Renewable Energy Modernization Rule

*This is an unofficial prepublication version of this document. The BOEM expects that the same or a substantially similar document will be posted in the Federal Register. The final document published in the Federal Register is the only version of the document that may be relied upon.* 4340-98-P

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 [INSERT DATE 60 DAYS FROM

PUBLICATION IN THE FEDERAL REGISTER].

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. On January 31, 2023, the Department issued the Reorganization of Title 30 –

Renewable Energy and Alternative Uses of Existing Facilities on the Outer Continental

Shelf direct final rule (88 FR 6376) following the delegation of authority to BSEE to

administer some of the regulations addressed in the NPRM.1 The agencies have

summarized the significant comments received on the proposed rule and have provided

responses to them in this preamble.

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 Today’s Rulemaking

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

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