Negotiated Noncompetitive Leasing for the Use of Sand, Gravel, and Shell Resources on the Outer Continental Shelf, 15190-15200 [2016-06163]

Agencies

• DEPARTMENT OF THE INTERIOR
• Bureau of Ocean Energy Management

[Federal Register Volume 81, Number 55 (Tuesday, March 22, 2016)]
[Proposed Rules]
[Pages 15190-15200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06163]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Bureau of Ocean Energy Management

30 CFR Part 583

RIN 1010-AD90
[Docket ID: BOEM-2010-0041]


Negotiated Noncompetitive Leasing for the Use of Sand, Gravel, 
and Shell Resources on the Outer Continental Shelf

AGENCY: Bureau of Ocean Energy Management, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule proposes regulations to address the use of Outer 
Continental Shelf (OCS) sand, gravel and shell resources for shore 
protection, beach restoration, or coastal wetlands restoration projects 
by Federal, State, or local government agencies, or use in construction 
projects authorized by or funded in whole or in part by the Federal 
Government. The proposed rule describes the negotiated noncompetitive 
agreement process for qualifying projects and codifies new and existing 
procedures.

DATES: Submit comments by May 23, 2016. The Bureau of Ocean Energy 
Management (BOEM) may not fully consider comments received after this 
date. Submit comments to the Office of Management and Budget (OMB) on 
the information collection (IC) burden in this proposed rule by April 
21, 2016. This does not affect the deadline for the public to comment 
to BOEM on the proposed regulation.

ADDRESSES: You may submit comments on the rulemaking by any of the 
following methods. Please use the Regulation Identifier Number (RIN) 
1010-AD90 as an identifier in your comment. Please reference ``Outer 
Continental Shelf Marine Sand, Gravel and Shell Resources, 1010-AD90'' 
in your comments and include your name and return address.
     Federal eRulemaking Portal: https://www.regulations.gov. 
Under the tab ``More Search Options,'' click ``Advanced Docket 
Search,'' then select ``Bureau of Ocean Energy Management'' from the 
agency drop-down menu, then click the submit button. In the Docket ID 
column, select BOEM-2010-0041 to submit public comments and to view 
supporting and related materials available for this rulemaking. 
Information on using Regulations.gov, including instructions for 
accessing documents, submitting comments, and viewing the docket after 
the close of the comment period, is available through the site's ``User 
Tips'' link. BOEM will post comments on www.regulations.gov.
     Mail or hand-carry comments to the U.S. Department of the 
Interior; Bureau of Ocean Energy Management; Attn: Office of Policy, 
Regulation and Analysis, 45600 Woodland Road, VAM-BOEM DIR, Sterling, 
Virginia 20166.
     Send comments on the IC in this proposed rule to: Interior 
Desk Officer 1010-AD90, Office of Management and Budget; 202-395-5806 
(fax); email:

[[Page 15191]]

OIRA_Submission@omb.eop.gov. Please also send a copy to BOEM, Office of 
Policy, Regulation and Analysis at 45600 Woodland Road, Sterling, VA 
20166.
    Public Availability of Comments: Before including your address, 
phone number, email address, or other personal identifying information 
in your comment, you should be aware that your entire comment--
including your personal identifying information--may be made publicly 
available at any time. While you can ask us in your comment to withhold 
your personal identifying information from public review, we cannot 
guarantee that we will be able to do so.

FOR FURTHER INFORMATION CONTACT: For comments or questions, contact 
Loren Thompson, Office of Policy, Regulation and Analysis, at 
Loren.Thompson@boem.gov, or at (202) 208-5890. To see a copy of the IC 
request submitted to OMB, go to https://www.reginfo.gov (select 
Information Collection Review, Currently Under Review). You may also 
obtain a copy of the supporting statement for the new collection of 
information by contacting BOEM, Office of Policy, Regulation and 
Analysis at 45600 Woodland Rd., Sterling, VA 20166.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. Program Description
    B. Program History
II. Section-by-Section Analysis of the Proposed Rule
    A. Subpart A--General
    B. Subpart B--Reserved
    C. Subpart C--Outer Continental Shelf Sand, Gravel and Shell 
Resources Negotiated Agreements
III. Legal and Regulatory Analysis
    A. Procedural Matters
    B. List of Subjects

I. Background

    Congress amended the Outer Continental Shelf Lands Act, 43 U.S.C. 
1331-1356 (OCSLA, or the Act), in 1994 to authorize the Secretary of 
the Interior to negotiate noncompetitive agreements with any person for 
the use of OCS sand, gravel and shell resources in a program of or 
project for shore protection, beach restoration, or coastal wetlands 
restoration undertaken by a Federal, State or local government agency, 
or in a construction project either authorized or funded in whole or in 
part by the Federal Government. See 43 U.S.C. 1337(k)(2). The Secretary 
may assess a fee based on an assessment of the value of the resources 
and the public interest served by promoting development of the 
resources. No fee shall be assessed directly or indirectly against a 
Federal, State, or local government agency. See 43 U.S.C. 
1337(k)(2)(B).

A. Program Description

    Generally, shore protection and beach and coastal wetlands 
restoration projects are initiated to rebuild eroding shoreline 
segments, such as beaches and dunes, barrier islands, and wetlands. In 
sensitive wetland areas, these projects are intended to forestall 
further erosion, restore habitat and/or to provide protection from 
hurricanes, storms, and coastal erosion. These projects are typically 
accomplished by placing sand directly on the beach, in open water areas 
that are the former location of an eroded beach, and/or within breaches 
in the shoreline that compromise integrity of the beach or barrier 
island system to form, and subsequently maintain, a beach. Material may 
also be placed updrift from the beach, allowing longshore processes to 
redistribute the sand, gravel and shell resources along the beach.
    The Act authorizes BOEM to enter into a negotiated agreement when 
the use of OCS sand, gravel and shell resources is authorized for 
qualifying projects. This negotiated agreement will take the form of a 
lease or a Memorandum of Agreement (MOA), depending on the identity of 
the applicant(s) requesting use of OCS sand, gravel and shell 
resources. If a non-Federal entity requests the use of OCS sand, gravel 
and shell resources, the negotiated agreement required by the Act would 
generally take the form of a lease. If a Federal agency requests the 
use of OCS sand, gravel and shell resources, BOEM and the Federal 
agency, as well as their Federal, State or local government agency 
counterparts on the project, would enter into a MOA. For example, when 
a Federal agency partially or wholly funds a non-Federal entity to 
conduct a project that is otherwise eligible for OCS sand, gravel and 
shell resources, the negotiated agreement may take the form of a three-
party MOA. As warranted, the Federal applicant(s) and BOEM would 
designate a lead agency and enter into a cooperating agency agreement 
for the environmental analysis and review. Likewise, if a non-Federal 
applicant is involved, BOEM would ensure that appropriate environmental 
analysis and review is completed. The negotiated agreement in each of 
these situations would describe the project and procedures that would 
be followed and identify environmental and administrative requirements 
that must be met.

B. Program History

    BOEM and its predecessor agencies, the Minerals Management Service 
and the Bureau of Ocean Energy Management, Regulation and Enforcement, 
through the Marine Minerals Program, have been exercising statutory 
authority regarding OCS sand, gravel and shell resources under the Act 
pursuant to written guidelines, without the benefit of implementing 
regulations. Nearly fifty agreements have been negotiated, providing 
for the use of more than 100 million cubic yards of OCS sand, gravel 
and shell resources for shore protection, beach restoration, or coastal 
wetlands restoration undertaken by a Federal, State or local government 
agency, and for Federally authorized or funded construction projects. 
BOEM believes that the promulgation of regulations at this time is 
advisable in order to provide additional clarity and certainty and to 
help ensure continuity of the Marine Minerals Program.

II. Section by Section Analysis of the Proposed Rule

Subpart A--General

Section 583.100 What is BOEM's authority for information collection 
(IC)?

    This section would explain BOEM's authority for IC activities 
related to this proposed part 583. It would explain the reasons the 
information is being collected and establish the OMB approval of the 
collection.

Section 583.101 What is the purpose of this rule and to whom does it 
apply?

    This section would explain that the purpose of this proposed rule 
is to refine and formally adopt procedures for entering into negotiated 
noncompetitive agreements for the use of OCS sand, gravel and shell 
resources for shore protection, beach or wetlands restoration by a 
Federal, State or local government agency or for construction projects 
authorized or funded, in whole or in part, by the Federal Government. 
This section would explain that the rule would apply exclusively to 
negotiated noncompetitive use of sand, gravel and shell resources in 
the OCS and would not apply to competitive leasing of minerals, 
including oil, gas, sulphur, geopressured-geothermal and associated 
resources, and all other minerals which are authorized by an Act of 
Congress to be produced from ``public lands'' as defined in section 103 
of the Federal Land Policy and Management Act of 1976, as amended 
(FLPMA). (43 U.S.C. 1701 et seq.)

[[Page 15192]]

Section 583.102 What is BOEM's authority for this rule?

    This section would explain that in proposing these regulations, 
BOEM is operating under authority granted to the Secretary of the 
Interior by the Act.

Section 583.103 What definitions do I need to know?

    This section would define many of the terms commonly used in the 
Marine Minerals Program and now used in the proposed regulation, 
including ``borrow area,'' ``placement area,'' and ``project.'' This 
section would also define new terms for purposes of this subpart, 
including ``Act,'' ``agreement,'' ``amendment,'' ``BOEM,'' 
``Director,'' ``Federal agency,'' ``local government,'' 
``modification,'' ``outer continental shelf,'' ``program,'' ``Regional 
Director,'' and ``Secretary.''

Section 583.104 Who is qualified for a project?

    This section would explain who is qualified to enter into an 
agreement with BOEM for the use of OCS sand, gravel, and shell 
resources, and would explain the requirements to comply with the 
relevant debarment regulations.

Section 583.105 How do I appeal an unfavorable decision by BOEM?

    This section would set out the kinds of decisions that would be 
subject to reconsideration or appeal, and the process that would be 
utilized by an unsuccessful applicant or adversely affected party for 
resolution of such reconsideration or appeal.

Section 583.106 What are the minimum contents of an agreement to use 
OCS sand, gravel and shell resources?

    This section would explain who would be allowed to use OCS sand, 
gravel and shell resources, and would explain that use authorizations 
would be in the form of agreements that are negotiated on a case-by-
case basis. It would also explain that the agreements would identify 
the location, type and volume of OCS sand, gravel and shell resources 
allowed to be used under the agreement. In addition, it would explain 
that any authorizations to use sand, gravel and shell resources would 
not be exclusive.

Subpart B--Reserved

Subpart C--Outer Continental Shelf Sand, Gravel and Shell Resources 
Negotiated Agreements

Section 583.300 How do I submit a request for an agreement?

    This section would explain who may submit a request to BOEM to 
obtain an agreement for the use of OCS sand, gravel, and shell 
resources. It would list the information the request must include, such 
as a detailed description of the proposed project and how it qualifies 
as a project eligible under the Act to receive OCS sand, gravel and 
shell resources pursuant to a negotiated noncompetitive agreement; a 
description of borrow and placement areas; certain maps and data; a 
description of the environmental evaluations that have been completed 
or are being prepared that cover the project, including both onshore 
and offshore components; a target date or date range when the resources 
will be needed; a description of the Federal, State, or local agencies 
that are undertaking the project and points of contact; and a statement 
explaining who authorized the project and how the project will be 
funded.

Section 583.301 How will BOEM determine if a project qualifies?

    This section would lay out the factors that BOEM would use to 
determine whether a project qualifies for use of sand, gravel and shell 
resources under a negotiated noncompetitive agreement. The section 
would enumerate the evaluation criteria, including: The project 
purpose; other uses of OCS sand, gravel and shell resources authorized 
from the same borrow area; the project funding source(s) and amounts; 
the proposed design and feasibility of the project; any potential 
environmental and safety risks associated with the project; other 
Federal interests located near or within the specified borrow area; 
comments received from potentially affected governments; the 
applicant's background and experience working on similar projects or 
activities; and whether the project is consistent with applicable 
statutes and their implementing regulations, which may include, but are 
not limited to, the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 
et seq.), the Marine Debris Research, Prevention, and Reduction Act 
(MDRPRA) (33 U.S.C. 1951 et seq.), the Marine Plastic Pollution 
Research and Control Act (MPPRCA) (33 U.S.C. 1901 et seq.), the Federal 
Water Pollution Control Act (FWPCA) (33 U.S.C. 1381 et seq.), and the 
International Convention for the Prevention of Pollution from Ships 
(MARPOL), MARPOL-Annex V Treaty.

Section 583.302 What process does BOEM use to technically and 
environmentally evaluate a qualified project?

    This section would explain the process that BOEM would follow to 
evaluate a project that qualifies for the use of OCS sand, gravel and 
shell resources to decide whether to enter into a negotiated 
noncompetitive agreement. It states that BOEM would coordinate with 
relevant Federal agencies, States, and local governments, and 
potentially affected Federally recognized Indian Tribes. It also 
describes how BOEM would evaluate the project and additional 
information provided under Sec. Sec.  583.300 and 583.301 to determine 
if the information is sufficient to conduct necessary technical and 
environmental reviews to comply with the requirements of applicable 
statutes and regulations, which may include, but are but not limited 
to, the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et 
seq.), the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.), the 
MMPA (16 U.S.C. 1361 et seq.), the Magnuson-Stevens Fishery 
Conservation and Management Act (MSFCMA) (16 U.S.C. 1801 et seq.), the 
National Historic Preservation Act (NHPA) (16 U.S.C. 470 et seq.), and 
the Coastal Zone Management Act (CZMA) (16 U.S.C. 1451 et seq.). 
Finally, this section would provide that BOEM would not enter into a 
negotiated noncompetitive agreement until the information requested for 
the evaluation has been provided and BOEM has evaluated it.

Section 583.303 What is the process for negotiating and executing an 
agreement?

    This section would describe the steps BOEM would take once it has 
completed its technical, environmental and other evaluations. This 
section would provide further that, once BOEM has completed its review 
of an application, BOEM would decide whether to enter into an 
agreement. This section would provide further that BOEM would negotiate 
the terms of the agreement and prepare a draft agreement for the 
applicant's review and comment. The section would also provide that, 
after BOEM considers the applicant's comments and suggestions, it would 
finalize the agreement for signature. This section would provide that, 
once the applicant signs the agreement, BOEM would execute the 
agreement and distribute it to the parties

[[Page 15193]]

to the agreement. Finally, this section would describe the process BOEM 
would use when an application is not approved.

Section 583.304 What kinds of information must be included in an 
agreement?

    This section would describe the minimum information that an 
agreement would be required to include, such as an agreement number 
assigned by BOEM; the purpose of, and authorities for, the agreement; 
designated and delineated borrow area(s); the project description, 
including the timeframe within which the project is to be started and 
completed; the terms and conditions of the agreement, including any 
reporting requirements; all obligations of the parties; and the 
signatures of appropriate individuals authorized to bind the applicant 
and BOEM.

Section 583.305 What is the effective date of an agreement?

    This section would describe what determines the effective date of 
the agreement.

Section 583.306 How will BOEM enforce the agreement?

    This section would describe how BOEM would enforce the terms of an 
agreement and the consequences, including termination, for failure to 
comply with any applicable law or with the agreement terms. This 
section would also provide that the failure to comply in a timely and 
satisfactory manner with any provision, term or condition of the 
agreement may delay or prevent BOEM's approval of future requests for 
use of OCS sand, gravel and shell resources on the part of the parties 
to the agreement.

Section 583.307 What is the term of the agreement?

    This section would explain when an agreement would terminate, 
either by a specified date, when parties to the agreement notify BOEM 
that sufficient resources have been removed to complete the project, or 
for other reasons specified in this section. This section would also 
explain that, absent extraordinary circumstances, no agreement would 
have an initial term that is longer than five years from its effective 
date. Examples of extraordinary circumstances where an initial term 
longer than five years may be appropriate would include a program of 
multiple individual projects to be carried out over multiple seasons or 
where the Congressional authorization for a project called for multiple 
phases. It would be within BOEM's sole discretion to determine when 
extraordinary circumstances warrant an initial term longer than five 
years. The parties would have the option to request an extension, 
modification or change to the terms of the agreement, as set forth in 
Sec.  583.309.

Section 583. 308 What debarment or suspension obligations apply to 
transactions and contracts related to a project?

    This section would explain that the applicant has the obligation to 
ensure that all contracts and transactions related to an agreement 
issued under this part comply with the suspension and debarment 
regulations at 2 CFR part 180 and 2 CFR part 1400.

Section 583.309 What is the process for modifying the agreement?

    This section would explain how an applicant may seek to extend, 
modify or change an agreement and would spell out the time frames when 
this might be accomplished. It would provide that BOEM is under no 
obligation to extend, modify or change an agreement and cannot be held 
liable for the consequences of the expiration of an agreement. If BOEM 
approves a modification, BOEM would prepare an amendment to the 
agreement and provide it for review by the parties to the agreement 
prior to execution of the amendment. Should BOEM deny the request, BOEM 
would notify the parties to the agreement and reconsideration could be 
requested of the Director.

Section 583.310 When can the agreement be terminated?

    This section would explain under what circumstances the Director 
could terminate an agreement. The termination factors include fraud; 
noncompliance with the agreement; national security or defense reasons; 
situations in which continuing with the agreement would cause serious 
harm or damage to natural resources, property, the environment or 
historical structures; and other reasons described in this section. 
This section would also explain the process for terminations and 
suspensions.

III. Legal and Regulatory Analysis

Procedural Matters

Regulatory Planning and Review (Executive Order (E.O.) 12866)
    E.O. 12866 provides that the Office of Information and Regulatory 
Affairs (OIRA), a part of the OMB, will review all significant rules. 
OIRA has determined that this rule is not significant.
    (1) This proposed rule contains virtually the same reporting and 
recordkeeping requirements as those in the current uncodified 
guidelines and procedures. A regulatory impact analysis is not 
required. This proposed rule formalizes existing policies and 
procedures that govern the use of OCS sand, gravel and shell resources. 
The existing policies, procedures, consultations and monitoring 
requirements for the noncompetitive use of OCS sand, gravel and shell 
resources are longstanding and have remained relatively consistent for 
two decades. This proposed rule does not materially change the existing 
requirements for the use of OCS sand, gravel and shell resources 
through leases or MOAs for shore protection, beach or wetlands 
restoration by a Federal, State or local government agency, or for 
construction projects authorized or funded, in whole or in part, by the 
Federal Government. The regulatory baseline is essentially the same as 
the proposed rule. BOEM believes that any changes between the current 
BOEM process and this proposed rule are immaterial and would not impose 
additional compliance obligations or costs upon the regulated entities.
    Formalizing the existing conveyance process will provide certainty 
to the public entities requesting noncompetitive leases or MOAs for OCS 
sand, gravel and shell resources. BOEM believes there is a benefit to 
the regulated entities in the form of regulatory certainty when 
Federal, State and local government agencies desire to use OCS sand, 
gravel and shell resources for qualifying projects. Entities affected 
by this rulemaking have the opportunity to comment through the 
rulemaking process on the proposed provisions, which are consistent 
with current practices for the conveyance of sand, gravel and shell 
resources.
    (2) This proposed rule does not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
It reflects the existing process developed over the life of the program 
in cooperation with other Federal agencies, including the U.S. Fish and 
Wildlife Service (FWS), National Marine Fisheries Service (NMFS) and 
U.S. Army Corps of Engineers, and State and local governments.
    (3) This proposed rule does not have an annual effect on the 
economy of $100 million or more. It will not adversely affect in a 
material way the economy, productivity, competition, jobs, the

[[Page 15194]]

environment, public health or safety, or State, local or tribal 
governments or communities.
    (4) This rule does not alter the budgetary effects of existing 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients.
    (5) This rule does not raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in E.O. 12866.
Improving Regulation and Regulatory Review (E.O. 13563)
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, reduce uncertainty, and use the best, most innovative, 
and least burdensome tools for achieving regulatory ends. The executive 
order directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. BOEM has developed this rule in a manner consistent with these 
requirements.
Regulatory Flexibility Act (RFA)
    BOEM certifies this proposed rule would not have a significant 
economic effect on a substantial number of small entities under the RFA 
(5 U.S.C. 601 et seq.). A Regulatory Flexibility Analysis is not 
required. Small public entities affected by this rulemaking may be 
cities, counties, towns, townships, villages or special districts, with 
a population of less than 50,000. Small entities are occasionally 
parties to an agreement for the use of OCS sand, gravel and shell 
resources. Over the last two decades, BOEM has issued nearly 50 leases 
or MOAs with 22 parties, of which 5 were small public entities. Four 
out of the 5 small public entities received significant Federal cost-
shares to conduct beach nourishment projects. The proposed application 
and monitoring requirements are necessary to comply with Federal law 
and provide BOEM and the public the best information on the changes in 
the sand borrow areas. Since BOEM is not proposing any material changes 
to the longstanding requirements for borrowing OCS sand, gravel and 
shell resources, this rulemaking will not have a substantial effect on 
small entities.
    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 actions of BOEM enforcement activities, you may call 1-888-734-
3247. You may comment to the Small Business Administration without fear 
of retaliation. Allegations of discrimination/retaliation filed with 
the Small Business Administration will be investigated for appropriate 
action.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
    This proposed rule is not a major rule under the SBREFA (5 U.S.C. 
804(2)). This proposed rule:
    (a) Would not have an annual effect on the economy of $100 million 
or more;
    (b) Would not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions; and,
    (c) Would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
    This proposed rule would not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year. A statement containing the information required by 
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) is not required.
Takings Implication Assessment (E.O. 12630)
    Under the criteria in E.O. 12630, this proposed rule would not have 
significant takings implications. The proposed rule is not a 
governmental action capable of interference with constitutionally 
protected property rights. A Takings Implication Assessment is not 
required.
Federalism (E.O. 13132)
    Under the criteria in E.O. 13132, this proposed rule would not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. This proposed rule would not substantially and 
directly affect the relationship between the Federal and State and 
local governments. To the extent that State and local governments have 
a role in OCS activities, this proposed rule would not affect that 
role. A Federalism Assessment is not required.
Civil Justice Reform (E.O. 12988)
    This rule would comply with the requirements of E.O. 12988. 
Specifically, this rule would:
    (a) Meet the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and,
    (b) Meet the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.
Consultation With Indian Tribes (E.O. 13175)
    The U.S. Department of the Interior (DOI) strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self governance and tribal sovereignty. BOEM's Tribal Liaison 
Officer has certified that this regulation does not have tribal 
implications as defined in section 1(a) of E.O. 13175 and has 
determined that the regulation does not have substantial and direct 
effects on Federally recognized tribes or any Alaska Native Corporation 
established pursuant to the Alaska Native Claims Settlement Act 
(ANCSA), 43 U.S.C. 1601 et seq.
    As it relates to any Federally recognized Indian tribe, this 
proposed rule merely formalizes existing policies and procedures that 
govern the use of OCS sand, gravel and shell resources. The existing 
policies, procedures, consultations and monitoring requirements for the 
noncompetitive use of sand, gravel and shell resources are longstanding 
and have remained relatively consistent for two decades. If BOEM 
determines an individual project authorized under this part may have 
effects on Federally recognized tribes or any Alaska Native 
Corporation, BOEM will initiate consultation as soon as possible 
consistent with E.O. 13175 and DOI tribal consultation policies. A 
tribe may also request BOEM initiate consultation pursuant to E.O. 
13175.
Paperwork Reduction Act (PRA) of 1995
    This proposed rule contains a new collection of information request 
that is being submitted to OMB for review and approval under 44 U.S.C. 
3501 et seq. The rule proposes to add a new part 583 to address the use 
of OCS sand, gravel and shell resources for shore protection or 
replenishment, wetland restoration,

[[Page 15195]]

or qualified construction projects. This part describes the negotiated 
noncompetitive agreement process for qualifying projects and would 
codify procedures. The title of the IC request is 30 CFR 583, 
Negotiated Noncompetitive Leasing for the Use of Sand, Gravel and Shell 
Resources on the OCS.
    Respondents that would be required to submit information under this 
part are other Federal, State, and local government agencies; 
corporations; and individual entities. Responses would primarily be 
required in order to obtain or retain a benefit. The frequency of 
response would vary depending on the requirement. BOEM would protect 
proprietary information according to the Freedom of Information Act (5 
U.S.C. 552) and its implementing regulations (43 CFR part 2). BOEM 
proposes to collect the information under this part to evaluate 
applications for leases/agreements to access sand, gravel or shell 
resources on the OCS; to balance multiple uses of the OCS; and to 
monitor activities for environmental protection and safety.
    The following table provides a breakdown of the IC requirements and 
burdens in this proposed part.

                                                  Burden Table
----------------------------------------------------------------------------------------------------------------
                                                                                  Average number
      Citation 30 CFR 583          Reporting and recordkeeping      Hour burden      of annual     Annual burden
                                           requirement                               responses         hours
----------------------------------------------------------------------------------------------------------------
                             Subpart A--General--Federal, State, & local governments
----------------------------------------------------------------------------------------------------------------
105...........................  Apply for reconsideration/appeal               2               1               2
                                 to the BOEM Director/IBLA
                                 within 15 days of notification;
                                 include statement of reasons; 1
                                 copy to program office.
----------------------------------------------------------------------------------------------------------------
                                        Subpart A--General--Corporations
----------------------------------------------------------------------------------------------------------------
105...........................  Apply for reconsideration/appeal               2               1               2
                                 to the BOEM Director/IBLA
                                 within 15 days of notification;
                                 include statement of reasons; 1
                                 copy to program office.
----------------------------------------------------------------------------------------------------------------
                                         Subpart A--General--Individuals
----------------------------------------------------------------------------------------------------------------
105...........................  Apply for reconsideration/appeal               2               1               2
                                 to the BOEM Director/IBLA
                                 within 15 days of notification;
                                 include statement of reasons; 1
                                 copy to program office.
----------------------------------------------------------------------------------------------------------------
    Total Subpart A.............................................................               3               6
----------------------------------------------------------------------------------------------------------------
         Subpart C--OCS Sand, Gravel, & Shell Resources Negotiated Agreements--State & local governments
----------------------------------------------------------------------------------------------------------------
300...........................  Submit to BOEM a written request              10               4              40
                                 to obtain agreement; including,
                                 but not limited to: Detailed
                                 description of project; maps
                                 (geographic coordinates); G&G
                                 data; description/documentation
                                 of environmental evaluations;
                                 target dates; description of
                                 parties involved; required
                                 permits (status of/potential
                                 conflicts); points of contact
                                 info. for all parties involved;
                                 statement of funding.
301; 302(d)...................  Submit additional information as               5               1               5
                                 requested by BOEM.
                                                                 -----------------------------------------------
303(b)........................  Request that the BOEM Director      Burden covered under 30 CFR                2
                                 reconsider a disapproved                    Subpart A
                                 agreement.
                                                                 --------------------------------
303(c)-(e)....................  Review and comment on draft                    8               3              24
                                 agreement; sign and return
                                 copies for execution by BOEM.
307(a)........................  Submit written notification to                 1               1               1
                                 BOEM once resources authorized
                                 are obtained.
308...........................  Verify all applicants comply                   2               1               2
                                 with 2 CFR 180 & 2 CFR 1400 in
                                 contract/transaction.
309...........................  Submit written request to                      2               2               4
                                 extend, modify, or change
                                 agreement to BOEM within 180
                                 days before expiration; submit
                                 any other documentation
                                 requested by BOEM; sign and
                                 return amendment; request that
                                 the BOEM Director reconsider a
                                 disapproved request to extend,
                                 modify, or change.
309(b)........................  Submit written request for                     1               1               1
                                 letter amendment.
----------------------------------------------------------------------------------------------------------------
               Subpart C--OCS Sand, Gravel, & Shell Resources Negotiated Agreements--Corporations
----------------------------------------------------------------------------------------------------------------
300...........................  Submit to BOEM a written request              10               4              40
                                 to obtain agreement; including,
                                 but not limited to: Detailed
                                 description of project; maps
                                 (geographic coordinates); G&G
                                 data; description/documentation
                                 of environmental evaluations;
                                 target dates; description of
                                 parties involved; required
                                 permits (status of/potential
                                 conflicts); points of contact
                                 info. for all parties involved;
                                 statement of funding.
301; 302(d)...................  Submit additional information as               5               1               5
                                 requested by BOEM.
                                                                 -----------------------------------------------
303(b)........................  Request that the BOEM Director      Burden covered under 30 CFR                2
                                 reconsider a disapproved                    Subpart A
                                 agreement.
                                                                 --------------------------------
303(c)-(e)....................  Review and comment on draft                    8               3              24
                                 agreement; sign and return
                                 copies for execution by BOEM.

[[Page 15196]]

 
307(a)........................  Submit written notification to                 1               1               1
                                 BOEM once resources authorized
                                 are obtained.
308...........................  Verify all applicants comply                   2               1               2
                                 with 2 CFR 180 & 2 CFR 1400 in
                                 contract/transaction.
309...........................  Submit written request to                      2               2               4
                                 extend, modify, or change
                                 agreement to BOEM within 180
                                 days before expiration; submit
                                 any other documentation
                                 requested by BOEM; sign and
                                 return amendment; request that
                                 the BOEM Director reconsider a
                                 disapproved request to extend,
                                 modify, or change.
309(b)........................  Submit written request for                     1               1               1
                                 letter amendment.
----------------------------------------------------------------------------------------------------------------
                Subpart C--OCS Sand, Gravel, & Shell Resources Negotiated Agreements--Individuals
----------------------------------------------------------------------------------------------------------------
300...........................  Submit to BOEM a written request              10               4              40
                                 to obtain agreement; including,
                                 but not limited to: Detailed
                                 description of project; maps
                                 (geographic coordinates); G&G
                                 data; description/documentation
                                 of environmental evaluations;
                                 target dates; description of
                                 parties involved; required
                                 permits (status of/potential
                                 conflicts); points of contact
                                 info. for all parties involved;
                                 statement of funding.
301; 302(d)...................  Submit additional information as               5               1               5
                                 requested by BOEM.
                                                                 -----------------------------------------------
303(b)........................  Request that the BOEM Director      Burden covered under 30 CFR                2
                                 reconsider a disapproved                    Subpart A
                                 agreement.
                                                                 --------------------------------
303(c)-(e)....................  Review and comment on draft                    8               3              24
                                 agreement; sign and return
                                 copies for execution by BOEM.
307(a)........................  Submit written notification to                 1               1               1
                                 BOEM once resources authorized
                                 are obtained.
308...........................  Verify all applicants comply                   2               1               2
                                 with 2 CFR 180 & 2 CFR 1400 in
                                 contract/transaction.
309...........................  Submit written request to                      2               2               4
                                 extend, modify, or change
                                 agreement to BOEM within 180
                                 days before expiration; submit
                                 any other documentation
                                 requested by BOEM; sign and
                                 return amendment; request that
                                 the BOEM Director reconsider a
                                 disapproved request to extend,
                                 modify, or change.
309(b)........................  Submit written request for                     1               1               1
                                 letter amendment.
----------------------------------------------------------------------------------------------------------------
    Total Subpart C.............................................................              39             237
                                                                 -----------------------------------------------
        Grand Total.............................................................              42             243
----------------------------------------------------------------------------------------------------------------

    As part of our continuing effort to reduce paperwork and response 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of the reporting and recordkeeping burden. We specifically 
solicit comments on the following questions:
    (1) Is the proposed collection of information necessary for BOEM to 
properly perform its functions, and will it be useful?
    (2) Are the estimates of the burden hours of the proposed 
collection reasonable?
    (3) Do you have any suggestions that would enhance the quality, 
clarity, or usefulness of the information to be collected?
    (4) Is there a way to minimize the IC burden on those who must 
respond, including the use of appropriate automated electronic, 
mechanical, or other forms of information technology?
    In addition, the PRA requires agencies to estimate the total annual 
reporting and recordkeeping non-hour cost burden resulting from the 
collection of information, and we solicit your comments on this item. 
For reporting and recordkeeping only, your response should split the 
cost estimate into two components: (1) Total capital and startup cost 
component; and (2) annual operation, maintenance, and purchase of 
services component. Your estimates should consider the costs to 
generate, maintain, and disclose or provide the information. You should 
describe the methods you use to estimate major cost factors, including 
system and technology acquisition, expected useful life of capital 
equipment, discount rate(s), and the period over which you expect to 
incur costs. Generally, your estimates should not include equipment or 
services purchased (1) before October 1, 1995; (2) to comply with 
requirements not associated with the IC; (3) for reasons other than to 
provide information or keep records for the Government; or (4) as part 
of customary and usual business or private practices.
    OMB is required to make a decision concerning the collection of 
information contained in these proposed regulations between 30 to 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives the comment by April 21, 2016. This does not affect the 
deadline for the public to comment to BOEM on the proposed regulations.
National Environmental Policy Act
    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. BOEM has analyzed this 
rule under the criteria of the NEPA and DOI's NEPA implementing 
regulations at 43 CFR 46. This rule meets the criteria set forth in 43 
CFR 46.210(i) for a Departmental ``categorical exclusion'' in that this 
rule is `` . . . of an administrative, financial, legal, technical, or 
procedural nature.

[[Page 15197]]

. . .'' We have also determined that the rule does not involve any of 
the extraordinary circumstances listed in 43 CFR 46.215.
Information Quality Act (IQA)
    In accordance with the IQA, DOI has issued guidance regarding the 
quality of information that it relies upon for regulatory decisions. 
This guidance is available at DOI's Web site at https://www.doi.gov.
    Send your comments to the U.S. Department of the Interior, Bureau 
of Ocean Energy Management, Office of Policy, Regulation and Analysis, 
Attn: IQA Comments, 45600 Woodland Road, VAM-BOEM DIR, Sterling, 
Virginia 20166.
Effects on the Energy Supply (E.O. 13211)
    This rule is not a significant energy action under the definition 
in E.O. 13211. A Statement of Energy Effects is not required.
Clarity of This Regulation
    We are required by E.O. 12866, E.O. 12988, and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever helpful.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help BOEM revise the rule, your comments should be as specific 
as possible. For example, you should tell us the numbers of the 
sections or paragraphs that you find unclear, which sections or 
sentences are too long, the sections where you feel lists or tables 
would be useful, etc.

List of Subjects 30 CFR 583

    Administrative practice and procedure, Beach restoration, Coastal 
wetlands restoration, Gravel, Government contracts, Intergovernmental 
relations, Marine minerals, Marine minerals program, Noncompetitive 
agreements, Negotiated agreements, Outer Continental Shelf, Sand, Shell 
resources and Shore protection.

    Dated: March 10, 2016.
Amanda C. Leiter,
Acting Assistant Secretary--Land and Minerals Management.

    For the reasons stated in the preamble, BOEM proposes to amend 30 
CFR to add part 583 to read as follows:

PART 583--NEGOTIATED NONCOMPETITIVE AGREEMENTS FOR USE OF OUTER 
CONTINENTAL SHELF SAND, GRAVEL AND SHELL RESOURCES

Subpart A--General
Sec.
583.100 What is BOEM's authority for information collection (IC)?
583.101 What is the purpose of this part and to whom does it apply?
583.102 What is BOEM's authority for this part?
583.103 What definitions do I need to know?
583.104 Who is qualified for a project?
583.105 How do I appeal an unfavorable decision by BOEM?
583.106 What are the minimum contents of an agreement to use OCS 
sand, gravel, and shell resources?
Subpart B--[Reserved]
Subpart C--Outer Continental Shelf Sand, Gravel, and Shell Resource 
Negotiated Agreements
583.300 How do I submit a request for an agreement?
583.301 How will BOEM determine if a project qualifies?
583.302 What process does BOEM use to technically and 
environmentally evaluate a qualified project?
583.303 What is the process for negotiating and executing an 
agreement?
583.304 What kinds of information must be included in an agreement?
583.305 What is the effective date of an agreement?
583.306 How will BOEM enforce the agreement?
583.307 What is the term of the agreement?
583.308 What debarment or suspension obligations apply to 
transactions and contracts related to a project?
583.309 What is the process for modifying the agreement?
583.310 When can the agreement be terminated?

    Authority: 43 U.S.C. 1334.

Subpart A--General


Sec.  583.100  What is BOEM's authority for information collection 
(IC)?

    The information collection requirements contained in the new part 
583 have been approved by the OMB under 44 U.S.C. 3501 and assigned 
clearance number 1010-XXXX. The information is being collected to 
determine if the applicant for a negotiated noncompetitive agreement 
(agreement) for the use of sand, gravel and shell resources on the 
Outer Continental Shelf (OCS) is qualified to enter into such an 
agreement and to determine if the requested action is warranted. 
Applicants and parties to the agreement are required to respond to 
requests related to information collection activities.


Sec.  583.101  What is the purpose of this part and to whom does it 
apply?

    The regulations in this part provide procedures for a negotiated 
noncompetitive program for utilization of OCS sand, gravel and shell 
resources. The rules of this part apply exclusively to negotiated 
noncompetitive use of OCS sand, gravel and shell resources and do not 
apply to competitive leasing of minerals, including oil, gas, sulphur, 
geopressured-geothermal and associated resources, and all other 
minerals which are authorized by an Act of Congress to be produced from 
``public lands'' as defined in section 103 of the Federal Land Policy 
and Management Act of 1976, as amended (43 U.S.C. 1701 et seq.).


Sec.  583.102  What is BOEM's authority for this part?

    (a) Pursuant to authority granted by the Outer Continental Shelf 
Lands Act (OSCLA, or the Act), as amended (43 U.S.C. 1331 et seq.), the 
Secretary has authority to negotiate an agreement for the use of OCS 
sand, gravel and shell resources:
    (1) For use in a program of, or project for, shore protection, 
beach restoration, or coastal wetlands restoration undertaken by a 
Federal, State, or local government agency; or
    (2) For use in a construction project, other than a project 
described in paragraph (1), that is funded in whole or in part by or 
authorized by the Federal Government.
    (b) The Secretary has authorized BOEM to administer the negotiated 
noncompetitive agreement provisions of the Act and prescribe the rules 
and regulations necessary to carry out those provisions.


Sec.  583.103  What definitions do I need to know?

    When used in this part, the following terms will have the meaning 
given below:
    Act means the OCSLA, as amended (43 U.S.C. 1331 et seq.).
    Agreement means a negotiated noncompetitive agreement that 
authorizes a person to use OCS sand, gravel and shell resources in a 
program of or project for shore protection, beach restoration or 
coastal wetlands restoration undertaken by one or more Federal, State 
or local government

[[Page 15198]]

agencies, or in a construction project, authorized by, or funded in 
whole or in part by the Federal government. The form of the agreement 
will be a Memorandum of Agreement (if one or more of the parties to the 
agreement, other than BOEM, is a Federal government agency) or a lease 
(if all of the parties to the agreement other than BOEM are non-Federal 
agencies or persons).
    Amendment means a modification to the agreement between BOEM and 
the parties to the agreement that extends, modifies or changes the 
terms of the agreement.
    Applicant means any person proposing to use OCS sand, gravel and 
shell resources for a shore protection, beach restoration or coastal 
wetlands restoration project undertaken by a Federal, State, or local 
government agency, or construction project, authorized by, or funded in 
whole or in part by the Federal government. If multiple persons or 
Federal, State, or local governments, other than BOEM, partner on a 
project they will be considered joint applicants.
    BOEM means the Bureau of Ocean Energy Management of the U.S. 
Department of the Interior (DOI).
    Borrow area means the offshore geographic area(s) or region(s) 
where OCS sand, gravel and shell resources have been identified for 
potential use in a specific project.
    Director means the Director of BOEM of the DOI, or an official 
authorized to act on the Director's behalf.
    Federal agency means any department, agency, or instrumentality of 
the United States.
    Local government means the governing authority at the county or 
city level with jurisdiction to administer a particular project(s).
    Modification means the process whereby parties to an agreement and 
BOEM mutually agree to change, alter or amend the existing agreement.
    Outer continental shelf (OCS) is defined in the same way it is 
defined in Section 2(a) (43 U.S.C. 1331(a)) of the OCSLA, as amended 
(43 U.S.C. 1331 et seq.).
    Placement area means the geographic area in which OCS sand, gravel 
and shell resources, used by agreement, will be placed pursuant to that 
agreement.
    Program means a group of related projects that may be the subject 
of a negotiated noncompetitive agreement for the use of OCS sand, 
gravel and shell resources.
    Project means an undertaking that may be the subject of a 
negotiated noncompetitive agreement for the use of OCS sand, gravel and 
shell resources.
    Regional Director means the BOEM officer with responsibility and 
authority for a Region of the United States.
    Secretary refers to the Secretary of the Interior.


Sec.  583.104  Who is qualified for a project?

    (a) BOEM may enter into an agreement with any person proposing to 
use OCS sand, gravel and shell resources for a program of or project 
for shore protection, beach restoration, or coastal wetlands 
restoration undertaken by a Federal, State, or local government agency 
or in a construction project that is funded in whole or in part by or 
authorized by the Federal government.
    (b) To qualify for an agreement under this part, the applicant must 
be:
    (1) A Federal, State, or local government agency;
    (2) A citizen or national of the United States;
    (3) An alien lawfully admitted for permanent residence in the 
United States, as defined in the Immigration and Nationality Act, as 
amended (8 U.S.C. 1101 (a)(20));
    (4) A private or public corporation organized under the laws of the 
United States or of any State or territory thereof; or
    (5) An association of such citizens, nationals, resident aliens or 
private or public corporations.
    (c) When entering into an agreement under this part, all applicants 
are subject to the requirements of 2 CFR part 180 and 2 CFR part 1400.


Sec.  583.105  How do I appeal an unfavorable decision by BOEM?

    (a) After being notified of disqualification, or disapproval of an 
agreement or modification, an unsuccessful applicant, or adversely 
affected party to an agreement, may apply for reconsideration by the 
Director.
    (1) All applications for reconsideration by the Director must be 
submitted within 15 days of being notified of disqualification, or 
disapproval of an agreement or modification, accompanied by a statement 
of reasons for the requested reconsideration, with one copy to the 
program office whose decision is the subject of the reconsideration.
    (2) The Director will respond in writing within 30 days.
    (b) No additional appeal rights are available under 30 CFR part 590 
and 43 CFR part 4, subpart E.


Sec.  583.106  What are the minimum contents of an agreement to use OCS 
sand, gravel, and shell resources?

    Any use of OCS sand, gravel and shell resources in an agreement 
will be negotiated on a case-by-case basis. The agreement will specify, 
at a minimum, who may use the OCS sand, gravel and shell resources; the 
nature of the rights granted; and the location, type, and volume of OCS 
sand, gravel and shell resources. Any authorization to use OCS sand, 
gravel and shell resources identified in an agreement is not exclusive; 
BOEM may allow other entities to use OCS sand, gravel and shell 
resource from the same borrow area.

Subpart B--[Reserved]

Subpart C--Outer Continental Shelf Sand, Gravel, and Shell 
Resources Negotiated Agreements


Sec.  583.300  How do I submit a request for an agreement?

    Any person may submit a written request to BOEM to obtain an 
agreement for the use of OCS sand, gravel and shell resources for use 
in a program of or project for shore protection, beach restoration, or 
coastal wetlands restoration undertaken by a Federal, State, or local 
government agency, or in a construction project that is funded in whole 
or in part by or authorized by the Federal Government. The written 
request must include:
    (a) A detailed description of the proposed project for which the 
OCS sand, gravel and shell resources will be used and how it qualifies 
as a program or project eligible under the Act to use OCS sand, gravel 
or shell resources;
    (b) A description of the proposed borrow area(s) and placement 
area(s), along with maps with geographic coordinates depicting the 
location of the desired borrow area(s), the OCS block number(s), OCS 
Planning Area(s), OCS Protraction Diagram Designation(s), and the 
placement area(s). These should include:
    (1) A detailed set of hardcopy maps with coordinates and navigation 
features of the desired OCS project area (including borrow area and 
other project features); and
    (2) Digital geo-referenced spatial and tabular data depicting the 
borrow area with features, such as geological sampling locations and 
any hard or live-bottom benthic habitat present;
    (c) Any available geological and geophysical data used to select, 
design, and delineate the borrow area(s) and potential borrow areas 
considered but not selected for final design in digital format, geo-
referenced where relevant. These may include:
    (1) Sediment sampling (sediment cores and grab samples) data such 
as physical description sheets,

[[Page 15199]]

photographs, core locations, and grain size analysis; and
    (2) Geophysical data such as subbottom profiler, marine 
magnetometer, and side-scan sonar data, and bathymetry including geo-
referenced navigation survey tracklines, shotpoints, and/or timestamps;
    (d) Any other uses of the OCS in the borrow area that are known to 
the applicant at the time of application submittal;
    (e) A description of the environmental evaluations and 
corresponding documents that have been completed or are being prepared, 
that cover all offshore and onshore components of the project, as 
applicable;
    (f) A target date or date range when the OCS sand, gravel and shell 
resources will be needed;
    (g) A description of the person or government entities undertaking 
the project;
    (h) A list of any permits, licenses or authorizations required for 
the project and their current status;
    (i) A description of any potential inconsistencies with state 
coastal zone management plans and/or any other applicable state and 
local statutes, regulations or ordinances;
    (j) The name, title, telephone number, mailing address and email 
address of any points of contact for any Federal agencies, State or 
local governments, and contractor(s) with whom the applicant has 
contracted or intends to contract;
    (k) A statement explaining who authorized the project and how the 
project is to be funded, indicating whether the project is Federally 
funded, in whole or in part, and whether the project is authorized by 
the Federal government; and
    (l) For any other Federal, State or local government agency 
identified in the application, the name, title, mailing address, 
telephone number, and email address of both a primary and a secondary 
point of contact for the agency.


Sec.  583.301  How will BOEM determine if a project qualifies?

    BOEM will make a determination as to whether the project, as 
described in section 583.300, qualifies for use of OCS sand, gravel and 
shell resources under the Act. Within 15 business days of receipt of 
the application, BOEM will determine if the application is complete or 
will request additional information. After it has determined the 
application is complete, BOEM will begin the application review process 
and notify the applicant in writing whether the project qualifies for 
an agreement. In determining whether a project qualifies for an 
agreement, BOEM will consider, among other criteria, the following:
    (a) The project purpose;
    (b) Other uses of OCS sand, gravel and shell resources from the 
same borrow area that are currently or were previously authorized by 
BOEM for other projects or programs, including the location, type and 
volume of such resources;
    (c) The project funding source(s) and amounts;
    (d) The proposed design and feasibility of the project;
    (e) Any potential environmental and safety risks;
    (f) Other Federal interests located near or within the specified 
borrow area;
    (g) Comments received from potentially affected State or local 
governments, if any;
    (h) The applicant's background and experience working on similar 
projects or activities;
    (i) Whether the project operations can be conducted in a manner 
that protects the environment and promotes orderly development of OCS 
mineral resources;
    (j) Whether activities can be conducted in a manner that does not 
pose a threat of serious harm or damage to, or waste of, any natural 
resource, any life (including fish and other aquatic life), property, 
or the marine, coastal, or human environment; and
    (k) Whether the project is consistent with the requirements of 
applicable statutes and their implementing regulations, which may 
include, but are not limited to, the Endangered Species Act (ESA) (16 
U.S.C. 1531 et seq.), the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1361 et seq.), the Marine Debris Research, Prevention, and 
Reduction Act (MDRPRA) (33 U.S.C. 1951 et seq.), the Marine Plastic 
Pollution Research and Control Act (MPPRCA) (33 U.S.C. 1901 et seq.), 
the Federal Water Pollution Control Act (FWPCA) (33 U.S.C. 1381 et 
seq.), and the International Convention for the Prevention of Pollution 
from Ships (MARPOL), MARPOL-Annex V Treaty.


Sec.  583.302  What process does BOEM use to technically and 
environmentally evaluate a qualified project?

    (a) Once BOEM has determined a project qualifies for an agreement, 
BOEM will begin the project evaluation process to decide whether to 
enter into a negotiated noncompetitive agreement.
    (b) BOEM will coordinate with relevant Federal agencies, State, and 
local governments and any potentially affected federally recognized 
Indian Tribes in the project evaluation.
    (c) BOEM will evaluate the project and additional information 
provided pursuant to sections 30 CFR 583.300 and 583.301, to determine 
if the information is sufficient to conduct necessary technical and 
environmental reviews to comply with the requirements of applicable 
statutes and regulations, which may include, but are not limited to: 
OCSLA (43 U.S.C. 1331 et seq.), the National Environmental Policy Act 
(NEPA) (42 U.S.C. 4321 et seq.), the ESA (16 U.S.C. 1531 et seq.), the 
MMPA (16 U.S.C. 1361 et seq.), the Magnuson-Stevens Fishery 
Conservation and Management Act (MSFCMA) (16 U.S.C. 1801 et seq.), the 
National Historic Preservation Act (NHPA) (54 U.S.C. 300101 et seq.), 
and the Coastal Zone Management Act (CZMA) (16 U.S.C. 1451 et seq.).
    (d) BOEM will not enter into a negotiated noncompetitive agreement 
with the applicant until information requested for the evaluation has 
been provided and evaluated.


Sec.  583.303  What is the process for negotiating and executing an 
agreement?

    (a) Upon completion of the technical, environmental and other 
evaluations established in 30 CFR 583.301 and 30 CFR 583.302, BOEM will 
decide whether to enter into a negotiated noncompetitive agreement with 
the applicant for use of OCS sand, gravel or shell resources for its 
proposed project.
    (b) If BOEM decides not to enter into such an agreement, BOEM will 
inform the applicant of its reasons for not doing so. An applicant may 
ask the BOEM Director for reconsideration in accordance with 30 CFR 
583.105(a).
    (c) If BOEM has decided to enter into a negotiated noncompetitive 
agreement with the applicant, BOEM will negotiate the terms and 
conditions of the agreement with the applicant and prepare a draft 
agreement for the applicant's review.
    (d) After considering comments and suggestions from the applicant, 
BOEM, at its discretion, may finalize the agreement and distribute it 
to the applicant for signature.
    (e) Upon receipt of the agreement with the applicant's signature, 
BOEM will execute the agreement. A copy of the executed agreement will 
be mailed to the parties.


Sec.  583.304  What kinds of information must be included in an 
agreement?

    Every agreement is negotiated on a case-by-case basis, but at a 
minimum, must include:
    (a) An agreement number, as assigned by BOEM;
    (b) The purpose of and authorities for the agreement;
    (c) Designated and delineated borrow area(s);

[[Page 15200]]

    (d) A project description, including the timeframe within which the 
project is to be started and completed;
    (e) The terms and conditions of the agreement, including any 
reporting requirements;
    (f) All obligations of the parties; and
    (g) The signatures of appropriate individuals authorized to bind 
the applicant and BOEM.


Sec.  583.305  What is the effective date of an agreement?

    The agreement will become effective on the date when all parties to 
the agreement have signed it.


Sec.  583.306  How will BOEM enforce the agreement?

    (a) Failure to comply with any applicable law or any provision, 
term, or condition of the agreement may result in the termination of 
the agreement and/or a referral to an appropriate Federal and/or State 
agency/agencies for enforcement. Termination of the agreement for 
noncompliance will be in the sole discretion of the Director.
    (b) The failure to comply in a timely and satisfactory manner with 
any provision, term or condition of the agreement may delay or prevent 
BOEM's approval of future requests for use of OCS sand, gravel and 
shell resources on the part of the parties to the agreement.


Sec.  583.307  What is the term of the agreement?

    (a) An agreement will terminate upon the following, whichever 
occurs first:
    (1) The agreement expires by its own terms, unless the term is 
extended prior to expiration under Sec.  583.309;
    (2) The project is terminated, as set forth in Sec.  583.310; or
    (3) A party to the agreement notifies BOEM, in writing, that 
sufficient OCS sand, gravel and shell resources, up to the amount 
authorized in the agreement, have been obtained to complete the 
project.
    (b) Absent extraordinary circumstances, no agreement will be for a 
term longer than 5 years from its effective date.


Sec.  583.308  What debarment or suspension obligations apply to 
transactions and contracts related to a project?

    The parties to an agreement must ensure that all contracts and 
transactions related to an agreement issued under this part comply with 
2 CFR part 180 and 2 CFR part 1400.


Sec.  583.309  What is the process for modifying the agreement?

    (a) Unless otherwise provided for in the agreement, the parties to 
the agreement may submit to BOEM a written request to extend, modify, 
or change an agreement. BOEM is under no obligation to extend an 
agreement and cannot be held liable for the consequences of the 
expiration of an agreement. With the exception of paragraph (b) of this 
section, any such requests must be made at least 180 days before the 
term of the agreement expires. BOEM will respond to the request for 
modification within 30 days of receipt and request any necessary 
information and evaluations to comply with 30 CFR 583.301. BOEM may 
approve the request, disapprove it, or approve it with modifications 
subject to the requirements of 30 CFR 583.301.
    (1) If BOEM approves a request to extend, modify or change an 
agreement, BOEM will draft an agreement modification for review by the 
parties to the agreement in the form of an amendment to the original 
agreement. The amendment will include:
    (i) The agreement number, as assigned by BOEM;
    (ii) The modification(s) agreed to;
    (iii) Any additional mitigation required; and
    (iv) The signatures of the parties to the agreement and BOEM.
    (2) If BOEM disapproves a request to extend, modify, or change an 
agreement, BOEM will inform the parties to the agreement of the reasons 
in writing. Parties to the agreement may ask the BOEM Director for 
reconsideration in accordance with 30 CFR 583.105.
    (b) By written request, for strictly minor modifications that do 
not change the substance of the project or the analyzed environmental 
effects of the project, including but not limited to, the change of a 
business address, the substitution of a different Federal, State or 
local government agency contact, or an extension of less than 30 days, 
parties to the agreement may memorialize the minor modification in a 
letter from BOEM to the parties indicating the request has been 
granted.


Sec.  583.310  When can the agreement be terminated?

    (a) The Director will terminate any agreement issued under this 
part upon proof that it was obtained by fraud or misrepresentation, 
after notice and an opportunity to be heard has been afforded to the 
parties of the agreement.
    (b) The Director may immediately suspend and subsequently terminate 
any agreement issued under this part when:
    (1) There is noncompliance with the agreement, pursuant to 30 CFR 
583.306(a); or
    (2) It is necessary for reasons of national security or defense; or
    (3) The Director determines that:
    (i) Continued activity under the agreement would cause serious harm 
or damage to natural resources; life (including human and wildlife); 
property; the marine, coastal, or human environment; or sites, 
structures, or objects of historical or archaeological significance;
    (ii) The threat of harm or damage will not disappear or decrease to 
an acceptable extent within a reasonable period of time; and
    (iii) The advantages of termination outweigh the advantages of 
continuing the agreement.
    (c) The Director will immediately notify the parties to the 
agreement of the suspension or termination. The Director will also mail 
a letter to the parties to the agreement at their record post office 
address with notice of any suspension or termination and the cause for 
such action.
    (d) In the event that BOEM terminates an agreement under this 
section, none of the parties to the agreement will be entitled to 
compensation as a result of expenses or lost revenues that may result 
from the termination.

[FR Doc. 2016-06163 Filed 3-21-16; 8:45 am]
 BILLING CODE 4310-MR-P