.

Comment:

A commenter suggested the following revisions to BOEM's proposed language in § 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 §§ 585.605 through 585.613.

Response:

BOEM agrees in part with the commenter and is revising § 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,

and oceanographic condition

as part of the design.

You must submit, and obtain approval for your:

SAP under §§ 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 § 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

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 § 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

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.

See

A Citizen's Guide to the Bureau of Ocean Energy Management's Renewable Energy Authorization Process, Dec. 2016, available at

https://www.boem.gov/sites/default/files/renewable-energy-program/KW-CG-Broch.pdf

Comment:

A commenter recommended the following revisions to the rulemaking text:

• § 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.

• § 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.”

• § 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.

3. What is the Department finalizing?

(a) § 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) § 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.

BOEM is finalizing this portion of the rule about site assessment facilities as proposed in § 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.

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.

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) § 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) § 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) § 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.”

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) § 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

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 § 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) § 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) § 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.”

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) § 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) § 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 § 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) § 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 § 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

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 § 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 § 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 § 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 § 585.611(b) and the relevant GAP regulations at § 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 § 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

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 § 585.626(b)(3) stated that “[o]n a case-by-case basis and subject to terms and conditions of COP approval per § 585.628(f), BOEM may permit you to submit certain surveys of the subsea portions of the area of potential effects with your FDR per § 585.701(a)(11).” 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 § 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 § 585.617, § 585.634, or § 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 § 585.238 (which appeared as § 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 § 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) § 585.626 What must I include in my COP?

BOEM is finalizing its proposal to allow submission of the results of

in situ

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.

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.

See https://www.boem.gov/sites/default/files/environmental-stewardship/Environmental-Studies/Renewable-Energy/Data-Gathering-Process.pdf

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) § 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 § 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.

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.

See https://www.boem.gov/sites/default/files/environmental-stewardship/Environmental-Studies/Renewable-Energy/Data-Gathering-Process.pdf

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 § 285.701(a)(10).

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

1. What did the Department propose?

(a) §§ 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 §§ 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 §§ 285.637(a)(2) and (3) and 285.708-285.712.

Under the proposed rule § 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 §§ 285.707 and 285.708. Changes to the rule on CVA roles and responsibilities will not reduce the level

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 §§ 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 § 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 §§ 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 § 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 § 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 §§ 285.815 and 285.831, and the lessee is responsible for accepting any fabrication or installation modifications and notifying BSEE as provided in § 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.

Comment:

Several commenters provided feedback on the proposed revisions to the role of a CVA in § 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.

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 §§ 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 §§ 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 § 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 § 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 §§ 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 § 285.710. One of the roles of the CVA, as described in § 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 § 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

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 § 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 § 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 § 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 § 585.704.

Response:

BSEE agrees with the comment and has amended the equivalent provisions in § 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 § 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 § 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 § 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 § 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 § 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 § 285.708 contains requirements for fabrication and installation review. BSEE has included language in § 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 § 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) § 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 § 285.700, as was proposed § 585.700, with clarifying revisions. In

final § 285.700(a), BSEE requires that lessees submit an FDR and an FIR before installing facilities described in the approved COP (§ 585.632(a)) and, when required by your SAP (§ 585.614(b)), or GAP (§ 585.651). You may submit your FDRs and FIRs to BSEE pursuant to revisions made to §§ 285.700, 285.701, and 285.702 before or after SAP, COP, or GAP approval.

As provided in final § 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 § 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 § 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 § 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) § 285.701 What must I include in my Facility Design Report?

The Department is finalizing the language in proposed § 585.701, including revisions to § 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 § 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 § 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 § 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.

The Department is finalizing this regulation, consistent with proposed § 585.702. BSEE is revising § 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 § 285.701(a)(12); project easement; and other information. A similar attestation to § 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 § 285.702(a)(6). Additionally, the NPRM proposed to change the regulatory language defining the CVA's role from “certify” and

“certification” to “verify” and “verification” in § 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) § 285.703 What reports must I submit for project modifications and repairs?

The Department is finalizing paragraphs (a) and (c) of § 285.703, consistent with proposed § 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 § 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) § 285.704 After receiving the FDR, FIR, or project verification reports, what will BSEE do?

The Department is finalizing this regulation, consistent with proposed § 585.704, with revisions to § 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) § 285.705 When must I use a Certified Verification Agent (CVA)?

The Department is finalizing paragraphs (a) through (d) of § 285.705, consistent with proposed § 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 § 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) § 285.706 How do I nominate a CVA for BSEE approval?

The Department is finalizing § 285.706(b)(2) and (7), (c), and (d), consistent with proposed § 585.706. BSEE is removing § 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) § 285.707 What are the CVA's primary duties for facility design review?

The Department is finalizing § 285.707(a) and (b) consistent with proposed § 585.707 (a) and (b), with a few minor revisions. BSEE has made minor changes to the description of CVA duties in final § 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 § 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 § 285.707(c).

(i) § 285.708 What are the CVA's or project engineer's primary duties for fabrication and installation review?

The Department is finalizing § 285.708, consistent with proposed § 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

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 § 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 § 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) § 285.709 When conducting onsite fabrication inspections, what must the CVA or project engineer verify?

The Department is finalizing § 285.709(a), consistent with proposed § 585.709 with minor edits. BSEE is not finalizing paragraph (b) as proposed and is keeping the provision in the existing regulation.

(k) § 285.710 When conducting onsite installation inspections, what must the CVA or project engineer do?

The Department is finalizing § 285.710, consistent with proposed § 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 § 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 § 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 § 285.710(d). The CVA or project engineer must also conduct an onsite inspection of the installed facility as approved, as provided in final § 285.710(e) and witness the commissioning of Critical Safety Systems and Equipment, as provided in final § 285.710(f).

(l) § 285.712 What are the CVA's or project engineer's reporting requirements?

The Department is finalizing § 285.712, consistent with proposed § 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 § 285.712(b)(5).

(m) § 285.713 [RESERVED]

BSEE is removing and reserving this section, consistent with the NPRM.

(n) § 285.714(a)(4) What records relating to FDRs, FIRs, and Project Modification and Repair Reports must I keep?

The Department is finalizing § 285.714, consistent with proposed § 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 §§ 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) § 585.150 What is the renewable energy leasing schedule?

BOEM proposed to include a new § 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

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 § 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) § 585.150 What is the renewable energy leasing schedule?

The final rule creates a new subpart B comprised of § 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) § 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) § 585.210 What are the steps in BOEM's competitive lease award process?

BOEM proposed to reorganize, simplify, and clarify the regulatory section § 585.210 that detail the steps leading to an OCS renewable energy auction.

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) § 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) § 585.216 How are bidding credits awarded and used?

As discussed in the NPRM preamble at 88 FR 5985, BOEM propo

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