Ren Split Rule 2023

disseminated for purposes of BOEM's or BSEE's Information Quality Guidelines and does not represent the Agencies determination or policy. While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the final rule. Please refer to the official version in a forthcoming FR publication, which can be found at https://www.regulations.gov, Docket Numbers: BSEE-2022-0015 and BOEM-2022-0042. Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

4310-MR-P

DEPARTMENT OF THE INTERIOR

Bureau of Safety and Environmental Enforcement

30 CFR Part 285

[Docket No. BSEE-2022-0015; EEEE500000 223E1700D2 ET1SF0000.EAQ000]

RIN 1082-AA03

Bureau of Ocean Energy Management

30 CFR Parts 585 and 586

[Docket No. BOEM-2022-0042]

Reorganization of Title 30—Renewable Energy and Alternate Uses of Existing

Facilities on the Outer Continental Shelf

AGENCIES: Bureau of Safety and Environmental Enforcement (BSEE) and Bureau of

Ocean Energy Management (BOEM), Interior.

ACTION: Final rule.

SUMMARY: This rule of agency organization reassigns responsibilities for the

administration of certain regulations governing renewable energy development and

alternate uses of existing facilities on the Outer Continental Shelf (OCS), consistent with

the Secretary of the Interior’s orders and the Departmental Manual. This final rule

transfers the applicable renewable energy Departmental regulations from BOEM to

BSEE. Furthermore, this final rule reassigns renewable energy regulations pertaining to

safety, environmental oversight, and enforcement from BOEM to BSEE. For

disseminated for purposes of BOEM's or BSEE's Information Quality Guidelines and does not represent the Agencies determination or policy. While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the final rule. Please refer to the official version in a forthcoming FR publication, which can be found at https://www.regulations.gov, Docket Numbers: BSEE-2022-0015 and BOEM-2022-0042. Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

convenience in this rule, the provisions that are reassigned to BSEE are referred to as

BSEE’s provisions and those that are retained by BOEM as BOEM’s provisions. This

rule does not make substantive changes to current regulatory requirements and does not

impose additional regulatory burdens on the public or the regulated community.

Therefore, this rule is exempt from notice-and-comment rulemaking requirements.

DATES: This final rule is effective [INSERT DATE OF PUBLICATION IN THE

FEDERAL REGISTER]. The transfer of the incorporation by reference of certain

publications to a new regulatory location is approved by the Director of the Federal

Register as of [INSERT DATE OF PUBLICATION IN THE FEDERAL

REGISTER].

FOR FURTHER INFORMATION CONTACT: For questions regarding BSEE’s

provisions under this rule, contact: Dennis Yang, Regulations and Standards Branch,

BSEE, 45600 Woodland Road, Sterling, VA 20166; email: regs@bsee.gov; telephone:

713-220-9203. For questions regarding BOEM’s provisions under this rule, contact:

Georgeann Smale, Office of Regulations, BOEM, 1849 C Street, N.W., Mailstop 5243,

Washington, D.C. 20240; email: Georgeann.Smale@boem.gov; telephone: 703-544-

9246.

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

I. Preamble Glossary of Abbreviations, Terms, and Acronyms

II. Background

disseminated for purposes of BOEM's or BSEE's Information Quality Guidelines and does not represent the Agencies determination or policy. While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the final rule. Please refer to the official version in a forthcoming FR publication, which can be found at https://www.regulations.gov, Docket Numbers: BSEE-2022-0015 and BOEM-2022-0042. Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

A. Statutory Authority

B. MMS Reorganization

C. Need for Rulemaking

III. Overview of the Rule

A. Final Rulemaking Effective Upon Publication

B. Reorganization of 30 CFR parts 285, 585, and 586

1. Description of the Transfer of Regulations to BSEE

2. Future Rulemakings

3. Technical Changes and Corrections

4. Information Collection and Forms

5. Incorporation by Reference

C. Derivation Table for 30 CFR Parts 285, 585, and 586

IV. Procedural Matters

A. Statutes

1. Data Quality Act

2. National Environmental Policy Act

3. Paperwork Reduction Act

4. Regulatory Flexibility Act

5. Congressional Review Act (CRA)

6. Unfunded Mandates Reform Act

7. Administrative Procedure Act

disseminated for purposes of BOEM's or BSEE's Information Quality Guidelines and does not represent the Agencies determination or policy. While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the final rule. Please refer to the official version in a forthcoming FR publication, which can be found at https://www.regulations.gov, Docket Numbers: BSEE-2022-0015 and BOEM-2022-0042. Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

B. Executive Orders

1. Executive Order 12630 - Takings Implication Assessment

2. Executive Order 12866 - Regulatory Planning and Review, and

Executive Order 13563 - Improving Regulation and Regulatory Review

3. Executive Order 12988 - Civil Justice Reform

4. Executive Order 13132 - Federalism

5. Executive Order 13175 - Consultation and Coordination with Indian

Tribal Governments

6. Executive Order 13211 - Effects on the Nation’s Energy Supply

7. Presidential Memorandum of June 1, 1998, on Regulation Clarity

I. Preamble Glossary of Abbreviations, Terms, and Acronyms

The following are abbreviations, terms, and acronyms used in the preamble:

APA Administrative Procedure Act ASLM Assistant Secretary for Land and Minerals Management BOEM Bureau of Ocean Energy Management BSEE Bureau of Safety and Environmental Enforcement CFR Code of Federal Regulations COP Construction and Operations Plan CRA Congressional Review Act CVA Certified Verification Agent CZMA Coastal Zone Management Act DOE Department of Energy DOI or Department of the Interior Department EIA Energy Information Administration ESA Endangered Species Act FDR Facility Design Report FERC Federal Energy Regulatory Commission FIR Fabrication and Installation Report GAP General Activities Plan

disseminated for purposes of BOEM's or BSEE's Information Quality Guidelines and does not represent the Agencies determination or policy. While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the final rule. Please refer to the official version in a forthcoming FR publication, which can be found at https://www.regulations.gov, Docket Numbers: BSEE-2022-0015 and BOEM-2022-0042. Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

IC Information Collection MMPA Marine Mammal Protection Act MMS Minerals Management Service (former DOI agency) NARA National Archives and Records Administration NEPA National Environmental Policy Act OCS Outer Continental Shelf OCSLA Outer Continental Shelf Lands Act OIG Office of Inspector General OMB Office of Management and Budget ONRR Office of Natural Resources Revenue Pub. L. Public Law RIN Regulation Identifier Number ROCIS Regulatory Information Service Center (RISC) and Office of Information & Regulatory Affairs (OIRA) Consolidated Information System ROW Right-of-way RUE Right-of-use and easement SAP Site Assessment Plan Secretary Secretary of the Interior SMS Safety Management System Stat. U.S. Statutes at Large U.S.C. United States Code

disseminated for purposes of BOEM's or BSEE's Information Quality Guidelines and does not represent the Agencies determination or policy. While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the final rule. Please refer to the official version in a forthcoming FR publication, which can be found at https://www.regulations.gov, Docket Numbers: BSEE-2022-0015 and BOEM-2022-0042. Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

II. Background

A. Statutory Authority

In the Energy Policy Act of 2005 (2005 Act), Congress authorized the Secretary to

grant OCS leases for renewable energy activities. 1 Specifically, the 2005 Act amended

OCSLA to add a new subsection 8(p). 2 Under subsection 8(p), the Secretary has the

authority to issue leases, easements, and ROWs for activities that produce, or that support

the production, transportation, or transmission of, energy from sources other than oil and

gas. The 2005 Act also allows the Secretary to authorize the use of existing OCS

facilities for energy- and marine-related activities. The Secretary is required to award

any lease, ROW, or RUE competitively unless the Secretary determines, after public

notice, that competitive interest does not exist. 3 The Secretary also has authority to issue

regulations to implement OCSLA section 8(p). 4

On March 20, 2006, the Secretary delegated the responsibility for regulating OCS

renewable energy activities to MMS, the predecessor agency to BOEM and BSEE. On

April 29, 2009, the Department published the final rule establishing MMS’s program to

grant leases, easements, and ROWs for OCS renewable energy activities and for alternate

uses of existing OCS facilities. The 2009 rule also established the methods for sharing

certain revenues generated by this program with nearby coastal States.

1 Pub. L. 109-58, 119 Stat. 594. 2 OCSLA is codified at 43 U.S.C. 1331 et seq. Subsection 8(p) of OCSLA is codified at 43 U.S.C. 1337(p). 3 43 U.S.C. 1337(p)(3). Id. 1337(p)(8).

disseminated for purposes of BOEM's or BSEE's Information Quality Guidelines and does not represent the Agencies determination or policy. While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the final rule. Please refer to the official version in a forthcoming FR publication, which can be found at https://www.regulations.gov, Docket Numbers: BSEE-2022-0015 and BOEM-2022-0042. Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

B. MMS Reorganization

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 ONRR. The Secretary emphasized the importance

of separate and independent safety and environmental oversight when testifying before

Congress on May 26, 2010:

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. 5 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.” 6 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

5 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). 6 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_e nforcement_and_the_office_of_natural_resources_revenue.pdf.

disseminated for purposes of BOEM's or BSEE's Information Quality Guidelines and does not represent the Agencies determination or policy. While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the final rule. Please refer to the official version in a forthcoming FR publication, which can be found at https://www.regulations.gov, Docket Numbers: BSEE-2022-0015 and BOEM-2022-0042. Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

suspend activities, and oversee safety, response, and removal preparedness.” 7 Under

section 5 of Secretary’s Order 3299, Amendment 2, ONRR exercises the royalty and

revenue management functions of the former MMS, including “royalty and revenue

collection, distribution, auditing and compliance, investigation and enforcement, and

asset management for both onshore and offshore activities.” 8

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].” 9 On

October 18, 2011, in connection with the reorganization of the former MMS into BOEM

and BSEE and the associated redistribution of the existing regulations at 30 CFR Chapter

II, the offshore renewable energy regulations previously located in part 285 were

assigned to BOEM and recodified in a newly created 30 CFR part 585. 10

C. Need for Rulemaking

In September 2013, the DOI 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

7 Id. 8 Id. 9 Id. This arrangement was noted in the final rule reorganizing and reassigning the former MMS regulations between BOEM and BSEE in October 2011. “At this time, the renewable energy program will be managed under BOEM. At a later date, the renewable energy program will be reorganized and a determination will be made regarding what functions will be administered by which agency.” Reorganization of Title 30, 76 FR 64432, 64434 Table A (Oct. 18, 2011) (, discussion of then-current part 285). 76 FR 64432 (Oct. 18, 2011).

disseminated for purposes of BOEM's or BSEE's Information Quality Guidelines and does not represent the Agencies determination or policy. While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the final rule. Please refer to the official version in a forthcoming FR publication, which can be found at https://www.regulations.gov, Docket Numbers: BSEE-2022-0015 and BOEM-2022-0042. Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

from BOEM to BSEE. 11 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.” 12

In December 2020, pursuant to Secretary’s Order 3299, Amendment 2, section 4, the

Principal Deputy Assistant Secretary for Land and Minerals Management, acting with the

authority of the Assistant Secretary for Land and Minerals Management, determined that

OCS renewable energy activities have “reached the threshold envisioned by SO 3299, as

amended.” The Secretary has since executed the necessary redelegation of authorities

through the Departmental Manual. 13 This rulemaking reassigns certain regulations from

BOEM to BSEE consistent with the authorities identified in the Departmental Manual,

and to further Secretary’s Order 3299 Amendment 2 and the Assistant Secretary’s

direction to “transfer . . . the safety and environmental oversight and compliance

functions, including inspection and enforcement, for the Department’s Offshore

Renewable Energy Program from BOEM to BSEE.”

III. Overview of the Rule

A. Final Rulemaking Effective Upon Publication

11 OFFICE OF INSPECTOR GEN., DEP’T OF INTERIOR, U.S. DEPARTMENT OF THE INTERIOR’S OFFSHORE RENEWABLE ENERGY PROGRAM 9 (2013) (Report No. CR-EV-BOEM-0001-2013). 12 Id. 13 DOI Departmental Manual 218 DM 1, as amended and issued Sept. 14, 2022, available at chrome- extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.doi.gov/sites/doi.gov/files/elips/documents/21 8-dm-1_2.pdf. DOI Departmental Manual 219 DM 1, as amended and issued Sept. 14, 2022, available at chrome- extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.doi.gov/sites/doi.gov/files/elips/documents/21 9-dm-1_0.pdf

disseminated for purposes of BOEM's or BSEE's Information Quality Guidelines and does not represent the Agencies determination or policy. While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the final rule. Please refer to the official version in a forthcoming FR publication, which can be found at https://www.regulations.gov, Docket Numbers: BSEE-2022-0015 and BOEM-2022-0042. Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

This rule reassigns existing regulations governing safety and environmental oversight

and enforcement of OCS renewable energy activities from BOEM to BSEE. This

rulemaking is neither substantive nor controversial because it merely reorganizes

provisions in the Code of Federal Regulations and, therefore, does not affect the legal

rights, obligations, and interests of any interested parties.

This rule implements Secretary’s Order 3299—which reflects the Secretary’s prudent

and considered policy judgment that independent oversight and enforcement is in the

national interest to best address the organizational concerns highlighted by the Deepwater

Horizon incident—and revisions made to the Departmental Manual implementing that

direction. Specifically, this rule transfers existing safety and environmental oversight and

enforcement regulations governing OCS renewable energy activities from 30 CFR part

585, under BOEM’s purview, to 30 CFR part 285, under BSEE’s purview. This

reorganization parallels the bureaus’ oversight of oil and gas activities. This transfer

includes a reassignment of authority to: oversee facility design, fabrication, installation,

and safety management systems; ensure the safety of operations, including inspection

programs and incident reporting and investigations; enforce compliance with all

applicable safety, environmental, and other laws and regulations through enforcement

actions (such as noncompliance notices, cessation orders, and lease suspensions); and

oversee decommissioning activities. This rule also moves certain sections pertaining to

Alternate Use RUEs from 30 CFR part 585 to a new 30 CFR part 586.

disseminated for purposes of BOEM's or BSEE's Information Quality Guidelines and does not represent the Agencies determination or policy. While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the final rule. Please refer to the official version in a forthcoming FR publication, which can be found at