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Proposed Rule

Leasing of Sulphur or Oil and Gas in the Outer Continental Shelf-Definition of Affected State

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Minerals Management Service (MMS), Interior.


Notice of Proposed Rulemaking.


This proposed rule would eliminate the definition of “Affected State” from Subpart B, the Oil and Gas Leasing Program. This would mean that the definition of “Affected State” in Subpart A would apply and would eliminate the need for unaffected coastal States to participate in the preparation of a 5-year program.


We will consider all comments received by February 13, 2001. We will begin reviewing comments then and may not fully consider comments we receive after February 13, 2001.


Mail or hand-carry comments to the Department of the Interior; Minerals Management Service; Mail Stop 4024; 381 Elden Street; Herndon, Virginia 20170-4817; Attention: Rules Processing Team.

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Ralph Ainger or Jane Roberts at (703) 787-1215.

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This proposed rule would eliminate the definition of “Affected State” at 30 CFR 256.14 as it applies only to the “Subpart B, Oil and Gas Leasing Program.” Because of the Presidential proclamation withdrawing areas of the Outer Continental Shelf (OCS) from leasing consideration, it is virtually impossible for many currently listed States to be affected under the Act. The definition in subpart B is therefore erroneous.

The definition of the term already is found at 30 CFR 256.5(g), which applies to the entire part and follows the definition in the Outer Continental Shelf (OCS) Lands Act, 43 U.S.C. 1331(f). The definition at § 256.5(g) reads as follows: “‘Affected State’ means, with respect to any program, plan, lease sale, or other activity, proposed, conducted, or approved pursuant to the provisions of the act, any State—

(1) The laws of which are declared, pursuant to section 4(a)(2) of the Act, to be the law of the United States for the portion of the Outer Continental Shelf on which such activity is, or proposed to be conducted;

(2) Which is, or is proposed to be, directly connected by transportation facilities to any artificial island or structure referred to in section 4(a)(1) of the Act;

(3) Which is receiving, or in accordance with the proposed activity will receive, oil for processing, refining, or transshipment which was extracted from the Outer Continental Shelf and transported directly to such State by means of vessels or by a combination of means including vessels;

(4) Which is designated by the Secretary as a State in which there is a substantial probability of significant impact on or damage to the coastal, marine, or human environment, or a State in which there will be significant changes in the social, governmental, or economic infrastructure, resulting from the exploration, development, and production of oil and gas anywhere on the Outer Continental Shelf; or

(5) In which the Secretary finds that because of such activity there is, or will be a significant risk of serious damage, due to factors such as prevailing winds and currents, to the marine or coastal environment in the event of any oilspill, blowout, or release of oil or gas from vessels, pipelines, or other transshipment facilities.”

At this time, listing all the States adjacent to the OCS as “affected” is contrary to the intent as well as the letter of the statute and may cause unnecessary administrative burden for those States that are not affected under the legal definition. In June 1998, President Clinton acted under the authority of section 12 of the OCS Lands Act to withdraw the Atlantic and Pacific coasts from leasing until the year 2012.

As a result of Presidential and congressional actions, there can be no leasing off the Atlantic coast until 2012. The other criteria in the statutory definition of affected State relate to post-lease activity. As there are no active leases off the Atlantic coast, it is virtually impossible for any Atlantic States to be affected by the 5-year program. Automatically treating such States as affected requires the Federal Government to involve them in the preparation of the multi-phased 5-year program that would not affect them. In addition, some States have their own administrative processes that come into play if they are deemed affected. These States should not be automatically involved if they do not meet the statutory definition. Because of the Presidential Proclamation, these States cannot be affected under the Act; therefore, the definition in Subpart B is erroneous. However, there is nothing that precludes any State's participation if they wish and to the extent they wish, as the 5-year process contains multiple periods for public comment. Elimination of the definition also reduces the burden on the Government to involve States that are not affected by the program.

Procedural Matters

Public Comments Procedure

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Federalism (Executive Order 13132)

According to Executive Order 13132, this rule does not have Federalism implications. This rule does not substantially and directly affect the relationship between the Federal and State Governments. Elimination of the redundant and unnecessary definition of an Affected State could reduce costs on States that are not affected by the 5-year program and the cost to the Federal Government of involving unaffected States.

Takings Implications Assessment (Executive Order 12630)

According to Executive Order 12630, the rule does not have significant Takings implications. A Takings Implication Assessment is not required. This rule has no effect on Takings, as it only applies to States that would no longer be automatically involved in the Start Printed Page 78433preparation of a program that has no affect on them, thereby eliminating the possible burden of doing so.

Regulatory Planning and Review (Executive Order 12866)

This document is not a significant rule and is not subject to review by the Office of Management and Budget (OMB) under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. Ultimately, this rule is advantageous to the Federal Government in that it would not have to involve certain unaffected States in the complex, multi-step process of preparing a 5-year program and to those States that would not have to participate during program preparation, when the Federal Government makes three requests for comments and recommendations from affected States. Because of Presidential withdrawals and congressional moratoria, an average of 14 of the 23 coastal States could be deemed unaffected by a proposed 5-year program. If those 14 States were deemed unaffected, there could be a maximum savings of $170,100 ($2,100 + $168,000). At a minimum, a State must spend 1 hour deciding whether or not to respond. Therefore, there would be a minimum expenditure of $2,100 (14 States × 3 requests × 1 hour × $ 50 per hour). If a State decides, or in some cases is required to, participate by its own laws, that State could spend up to 80 hours preparing each response, for a maximum expenditure of $168,000 (14 States × 3 requests × 80 hours × $50 per hour).

(2) This will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. There are no other Federal agencies involved in this process as it relates to participation by coastal States.

(3) This rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or rights or obligations of their recipients. This rule has no effect on these programs or such rights.

(4) This rule does not raise novel legal or policy issues. As previously stated, the intent of this rule is to eliminate the redundant and unnecessary definition of Affected State at 30 CFR 256.14. The term already is defined at 30 CFR 256.5(g) and applies to the entire part.

Civil Justice Reform (Executive Order 12899)

According to Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) or the Order.

National Environment Policy Act (NEPA)

We have analyzed this rule according to the criteria of the NEPA and 516 DM. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental assessment is not required. This rule will have no impact regarding the criteria of the NEPA.

Paperwork Reduction Act (PRA) of 1995

This regulation does not affect an existing OMB-approved information collection and an OMB Form 83-I is not required. The proposed rule simply removes a definition. OMB approved the information collection requirements in part 256 under OMB control number 1010-0006, with an expiration date of March 31, 2001.

Regulatory Flexibility (RF) Act

The Department certifies that this document will not have a significant economic effect on a substantial number of small entities under the RF Act (5 U.S.C. 601 et seq.). This revised rule would eliminate the redundant and unnecessary definition of Affected State at 30 CFR 256.14. The only entities impacted by this rule change are certain coastal States that we would no longer automatically involve in a complex, multi-step process of preparing a 5-year program that would not affect them.

Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of MMS, call toll-free (888) 734-3247.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under the SBREFA, 5 U.S.C. 804(2). This rule:

(1) Does not have an annual effect on the economy of $100 million or more. This rule would eliminate the need for the Federal Government to automatically involve some coastal States in a complex, multi-step process to prepare a program that would not affect them.

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic areas. This rule would eliminate the need for some coastal States that would not be affected by a 5-year oil and gas program from participating in its preparation unless they chose to do so.

(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, ability of United States-based enterprises to compete with foreign-based enterprises. There are no United States- or foreign-based enterprises involved in this rule.

Unfunded Mandate Reform Act (UMRA) of 1995

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This rule does not create any kind of a mandate for State, local, or tribal governments or the private sector. In fact, it eliminates the need for the Federal Government to involve certain States in the preparation of a program that will not affect them. A statement containing the information required by the UMRA, 2 U.S.C. 1501 et seq. is not required.

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List of Subjects in 30 CFR Part 256

  • Administrative practice and procedure
  • Continental shelf
  • Environmental protection
  • Government contracts
  • Intergovernmental relations
  • Minerals Management Service
  • Oil and gas exploration
  • Public lands-mineral resources; Public lands-rights-of-way
  • Reporting and recordkeeping requirements
  • Surety bonds
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Dated: October 19, 2000.

Sylvia V. Baca,

Assistant Secretary, Land and Minerals Management.

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For the reasons stated in the preamble, MMS proposes to amend 30 CFR part 256 as follows:

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1. The authority citation for Part 256 continues to read as follows:

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Authority: 42 U.S.C 6213, 43 U.S.C. 1331 et seq.

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2. Section 256.14 is removed.

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[FR Doc. 00-31950 Filed 12-14-00; 8:45 am]