Daily Rules, Proposed Rules, and Notices of the Federal Government
(2) Mailing your comments to the following address:Minerals Management Service, Offshore Minerals Management, Alternative Energy and Alternate Use Team,381 Elden Street,Herndon, Virginia 20170-4817.
The MMS will protect privileged or confidential information that you submit as allowed by the Freedom of Information Act (FOIA). Exemption 4 of FOIA applies to trade secrets and commercial or financial information that is privileged or confidential. If you wish to protect the confidentiality of such information that you submit, clearly mark it and request that the MMS treat it as confidential. The MMS will not disclose such information, subject to the standards of FOIA. However, the MMS will not treat as confidential any aggregate summaries of such information or comments not containing such information. Please label privileged or confidential information “Contains Confidential Information” and consider submitting such information as a separate attachment to your comments.
The MMS is developing an Alternative Energy and Alternate Use (AEAU) program and associated regulations. We also are analyzing the environmental consequences of establishing an AEAU program in a Programmatic Environmental Impact Statement (PEIS) being prepared pursuant to the National Environmental Policy Act (NEPA). The MMS began the rulemaking process by issuing an Advance Notice of Proposed Rulemaking on December 30, 2005. The MMS started the preparation of the PEIS with a Notice of Intent issued on May 5, 2006. Subsequently, we held scoping meetings around the country in Spring 2006, issued a draft PEIS for comment on March 21, 2007, and held hearings on the draft PEIS in Spring 2007. The MMS issued its final PEIS on November 6, 2007. Later this year, the MMS will issue its Record of Decision on the PEIS and plans to publish a Notice of Proposed Rulemaking. This Notice is not part of the rulemaking process.
While the MMS is developing the AEAU program, we have adhered to a policy of not considering proposals for new alternative energy projects until after completion of the PEIS and issuance of a final rulemaking. During this time, we have proceeded with environmental analyses under NEPA on only two projects identified in the “savings provision” included as section 388(d) of the Energy Policy Act of 2005.
The MMS is initiating this interim policy under which resource data collection facilities, such as meteorological towers and wave and current data collection instruments, and technology testing facilities, such as wave and current turbines, could be considered and authorized for installation and operation on the OCS before promulgation of final rules. Many stakeholders—including coastal states, alternative energy project proponents, nongovernmental organizations, and the general public—have commented to the MMS, recommending that OCS alternative energy resource assessment activities be authorized expeditiously. The MMS wishes to be responsive and believes that significant benefits would accrue to both the stakeholders and the Federal Government if we expedite the ability to acquire resource data and technology testing results to inform future decision-making with respect to the AEAU program.
This interim policy would not apply to project proposals for the installation of turbines or other energy generating devices associated with the commercial development of alternative energy resources on the OCS (i.e., sale or distribution for compensation). Projects that MMS is currently evaluating pursuant to the “savings provision” of Section 388 of the Energy Policy Act of 2005 would not be affected or limited by this interim policy. Thus, any authorization issued under the interim policy would be limited in scope to the installation of meteorological, marine, or other resource data collection facilities and associated data collection activities and the installation and operation of technology testing facilities. Offshore wind turbine technologies will not be authorized for technology testing through this interim policy.
The interim policy would be in effect until the MMS promulgates final rules for the AEAU program, at which time all AEAU program activities will be regulated under those rules. However, the MMS may limit the number of authorizations under this interim policy. Parties wishing to receive authorizations for data collection activities and technology testing may continue to submit requests under the interim policy until the final rules are in place.
As required by subsection 8(p)(3) of the OCS Lands Act, leases for alternative energy resource assessment and technology testing must be issued on a competitive basis unless the MMS determines, after public notice, that there is no competitive interest. The MMS will consider nominations and other information received in response to this notice to evaluate competitive interest in leases for alternative energy resource assessment and technology testing. In cases where we determine that there is competitive interest in the same geographic area, we may conduct a competitive auction (lease sale). Otherwise, we may proceed to issue leases noncompetitively on a case-by-case basis. The MMS will use criteria, such as complexity of facilities, proposed installation dates, and available MMS resources to oversee such projects, in setting priorities and determining the number of applications we will consider. As required by subsection 8(p)(7) of the OCS Lands Act, the MMS will coordinate and consult with the Governor of any State or the executive of any local government that may be affected by a lease issued under the interim policy.
The installation of resource data collection and technology testing facilities will require the submission of a plan describing the proposed construction, operation, and removal of the facility, which will be subject to MMS review before authorization of the proposed activities. Each lease and associated activities must comply fully with all applicable laws and regulations (e.g., NEPA, the Coastal Zone Management Act, the Endangered Species Act, the Marine Mammal Protection Act, the Rivers and Harbors Act, the Clean Air and Water Acts, and U.S. Coast Guard and Federal Aviation Administration requirements). A NEPA review of potential environmental impacts will be conducted for each lease, and appropriate restrictions and mitigation measures may be applied. Unless otherwise authorized by the Director, any facilities constructed on the lease must be removed when the lease expires, and removal of facilities must be accomplished in a manner approved by the MMS. The MMS will require an annual rental payment for each lease and proposes that the rental amount be $3.00 per acre. Also, the MMS will require lessees to meet appropriate financial assurance requirements to guarantee compliance with all terms and conditions of the lease. The specific terms and conditions of this authorization, including plan information, rental payments and financial assurance requirements, will be set forth in the lease instrument, a draft of which will be published for public review and comment. The draft lease instrument may include the clauses listed below.
Leases issued under this interim policy will grant the lessee exclusive rights to conduct the activities identified in the lease on the designated OCS lease area. However, the MMS is not restricted from, and may consider, authorizing other activities on the same area of the OCS that do not impede on or interfere with the original lessee's exclusive rights under its lease.
As the MMS proposes to authorize on a limited basis the installation of data collection and technology testing facilities to produce or support production of alternative energy on the OCS, we invite all interested and affected parties to provide comments on any aspect of the interim policy. We also would appreciate responses to the questions posed below.
(1) Would you be interested in acquiring an alternative energy resource assessment lease or technology testing lease as proposed under the interim policy? If so, please identify the resource(s) you would want to assess (e.g., wind, wave, current) and the technology you would want to test and provide a general description of the type and number of installations or technologies you would use, prospective locations, and a project schedule for the activities you would propose to pursue. The MMS requests respondents to identify prospective locations by depicting them on Official Protraction Diagrams (Leasing Maps for areas off Texas and Louisiana) available from each MMS regional office and online at
(2) Would you be willing to collaborate and enter into joint ventures with other prospective lessees who express interest in acquiring the same location for an alternative energy resource assessment or technology testing lease?
(3) What would be an appropriate lease term (duration) for the authorization you are interested in acquiring?
(4) Is the rental rate of $3.00 per acre appropriate?
(5) How much acreage should be authorized for the types of activities proposed and how should leases for such activities be appropriately spaced (i.e., inclusion of buffers)?
(6) How should the MMS define technology testing activities and what specific types of activities should be authorized by technology testing leases? Should technology testing leases accommodate projects that would require a transmission cable to connect to onshore interconnection points?