Protection of Marine Archaeological Resources, 71160-71184 [2024-19188]
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Federal Register / Vol. 89, No. 170 / Tuesday, September 3, 2024 / Rules and Regulations
impacts sustained from the environment
of use.
FDA has identified the following risks
to health associated specifically with
this type of device and the measures
required to mitigate these risks in table
1.
TABLE 1—EXTERNAL COMPRESSION DEVICE FOR INTERNAL JUGULAR VEIN COMPRESSION RISKS AND MITIGATION
MEASURES
Identified risks to health
Mitigation measures
Syncope due to excessive compression ...........................................................................................................
Use error, interference with other equipment, or ineffective treatment leading to impact-related trauma or
injury.
Adverse tissue reaction ......................................................................................................................................
FDA has determined that special
controls, in combination with the
general controls, address these risks to
health and provide reasonable assurance
of safety and effectiveness. For a device
to fall within this classification, and
thus avoid automatic classification in
class III, it would have to comply with
the special controls named in this final
order. The necessary special controls
appear in the regulation codified by this
order. This device is subject to
premarket notification requirements
under section 510(k) of the FD&C Act.
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III. Analysis of Environmental Impact
The Agency has determined under 21
CFR 25.34(b) that this action is of a type
that does not individually or
cumulatively have a significant effect on
the human environment. Therefore,
neither an environmental assessment
nor an environmental impact statement
is required.
IV. Paperwork Reduction Act of 1995
This final order establishes special
controls that refer to previously
approved collections of information
found in other FDA regulations and
guidance. These collections of
information are subject to review by the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501–3521). The
collections of information in part 860,
subpart D, regarding De Novo
classification have been approved under
OMB control number 0910–0844; the
collections of information in 21 CFR
part 814, subparts A through E,
regarding premarket approval, have
been approved under OMB control
number 0910–0231; the collections of
information in part 807, subpart E,
regarding premarket notification
submissions, have been approved under
OMB control number 0910–0120; the
collections of information in 21 CFR
part 820, regarding quality system
regulation, have been approved under
OMB control number 0910–0073; and
the collections of information in 21 CFR
part 801, regarding labeling, have been
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approved under OMB control number
0910–0485.
List of Subjects in 21 CFR Part 890
Medical devices.
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs, 21 CFR part 890 is
amended as follows:
PART 890—PHYSICAL MEDICINE
DEVICES
1. The authority citation for part 890
continues to read as follows:
■
Authority: 21 U.S.C. 351, 360, 360c, 360e,
360j, 360l, 371.
■
2. Add § 890.3050 to read as follows:
§ 890.3050 External compression device
for internal jugular vein compression.
(a) Identification. An external
compression device for internal jugular
vein compression is a non-invasive
device that is intended to increase
intracranial blood volume to reduce the
occurrence of specific changes in the
brain following head impacts sustained
from the environment of use.
(b) Classification. Class II (special
controls). The special controls for this
device are:
(1) The patient-contacting
components of the device must be
demonstrated to be biocompatible.
(2) Performance testing must
demonstrate that the device performs as
intended under anticipated conditions
of use for the duration of the labeled use
life.
(3) Human factors and usability
testing must demonstrate that users can
correctly use the device, including the
user’s ability to correctly determine
device size and confirm the proper fit of
the device. Users must understand
product limitations, warnings, and
precautions, including the warning that
the device does not prevent head injury
and medical treatment should be sought
following head injury.
(4) Labeling must include the
following:
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Non-clinical performance testing.
Human factors testing, and Labeling.
Biocompatibility evaluation.
(i) A warning that the device does not
replace, and should be worn with, other
protective sports equipment associated
with specific sports activities, such as
helmets and shoulder pads;
(ii) A warning that the device should
not be worn if it interferes with other
existing protective equipment;
(iii) A warning that users should
avoid head and neck impacts to the
extent possible;
(iv) A warning that serious harm can
result from persistent, excessive
pressure on the neck due to incorrect
device size and fit; and
(v) A warning that the device has not
been demonstrated to prevent long-term
cognitive function deficits, and the
ultimate impact on clinical outcomes
has not been evaluated.
Dated: August 28, 2024.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2024–19722 Filed 8–30–24; 8:45 am]
BILLING CODE 4164–01–P
DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
30 CFR Part 550
[Docket No. BOEM–2023–0012]
RIN 1010–AE11
Protection of Marine Archaeological
Resources
Bureau of Ocean Energy
Management, Interior.
ACTION: Final rule.
AGENCY:
The Department of the
Interior (the Department or DOI), acting
through the Bureau of Ocean Energy
Management (BOEM), is finalizing
regulatory amendments to require
lessees and operators to submit an
archaeological report with any oil and
gas exploration or development plan
they submit to BOEM for approval of
proposed activities on the Outer
Continental Shelf (OCS). The previous
SUMMARY:
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regulations required an archaeological
report only if the plan covered an area
that a BOEM Regional Director had
‘‘reason to believe’’ may have contained
an archaeological resource. This final
rule will increase the protection of
archaeological resources in compliance
with section 106 of the National Historic
Preservation Act (NHPA) by
acknowledging that there is a greater
likelihood that such resources exist,
thereby increasing the likelihood that
these resources will be located and
identified before they can be
inadvertently damaged by an OCS
operator. This rule defines the
minimum level of survey information
necessary to support the conclusions in
the archaeological report, the
procedures for reporting possible
archaeological resources and continuing
operations when a possible resource is
present, and what to do if an
unanticipated archaeological resource is
discovered during operations.
DATES: This final rule is effective
October 3, 2024. You may make
comments on the information collection
(IC) burden in this rulemaking and the
Office of Management and Budget
(OMB) and BOEM must receive such
comments on or before October 3, 2024.
The IC burden comment opportunity
does not affect the final rule effective
date.
ADDRESSES: BOEM has established a
docket for this action under Docket No.
BOEM–2023–0012. All documents in
the docket are listed on the https://
www.regulations.gov website and can be
found by entering the Docket No. in the
‘‘Enter Keyword or ID’’ search box and
clicking ‘‘search’’.
You may submit comments on the IC
to OMB’s desk officer for the
Department of the Interior through
https://www.reginfo.gov/public/do/
PRAMain. From this main web page,
you can find and submit comments on
this particular information collection by
proceeding to the boldface heading
‘‘Currently under Review—Open for
Public Comments,’’ selecting
‘‘Department of the Interior’’ in the
‘‘Select Agency’’ pull down menu,
clicking ‘‘Submit,’’ then checking the
box ‘‘Only Show ICR for Public
Comment’’ on the next web page,
scrolling to this final rule, and clicking
the ‘‘Comment’’ button at the right
margin. Additionally, you may use the
search function to locate the IC request
related to the rule on the main web
page. Please provide a copy of your
comments to the Information Collection
Clearance Officer, Office of Regulations,
BOEM, Attention: Anna Atkinson,
45600 Woodland Road, Sterling,
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Virginia 20166; or by email to
anna.atkinson@boem.gov. Please
reference OMB Control Number 1010–
0196 in the subject line of your
comments.
FOR FURTHER INFORMATION CONTACT:
Karen Thundiyil, Chief, Office of
Regulations, BOEM, 1849 C Street NW,
Washington, DC 20240, at email address
Karen.Thundiyil@boem.gov or at
telephone number (202) 742–0970.
Individuals in the United States who are
deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services for
contacting the contacts listed in this
section. These services are available 24
hours a day, 7 days a week, to leave a
message or question with the above
individual. You will receive a reply
during normal business hours.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
SUPPLEMENTARY INFORMATION:
Preamble acronyms and
abbreviations. Multiple acronyms are
included in this preamble. While this
list may not be exhaustive, to ease the
reading of this preamble and for
reference purposes, BOEM explains the
following acronyms here:
AAA American Anthropological
Association
ACRA American Cultural Resources
Association
ACUA Advisory Council on Underwater
Archaeology
AKDNR Alaska Department of Natural
Resources
AKSHPO Alaska State Historic Preservation
Office
ANCSA Alaska Native Claims Settlement
Act
APE Area of Potential Effect
API American Petroleum Institute
ARPA Archaeological Resources Protection
Act
BOEM Bureau of Ocean Energy
Management
BOEMRE Bureau of Ocean Energy
Management, Regulation and Enforcement
BSEE Bureau of Safety and Environmental
Enforcement
CAH Coalition for American Heritage
CFR Code of Federal Regulations
CRA Congressional Review Act
DOI Department of the Interior
DOCD Development Operations
Coordination Document
DPP Development and Production Plan
E.O. Executive Order
EP Exploration Plan
FR Federal Register
HRG High-Resolution Geophysical
IC Information Collection
MMS Minerals Management Service
NAGPRA Native American Graves
Protection and Repatriation Act
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NAICS North American Industry
Classification System
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NOAA National Oceanic and Atmospheric
Administration
NOPC National Ocean Policy Coalition
NPS National Park Service
NRHP National Register of Historic Places
nT Nano-tesla
NTL Notice to Lessees
OIRA Office of Information and Regulatory
Affairs (a component of OMB)
OMB Office of Management and Budget
OOC Offshore Operators Committee
OCS Outer Continental Shelf
OCSLA Outer Continental Shelf Lands Act
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
SAA Society for American Archaeology
SBA Small Business Administration
SBREFA Small Business Regulatory
Enforcement Fairness Act
SHA Society for Historical Archaeology
TXHC Texas Historical Commission
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code
WADAHP Washington Department of
Archaeology and Historic Preservation
Background information. On February
15, 2023, the Department proposed
revisions to the regulations for the
protection of marine archaeological
resources on the OCS. The comments
received regarding the proposed rule,
some of which resulted in regulatory
changes, and their corresponding
responses are summarized in this
preamble. A ‘‘track changes’’ version of
the regulatory language that identifies
the changes in this action compared to
the current regulations is also available
in the docket.
Organization of this document. The
information in this preamble is
organized as follows:
I. General Information
A. Executive Summary
1. Purpose of This Regulatory Action
2. Summary of Major Provisions
3. Costs and Benefits
B. Does this action apply to me?
C. Where can I get a copy of this document
and other related information?
II. Background
A. BOEM Statutory Authority and
Responsibilities
B. History of Protection of Marine
Archaeological Resource Regulations and
Guidance
C. Purpose of This Rulemaking
D. Summary of the February 15, 2023,
Proposed Rule
III. Key Provisions of the Final Rule
IV. Summary of Public Comments and
BOEM’s Corresponding Responses
A. Overview of Comments
B. General Comments
1. Regulatory Authority
2. Cost Implications
3. Tribal Implications
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4. Removal of the ‘‘Reason to Believe’’
Standard and the Use of Alternatives to
Direct Sources
5. Compliance With the National Historic
Preservation Act
C. Technical Comments
1. Use of Direct High Resolution
Geophysical Surveys
2. Technical Parameters for Conducting
Direct Surveys
3. Archaeological Reports
4. Seafloor Disturbing Operations
5. Definitions
V. Summary of Economic Impacts and
Benefits
A. What are the economic impacts?
B. What are the benefits?
VI. Section-by-Section Analysis
VII. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory
Planning and Review, as Amended by
Executive Order 14094: Modernizing
Regulatory Review, and Executive Order
13563: Improving Regulation and
Regulatory Review
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement
Fairness Act
D. Unfunded Mandates Reform Act
E. Executive Order 12630: Governmental
Actions and Interference With
Constitutionally Protected Property
Rights
F. Executive Order 13132: Federalism
G. Executive Order 12988: Civil Justice
Reform
H. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Data Quality Act
L. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
M. Congressional Review Act
I. General Information
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A. Executive Summary
1. Purpose of This Regulatory Action
The purpose of this rule is to address
concerns regarding BOEM’s regulatory
requirements for protecting marine
archaeological resources; specifically,
BOEM’s inability to accurately identify
the location of such potential resources
and BOEM’s long term historic policy of
requiring archaeological surveys only in
cases where there is evidence that a
resource exists. This rule amends the
existing provisions to require lessees
and operators to submit an
archaeological report with any oil and
gas exploration or development plan
they submit to BOEM for approval of
proposed activities on the OCS.
2. Summary of Major Provisions
The two major provisions finalized in
this rule are: (1) the replacement of the
‘‘reason to believe’’ standard in the
current regulations with the
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requirement that all proposed
exploration or development plans that
would result in seabed disturbance must
be accompanied by an archaeological
report, and (2) the codification of
minimum requirements for any new
high-resolution geophysical (HRG)
surveys. The standards for new HRG
surveys are generally defined in
performance terms based on scientific
standards, rather than using specific
parameters. This provision allows
lessees and operators greater flexibility
in determining how to conduct their
surveys and how to produce the
resulting archaeological reports.
3. Costs and Benefits
BOEM estimates that the changes will
increase total OCS archaeology survey
costs over the next 20 years by $5.9
million (at a 3 percent discount rate).
The majority of the revisions in this
final rule will have no or negligible cost
impacts for lessees and operators. All
expected incremental costs of the rule
are due to the requirement for HRG
archaeological surveys in water depths
of less than or equal to 100 meters and
for a magnetometer, gradiometer, or the
equivalent towed at an altitude and line
spacing sufficient to detect ferrous
metals or other magnetically susceptible
materials of at least 1,000 pounds.
B. Does this action apply to me?
Entities potentially affected by this
final action are holders of oil, gas, and
sulfur leases on the OCS and associated
operators.
C. Where can I get a copy of this
document and other related
information?
In addition to being available in the
docket, BOEM will post an electronic
copy of the documents related to this
final action at: https://www.boem.gov/
regulations-and-guidance.
II. Background
A. BOEM Statutory Authority and
Responsibilities
Section 5 of the Outer Continental
Shelf Lands Act (OCSLA), 43 U.S.C.
1334, authorizes the Secretary of the
Interior (Secretary) to issue regulations
to administer OCS leasing for mineral
development. Section 5(a) of OCSLA (43
U.S.C. 1334(a)) authorizes the Secretary
to ‘‘prescribe such rules and regulations
as may be necessary to carry out
[provisions of OCSLA]’’ related to
leasing on the OCS. Section 5(b) of
OCSLA (43 U.S.C. 1334(b)) provides
that ‘‘compliance with regulations
issued under’’ OCSLA must be a
condition for ‘‘[t]he issuance and
continuance in effect of any lease, or of
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any assignment or other transfer of any
lease, under the provisions of’’ OCSLA.
Section 18 of OCSLA (43 U.S.C. 1344)
states that ‘‘[m]anagement of the [OCS]
shall be conducted in a manner which
considers economic, social, and
environmental values of the renewable
and nonrenewable resources contained
in the [OCS].’’
Secretary’s Order 3299 (as amended)
established BOEM and delegated to it
the authority to carry out conventional
(e.g., oil and gas) and renewable energyrelated functions on the OCS, including,
but not limited to, activities involving
resource evaluation, planning, and
leasing under the provisions of OCSLA.
As such, BOEM is responsible for
managing development of the Nation’s
offshore energy, mineral, and geological
resources in an environmentally and
economically responsible way. BOEM
requires a lessee to submit a detailed
plan of its proposed activities for review
before BOEM will approve, among other
activities, the installation of any facility,
structure, or pipeline on the OCS. As
part of the plan submission, BOEM
requires detailed information regarding
the nature and location of historic
properties that may be affected by the
proposed activities. This information is
used to assist the Bureau in meeting its
obligation under section 106 of the
NHPA and the National Environmental
Policy Act (NEPA).
B. History of Protection of Marine
Archaeological Resource Regulations
and Guidance
Beginning in 1982, BOEM’s
predecessor agency, the Minerals
Management Service (MMS), developed
a predictive model to attempt to define
where archaeological resources were
‘‘likely’’ to exist in the Gulf of Mexico.
MMS, and later BOEM, used the
predictive model to designate certain
OCS lease blocks as possessing a highor low-probability for containing
archaeological resources. This model
relied primarily on archival evidence of
reported lost shipwrecks.
Prior to 2006, the Department’s
regulation at then 30 CFR 250.194,
‘‘What archaeological reports and
surveys must I submit?’’ stated: ‘‘If it is
likely that an archaeological resource
exists in the lease area, the Regional
Director will notify you in writing.’’
That regulation was revised in 2006 to
clarify the basis for requiring an
archaeological survey (i.e., a type of
geophysical survey that is suitable for
locating potential archaeological
resources). The revised regulation
stated: ‘‘If the Regional Director has
reason to believe that an archaeological
resource may exist in the lease area, the
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Regional Director will require in writing
that your EP, DOCD, or DPP be
accompanied by an archaeological
report.’’ In explaining the revision, the
preamble to the 2006 final rule (71 FR
23858, April 25, 2006) clarified the basis
upon which the Regional Director
would invoke the requirement for an
archaeological survey on a lease area:
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Because it cannot be determined whether
it is ‘‘likely’’ that an archaeological resource
exists on a specific lease area until the
archaeological survey has first been
conducted, the wording would be changed to
state, ‘‘if the Regional Director has reason to
believe that an archaeological resource may
exist.’’ The ‘‘reason to believe’’ is established
by a technical analysis of existing
archaeological, geological, and other
pertinent environmental data.
Under the regulations after 2006, if
the Regional Director exercises the
requirement for an archaeological
survey on a lease area in accordance
with 30 CFR 550.194(a), the lessee or
operator must produce an
archaeological report. If the
archaeological report suggests that an
archaeological resource may be present,
then an operator or lessee must either:
‘‘(1) Locate the site of any operation so
as not to adversely affect the area where
the archaeological resource may be; or
(2) Establish to the satisfaction of the
Regional Director that an archaeological
resource does not exist or will not be
adversely affected by operations.’’ To
meet this second option, further
archaeological investigation must be
conducted by a qualified marine
archaeologist and a geophysicist, using
survey equipment and techniques the
Regional Director considers appropriate.
Finally, for the Regional Director to
confirm that an archaeological resource
does not exist, the lessee and operator
must submit the investigation report to
the Regional Director for review.
The MMS tested the predictive model
in 2003 and found that there was no
significant difference in the likelihood
of finding a shipwreck in lease blocks
designated as high probability under the
predictive model compared to lease
blocks without that designation. That
led BOEM’s predecessor agency, the
Bureau of Ocean Energy Management,
Regulation and Enforcement (BOEMRE),
to implement a new seabed disturbance
survey procedure, which BOEMRE
presented to operators during a
workshop in March 2011. This
procedure involved conducting an
environmental assessment under NEPA
for all new and revised exploration and
development plans in deep water.
BOEM currently applies this approach,
when appropriate, to plans in lease
areas outside of OCS lease blocks
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designated by its predictive model as
highly probable for containing
archaeological resources. As discussed
in the preamble to the 2023 proposed
rule (88 FR at 9800), since
implementation of the pre-seabed
disturbance survey policy in 2011, over
100 new confirmed or potential
shipwrecks have been identified, most
of which are located in lease blocks that
would not have been surveyed if BOEM
had relied only on the predictive model.
This includes three of the most
historically significant shipwrecks ever
found in the Gulf of Mexico.
After evaluating over 40 years of
empirical evidence collected through
research conducted by and for the oil
and gas industry, academic institutions,
and Federal and State agencies, BOEM
has concluded that the model was at
times incomplete and inaccurate and,
therefore, unhelpful. BOEM’s predictive
model, despite several attempts at
updating it, has often failed to
accurately predict the presence or
absence of ship or plane wrecks. In
many cases, archaeological resources
have been discovered in lease blocks
where the model had not ‘‘predicted’’
any, and, conversely, operators
surveyed lease blocks where the
historical evidence suggested that a
shipwreck should be located and found
nothing. This problem is compounded
by the fact that the scarcity of historical
and archival materials correlates to the
age of the shipwreck or archaeological
resource, such that the resources least
likely to be accurately identified in the
models are sometimes the oldest and
most important for understanding our
Nation’s history. BOEM determined that
it was possible that previously
undiscovered ship or plane wrecks
could be present in any OCS lease block
in any BOEM region regardless of the
model’s results. Because the model’s
accuracy is dependent on the
availability and adequacy of the
underlying historical data, and because
such data is often neither available nor
adequate for the offshore environment,
BOEM determined that a better
approach is necessary.
BOEM’s existing regulations require
operators 1 to submit an archaeological
report with an Exploration Plan (EP), a
Development Operations Coordination
Document (DOCD), or a Development
1 In some cases, lessees perform the functions of
operators acting on their own behalf and, in other
cases, operators are contracted to perform certain
functions on behalf of the lessee(s). For the
purposes of this preamble, any reference to the term
‘‘operator’’ should be considered to apply to
lessee(s), as well, to the extent that they perform the
functions that would typically be contracted to an
operator.
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and Production Plan (DPP) (collectively,
the ‘‘plans’’) seeking BOEM
authorization to disturb the seafloor
only if a BOEM Regional Director has a
‘‘reason to believe’’ that an
archaeological resource may be present.
The agency interpreted this ‘‘reason to
believe’’ standard as requiring its
Regional Directors either to have
evidence that such a resource is present
or to use a predictive model that
indicates a resource is likely to be
present in the area.
With this rule, BOEM is finalizing
regulatory amendments to remove the
‘‘reason to believe’’ standard and to
require lessees and operators to submit
an archaeological report with all plans
that propose seabed disturbance. This
report must be based on a site-specific
HRG survey that effectively identifies
potential archaeological resources; HRG
surveys are already required to identify
shallow hazards in 30 CFR 550.214(e)
and 550.244(e). HRG surveys are
routinely used in the offshore
environment to identify the presence or
absence of potential geological and manmade hazards, sensitive biological
habitats, and archaeological resources.
In keeping with professional standards
that have evolved since the existing
regulations were adopted, this revision
would define the minimum level of
survey information necessary to support
the conclusions in the archaeological
report. These changes would facilitate
BOEM’s obligation to undertake a
‘‘reasonable and good faith effort’’ to
carry out our appropriate historic
property identification efforts under the
NHPA (see 36 CFR 800.4(b)(1)) and its
analysis of appropriate mitigation
measures to avoid damaging historic
and archaeological resources under
NEPA.
Additionally, during oil and gas
operations on the OCS, a lessee or
operator may find or unearth
unanticipated ‘‘cultural items’’ as
defined in the Native American Graves
Protection and Repatriation Act
(NAGPRA), 25 U.S.C. 3001–3013.
Lessees and operators are subject to the
marine archaeology requirements
provided for in this rule during their
OCS operations, and they may also be
subject to other laws, such as NAGPRA,
in the event they discover cultural or
other items. NAGPRA has its own
regulatory requirements separate and
distinct from this final rule.
C. Purpose of This Rulemaking
The purpose of this final rule is to
address concerns that BOEM’s existing
regulatory requirements fail to
adequately protect marine
archaeological resources. This rule
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implements new regulatory provisions
that require lessees and operators to
submit an archaeological report with
any oil and gas exploration or
development plan.
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D. Summary of the February 15, 2023,
Proposed Rule
On February 15, 2023, DOI published
a notice of proposed rulemaking in the
Federal Register at 88 FR 9797, which
proposed amendments to 30 CFR part
550. The proposed rule would have
required lessees and operators to submit
an archaeological report with any oil
and gas exploration or development
plan they submit to BOEM for approval
of proposed activities on the OCS.
Under the existing regulations, an
archaeological report was required only
if the plan would cover an area that a
BOEM Regional Director had reason to
believe would contain an archaeological
resource. The objective of the proposed
rule was to increase protection of
archaeological resources in compliance
with section 106 of the NHPA by
assuming that there is a greater
likelihood that such resources exist,
thereby increasing the probability that
they are located and identified before
they are inadvertently damaged by an
OCS operator. Additionally, the
proposed rule defined the minimum
level of survey information necessary to
support the conclusions in the
archaeological report, the procedure for
reporting possible archaeological
resources, the procedure for continuing
operations when a possible resource is
present, and what to do if an
unanticipated archaeological resource is
discovered during operation.
III. Key Provisions of the Final Rule
The most important amendment made
by this final rule to the Department’s
existing regulations is to eliminate the
‘‘reason to believe’’ standard from
§ 550.194, whereby lessees were
required to conduct marine
archaeological surveys only in cases
where ‘‘the Regional Director has reason
to believe that an archaeological
resource may exist in the lease area.’’
Instead, the revised section of the
regulations will require the submission,
with all proposals for seabed
disturbance in an EP, DOCD, or DPP, of
an archaeological report based on a sitespecific HRG survey designed in such a
manner as to effectively identify
potential archaeological resources.
This final rule, in § 550.194, provides
for the following:
• Each HRG survey must be
conducted using state-of-the-art
instrumentation and methodology that
meet or exceed scientific standards for
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conducting marine archaeological
surveys.
• Lessees must comply with the
outlined minimum scientific standards;
however, BOEM recognizes that
emerging technologies and methods
may be used to achieve or exceed these
standards. In these instances, BOEM
may approve a departure from the
standard provisions of the rule on a
case-by-case basis if it meets the
objectives specified in the regulations.
• The survey vessel’s navigation
system must continuously register its
surface position, specify the logging
position data, and specify the
presentation of geodesy information.
• HRG surveys must use a total field
magnetometer, gradiometer, or other
similar instrument having equal or
superior measurement capability for
surveys conducted in waters of 100meter depth or less. This rule also
establishes the requirements for the
collection of data necessary to assist in
the identification of archaeological
resources on the OCS. The sensor must
be towed in such a manner that a
magnetic field produced by ferrous
metal associated with a historic
shipwreck 2 (e.g., a wooden ship’s
fasteners, anchors, and cannons) can be
detected.
• For geophysical surveys conducted
in water depths of 140 meters (459 ft) or
less, a sub-bottom profiler system must
be used to identify potential areas of
prior human occupation that may exist
within the horizontal and vertical Area
of Potential Effect (APE), taking into
account the geomorphology of the
operational area and the parameters of
the proposed project (including the
maximum depth of disturbance from the
proposed activities).
• Every survey on the OCS subject to
this rule must meet various performance
standards to ensure that archaeological
resources are not overlooked. The
results of every survey must be collected
and analyzed by a qualified marine
archaeologist who meets the Secretary
of the Interior’s Standards and
Guidelines 3 and must have experience
in conducting or overseeing HRG
surveys and processing and interpreting
the resulting data for archaeological
potential.
• In all water depths, a side-scan
sonar or equivalent system must be used
to provide continuous planimetric
imagery of the seafloor to identify
potential archaeological resources partly
embedded in the seafloor. To provide
sufficient resolution of seafloor features,
this rule requires the use of a system
that operates at as high a frequency as
practicable based on the factors of line
spacing, instrument range, and water
depth.
• In all water depths, an echosounder or equivalent system must be
used to measure accurate water depths
across the area. Where swath
bathymetry data are acquired, BOEM
recommends that backscatter values
from the seabed returns are logged and
processed for use in seabed
characterization to support and
complement the side-scan sonar data.
Single beam echo sounder data should
be used to verify the results of swath
bathymetry data to check for gross error.
• Existing lessees and operators may,
during the first year after the effective
date of this final rule, apply the prior
regulations and standards to surveys
conducted during that time. New lessees
and operators will be required to apply
the requirements of this rule from the
effective date of the rule.
• An archaeological survey
conducted prior to the effective date of
this rule may be used in lieu of
conducting a new survey, subject to
BOEM approval, provided the lessee or
operator can demonstrate that such
survey was conducted in such a manner
as to meet the performance
requirements of this rule.
• If a lessee or operator discovers any
unanticipated archaeological resource
while conducting operations on the
lease or right-of-way area, they must
immediately halt seafloor disturbing
operations within at least 305 meters
(1,000 feet) of the area of the discovery
and report the discovery to the BOEM
Regional Director within 72 hours.
The standards described above are
generally defined in this rule in
performance terms based on scientific
standards, rather than using specific
parameters. This will allow lessees and
operators greater flexibility in
determining how to conduct their
surveys and how to produce the
resulting archaeological reports.
2 A metal hulled shipwreck or a wooden
shipwreck with large anchors or iron cannon would
most likely be recorded using a magnetometer. Most
ships through history were wooden shipwrecks
until the modern era. These wrecks are more
difficult to locate using geophysical methods.
3 Available at: https://www.nps.gov/articles/
series.htm?id=62144687-B082-538A-A0174FFF
26496394.
A. Overview of Comments
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IV. Summary of Public Comments and
BOEM’s Corresponding Responses
A total of 32 comments were received
in response to the proposed rule. The
majority of the comments (15) came
from individual archaeologists and
technical specialists. An additional 6
comments came from trade or cultural
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associations, 4 comments came from
State government agencies, 2 came from
individual Native American Tribes, and
5 came from offshore energy trade
associations or companies. Specifically,
71165
commenting individuals and
organizations consisted of the following:
TABLE 1—SUMMARY OF COMMENTERS
Organization type
Organization names
Individual Archaeologists or General Members of the Public
Archaeological/Cultural Association ......................................
......................................................................................................................
American Cultural Resources Center ..........................................................
Advisory Council on Underwater Archaeology.
American Anthropological Association.
Coalition for American Heritage.
Society for Historical Archaeology Ocean Foundation.
Alaska Department of Natural Resources ...................................................
Alaska State Historic Preservation Office.
State of Washington Dept. of Archaeology and History Preservation.
Texas Historical Commission.
Chickahominy Tribe .....................................................................................
Rappahannock Tribe.
American Petroleum Institute .......................................................................
National Ocean Policy Coalition.
Offshore Operators Committee.
Echo Offshore ..............................................................................................
P&C Scientific.
State Agency .........................................................................
Native American Tribe ..........................................................
Industry Trade Association ...................................................
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Offshore Operators of Surveying Equipment .......................
The vast majority of the responses (28
out of 32) were supportive of the
proposed rule. All of the comments
submitted by individuals were
supportive of the rule, and several
included technical suggestions related
to archaeological reports, data
collection, and data analysis. The two
Native American Tribes submitted
supportive comments and noted that the
proposed rule was an important step in
ensuring that Tribal cultural heritage is
protected for future generations, and
that BOEM should fully evaluate a
project’s potential effects on Tribes. All
archaeological associations and societies
that submitted comments on the
proposed rule expressed support and
provided clarifying recommendations
for implementing the final rule, as well
as technical suggestions related to
archaeological reports and data
collection. One individual supported
the proposed rule and supported
collaboration between BOEM and the
National Park Service (NPS) to further
specify the submerged archaeological
resources professional qualification
standard in the Secretary of the
Interior’s Professional Qualification
Standards for Archaeology and Historic
Preservation. One advocacy group (The
Ocean Foundation) expressed support
for the proposed rule, particularly the
amendment to include historic
resources on the National Register of
Historic Places (NRHP) into the
definition of archaeological resources.
Two offshore operators of surveying
equipment (Echo Offshore and P&C
Scientific) provided technical
suggestions related to archaeological
reports, equipment specifications, and
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data collection. Multiple state agencies
(Alaska State Historic Preservation
Office (AKSHPO), Texas Historical
Commission (TXHC), and the
Washington State Department of
Archaeology and Historic Preservation
(WADAHP)) expressed support for the
rulemaking and provided clarifying
recommendations for implementing the
final rule, as well as technical
suggestions related to archaeological
reports and data collection.
Four comments were received that
were generally not supportive of the
proposed rule. These consisted of one
state agency and three offshore energy
trade associations. The three offshore
energy trade associations (American
Petroleum Institute (API), National
Ocean Policy Coalition (NOPC), and
Offshore Operators Committee (OOC))
commented that the rule is too
burdensome and that BOEM did not
accurately represent the cost of the
rulemaking. They requested that BOEM
re-propose the rule and associated
regulatory impact analysis (RIA) to
allow for adequate stakeholder
assessment and the opportunity to
provide additional comments. API
asserted that it was unclear what
activities would be covered by the
proposed rule and that more certainty is
needed to adequately assess potential
impacts to operations. One state agency
(Alaska Department of Natural
Resources (AKDNR)) did not support
the rulemaking and stated that BOEM
may not have the authority to require
‘‘another expensive survey.’’ This
conclusion contrasted with that of
another agency in the same state, the
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Count
15.
6.
4.
2.
3.
2.
AKSHPO, which strongly supported the
proposed rule.
B. General Comments
1. Regulatory Authority
Comment: The Ocean Foundation,
Advisory Council on Underwater
Archaeology (ACUA), American
Anthropological Association (AAA),
Coalition for American Heritage (CAH),
and Society for Historical Archaeology
(SHA) recommended that the final rule
include references to the Secretary of
the Interior’s Guidelines, the NHPA, the
Archaeological Resources Protection Act
(ARPA), and the Antiquities Act under
the legal authorities section.
Response: In response to this
comment, BOEM has modified the
authority citation for part 550 to include
the NHPA.4 The commenters did not
specify which Secretary of the Interior
guidelines to reference for the legal
authorities. In any event, BOEM does
not include guidelines in the legal
authorities section for Departmental
regulations. Furthermore, while the
Antiquities Act may be applicable (and
this rulemaking makes no statement
regarding the applicability of that act),
OCSLA is the statute that provides the
authority for DOI to issue this rule. The
Antiquities Act does not require or
authorize any activity that is cited in
these regulations. Lastly, the ARPA
explicitly excludes the OCS from the
definition of public lands and should
not be cited as an authority for this rule.
4 National Historic Preservation Act Amendments
Act of 2006, Public Law 109–453 (codified at 54
U.S.C. 300101 et seq.).
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Comment: AKDNR expressed concern
that the proposed rule was ‘‘arbitrarily
requiring private companies to do
expensive archaeological surveys for all
development activities’’ and that
‘‘[a]dding another expensive survey over
an expansive area that does not serve
any purpose other than to provide
general archaeological survey data may
not be justified under BOEM’s
authorities.’’
Response: BOEM disagrees with the
commenter’s assertion for several
reasons: (1) the surveys are not being
required arbitrarily but only in the areas
where oil and gas development
activities proposed by the lease holder
would disturb the seafloor and therefore
would have the potential to affect
historic properties, including
archaeological resources; (2) BOEM is
not proposing adding any surveys as a
result of this rule but is only requiring
that surveys that would already occur
take place in a manner capable of
identifying archaeological resources
(i.e., shallow hazards surveys); and (3)
BOEM has evaluated the potential costs
and concluded that this rule will not
cause a substantial financial burden.
2. Cost Implications
Comment: The American Cultural
Resources Association (ACRA)
expressed support for the proposed rule
and stated that the proposed ‘‘approach
also benefits lessees and operations as it
reduces risk and potential mitigation
costs related to the inadvertent
discovery of a submerged cultural
resource during the construction
phase.’’
Response: BOEM acknowledges the
commenter’s support and is finalizing
regulatory amendments to address the
protection of marine archaeological
resources with this rulemaking.
Comment: NOPC expressed
opposition to the proposed rule and
stated it is ‘‘concerned that the proposed
rule as currently drafted could result in
added costs, delays, and confusion that
hinders domestic exploration and
production of the nation’s offshore
energy resources, to the detriment of
businesses, communities, and
individuals throughout the United
States who rely on access to affordable
and reliable energy and the conservation
and restoration activities that offshore
energy development helps fund.’’
Response: BOEM disagrees for the
following reasons: (1) no additional
surveys would be required by the rule
compared to current practice because
the rule does not mandate additional
surveys but simply specifies the
requirements that future surveys must
adhere to; (2) the rule was crafted to
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specify clear performance standards that
provide lessees with more flexibility to
design and conduct archaeological
surveys, thereby lessening confusion
during domestic exploration and
production of the Nation’s offshore oil
and gas resources; (3) the area covered
by surveys under the rule will not
increase because the final rule does not
change the requirements for when
surveys are required or where the
surveys must be conducted; (4) BOEM
has determined that the additional costs
of implementing this rule, if any, are
minimal (i.e., all expected incremental
costs of the rule are due to the
requirement for HRG archaeological
surveys in water depths of less than or
equal to 100 meters, and for a
magnetometer, gradiometer, or the
equivalent towed at an altitude and line
spacing sufficient to detect ferrous
metals or other magnetically susceptible
materials of at least 1,000 pounds); and,
(5) BOEM does not agree that the
requirements of this rule will delay
projects to any meaningful extent and
could even reduce delays by reducing
the risk of unanticipated findings of
resources that would halt operations
once started. During the project
planning process, lessees already
include plans for conducting HRG
surveys to satisfy engineering
requirements and regulatory
requirements, including the
identification of archaeological
resources.
Comment: AKDNR expressed concern
regarding the potential impacts on
Hilcorp in the Cook Inlet. Specifically,
the department stated ‘‘this proposed
rule has the potential effect of
burdening the sole current leaseholder
. . . with millions of dollars of
unnecessary and expensive survey
requirements on top of what it would
already be doing as a prudent operator
of an oil and gas project. . . . the
development of natural gas in Cook Inlet
is the primary source of energy for most
of the citizens of Alaska, and overly
burdensome requirements for its
development threaten energy security.’’
Response: BOEM agrees with the
commenter’s assertion that the current
leaseholders in Alaska will incur
additional costs as a result of this rule,
as some surveys are expected to require
narrower liner spacing and therefore
will take longer and cost more to
conduct. Alaska’s offshore oil and gas
project economics are challenging, and
BOEM finds that archaeological surveys
there are generally more expensive than
in the Gulf of Mexico. BOEM disagrees
with the claim that the rule’s
archaeological survey requirements are
unnecessary or overly burdensome
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because no additional surveys are
required by this rule except in the very
rare instance where a lessee wants to
rely on the results of a very old survey
(likely 20 or 30 years old) that was
conducted in a manner that would not
meet the current survey standards. The
commenter did not provide any
additional justification or cost estimates
for its claim.
Comment: OOC expressed opposition
to BOEM’s assertion that the final rule
will not have any additional burden on
industry. Specifically, the organization
refers to the following statement in the
preamble ‘‘[t]he burdens related to the
submission of archaeological resource
information are accounted for in OMB
approved Control Number 1010–0151.
Therefore, BOEM has determined there
will likely not be an additional burden
on industry with this proposed
provision.’’ It further states that ‘‘the
recent request for re-approval for the
revised OMB approved Control Number
1010–0151 for Plans (issued 3/3/23) has
not been approved yet. . . . In the
request for re-approval—with
revisions—BOEM provides burden hour
estimates for ‘shallow hazards surveys
. . . G&G, archaeological surveys &
reports (550.194)’ (as well as for the
time it takes an archaeologist to create
reports). The burden hour estimates
between this proposed rule and the reapproval of OMB approved Control
Number 1010–0151 for Plans should be
consistent.’’
Response: BOEM reviews and
considers all public comments related to
the Paperwork Reduction Act (PRA)
requirements. These comments allow
BOEM to make adjustments and
improvements to information collection
burden estimates.
OOC indicated that BOEM’s current
information collection requirements
underestimate the information
collection burden. After considering this
comment, BOEM is revising the
information collection burden estimates
with this rule to align with existing
industry practice. As stated in the PRA
section of the preamble, the new and
revised information collections
requirement for 30 CFR 550.194 and
550.195 would increase overall annual
information submission burdens. BOEM
plans to add the increases in annual
burden hours to OMB approved Control
Number 1010–0114, 30 CFR 550,
subpart A, General and subpart K, Oil
and Gas Production (expiration May 31,
2026), and not to OMB Control Number
1010–0151, 30 CFR 550, subpart B,
Plans and Information.
Currently, OMB has approved 12
annual burden hours for preparation
and submission of archaeological
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reports and/or supporting evidence per
response. BOEM believes this number is
low and has increased the annual
burden hours to 50 hours per response.
The burden increase would revise OMB
Control Number 1010–0114, and not
OMB Control Number 1010–0151. When
the final rule becomes effective and the
related information collection request is
approved by OMB, BOEM will add the
burden increase to the correct OMB
Control Number. If the annual burden
hours should be adjusted in the future
based on reported feedback from OCS
operators, BOEM will work closely with
OMB to revise the numbers accordingly.
BOEM finds that the method of
quantifying burdens is dependent on the
specific analysis and regulatory context.
The cost factors associated with surveys
in the RIA include the day rate of the
survey vessel, the time required to
complete the survey, and the resources
spent processing and interpreting the
survey results. While other documents
may use hourly estimates, a dollar
amount estimate was deemed
appropriate for this analysis to capture
an economic impact while taking into
account various cost factors to fulfill the
information collection. BOEM believes
that this approach provides a sufficient
evaluation of the incremental burdens
resulting from this final rule.
3. Tribal Implications
Comment: The Chickahominy and the
Rappahannock Indian Tribes expressed
support for the proposed rule and stated
that ‘‘this proposed rule will reduce
Federal conflicts with tribes, who have
a particular interest in their cultural
patrimony associated with pre-Contact
submerged terrestrial sites. This
proposed rule is an important step in
ensuring that our cultural heritage is
protected for future generations and that
BOEM fully evaluates projects’ potential
effects on tribes.’’
Response: BOEM acknowledges the
commenter’s support and agrees that the
final rule will assist BOEM in obtaining
information that will help it to evaluate
projects’ potential effects on Tribal
interests.
Comment: The Society for American
Archaeology (SAA) expressed support
for the proposed rule, but also expressed
concern that ‘‘ways to further advance
the involvement of Tribes and native
Hawaiian organizations in the
identification of sites that are culturally
important sites’’ were only discussed in
the preamble and not in the regulatory
text, ‘‘even though Tribal consultation
has influenced BOEM’s protection of
marine archaeological resources in past
undertakings.’’ Specifically, the group
further states that ‘‘[o]ther than giving
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acknowledgement to the special
expertise of Indian Tribes and native
Hawaiian organizations in the preamble,
the proposed rules do not incorporate
how their expertise will be applied by
BOEM in decisions concerning the
protection of marine archaeological
resources. Greater clarity is needed on
Tribal and native Hawaiian organization
involvement throughout BOEM’s
presentation of the actual [regulatory
text].’’
Response: This rule is designed to
strengthen the required methods for the
identification of potential archaeological
resources, including historic properties
and submerged landforms that may have
been habitable when that part of the
OCS was above sea level and could
potentially contain pre-contact
archaeological sites. This rule does not
change or impede the BOEM’s or DOI’s
government-to-government
consultations with Indian Tribes, Native
Hawaiian Community through Native
Hawaiian Organizations, and
appropriate Alaska Native Claims
Settlement Act (ANCSA) Corporation
officials. This rule specifies the actions
that OCS lessees and operators must
perform to identify and protect
archaeological resources during oil and
gas exploration and development
operations.
Comment: The WADAHP highlighted
that the State of Washington’s marine
waters contain significant historic
military aircraft and burial locations
along the submerged coastal plains that
reflect thousands of years of Native
American occupancy and expressed
concern that the focus of the proposed
rule on archaeological resources is
broadly referenced as shipwrecks. It
noted that these resources also implicate
BOEM’s trust responsibilities with
federally recognized Tribal Nations.
Similarly, ACRA expressed concern
related to the focus of shipwrecks in the
preamble but were ‘‘encouraged by the
requirement for surveys that address the
potential for precontact archaeological
material.’’
Response: BOEM acknowledges the
commenters’ concern but highlights that
its archaeological requirements in 30
CFR part 550 (and previously part 250)
have for over 40 years focused on the
identification of historic properties, for
example shipwrecks, submerged
aircraft, archaeological resources, and
submerged landforms that may have
been habitable when that part of the
OCS was above sea level and have
implemented mitigations requiring
avoidance when identified.
Comment: An independent marine
archaeologist requested that BOEM
standardize how underwater indigenous
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resources are referred to throughout the
rule. ‘‘For example, in section
550.194(c), the text variably reads, ‘preEuropean contact archaeological sites
from the end of the last Ice Age,’ ‘precontact archaeological material,’ and
‘buried landforms that might have been
habitable by indigenous Americans
during the end of the last Ice Age.’ ’’ The
archaeologist recommended that BOEM
define underwater indigenous resources
as ‘‘dating since the end of the last Ice
Age.’’
Response: BOEM appreciates the
comment and notes that the discussion
to which the commenter is referring is
in the preamble and not in the
regulatory text in § 550.194(c). The
regulatory text in this final rule refers to
these sites as ‘‘potential areas of prior
human occupation.’’ BOEM also notes
that there is a difference between an
identified pre-contact archaeological
site or material and a submerged
landform that may have been habitable
when that part of the OCS was above sea
level. A submerged landform may or
may not contain pre-contact
archaeological sites and still have
meaning to many Indian Tribes and
Native American people indigenous to
the United States. Furthermore,
submerged landforms can be located
through interpretation of the
archaeological survey data, while precontact sites generally are only located
through more rigorous archaeological
methods that are outside the scope of
this rulemaking.
4. Removal of the ‘‘Reason to Believe’’
Standard and the Use of Alternatives to
Direct Sources
Comment: The Rappahannock and
Chickahominy Indian Tribes, ACUA,
SAA, AAA, CAH, and SHA expressed
support for the removal of the ‘‘reason
to believe’’ standard. The Tribes
asserted the standard is ‘‘outdated’’ and
‘‘ineffective . . . [at] identifying
potential archaeological resources,
while the proposed rule would be more
‘proactive and precautionary.’ ’’ They
also expressed appreciation for BOEM’s
recognition that predictive models do
not provide sufficiently accurate data to
base decisions regarding underwater
archaeological resource potential. The
Tribes further expressed support for the
proposed approach to archaeological
surveying that accounts for the unique
characteristics of each lease block and
stated that ‘‘projects that propose to
disturb the ocean floor should be
required to provide due diligence in the
form of marine archaeological surveys
as part of their permit review
requirements.’’
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ACUA, SAA, AAA, CAH, and SHA
asserted that eliminating the ‘‘reason to
believe’’ standard would reduce
ambiguity surrounding survey
requirements and would constitute a
reasonable and good faith effort to
identify archaeological resources. ACRA
expressed support for the proposal to
use HRG surveys in lieu of the
predictive models and stated that ‘‘the
predictive model approach does not
provide detailed, site-specific survey or
review for the potential of a lease area
to contain ancient, submerged landform
features.’’ WADAHP expressed support
for the proposal and asserted that a
more robust effort is necessary to ensure
identification of historic shipwrecks and
aircraft, due to the uncertainty of their
locations on the seafloor. It stated that
rapid technological advancements
would allow for this more robust effort.
The TXHC provided supportive
context for the proposal to move away
from predictive models and stated that
in the TXHC marine archaeology
program’s experience, ‘‘these
predictability models do not work well
in practice for any water depths,
nearshore included, due to the
unpredictable nature of shipwreck
losses and wreck locations. Though the
[TXHC] model is still helpful in
defining areas that have a greater
potential to contain underwater
archeological resources, it is no longer
used to preclude whole Texas State
tracts from archeological remote-sensing
survey, as had once been policy.’’
Additionally, two independent marine
archaeologists expressed support for the
use of surveys in lieu of the predictive
model.
Response: BOEM acknowledges the
commenters’ support and, in response
to comments, is finalizing regulatory
amendments, as proposed in
§ 550.194(a), to require the use of HRG
surveys to identify archaeological
resources. BOEM believes that the
evidence on this point (see discussion
in the Background section of this
preamble), combined with BOEM’s
many years of experience in this field,
is overwhelming and that retaining the
existing approach is no longer a
responsible option for BOEM to use to
satisfy its obligations under the NHPA
and OCSLA.
Comment: The OOC expressed
opposition to the removal of the ‘‘reason
to believe’’ standard and stated that
‘‘[t]here is nothing under the current
regulations preventing BOEM from
identifying lease areas with potential
archaeological resources that may exist
in multiple lease areas, as they have
done historically, while also excluding
lease areas that, based on information
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BOEM has been provided over many
decades, would not require additional
reporting.’’ NOPC also expressed
opposition to the removal of the
standard and stated that the ‘‘expanded
applicability of the proposed
requirement threatens to add substantial
burdens for activities supportive of
domestic energy exploration and
production that have either already been
subject to surveying and/or constitute
minor activities that would not impact
archaeological resources in any event.’’
Response: Both based on its historical
experience (see discussion in the
Background section of this preamble
and the preamble to the 2023 proposed
rule at 88 FR 9800) and the comments
received, BOEM believes that there is no
workable way to retain the ‘‘reason to
believe’’ standard and comply with its
obligations under the NHPA and
OCSLA. In other words, in the context
of the OCS, the ‘‘reason to believe’’
approach itself cannot meet the NHPA
requirements for a reasonable and good
faith effort to identify and protect
archaeological resources. BOEM
disagrees with the commenters’
assertion that the rule adds substantial
burdens for activities supportive of
domestic energy exploration and
production because it does not believe
that the costs of the rule are substantial
(see the memorandum titled Protection
of Marine Archaeological Resources:
Benefit-Cost Analysis in the docket for
this rulemaking). The commenters did
not provide any additional justification
or cost estimates for its claim.
avoidance of damage to historic and
archaeological resources and the
development of appropriate mitigation
measures.’’
Response: BOEM acknowledges the
commenters’ support and is finalizing
regulatory amendments with this
rulemaking, as proposed, to improve
compliance with the NHPA.
Comment: An independent marine
archaeologist suggested that BOEM add
a maximum response time, such as 30
or 45 days, for BOEM archaeologists to
complete their evaluation of a resource’s
eligibility for the NRHP.
Response: BOEM disagrees that the
final rule should define a maximum
response time for BOEM archaeologists
to complete their evaluation of a
resource’s eligibility for the NRHP. The
language in the rule states that ‘‘If
BOEM determines that the resource may
be eligible . . .’’, which is different from
making an official determination of
eligibility for listing on the NRHP.
BOEM’s historic preservation staff
possess the experience and expertise
necessary to make an expeditious
determination about whether a resource
may be eligible for listing on the NRHP.
Making an official determination about
a resource’s eligibility for the NRHP can
be a complex and time-consuming
process in the marine environment and
may not be necessary if damage to the
potential archaeological resource can be
avoided (e.g., through changes to the
footprint of the proposed activities).
5. Compliance With the National
Historic Preservation Act
Comment: Several independent
marine archaeologists expressed support
for the proposed rule, stating that it
would bring BOEM into compliance
with the NHPA, but also noted it would
align the agency with similar regulatory
and policy requirements already
promulgated by other Federal agencies,
such as the U.S. Navy and National
Oceanic and Atmospheric
Administration (NOAA), as well as the
historic preservation requirements of
many coastal states. WADAHP, the
Rappahannock and Chickahominy
Indian Tribes, ACRA, ACUA, AAA, and
CAH expressed support for the
proposed changes and stated that they
would improve BOEM’s conformance
with the NHPA section 106 compliance
process. Additionally, the
Rappahannock Indian Tribe commented
that the ‘‘proposed changes will
improve BOEM’s fulfillment of its
‘reasonable and good faith identification
effort’ under the National Historic
Preservation Act, enabling the
1. Use of Direct High Resolution
Geophysical Surveys
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C. Technical Comments
Comment: WADAHP expressed
support for using HRG surveys to
effectively identify potential
archaeological resources. It stated that
‘‘HRG surveys are routinely used in the
offshore environment to identify the
presence or absence of potential
geological and manmade hazards,
sensitive biological habitats, and marine
archaeological resources.’’ ACRA also
expressed support for the use of HRG
surveys and stated that it will ‘‘allow for
the identification and delineation of
cultural resources within a specific
lease development area and for the
protection of these resources prior to
construction activities.’’
Response: BOEM acknowledges the
commenters’ support and is finalizing
regulatory amendments with this
rulemaking, as proposed, to require the
use of HRG surveys for archaeological
purposes in § 550.194(a).
Comment: OOC commented that ‘‘if
an earlier survey was done that meets
all requirements, then another survey
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does not need to be done.’’ It also
requested that BOEM remove language
suggesting that BOEM’s judgment
dictate whether a previous survey is
valid for archaeological resource
identification efforts ‘‘considering, for
example, the time elapsed since the
prior survey’’ because anything of
archaeological interest would have been
identified and an avoidance criterion
could be applied. Additionally, it stated
that the proposed rule lacks clear
parameters to determine what
constitutes a ‘‘valid’’ survey and how
BOEM will make that determination.
API also requested that BOEM ‘‘provide
explicit evaluation criteria for
acceptability of previous archaeological
surveys.’’ P&C Scientific commented
that a demonstration that a reasonable
and good faith effort to identify
archaeological resources within the APE
has already been performed should only
be allowed if the non-operator
commissioned sources meet or exceed
BOEM’s archaeological survey
requirements.
Response: The proposed rule
specified when an operator may comply
with § 550.194 by submitting a reference
to an archaeological report based on an
HRG survey of the APE that was
previously submitted for the lease.
BOEM is finalizing this provision, as
proposed, in § 550.194(a)(2). BOEM has
decided to retain the language providing
discretion on determining when a
previous survey is valid, as proposed, in
§ 550.194(a)(2). Time is not the only
variable BOEM evaluates when making
this determination; it also considers
alterations in the seafloor from, for
example, hurricanes, submarine
mudslides, and seafloor instability
events. Because of the many variables
that may alter the analytical conclusions
of a previous survey, BOEM is not
providing explicit evaluation criteria for
acceptability of previous archaeological
surveys. BOEM welcomes discussion
with lease holders on how best to meet
the requirements of this rule on a caseby-case basis.
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2. Technical Parameters for Conducting
Direct Surveys
Comment: OOC noted that the
proposed rule will establish the
requirements for the navigation system
to continuously register surface position
of the survey vessel, specify the logging
position data, and specify the
presentation of geodesy information.
OOC recommended that BOEM include
a statement in the final rule to clarify
that navigation systems meeting the
criteria outlined in § 550.194(c)(1) do
not require approval by BOEM.
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Response: BOEM agrees and added
‘‘Navigation systems meeting the criteria
outlined in this section do not require
prior approval by BOEM’’ to
§ 550.194(c)(1).
Comment: ACRA, SHA, ACUA, AAA,
and CAH recommended adding a
requirement for acoustic tracking of
towed sensors or autonomous
underwater vehicles in deep water,
consistent with the Shallow Hazards
Notice to Lessees and Operators (NTL
2022–G01, part III.A).
Response: Tracking of towed sensors
or autonomous underwater vehicles is
required in the final rule, as proposed.
It can be found under § 550.194(c)(1),
which states, ‘‘[a] state-of-the-art
navigation system with sub-meter
accuracy able to continuously determine
the surface position of the survey vessel
and in-water position of towed and
autonomous survey sensors. Position
fixes must be digitally and continuously
logged along the vessel track. Geodesy
information must be clearly presented
and consistent across all data types.
Navigation systems meeting the criteria
outlined in this section do not require
prior approval by BOEM.’’
Comment: Echo Offshore asked for
clarification for the line spacing
requirements in over 100 meters of
water when using a total field
magnetometer, gradiometer, or other
equivalent instrument. The company
stated that ‘‘[t]he current line spacing
per NTL 2005–G05–Rev is 300m line
spacing in depths over 300m,’’ and
asked, ‘‘will this be retained, or since
NTL 2022–G01 requires 150m line
spacing throughout will this spacing be
adopted in these depths?’’ Additionally,
it asked for clarification on ultra-short
baseline acoustic tracking requirements
in depths over 91 meters.
Response: This final rule requires the
use of a total field magnetometer,
gradiometer, or other instrument having
equal or superior measurement
capability for surveys conducted in
waters of 100-meter depth or less in
§ 550.194(c)(2). For archaeological
purposes, magnetometry is not being
requested in water depths over 100
meters. This rule does not change the
current guidance of NTL 2022–G01,
which is for shallow hazard surveys.
While previous BOEM guidance has
specified various line spacing
requirements, this final rule is based on
data resolution requirements to allow
the lessees flexibility in designing a
survey necessary to identify potential
archaeological resources. Tracking of
towed or autonomous survey sensors is
required in the final rule (30 CFR
550.194(c)(1)) irrespective of depth.
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Comment: Echo Offshore stated that
the ‘‘new rules state that magnetometers
must have an altimeter. In our
experience magnetometer altimeters are
not as reliable or as accurate as depth
sensors. Depth sensor data can be
subtracted from water depth data and
integrated into the magnetometer data
output to provide a more reliable
altitude. The stated requirement
seemingly precludes the ability to do
this. It is recommended that the
requirement be to record accurate
altitude for the magnetometer, but the
method be left up to the operator.’’
Response: Section 550.194(c)(2) of the
final rule has been modified from the
proposed language to remove the
altimeter requirement in favor of a more
general requirement that an accurate
measurement of the altitude of the
magnetometer must be used. BOEM
agrees that subtracting the value of the
depth sensor from the water depth can
be used to provide an altitude of the
magnetometer provided that the water
depth is also recorded. BOEM included
a requirement in the final rule at
§ 550.194(c)(5) to collect accurate depth
measurements throughout the survey
area. These changes in the final rule
provide more flexibility to the lessee in
conducting surveys to meet the
performance requirements.
Comment: An independent marine
archaeologist requested clarification
about whether prior surveys conducted
on a lease at 50-meter spacing will still
be viable or if the surveys will have to
be conducted again at 30-meter lines
spacing.
Response: This final rule includes a
provision at § 550.194(a)(3) that allows
the submission of previous surveys for
review by BOEM to determine if a new
survey will be required. BOEM will
make this determination on a case-bycase basis.
Comment: ACRA stated that the
wording of the proposed ‘‘rule implies
that BOEM will no longer require
magnetometer survey[s] for archaeology
in water depths more than 100 meters’’
and asserted that magnetometer data
have been safely and efficiently
collected in these greater water depths
under NTL 2005–G07. They also noted
that magnetometer surveys at greater
depths are currently recommended for
Shallow Hazards under NTL 2022–G01
part III.C.1 and asked for BOEM’s
rationale for the measurement reduction
for magnetometer data acquisition.
Similarly, ACUA and SHA
recommended that BOEM include
magnetometer data acquisition in water
depths up to 200 meters to ensure
identification and protection of
underwater cultural heritage in deeper
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waters and consistency across
standards.
Response: BOEM has been receiving
data from surveys since the
implementation of the original NTL
2005–G07. BOEM has observed, on most
surveys, that it is extremely difficult to
deploy magnetometers at depths greater
than 100 meters water depth and
maintain the appropriate height above
the seafloor. This is exacerbated by
extreme bathymetry fluctuation typical
on the Gulf of Mexico OCS between 100
and 200 meters. BOEM has heard
directly that numerous survey
companies have struggled to comply
with the previous guidance. Even
though the previous guidance
recommended the use of the
magnetometer data for depths more than
100 meters, BOEM believes it is better
to focus on improving performance
standards for magnetometry in water
depths where its use has proven
consistently useful in identifying
significant archaeological resources. No
changes were made to the final rule as
a result of this comment.
Comment: An independent marine
archaeologist recommended that
‘‘[w]hen a total field magnetometer, but
not a gradiometer, is employed the
survey should also utilize a base station
magnetometer deployed within 20
kilometers of the survey (deployed over
geologic material comparable to the
geology of the survey area) and used to
collect background magnetic field
readings at a minimum of twice per
minute to allow the investigators to
correct for the diurnal variation of the
earth’s magnetic field.’’ They also
recommended that the magnetometer
sampling rate not be specified, but
rather the samples per meter along the
survey track be the guiding requirement.
Additionally, they stated that ‘‘limiting
the depth at which a magnetometer
must be used to survey in less than 100
feet of water seems arbitrary from the
point of view of archaeological site
detection.’’
Response: In response to this
comment, BOEM has removed the
magnetometer sampling rate stipulation
from the final rule in § 550.194(c)(2) and
replaced it with a samples per meter
requirement. The potential for sites to
be completely buried under sediment
decreases substantially with increasing
distance from the coast and depth of
water. For most of the OCS, shipwrecks
beyond the 100-meter mark are found to
have a surface expression that is more
effectively located via side-scan sonar
and BOEM has no evidence, to date, to
the contrary. Nothing, however,
precludes the operator from using a
magnetometer at deeper depths if they
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wish to have additional information
related to surface anomalies.
Comment: OOC provided the
following editorial suggestions for
§ 550.194(c)(2) to maintain consistency
with the NTL 2005–G007 and the
preamble: ‘‘The magnetometer,
gradiometer, or its equivalent must be
towed [strikeout: as close to the seafloor
as possible] no higher than 20 feet above
the sea floor and sufficiently far from
the vessel to isolate the sensor from the
magnetic field of the survey vessel and
the other survey instruments . . .’’
Response: BOEM thanks the
commenter for its suggestion but has
chosen not to incorporate the suggested
edit in the final rule in § 550.194(c)(2).
The final rule has been crafted to
specify clear performance standards that
provide lessees with more flexibility to
design and conduct archaeological
surveys in a manner that meets those
performance standards, including the
altitude of the magnetometer,
gradiometer, or its equivalent necessary
to detect ferrous metals or other
magnetically susceptible materials of at
least 1,000 pounds (453 kilograms) in
mass with a minimum magnetic
deflection of 5 gamma (g; 5 nanotesla
[nT]).
Comment: In response to the
proposed amendment in § 550.194(c)(3)
to require the use of a sub-bottom
profiler system for surveys conducted in
water depths of less than 140 meters,
P&C Scientific stated that sub-bottom
profiler data should be required
throughout the Gulf of Mexico.
Response: Sub-bottom profiler data
can be used for various purposes,
including locating potential areas of
prior human occupation. BOEM
believes that in the Gulf of Mexico, the
140-meter cutoff best encompasses the
farthest likely extent of prior human
occupation. This depth is based on
information presented by submerged
paleolandscape and submerged
archaeological experts at the Paleo
Workshop 2018: Reevaluating the
Submerged Paleoindian Landscape of
the Gulf of Mexico.5 Similarly, a recent
study for the Alaska region also
recommended using sub-bottom
profilers during archaeological surveys
in waters 140 meters or less.6 In the
Pacific Region, studies have found that
5 https://www.boem.gov/environment/paleoworkshop-2018-agenda.
6 Sassorossi, W.S., Tuttle, M.C., Evans, A.M.,
Rawls, J., Holland, SE, Fadem, C.M., Stotts, I.,
Miller, H.L., Identifying Coastal and Submerged
Cultural Heritage on the Alaska Outer Continental
Shelf (Gray & Pape, Inc., Cincinnati, OH, 2023); U.S.
Department of the Interior, Bureau of Ocean Energy
Management, Anchorage, AK, Report No.: OCS
Study BOEM 2024–011. Contract No.:
140M0121F0047, p.167.
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a 130-meter cutoff is appropriate.7 After
careful review and analysis by BOEM
subject matter experts, BOEM
concluded that these findings and
recommendations were warranted and
worthy of incorporation into this rule.
BOEM has included in § 550.194(c)(3) in
this final rule that the use of a subbottom profiler is required in water
depths of 140 meters or less, unless
BOEM specifies a different water depth
based on its determination of the
furthest likely extent of prior human
occupation on the OCS. The depths are
based on current scientific
understanding of sea-level rise and
could change in the future as additional
information becomes available.
Comment: ACUA, SAA, CAH, AAA,
and SHA expressed support for the
proposal to require the use of a subbottom profiler system for surveys
conducted in water depths of less than
140 meters but noted that the rule does
not ‘‘include any requirement for
acquisition of bathymetry data which is
necessary to calculate the total depth
below sea level of interpreted horizons.
This total depth below sea level is
needed to identify the timing of
subaerial exposure and marine
inundation of the feature, based on
depth within the context of a regionally
accurate sea level curve.’’ They asserted
that this would ensure ‘‘the most
effective identification and protection of
pre-contact submerged underwater
cultural heritage.’’
Response: Based on requests from
multiple commenters, BOEM has
incorporated a requirement in the final
rule at § 550.194(c)(5) to acquire
bathymetry data, which is similar to
guidance found in the NTL 2022–G01.
The addition of a bathymetry
requirement is needed to ensure the
accurate determination of the depth of
the seafloor to interpret the geophysical
data, as well as to determine the
accurate height of the magnetometer and
other sensors if a depth sensor is used
instead of an altimeter. The latter gives
the lessee additional flexibility in
determining the best methods and
deployment of survey instrumentation
7 Clark J, Moitrovica J, Alder J., Coastal
paleogeography of the California-OregonWashington and Bering Sea continental shelves
during the latest Pleistocene and Holocene:
implications for the archaeological record, Journal
of Archaeological Science. 52:12–23 (2014), https://
doi:10.1016/j.jas.2014.07.030; ICF International,
Davis Geoarchaeological Research, and
Southeastern Archaeological Research, Inventory
and Analysis of Coastal and Submerged
Archaeological Stie Occurrence on the Pacific Outer
Continental Shelf (2013); U.S. Department of the
Interior, Bureau of Ocean Energy Management,
Pacific OCS Region, Camarillo, CA, OCS Study
BOEM 2013–0115.
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to meet the requirements specified in
the rule.
Comment: An independent marine
archaeologist expressed support for the
inclusion of sub-bottom profilers and
requested clarification if, based on
changes in NTL 2022–G01, there would
be any recommendations in the final
rule regarding the use of a multibeam
echosounder, which is a type of sonar
that is used to map the seabed by
emitting acoustic waves in a fan shape
beneath its transceiver.
Response: Based on requests from
multiple stakeholders, BOEM has
incorporated the bathymetry data
collection in line with guidance found
in NTL 2022–G01. The bathymetry data
collection requirement finalized in
§ 550.194(c)(5) is flexible enough to
allow for a multibeam echosounder but
does not require it; it requires an
echosounder or equivalent system.
Comment: An independent marine
archaeologist commented that the
proposed rule will require a sub-bottom
profiler out to 140 meters, but that the
rule does not specify the line spacing
requirements for that sensor. The
archaeologist requested clarification as
to whether the current maximum line
spacing of 300 meters will remain the
required line spacing for the sub-bottom
profiler.
Response: This rule does not specify
maximum line spacing for sub-bottom
profilers. During an archaeological
survey, lessees who deploy different
sensors that are run concurrently will
need to collect and process the data to
meet the performance standards, which
could entail different survey intervals.
This final rule, as proposed, has been
crafted to specify clear performance
standards that provide lessees with
more flexibility to design and conduct
archaeological surveys in a manner that
meets those performance standards,
including spacing of survey transects.
Comment: OOC recommended that
BOEM delete the proposed requirement
for the use of a sub-bottom profiler
system for surveys conducted in water
depths of less than 140 meters because
BOEM established in § 550.194(c) the
sea change height as being 200 feet. It
also requested clarification on the sea
level change referenced in the preamble.
The commenter stated that the preamble
references 460 feet, but the BOEM
guidance references a 200-foot change.
The organization states ‘‘this variation
of definition is significant and the
preamble to the proposed rule requires
surveys in water depths where no
material remains of human life existed.’’
Response: BOEM could not find a
reference to sea change height as being
200 feet in § 550.194(c). The reference to
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a sea change height of 200 feet may be
from a BOEM website and has been
changed to reflect our current
understanding of sea-level rise and the
peopling of the Americas. The website
information was out of date and has
been updated based on the information
provided below (see https://
www.boem.gov/regions/gulf-mexico-ocsregion/office-environment/gulf-mexicoarchaeological-information).
Sub-bottom profiler data can be used
for various purposes, including locating
potential areas of prior human
occupation. BOEM has concluded that,
in the Gulf of Mexico, the 140-meter
cutoff best encompasses the furthest
likely extent of prior human occupation.
As discussed earlier in this preamble,
this depth is based on information
presented by submerged paleolandscape
and submerged archaeological experts at
the Paleo Workshop 2018: Reevaluating
the Submerged Paleoindian Landscape
of the Gulf of Mexico. Similarly, a
recent study for the Alaska region also
recommended using sub-bottom
profilers during archaeological surveys
in waters 140 meters or less. In the
Pacific Region, studies have found that
a 130-meter cutoff is appropriate. After
careful review and analysis by BOEM
subject matter experts, BOEM
concluded that the findings and
recommendations from these experts
and studies were warranted and worthy
of incorporation into this rule. These
depths are based on current scientific
understanding of sea-level rise and
could change in the future as additional
information becomes available.
Comment: In response to the
proposed amendment to § 550.194(c)(4)
that would require the use of a side-scan
sonar or equivalent system in all water
depths, P&C Scientific commented that
the statement ‘‘Side-scan sonars may
either be towed behind a ship or
mounted in an autonomous underwater
vehicle’’ is too limiting. It clarified that
in some shallow water areas, a bow
mount or a pole mount for a sonar
system may be required.
Response: There are flexibilities in the
rule at § 550.194(d) that allow lessees to
propose alternate methodologies to meet
the performance standards specified in
the rule. Lessees may reach out to staff
to discuss, review, and approve
innovative survey instrumentations and
methodologies to meet both agency and
lessee needs. Lessees may also formally
request a departure under § 550.194(d).
Comment: ACUA, SAA, CAH, AAA,
and SHA suggested that the language in
the rule requiring a sonar survey in all
water depths be clarified to indicate if
archaeological surveys are required for
all activities.
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Response: The final rule is specific to
oil and gas and sulfur operations in the
OCS and is applicable for all EPs,
DOCDs, or DPPs that involve
disturbance of the seafloor. In such
instances, § 550.194(a) specifies that, to
protect archaeological resources, a plan
or other request must be accompanied
by or contain an archaeological report
based on an HRG survey of the APE, a
reference to an archaeological report
based on an HRG survey of the APE
previously submitted for the lease, or
evidence demonstrating to BOEM’s
satisfaction that a reasonable and good
faith effort to identify archaeological
resources within the APE has already
been performed. Because the final rule
already states the types of plans, (i.e.,
EP, DOCD, or DPP that propose
activities involving seafloor
disturbance) that require the submission
of an archaeological report based on
HRG surveys, BOEM does not feel that
further clarification is warranted.
Comment: Echo Offshore requested
clarification as to whether the preamble
statement that side-scan sonar data is
required to ‘‘resolve small, discrete
targets 0.5 meters in length at maximum
range’’ is intended for ‘‘resolution’’ or
‘‘object detection.’’ The company stated
that ‘‘resolution is the ability to discern
one object from another, while detection
is the ability to image an object’’ and
provided additional information needed
for both ‘‘resolution’’ or ‘‘object
detection’’ in the final rule. It explained
that ‘‘A better understanding of what is
meant by the ability to resolve an object
0.5 meters in length is critical for our
ability to operate under these proposed
requirements. Depending on the
definition, this may negate the ability to
operate side-scan sonars at the higher
altitudes and wider range settings that
are typically utilized in deep water
applications and may have substantial
cost impacts . . .’’
Similarly, OOC commented that the
proposed rule requires ‘‘the ability to
‘resolve an object 0.5 meters in length’
with side-scan sonar.’’ It asserted that:
‘‘First, the language is unclear on what
criteria are to be used for this
(resolution vs detection, number of
pings, along track/cross track, etc.).
Second, depending on the answers to
the criteria, this may result in the wide
line spacing surveys using 100kHz class
side-scans on [autonomous underwater
vehicles] and in deeper towed scenarios
becoming unusable. In order for survey
companies to detect an object of that
size, it may be necessary to run upwards
of 50-meter line spacing in deeper water
depth depending on [autonomous
underwater vehicle] speed, ping rate,
etc.’’ It also stated that there is no
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mention regarding line spacing in
depths over 100 meters.
Response: In response to this
comment, BOEM has replaced the word
‘‘resolve’’ with the word ‘‘detect’’ in
§ 550.194(c) of the final rule. BOEM has
not specified line spacing in depths over
100 meters with this final rule. During
an archaeological survey, lessees who
deploy different sensors that are run
concurrently will need to collect and
process the data to meet the
performance standards, which could
entail different survey intervals. The
rule has been crafted to specify clear
performance standards that provide
lessees with more flexibility to design
and conduct archaeological surveys in a
manner that meets those performance
standards, including spacing of survey
transects.
Comment: ACUA, SAA, CAH, AAA,
and SHA stated that the ‘‘proposed rule
requires that the sonar system must be
able to ‘resolve small, discrete targets
0.5 meters (1.6 feet) in length at
maximum range,’ but does not specify if
this is in reference to the along-track
detection or across-track resolution.
These are significantly different but will
have a fundamental impact on the line
spacing and sonar frequency required to
achieve the stated target detection while
maintaining the specified sensor
altitude to range necessary for 200
percent seafloor coverage. Clarification
within the rule change is
recommended.’’
Response: In response to comments,
BOEM has revised the phrasing to
clarify that it refers to along-track
detection and replaced the word
‘‘resolve’’ with the word ‘‘detect’’ in
§ 550.194 of the final rule.
Comment: An independent marine
archaeologist stated that ‘‘[c]urrently
some areas (specifically in the Gulf of
Mexico) designate side scan sonar to be
run at a maximum line spacing of 50
meters for some areas and 300-meter
line spacing for others (with stipulation
regarding percentage of coverage).’’ The
commenter stated further that the
proposed rule does not specify the
maximum line spacing requirement for
side scan sonar, but states that the
‘‘instrument range must provide at least
100 percent overlapping coverage (i.e.,
200 percent seafloor coverage) between
adjacent primary survey lines . . .’’ The
archaeologist requested clarification
about whether the current line spacing
designations remain in place, or if there
will there be new line spacing
requirements specified at a later date, or
if the statement regarding percentage of
survey coverage is a new guideline for
all areas without a specific maximum
line spacing requirement.
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Response: This final rule does not
contain any specific line spacing
requirements, and no changes were
made in response to this comment.
During an archaeological survey, lessees
who deploy different sensors that are
run concurrently will need to collect
and process the data to meet the
performance standards, which could
entail different survey intervals. BOEM
has crafted the rule to specify clear
performance standards that provide
lessees with more flexibility to design
and conduct archaeological surveys in a
manner that meets those performance
standards, including spacing of survey
transects.
Comment: ACRA highlighted the
proposed language in § 550.194(c)(4)
that states ‘‘The 0.5-meter resolution
standard is consistent with the
capabilities of modern sonar systems
when operated at appropriate frequency
and range settings’’ and asked if this
language refers to along-track detection
or across-track resolution because the
implications for each are significantly
different.
Response: The intent of the regulation
was to use along-track detection and, in
response to comments, the final rule has
been updated to state ‘‘along-track’’
detection in § 550.194(c).
Comment: OOC stated that the
proposal to require the use of a base
station or gradiometer during solar
storms is unrealistic for Gulf of Mexico
projects, and ‘‘the gradiometer array is
an added expense in both upfront costs,
added redundancy costs, added
maintenance costs, increased down
time, increased processing analysis time
costs, etc.’’
Response: BOEM is not explicitly
requiring the use of a gradiometer, but
rather providing examples where its use
may be more appropriate. BOEM has not
made any revisions to the final rule as
a result of this comment.
Comment: An independent marine
archaeologist requested clarification on
why the specific altitude for
magnetometer collection was removed.
Response: During an archaeological
survey, lessees who deploy different
sensors that are run concurrently will
need to collect and process the data to
meet the performance standards, which
could entail different survey intervals.
The final rule has been crafted to
specify clear performance standards that
provide lessees with more flexibility to
design and conduct archaeological
surveys in a manner that meets those
performance standards, including the
altitude of the magnetometer,
gradiometer, or its equivalent necessary
to detect ferrous metals or other
magnetically susceptible materials of at
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least 1,000 pounds (453 kilograms) in
mass with a minimum magnetic
deflection of 5 gamma (g; 5 nanotesla
[nT]).
Comment: ACRA remarked that the
discussion of line spacing refers to prior
NTL 2005–G07 recommendations for
line spacing of 50 meters in water
depths of 200 meters or less but fails to
mention the recommendation for 300meter line spacing in all water depths
greater than 200 meter as specified in
NTL 2011–JOINT–G01. The commenter
requested clarification of these technical
matters to avoid guidance issues in the
future.
Response: BOEM has not specified
line spacing requirements with this final
rule. During an archaeological survey,
lessees who deploy different sensors
that are run concurrently will need to
collect and process the data to meet the
performance standards, which could
entail different survey intervals. BOEM
has crafted the rule to specify clear
performance standards that provide
lessees with more flexibility to design
and conduct archaeological surveys in a
manner that meets those performance
standards, including spacing of survey
transects.
3. Archaeological Reports
Comment: The TXHC recommended
that BOEM provide additional guidance
or requirements for the presentation of
the data in the technical reports
produced for the OCS surveys. It also
recommended that BOEM require
presentation of contoured magnetic data
in the technical reports, including a
discussion of processing parameters,
data interpretation methodologies, and
the selection criteria for ‘‘significant
magnetic targets.’’ The TXHC discussed
similar state-level requirements that are
performed inconsistently due to a lack
of in-depth experience conducting,
processing, presenting, and interpreting
archaeological surveys. The commenter
asserted that these issues should be of
concern to BOEM, because BOEM is
introducing similar requirements
without professional requirements for
underwater archaeologists.
Response: BOEM may provide
guidance for implementing the new
rule, including recommendations for
how best to present data in the
archaeological reports. BOEM supports
the idea of requiring contoured
magnetic data in archaeological reports
and has included a requirement in
§ 550.194(c)(2) of the final rule that data
be post-processed and contoured.
Requiring the contouring of
magnetometer data for inclusion in the
archaeological reports will facilitate the
interpretation of potential
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archaeological resources. The
processing of magnetometer data is
mainly automated through survey
software already in use by industry, and
this requirement simply ensures that the
data is included in the archaeological
report.
Comment: P&C Scientific expressed
concerns that the proposed rule’s
requirement that the archaeological
report be prepared and signed by a
qualified marine archaeologist is too
vague regarding how much experience
and what level of experience is
required. Additionally, it states the
proposed rule ‘‘must have a specific
minimum amount of time listed for
experience and must stipulate actual
field experience, not field schools or
projects where the individual was part
of a larger team but was not responsible
for project oversight.’’ An individual
commenter recommended that BOEM
add specificity to the submerged
archaeological resources professional
qualification standard. It recommended
that ‘‘individuals overseeing
archeological assessments possess at
least one year of full-time professional
experience at a supervisory level in the
techniques and technologies of
underwater archeology and the study of
archeological resources in a maritime
context.’’ An independent marine
archaeologist commented that it would
‘‘be helpful if in addition to the SOI 8
years of experience and degree
requirements that would apply, the rule
was clearer as to (a) how many years of
offshore archaeological experience were
necessary at a minimum, (b) what area
of technical expertise that experience
was needed in, e.g., technical
archaeological diving expertise, desktop
data collection and/or interpretation, or
(c) what level of overall project
experience is necessary for supervising
projects of similar offshore complexity
and size.’’
Response: BOEM expects that there
should be flexibility in the factors and
how they are combined to ensure the
marine archaeologist is qualified. The
length and type of experience may be
sufficient even without supervision of
projects directly. As such, BOEM plans
to issue guidance discussing factors and
how they may be combined or
substituted. There would be too many
possible permutations (and those could
change over time as marine archaeology
8 The Secretary of the Interior’s (SOI) historic
preservation professional qualifications standards
are described in the following: Archaeology and
Historic Preservation; Secretary of the Interior’s
Standards and Guidelines, 48 FR 44716 (Sept. 29,
1983). Available at: https://www.nps.gov/subjects/
historicpreservation/upload/standards-guidelinesarcheology-historic-preservation.pdf.
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continues to grow as a field of study and
certification) to appropriately address in
this rulemaking.
Comment: OOC commented that there
‘‘should be a grandfathering exception
or delayed implementation on areas
which were surveyed prior to the final
rule but where work is conducted after
the rule is issued.’’
Response: BOEM has included
language in the final rule in
§ 550.194(a)(3), as proposed, to provide
for this situation. Additionally, BOEM
has included a one-year compliance
period for implementation of these new
standards for existing lessees, as
provided in § 550.194(h) of this rule, in
order to accommodate budgeting,
existing survey agreements, and
schedules for prior planned operations.
New leases issued after the effective
date of this final rule will be required
to implement the new regulations
immediately. Once the lease has expired
and if new ownership or activity is
planned, then new HRG survey data
would be required for the latest lessee.
4. Seafloor Disturbing Operations
Comment: OOC, NOPC, and an
independent marine archaeologist
commented that NTL No. 2005–G07
states that notification of the discovery
of an unanticipated archaeological
resource while conducting operations
should occur within 48 hours of those
activities, while the proposed rule states
72 hours. OOC and NOPC asserted that
‘‘[g]iven the conflicts with existing
agency guidance, they recommend
BOEM specifically address whether it
intends to rescind (or revise, and if so,
how) NTL No. 2005–G07 and its
Guidance for Compliance with
Mitigation 3.20.’’
Response: The commenter is correct
that previous BOEM guidance
recommended notification of discovery
within 48 hours. The requirements of
this final rule supersede all previous
NTLs issued concerning marine
archaeology. BOEM intends to rescind
those NTLs and any other outdated
guidance to avoid confusion about
BOEM’s prior regulatory requirements
and guidance. However, because there
are lessees and operators that may come
under the purview of 30 CFR 550.194(h)
and be exempt from full compliance
with the new regulatory changes for a
period of time (i.e., up to 365 days from
the effective date of this rule), BOEM
will ensure that the applicable NTLs
remain on the website during that
period so that those lessees and
operators will have access to those NTLs
to reference as they prepare to comply
with the full regulatory amendments
concerning marine archaeology in 30
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CFR part 550. BOEM will include
explanatory text on its website regarding
these NTLs and their limited
applicability to lessees and operators
subject to 30 CFR 550.194(h).
Comment: An independent marine
archaeologist suggested reducing the
notification period in § 550.195(a) for
notifying the BOEM Regional Director
that a discovery of an unanticipated
archaeological resource has occurred
from 72 hours to 24 hours to minimize
the lease owner’s down time, allow
BOEM to begin assessments sooner, and
facilitate important conversations with
consulting Native American Tribes.
Response: BOEM has determined that
72 hours is a reasonable time period for
reporting the discovery of an
unanticipated archaeological resource
and gives the operator needed time to
consult with a qualified marine
archaeologist and analyze the data. As
required in § 550.195(a), the 72-hour
time period is a maximum time for
reporting and does not preclude the
operator from notifying the BOEM
Regional Director earlier.
Comment: NOPC commented that
‘‘the proposed rule’s existing text would
conflict with BOEM guidance on
avoidance of archaeological resources,
which notes that, ‘[i]n most cases,
conditions of approval will not be
applied in areas that have been heavily
disturbed or to proposed activities
where the disturbance is minimal such
as cores and borings.’ ’’
Response: The language referenced in
this comment refers to the Guidance for
Compliance with Mitigation 3.20, which
provides guidance to site-specific
conditions of plan approval and not to
the survey requirements for EPs,
DOCDs, and DPPs that will be
implemented with this rule. BOEM
intends to rescind the referenced
guidance document and any other
outdated guidance, including NTLs, and
then issue new NTLs as necessary to
provide updated guidance on best
practices for implementing this rule.
Comment: An independent marine
archaeologist commented that the
proposed rule would not address,
‘‘impacts from pipelines and structure
removals, both of which are under the
permit authority of . . . [the Bureau of
Safety and Environmental Enforcement
(BSEE)] . . .’’ The commenter added
that, ‘‘[u]nder MMS, numerous
historically significant shipwrecks, such
as the German U-Boat U–166 and the
‘Mardi Gras Shipwreck,’ were located
during pipeline surveys.’’ They also
noted that the shipwrecks have been
‘‘adversely impacted by pipeline
construction as a result of inadequate
identification efforts.’’ They stated that
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‘‘[w]ithout equivalent regulations
promulgated by BSEE, significant
historic resources remain at risk from
the offshore oil and gas program. Since
BOEM retains responsibility for
conducting NEPA reviews of BSEE
permitting actions, BOEM should make
clear that these permit applications
should be accompanied by an
archaeological survey and report under
40 CFR 1502.21. . . .’’
Similarly, Echo Offshore addressed
the proposed requirement that BOEM
refer a discovery to BSEE to determine
if the resource may have been adversely
impacted by operations. It asked BOEM
to clarify whether there was an
agreement between BOEM and BSEE to
ensure that both bureaus use the same
set of rules for evaluating resources. It
also noted that many of the projects in
the Gulf of Mexico are under BSEE
jurisdiction and the applicability of
current requirements is unclear.
Response: For pipeline operations
(e.g., installation, modification, or
decommissioning of a pipeline)
proposed under an approved EP, DOCD,
or DPP, the lessee and operator are
required to submit a permit application
to BSEE, pursuant to 30 CFR 550.281(a)
and 250.1007. Existing BSEE regulations
also require submission of a shallow
hazards survey report and potentially an
archaeological resource report with any
pipeline permit application and require
all operations to immediately halt if an
archaeological resource is discovered
while conducting operations. See 30
CFR 250.1007(a)(5), 250.194(c), and
250.1010(c). The regulations likewise
require that all pipeline removal
applications include plans to protect
archaeological features during removal
operations. Id. at § 250.1752(a)(6).
Although BSEE ultimately determines
whether to approve or deny a pipeline
operation permit, BOEM conducts the
required environmental analyses on
behalf of BSEE for any permit
application proposing bottom disturbing
activities (e.g., installation of new or
relocation of existing segments or
components), which includes ensuring
that the proposed activity does not
adversely affect potential archaeological
resources. BSEE subsequently uses
BOEM’s environmental analyses to
fulfill its obligations under NEPA and
section 106 of the NHPA. This final rule
will enhance the capacity of both BOEM
and BSEE to identify and protect
potential archaeological resources that
might be adversely affected by pipeline
operations. Additionally, this rule does
not directly apply to BSEE’s
authorizations under part 250, and does
not amend those regulations.
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Comment: OOC and NOPC
recommended that if BOEM removes the
‘‘reason to believe’’ standard, it should
remove the phrase ‘‘or any other request
to obtain an authorization or permit
from BOEM that involves disturbance of
the seafloor’’ from the proposed
§ 550.194(a). They asserted that if BOEM
is not willing to remove this phrase in
the final rule, BOEM should define
which authorizations and permits
would be subject to the new
requirement and revise the RIA if the
definition includes all or most permits
or authorizations associated with
offshore exploration and production.
Response: In response to this
comment, BOEM has revised
§ 550.195(a) to remove the phrase as
recommended by the commenter. That
section now states: ‘‘To protect
archaeological resources, your EP,
DOCD, or DPP that proposes activities
involving disturbance of the seafloor
. . .’’. BOEM agrees that the phrase is
not needed to protect archaeological
resources and could be misinterpreted
to include activities not pertaining to
this section.
5. Definitions
Comment: The Ocean Foundation
expressed support for the inclusion of
historic resources on the NRHP in the
definition of archaeological resources.
API and OOC requested clarification on
the definition of an archaeological
resource and how it would be
interpreted moving forward.
Response: BOEM has amended the
definition of the term ‘‘Archaeological
resource’’ in § 550.105 of the final rule,
as proposed, to clarify that any historic
property, as described in the NHPA, is
considered an archaeological resource
for the purpose of BOEM’s regulations.
As discussed in the preamble to the
proposed rule at 88 FR 9803, this
revised definition would encompass
historical properties, as defined in 36
CFR 800.16(l). These properties include
any prehistoric or historic district, site,
building, structure, or object included in
or eligible for inclusion in the NRHP
maintained by the Secretary of the
Interior. The term ‘‘historic property’’
also includes artifacts, records, and
remains that are related to and located
within such properties, and properties
of traditional religious and cultural
importance to an Indian Tribe or Native
Hawaiian organization and that meet the
National Register criteria. BOEM has
responded to the comments from API
and OOC that were sufficiently specific,
but API and OOC do not provide
enough additional information about the
aspects of the definition that they claim
are ambiguous and require additional
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definitions and clarifications to enable
further response.
Comment: An independent marine
archaeologist stated that the term ‘‘high
resolution’’ is not clearly defined. They
also requested clarification regarding
the phrase ‘‘proposed seabed
disturbance,’’ specifically whether it
will include permitted activity or
whether it will also include
supplemental activity, such as coring,
rig moves, etc. Another marine
archaeologist recommended that BOEM
clarify whether there is a depth below
the seafloor or type of disturbance that
would be exempt from classification as
a ‘‘bottom disturbing activity.’’
Response: In keeping with
professional standards that have
evolved since the existing regulations
were adopted, this final rule defines the
minimum level of survey information
necessary to support the conclusions in
the archaeological report. The rule has
been crafted to specify clear
performance standards that provide
lessees with more flexibility to design
and conduct archaeological surveys in a
manner that meets those performance
standards, and therefore BOEM believes
it is not necessary to define ‘‘high
resolution’’ as a distinct term. BOEM
cannot clarify whether there is a depth
below the seafloor or type of
disturbance that would be exempt from
classification as a ‘‘bottom disturbing
activity’’ without knowing the depth or
the type of disturbance. Section
550.194(d) of the final rule provides a
process where the lessee may request a
departure on a case-by-case basis. In
response to the request to clarify if
‘‘proposed seabed disturbance’’ includes
permitted activity only or also includes
supplemental activity, the regulations
state that all activities covered by an EP,
DOCD, or a DPP that propose to disturb
the seafloor would be covered.
V. Summary of Economic Impacts and
Benefits
A. What are the economic impacts?
The costs and benefits of the final rule
are compared against the baseline
scenario. The baseline scenario, or
status quo, represents BOEM’s
assessment of the current practices
under the current regulatory framework,
including current industry practices and
standards that are consistent with that
framework. To define the baseline,
BOEM examined the best available
information regarding the current
regulatory requirements and industry
standards for conducting an HRG
survey, which is the procedure for
identifying possible archaeological
resources.
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In 2011, BOEM’s predecessor,
BOEMRE, implemented a new preseabed disturbance survey policy,
which BOEMRE presented to operators
during a workshop held in March 2011.
Those surveys were conducted, when
appropriate, in lease areas that were not
designated as highly probable for
containing archaeological resource by
the predictive model. BOEM advised
that, prior to conducting any bottomdisturbing activity on the OCS that
could damage archaeological resources,
operators should perform a survey of the
seafloor where the activities were to
take place and prepare an archaeological
assessment. Additionally, HRG surveys
are already required to identify shallow
hazards in 30 CFR 550.214(e) and
550.244(e).
Under the Gulf of Mexico region
baseline scenario, HRG archaeological
surveys are conducted, with very rare
exceptions, using methods consistent
with guidelines provided in NTL 2005–
G07, titled, ‘‘Archaeological Resource
Reports and Surveys,’’ 9 which
recommends a maximum line spacing of
50 meters in water depths of 200 meters
or less. As such, BOEM concludes that
most operators are already in
compliance with the requirements being
codified in this final rule.
In the Alaska region, all HRG
archaeological surveys completed since
2011 have been conducted using
methods consistent with guidelines
provided in NTL 2005–A01, titled,
‘‘Shallow Hazards Survey and
Evaluation for OCS Exploration and
Development Drilling,’’ 10 and NTL
2005–A03, titled, ‘‘Archaeological
Survey and Evaluation for Exploration
and Development Activities.’’ 11 These
NTLs provide archaeological survey
guidance that includes detailed
coverage of 1,200 meters or greater in all
directions from a proposed activity and
survey line spacing of 150 meters by 300
meters or less. Alaska’s offshore oil and
gas project economics are challenging,
and BOEM finds that archaeological
surveys there are generally more
expensive than in the Gulf of Mexico
and therefore may incur additional cost
as a result of this final rule.
Most of the revisions in this final rule
will have no or negligible cost impacts
for operators. All expected incremental
costs of the final rule are due to the
requirement for HRG archaeological
surveys in water depths of less than or
71175
equal to 100 meters and for a
magnetometer, gradiometer, or the
equivalent towed at an altitude and line
spacing sufficient to detect ferrous
metals or other magnetically susceptible
materials of at least 1,000 pounds. This
additional cost is expected to be from
the tighter line spacing required for the
surveys as compared to the existing
NTL. BOEM has determined that the
performance standard necessary to
detect ferrous metal of at least 1,000
pounds is met by conducting
archaeological surveys with a maximum
line spacing of 30 meters.12
BOEM estimates that the changes
would increase total OCS archaeology
survey costs over the next 20 years by
$5.9 million (using a 3 percent discount
rate). Most of the revisions in this final
rule will have no or negligible cost
impacts for lessees and operators. Table
1 presents a summary of the qualitative
benefits and a quantitative estimate of
the annualized and total costs for the
rule. BOEM estimates that the changes
would increase total OCS archaeology
survey costs over the next 20 years by
$5,925,770, using a 3 percent discount
rate, or by $4,452,834, using a 7 percent
discount rate.
TABLE 1—SUMMARY OF BENEFITS AND COSTS
Units
Category
Estimate
Year dollars
Discount rate
(%)
Notes
Period
covered
Benefits:
Qualitative .....
Assures compliance with NHPA and strengthens archaeological resource protections.
Reduces the likelihood of disturbing shipwrecks or other historical sites.
Provides regulatory clarity and certainty for operators.
Reduces risk and potential mitigation costs to O&G operators.
Costs:
Annualized Incremental
Costs.
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Total Incremental
Costs.
$398,305
2024
420,316
5,925,770
7
3
4,452,834
7
9 https://www.boem.gov/sites/default/files/
documents/newsroom/BOEM20NTL20No.202005G07.pdf.
10 https://www.bsee.gov/sites/bsee.gov/files/
notices-to-lessees-ntl/drilling/05-a01.pdf.
11 https://www.boem.gov/sites/default/files/
documents/oil-gas-energy/BOEM20NTL20
No.202005-A03.pdf.
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20 years
Increased compliance costs due to increased measurement capability requirements in water depths
less than or equal to 100 meters.
12 The explanation for this statement is provided
in section VII of the preamble of the proposed rule
under § 550.194(c)(2), where it states: ‘‘If the sensor
is sensitive to detecting a variable of one gamma
with no more than 3 gammas of interference, the
ferrous mass that might be associated with an
historic shipwreck should be detectable as a
distinct anomaly from a horizontal distance of 50
feet (15 meters) or less from the sensor to the
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ferrous mass and a vertical distance of 20 ft (6
meters) or less from the sensor to the seafloor.’’
Based on the reports cited above [in the preceding
footnote], a survey design of no more than 30-meter
line spacing and a magnetometer, gradiometer, or
their equivalent towed no more than 6 meters from
the seafloor should be sufficient to locate most
historically significant shipwrecks on the OCS.
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B. What are the benefits?
The estimated benefits associated
with this final rulemaking are
qualitative benefits and are as follows:
• Assures compliance with NHPA
and strengthens archaeological resource
protections;
• Reduces the likelihood of
disturbing shipwrecks or other
historical sites;
• Provides regulatory clarity and
certainty for operators; and
• Reduces risk and potential
mitigation costs to offshore oil and gas
operators.
VI. Section-by-Section Analysis
Part 550—Oil and Gas and Sulfur
Operations in the Outer Continental
Shelf
Subpart A—General
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Section 550.105 Definitions
The Department is finalizing, as
proposed, amendments to the definition
of the term ‘‘Archaeological resource’’ to
clarify that any historic property
described by the NHPA is considered an
archaeological resource for the purpose
of BOEM’s regulations. The new
definition of ‘‘Archaeological resource’’
reads as follows: ‘‘the material remains
of human life or activities that are at
least 50 years of age and that are of
archaeological interest, including any
historic property described by the
National Historic Preservation Act, as
defined in 36 CFR 800.16(l).’’
As discussed in the preamble to the
proposed rule at 88 FR 9803, this
revised definition will encompass the
historic properties as defined in 36 CFR
800.16(l). These properties include any
prehistoric or historic district, site,
building, structure, or object included
in, or eligible for, inclusion in the NRHP
maintained by the Secretary of the
Interior. The term ‘‘historic property’’
also includes artifacts, records, and
remains that are related to and located
within such properties, and properties
of traditional religious and cultural
importance to an Indian Tribe or Native
Hawaiian organization and that meet the
National Register criteria.
Section 550.194 How must I conduct
my approved activities to protect
archaeological resources?
The Department is finalizing, as
proposed, the revision of the title of
§ 550.194 from ‘‘How must I protect
archaeological resources?’’ to ‘‘How
must I conduct my approved activities
to protect archaeological resources?’’ to
reflect that the response to a discovery
of potential archaeological resources
and the remediation process is no longer
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included in the content of § 550.194 but
has been moved to a new section (i.e.,
§ 550.195).
The Department is finalizing, as
proposed, amendments to § 550.194(a)
to remove the ‘‘reason to believe’’
standard with respect to individual
leases, as discussed in section II.B of
this preamble. This final rule requires
operators to submit to BOEM an
archaeological report, refer to a
previously submitted report meeting the
necessary standards, or submit evidence
demonstrating that a reasonable and
good faith identification effort has
already been performed. Operators must
include these submissions with any EP,
DOCD, or DPP that proposes activities
involving disturbance of the seafloor.
The Department is finalizing, as
proposed, amendments to
§ 550.194(a)(1). The existing regulation
requires operations to be located at a
site that would not adversely affect an
area containing an archaeological
resource if an archaeological report
suggests that a resource may be present.
This final rule relocates the
requirements for a response to a
discovery of potential archaeological
resource to a new section (i.e.,
§ 550.195). This rule specifies that an
archaeological report must be based on
an HRG survey, as discussed in section
II.B of this preamble. This final rule
allows operators to submit an
archaeological report based on an HRG
survey of the APE as one option for
complying with the requirement in
§ 550.194 to protect archaeological
resources.
The Department is finalizing
amendments to § 550.194(a)(2) to
replace the text requiring an operator to
establish that an archaeological resource
does not exist in a proposed site of
operation with text specifying that
operators can submit a reference to an
archaeological report based on an HRG
survey of the APE that was previously
submitted for the lease as a means to
comply with the requirement in
§ 550.194. This amendment reflects the
relocation of the requirements for a
response to a discovery of potential
archaeological resource to a new section
(i.e., § 550.195).
Under § 550.194(a)(2) of the final rule,
an operator may submit a reference to
an archaeological report if the
previously submitted survey complies
with the parameters identified in the
final rule and if the results of that
previous survey reasonably remain
valid, as determined by BOEM. This
provision is designed to minimize
duplicative surveys by allowing
operators to use the data from
previously conducted surveys, such as
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certain shallow hazard reports. The
amendments in this final rule specify
that BOEM may consider a previous
survey and its associated report invalid
if BOEM suspects that the seafloor
environment has changed sufficiently to
warrant a new HRG survey (e.g., time
elapsed since prior survey, change from
a geological event such as a mudslide).
The Department is finalizing, as
proposed, new § 550.194(a)(3), to allow
operators to comply with the
requirement in § 550.194 by
demonstrating that a reasonable and
good faith effort to identify
archaeological resources within the APE
has already been performed. This
provision is designed to minimize
duplicative surveys by allowing
operators to use, for example,
previously collected data from nonoperator commissioned sources, such as
NOAA coastal surveys. BOEM will
allow the use of such data if BOEM
determines these sources are sufficient
to identify possible marine
archaeological resources at a degree of
certainty reasonably similar to or better
than an HRG survey.
The Department is finalizing
amendments in § 550.194(b) to replace
the text stating that the Regional
Director will notify an operator if they
determine that an archaeological
resource is likely to be present with the
requirement that the archaeological
report or evidence required by
§ 550.194(a) be prepared and signed by
a qualified marine archaeologist. This
amendment reflects the relocation of the
requirements for a response to a
discovery of potential archaeological
resource to § 550.195. The requirement
that the report or evidence must be
prepared and signed by a qualified
marine archaeologist applies regardless
of which option described in
§ 550.194(a) is used as the basis of the
archaeological report or evidence. As a
result of public comment, this final rule
further defines a qualified marine
archaeologist as one who meets the
Secretary of the Interior’s ‘‘Standards
and Guidelines for Historic Preservation
Projects: Professional Qualification
Standards’’ and any subsequent updates
to those standards and guidelines and
has experience in conducting or
overseeing HRG surveys and processing
and interpreting the resulting data for
archaeological potential.
The Department is finalizing, as
proposed, amendments to § 550.194(c)
to replace the requirement to
immediately halt operations if an
archaeological resource is discovered
while conducting operations with text
establishing the minimum standards for
conducting the geophysical survey upon
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which the archaeological report is
based. This amendment reflects the
relocation of the requirements for a
response to a discovery of potential
archaeological resource to § 550.195.
Section 550.194(c) of this final rule
requires that geophysical surveys must
be conducted using state-of-the-art
instrumentation and methodology that
meets or exceeds scientific standards for
conducting marine archaeological
surveys. While BOEM outlines the
minimum scientific standards in
paragraph (c), BOEM recognizes that
emerging technologies and methods
may be used to achieve or exceed these
standards. In these instances, BOEM
may approve a departure from the
provisions of paragraph (c) of § 550.194
on a case-by-case basis if it meets the
requirements in paragraph (d).
The Department is finalizing
§ 550.194(c)(1) to establish the
requirements for the survey vessel’s
navigation system to continuously
register its surface position, specify the
logging position data, and specify the
presentation of geodesy information.
With this rulemaking, the regulatory
text in § 550.194(c)(1) includes a
statement added based on public
comments that navigation systems
meeting the criteria outlined in
§ 550.194 do not require prior approval
by BOEM.
The Department is finalizing
§ 550.194(c)(2) to require the use of a
total field magnetometer, gradiometer,
or other similar instrument having equal
or superior measurement capability for
surveys conducted in waters of 100meter depth or less. It also establishes
the requirements for the collection of
data necessary to assist in the
identification of archaeological
resources on the OCS. The sensor will
be required to be towed in such a
manner that a magnetic field produced
by ferrous metal associated with a
historic shipwreck (e.g., a wooden
ship’s fasteners, anchors, and cannons)
can be detected. The data must be postprocessed and contoured in a manner to
best facilitate the interpretation of
potential archaeological resources.
Additionally, requiring the contouring
of magnetometer data for inclusion in
the archaeological reports will facilitate
the interpretation of potential
archaeological resources. See the
preamble to the proposed rule at 88 FR
9804 for more details. Based on public
comment, BOEM has removed the
altimeter requirement as proposed
§ 550.194(c)(2) in favor of a more
general requirement that an accurate
measurement of the altitude of the
magnetometer must be used.
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The Department is finalizing
§ 550.194(c)(3) to require the use of a
sub-bottom profiler system for surveys
conducted to locate potential areas of
prior human occupation. BOEM
believes that in the Gulf of Mexico and
the Alaska OCS, the 140-meter cutoff
best encompasses the furthest likely
extent of prior human occupation, as
discussed in section III of this preamble.
To establish a default water depth
applicable to the requirement to use a
sub-bottom profiler, this rule requires
the sub-bottom profiler in water depths
of 140 meters or less. The depths are
based on current scientific
understanding of sea-level rise and
could change in the future as additional
information becomes available.
The Department is finalizing
§ 550.194(c)(4) to require the use of a
side-scan sonar or equivalent system in
all water depths. It also establishes the
technical requirements for the use of
this equipment and for the postprocessing of data. To ensure that the
nadir is imaged, the sonar should have
overlapping coverage between the right
and left channels on adjacent survey
transects. A 100 percent overlapping
coverage of the seafloor (i.e., 200
percent seafloor coverage) ensures that
significant archaeological resources are
not missed in the survey. Greater than
200 percent overlapping coverage may
be necessary to guarantee nadir coverage
and account for survey vessel drift
between lines, which may be an
important consideration when
surveying in deep water. The sonar
system must be able to detect small,
discrete targets 0.5 meters (1.6 feet) in
length at maximum range, along the
track. Post-processing can improve
sonar data quality by, for example,
adjusting for slant range effects and
variable speed along line. This
provision requires post-processing to
ensure that the data is useful for
interpretation and mapping. For more
details, see the preamble to the
proposed rule at 88 FR 9805. Based on
public comment, this section has been
revised to replace ‘‘resolve’’ with
‘‘detect’’ and to clarify that the sonar
detection is ‘‘along the track.’’
The Department is finalizing
§ 550.194(c)(5) as proposed to require
the use of an echo sounder or equivalent
system in all water depths. This new
provision also establishes the technical
requirements for the use of this
equipment and for the post-processing
of data.
Bathymetric surveys are conducted
using an echo sounder attached to or
towed by a survey boat or sometimes
mounted to an autonomous underwater
vehicle. As the boat moves across the
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water, the echo sounder generates
electrical signals. These are then
converted into soundwaves by an
under-water transducer. A single-beam
sonar uses just one transducer to map
the seafloor, while multibeam sonar
sends out multiple, simultaneous sonar
beams (or sound waves) at once in a fanshaped pattern. This covers the space
both directly under the ship and out to
each side.
Bathymetry data must be acquired to
measure accurate water depths across
the area. Where swath bathymetry data
are acquired, it is recommended that
backscatter values from the seabed
returns are logged and processed for use
in seabed characterization to support
and complement the side scan sonar
data. Single beam echo sounder data (or
data from the equivalent system) should
be used to verify the results of swath
bathymetry data to check for gross error.
The bathymetry systems must be set
up to accurately record data across the
range of water depths expected in the
survey area. Care should be taken in
selection of operating frequencies such
that the individual systems do not
interfere with each other. The
bathymetry systems must be used in
conjunction with an accurate motion
sensor to compensate for vessel motion.
Water column sound velocity should be
determined as a minimum at the start
and end of data acquisition, and at
suitable intervals throughout the
project, by use of a conductivity,
salinity, and temperature depth probe or
a direct reading sound-velocity probe
suitable for use in the maximum water
depths expected within the survey area.
Water depths should be corrected for
vessel draft, tidal level, and referenced
to the appropriate vertical datum (LAT,
MSL, etc.). The final processed digital
terrain model data cell size covering the
entire survey area, without gaps, should
reflect the frequency of the system being
used, data density, and altitude above
seabed of the transducer head.
The Department is finalizing
§ 550.194(c)(6) as proposed to allow
BOEM to accept the results of an
archaeological survey conducted prior
to the effective date of these regulations
in lieu of conducting a new survey,
provided the lessee or operator can
demonstrate that such survey was
conducted in such a manner as to meet
the objectives of § 550.194(c). Some OCS
lessees and operators have conducted
OCS surveys using advanced techniques
and technologies, such that any new
survey would be highly unlikely to
yield substantially different results. In
those situations, subject to BOEM
approval, a lessee or operator may be
able to use an existing survey that meets
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or exceeds the requirements in the final
rule, rather than conduct a new survey.
The Department is finalizing, as
proposed, new § 550.194(d) to provide
that the Regional Director may approve
departures, on a case-by-case basis, from
the performance standards outlined in
§ 550.194(c). The Regional Director will
determine if the departure is necessary
because ordinary application of those
standards would be impractical or
unduly burdensome; would be
unnecessary to achieve the intended
objectives of the marine archaeology
program; would fail to conserve the
natural resources of the OCS; would fail
to protect life (including human and
wildlife), property, or the marine,
coastal, or human environment; or
would fail to protect sites, structures, or
objects of historical or archaeological
significance.
The Department is finalizing, as
proposed, new § 550.194(e) to provide
that any departures approved under
§ 550.194(d) must be documented in
writing and must be: consistent with
OCSLA; protect the archaeological
resources to the same degree as if there
was no approved departure from the
regulations; satisfy NHPA section 106
and achieve results for identifying
archaeological resources as if there was
no approved departure from the
regulations; and not impair the rights of
third parties. This will allow BOEM to
ensure that its archaeological report
requirements remain in compliance
with the NHPA.
The Department is finalizing, as
proposed, new § 550.194(f) to provide
that BOEM may reject any
archaeological report if the survey was
not prepared in accordance with the
requirements of § 550.194(c) or any
BOEM-approved departure to the survey
requirements. This final rule also
provides that BOEM may reject any
archaeological report if the results
produced from the survey do not meet
the data and resolution requirements
specified in § 550.194(c), regardless of
whether the survey was otherwise
conducted appropriately. For more
details, see the preamble to the
proposed rule at 88 FR 9806.
The Department is finalizing, as
proposed, new § 550.194(g) to provide
specifications for what must be done if
the archaeological report or evidence
mentioned in § 550.194(a) suggests that
an archaeological resource may be
present. This final rule establishes the
two courses of action for operators to
proceed with operations if the
archaeological report or evidence
required by § 550.194(a) suggests that an
archaeological resource may be present.
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The Department is finalizing, as
proposed, new § 550.194(g)(1) to
provide operators the option of
relocating operations so as not to
adversely affect an area where known or
suspected archaeological resources
exist.
The Department is finalizing, as
proposed, relocated § 550.194(a)(2) as
§ 550.194(g)(2) to provide an alternative
to § 550.194(g)(1). This alternative
provides operators the option of
establishing, to the satisfaction of the
Regional Director, that an archaeological
resource does not exist or will not be
affected by operations or that the
operator will take measures determined
by the Regional Director to protect the
archaeological resource during
operations. If the Regional Director
requires additional investigations, the
operator will be required to submit a
report documenting the investigation to
the Regional Director for review.
The Department is finalizing, as
proposed in new § 550.194(g)(2)(i), that
if further investigation cannot establish
to the satisfaction of the Regional
Director that an archaeological resource
is not likely to be present at the
operational site, the lessee or operator
must demonstrate to the satisfaction of
the Regional Director either that its
operations will not adversely affect the
suspected resource or else commit to
undertaking the steps required in
§ 550.194(g)(2)(ii).
This final rule replaces the existing
§ 550.194(b) with § 550.194(g)(2)(ii), as
proposed, and emphasizes that the
operator must take no action that may
adversely affect an archaeological
resource until the Regional Director
specifies measures the operator must
take to protect the resource.
The Department is finalizing, as
proposed in new § 550.194(g)(3), that if
the Regional Director determines that an
archaeological resource is likely to be
present in the lease area and is likely to
be adversely affected by operations, and
if the Regional Director determines that
there is no feasible means to avoid this
adverse effect, the Regional Director will
be allowed to prohibit operations in the
APE.
The Department is finalizing, based
on public comments discussed in
section III of this preamble, a new
§ 550.194(h) to allow that any lessee or
operator that has an existing lease
executed prior to the effective date of
this final rule to apply the regulations
in effect prior to the effective date with
respect to the provisions of this section
for a period of time not to exceed 365
days after the effective date of this final
rule. The intent of this new provision is
to avoid forcing lessees and operators to
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renegotiate existing agreements with
companies that will be providing
archaeological surveys where a survey
contract has already been negotiated for
future survey activities.
Section 550.195 What must I do if I
discover a potential archaeological
resource while conducting operations
on the lease or right-of-way area?
The Department is finalizing, as
proposed, amendments to move existing
30 CFR 550.194(c) to a new section at
550.195, titled ‘‘What must I do if I
discover a potential archaeological
resource while conducting operations
on the lease or right-of-way area?’’
Moving the provisions to a separate
section will improve the overall
organization of the regulations. In
addition to moving the provision to a
stand-alone section, BOEM is expanding
on the specificity of the requirements.
The existing regulations require that
operations be halted immediately
within the area of the discovery and that
the discovery be reported to the BOEM
Regional Director.
The Department is finalizing, as
proposed, new § 550.195(a) to require
the operator to immediately halt
seafloor disturbing operations within at
least 305 meters (1,000 feet) of the area
of the discovery and report the
discovery to the Regional Director
within 72 hours. This final rule
establishes these requirements to
minimize the potential for risk to the
resource.
The Department is finalizing, as
proposed, new § 550.195(b) to clarify
that if BOEM determines that the
resource is eligible for listing on the
NRHP in accordance with the applicable
regulations, the Regional Director will
specify measures that the lessee and
operator must take to protect the
resource during operations and
activities. The final regulations in
§ 550.194(g) state that if the resource is
present, the Regional Director will
determine how to protect it. If BOEM
were to determine that the resource is
eligible for listing on the NRHP, and the
operations and activities are under the
jurisdiction of BSEE, BOEM will inform
the BSEE Regional Director that the
resource has been determined to be
historically significant and advise BSEE
on the appropriate means to protect it.13
13 This is BOEM’s current practice. When BOEM
is notified of a National Register-eligible
archaeological discovery, it will notify BSEE’s
archaeologists, particularly if the discovery happens
during post-permit-approved activities that are
within BSEE’s area of jurisdiction. Both agencies
share the same GIS database of known NRHP
eligible sites, so this information is further available
for review as a routine part of each agency’s review
processes.
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The Department is finalizing, as
proposed, new § 550.195(c) that
provides, for activities and operations
under BSEE jurisdiction, that BOEM
will refer the discovery to BSEE to
determine if the resource may have been
adversely impacted by operations. The
BSEE Regional Director will specify
measures the lessee or operator must
take either to demonstrate that no
adverse impacts have occurred or to
document the adverse impacts. BSEE
may specify additional measures that it
determines are necessary to remediate
adverse impacts to any archaeological
resources resulting from operations that
have been discovered and will relay to
BOEM both the results of its
investigation and any further measures
it has imposed to remediate the adverse
impacts that may have occurred.
VII. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review, as Amended by
Executive Order 14094: Modernizing
Regulatory Review, and Executive Order
13563: Improving Regulation and
Regulatory Review
Executive Order (E.O.) 12866, as
amended by E.O. 14094, provides that
the Office of Information and Regulatory
Affairs (OIRA) in OMB will review all
significant rules. OIRA has determined
that this final rule is not a significant
action under E.O. 12866.
E.O. 13563 reaffirms the principles of
E.O. 12866 while calling for
improvements in the Nation’s regulatory
system to promote predictability, reduce
uncertainty, and to use the best, most
innovative, and least burdensome tools
for achieving regulatory ends. E.O.
13563 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. BOEM has developed this
rule in a manner consistent with these
requirements.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA),
5 U.S.C. 601–612, requires agencies to
analyze the economic impact of
regulations when a significant economic
impact on a substantial number of small
entities is likely and to consider
regulatory alternatives that will achieve
the agency’s goals while minimizing the
burden on small entities. When an
agency issues a notice of rulemaking,
the RFA requires the agency to ‘‘prepare
a final regulatory flexibility analysis’’
that will give ‘‘a description of and an
estimate of the number of small entities
to which the rule will apply’’ (5 U.S.C.
604(a)).
BOEM has determined that this rule
will affect a substantial number of small
entities. Operators under this rule
primarily fall under the Small Business
Administration’s (SBA) North American
Industry Classification System (NAICS)
codes 211120 (crude petroleum
extraction) and 211130 (natural gas
extraction). For NAICS classifications
211120 and 211130, SBA defines a
small business as one with fewer than
1,251 employees. All 70 OCS operating
companies would be impacted by the
rule if they engage in activities
disturbing the seafloor in areas that have
not been previously surveyed and that
would require an HRG survey and an
archaeological report under the rule.
BOEM estimates that of the 70 OCS
lease operators, 21 are large and 49 are
small.
The regulatory changes in this rule are
primarily clarifications, codifications of
existing practice, or reflections of NHPA
regulations. Most operators have been
conducting HRG surveys and the
archaeological analysis consistent with
the regulatory requirements in this rule
since at least 2011. Therefore, BOEM
does not anticipate that these regulatory
updates will have a significant
economic impact on small or large
operators. The expected incremental
compliance costs of the rule derive from
the requirement that HRG
archaeological surveys in water depths
71179
less than or equal to 100 meters have a
magnetometer, gradiometer, or the
equivalent towed at an altitude and line
spacing sufficient to detect ferrous
metals or other magnetically susceptible
materials of at least 1,000 pounds. This
performance standard typically can be
met by operators conducting
archaeological surveys with a maximum
line spacing of 30 meters at a height of
no more than 6 meters from the seafloor.
BOEM estimates that the changes
would increase OCS archaeology survey
costs by $7,595,000 over the next 20
years. The Gulf of Mexico
archaeological survey costs are
estimated to increase by $2,520,000,
while the Alaska costs increase by
$5,075,000, depending on activity and
cost factors discussed in section II of the
Benefit-Cost Analysis.
BOEM’s estimate of the rule’s
economic impact on small entities
would vary depending on the OCS
region where the archaeological surveys
occur. Typically, the increased
compliance cost would impact operators
conducting activities in water depths of
100 meters or less. Small entity
operators account for the vast majority
of activity in the Gulf of Mexico OCS’s
shallow water depths. Therefore, BOEM
estimates that up to 100 percent of the
increased Gulf of Mexico compliance
cost for survey line spacing of 30 meters
would be borne by operators that are
small entities. In the Alaska region, all
archaeological surveys are expected to
be conducted by large entities. On the
Alaska OCS, one company currently
holds all OCS oil and gas leases. This
company is considered a large entity
under the SBA’s definition. Therefore,
BOEM estimates the increased
compliance cost in Alaska would be
borne by an operator that is a large
entity. Compliance costs by business
size can be seen in Table 2 with
discount rates. BOEM does not expect
new archaeological surveys in other
OCS regions over the next 20 years.
TABLE 2—20 YEAR COMPLIANCE COST ASSOCIATED WITH RULE BY BUSINESS SIZE
Undiscounted
cost
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Large Business Total Incremental Costs ....................................................................................
Small Business Total Incremental Costs .....................................................................................
C. Small Business Regulatory
Enforcement Fairness Act
The Small Business Regulatory
Enforcement Fairness Act (SBREFA), 5
U.S.C. 804(2), requires BOEM to
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perform a regulatory flexibility analysis,
provide guidance, and help small
businesses comply with statutes and
regulations for major rulemakings. This
action is not subject to the SBREFA
because it does not have an annual
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$5,075,000
2,520,000
Discounted at
3%
Discounted at
7%
$3,959,525
1,966,245
$2,972,956
1,479,878
effect on the economy of $100 million
or more.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
(UMRA), 2 U.S.C. 1531–1538, requires
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BOEM, unless otherwise prohibited by
law, to assess the effects of regulatory
actions on State, local, and Tribal
governments, and the private sector.
Section 202 of UMRA generally requires
BOEM to prepare a written statement,
including a cost-benefit analysis, for
each proposed and final rule with
‘‘Federal mandates’’ that may result in
expenditures by State, local, and Tribal
governments, in the aggregate, or to the
private sector, of $100 million or more
in any one year. This action does not
contain a Federal mandate under UMRA
that may result in expenditures of $100
million or more for State, local and
Tribal governments, in the aggregate, or
the private sector in any one year.
Accordingly, a statement containing the
information required by the UMRA is
not required.
This action is not subject to the
requirements of section 203 of UMRA
because it contains no regulatory
requirements that might substantially or
uniquely affect small governments.
E. Executive Order 12630: Governmental
Actions and Interference With
Constitutionally Protected Property
Rights
E.O. 12630 ensures that government
actions affecting the use of private
property are undertaken on a wellreasoned basis with due regard for the
potential financial impacts imposed by
the government. This action does not
effect a taking of private property or
otherwise have taking implications
under E.O. 12630, and therefore, a
takings implication assessment is not
required. Additionally, no comments
were received on E.O. 12630 during the
public comment period.
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F. Executive Order 13132: Federalism
Regulatory actions that have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government are subject to E.O.
13132. Under the criteria in section 1 of
E.O. 13132, this final rule does not have
sufficient federalism implications to
warrant the preparation of a federalism
summary impact statement. It will not
have substantial direct effects on the
States, on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
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levels of government. No comments
were received on E.O. 13132 during the
public comment period.
G. Executive Order 12988: Civil Justice
Reform
This final rule complies with the
requirements of E.O. 12988.
Specifically, this rule:
(1) Meets the criteria of section 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
(2) Meets the criteria of section 3(b)(2)
requiring that all regulations be written
in clear language and contain clear legal
standards.
No comments were received on E.O.
12988 during the public comment
period.
H. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
E.O. 13175 defines polices that have
Tribal implications as regulations,
legislative comments or proposed
legislation, and other policy statements
or actions that will or may have a
substantial direct effect on one or more
Indian Tribes, or on the relationship
between the Federal Government and
one or more Indian Tribes. Additionally,
the DOI’s consultation policy for Tribal
Nations and ANCSA Corporations, as
described in Departmental Manual part
512 chapter 4, expands on the above
definition from E.O. 13175 and requires
that BOEM invite Indian Tribes and
ANCSA Corporations ‘‘early in the
planning process to consult whenever a
Departmental plan or action with Tribal
Implications arises.’’ BOEM strives to
strengthen its government-togovernment relationships with Tribal
Nations through a commitment to
consultation with Tribes, recognition of
their right to self-governance and Tribal
sovereignty, and honoring BOEM’s trust
responsibilities for Tribal Nations.
BOEM also is respectful of its
responsibilities for consultation with
corporations established pursuant to
ANCSA, 43 U.S.C. 1601 et seq.
As discussed in the preamble to the
2023 proposed rule (88 FR 9809), BOEM
evaluated the proposed rule under DOI’s
consultation policy and under the
criteria in E.O. 13175 and determined
that this rule may have Tribal
implications.
BOEM sent letters to all Tribes and
ANCSA Corporations on March 3, 2023,
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to ensure they were aware of the
proposed rulemaking, to answer any
immediate questions they may have,
and to invite formal consultation if they
would like to consult. Only one request
for consultation was received;
consultation was held with the Mashpee
Wampanoag on March 14, 2024, and
meeting notes are included in the
docket (memorandum titled Tribal
Outreach: Mashpee Wampanoag). For
more details on E.O. 13175, the DOI’s
consultation policy for Tribal Nations
and ANCSA Corporations, and the
consultations conducted regarding this
rulemaking, see the memo in the docket
titled, Tribal Outreach: Summary of
Engagement Activities. BOEM can
consult at any time with federally
recognized Tribes as sovereign nations.
I. Paperwork Reduction Act
This final rule references existing and
new IC requirements for regulations at
30 CFR part 550, subpart A. Submission
to OMB for review under the PRA of
1995 (44 U.S.C. 3501 et seq.) is required.
Therefore, BOEM submitted an IC
request to OMB for review and approval
and requested a new OMB control
number. The information collections
relative to this rule are assigned OMB
Control Number 1010–0196, Protection
of Marine Archaeological Resources
Final Rulemaking. Once the 1010–AE11
final rule is effective, BOEM will
transfer the hour burden from 1010–
0196 to existing OMB Control Number
1010–0114, which covers other
information collections for this part and
expires on May 31, 2026, then
discontinue the new number associated
with this rulemaking. The IC related to
this rulemaking concerns requirements
under 30 CFR 550.194 and 550.195.
BOEM may neither conduct nor
sponsor, nor are respondents required to
respond to, a collection of information
unless it displays a currently valid OMB
control number.
BOEM is revising its IC burden
estimates with the final rule to align
with the regulations that codify existing
industry practice. The new and revised
IC requirements for 30 CFR 550.194 and
550.195 identified below require
approval by OMB. BOEM would
increase the overall annual burden by
505 hours. The burden hours related to
this rulemaking are shown in the
following table, and burden hour
changes are discussed below.
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Citation
30 CFR 550
subpart A
and related
forms/NTLs
Reporting or recordkeeping
requirement
Average
number of
annual
responses
Hour
burden
71181
Annual
burden
hours
Non-hour cost burdens
Information and Reporting Requirements
194(a), (c) .............
Prepare and/or submit archaeological reports or evidence. Submit archaeological and follow-up reports and additional information.
194(g) ...................
Locate and protect archaeological sites. Submit archaeological and followup reports and additional information *.
195(a) ...................
194 .......................
Report archaeological discoveries to the Regional Director .........................
Request departures from conducting archaeological resources surveys
and/or submitting reports **.
........................................................................................................................
1
1
3 reports ...................
2 requests .................
3
2
................
15 responses ............
505
........................................................................................................................
................
Total burden ..
50
10 submissions .........
500
Requirement not considered IC under 5 CFR
1320.3(b)(2).
$0 Non-hour cost burdens
* The time and financial resources necessary to comply with this requirement would be incurred in the normal course of business using existing
contracts already in place by the operator.
** Departure requests do not occur often but are included in burden calculation to allow for the rare occurrence when a company would request
a departure from conducting a survey or submitting a report.
lotter on DSK11XQN23PROD with RULES1
• 30 CFR 550.194(a): This final rule
will require that any EP, DOCD, or DPP
that proposes activities involving
disturbance of the seafloor must be
accompanied by or contain an
archaeological report and supporting
evidence. BOEM proposes to increase
the estimated annual burden hours
related to this subsection to 500 hours
(+500 annual burden hours over the
currently approved burden).
• 30 CFR 550.194(c): This final rule
will require that archaeological reports
must be based on an HRG survey of the
APE. The HRG requirements described
in 30 CFR 550.194(c) are also part of the
requirements used for geological and
geophysical IC (i.e., shallow hazards
surveys) under 30 CFR 550.214 and
550.244 that OMB approved in Control
Number 1010–0151. Therefore, no
additional burdens are expected to be
placed on industry.
• 30 CFR 550.194(g): If an
archaeological resource is likely to be
present,14 this final rule will require an
operator to either relocate the proposed
operations to avoid adversely affecting
the resource or establish that the
resource does not exist, will not be
adversely affected by the operations, or
will be protected by mitigation
measures during the operations. The
likelihood that operators would
establish the archaeological resource is
not present is low. If operators relocate
14 Often, based on the archaeological report, a
sonar signature or magnetic anomaly will likely
represent an archaeological resource, but that fact
can only be confirmed through more in-depth
study. Thus, an option available to the operator is
to avoid it or to show that their operations will be
designed not to harm the potential archaeological
resources identified by the HRG survey.
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the project to avoid the known
archaeological resource, they could use
resources already contracted and
available on the project (without the
delay of additional investigation). The
operator likely will submit information
related to archaeological resources to
BOEM. The burdens related to the
submission of archaeological resource
information are accounted for in OMB
approved Control Number 1010–0151.
Therefore, BOEM has determined there
will likely not be an additional burden
on industry with this final rule
provision.
• 30 CFR 550.195(a): This final rule
will require the operator to notify the
BOEM Regional Director of any
unanticipated archaeological resource
discovery. This notification would
likely occur during the operator’s
remote sensing phase or during
deployment by a remotely operated
vehicle for surveys related to
hydrophones. BOEM expects that the
occurrence will be low, so BOEM
estimates the annual burden hours to
equal 3 hours (1 hour x 3 responses) (+3
annual burden hours above the
currently approved burden).
• The annual burden hours for
departure requests will be 2 annual
burden hours. (+2 annual burden hours
above the currently approved burden).
Title of Collection: Protection of
Marine Archaeological Resources
(Notice of Proposed Rulemaking).
OMB Control Number: 1010–0196.
Form Numbers: None.
Type of Review: New.
Total Estimated Number of Annual
Responses: 15 responses.
Total Estimated Number of Annual
Burden Hours: 505 hours.
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Respondent’s Obligations: Mandatory.
Frequency of Collection: On occasion.
Once this final rule becomes effective
and OMB approves the IC request 1010–
0196, BOEM will revise the existing
OMB Control Number 1010–0114 for the
affected subpart discussed above and
will adjust the annual burden hours
accordingly. The IC related to 30 CFR
part 550 does not include questions of
a sensitive nature. BOEM will continue
to protect proprietary information
according to the Freedom of Information
Act and the Department of the Interior’s
implementing regulations.
In addition, the PRA requires agencies
to estimate the total annual reporting
and recordkeeping non-hour cost
burdens resulting from the collection of
information. BOEM solicits your
comments regarding non-hour cost
burdens arising from this final rule. For
reporting and recordkeeping only, your
response should split the cost estimate
into two components: (1) total capital
and startup costs, and (2) annual
operation, maintenance, and disclosure
costs to provide the information. You
should describe the methods you use to
estimate your cost components,
including system and technology
acquisition, expected useful life of
capital equipment, discount rates, and
the period over which you 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 arising from this
final rule; (3) for reasons other than to
provide information or to keep records
for the U.S. Government; or (4) as part
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of customary and usual business or
private practices.
As part of BOEM’s continuing effort to
reduce paperwork and respondent
burdens, BOEM invites the public and
other Federal agencies to comment on
any aspect of this IC, including:
(1) Whether or not the collection of
information is necessary, including
whether or not the information will
have practical utility;
(2) The accuracy of our estimate of the
burden for this collection of
information;
(3) Ways to enhance the quality,
utility, and clarity of the information to
be collected; and
(4) Ways to minimize the burden of
the collection of information on
respondents.
J. National Environmental Policy Act
This final rule does not constitute a
major Federal action significantly
affecting the quality of the human
environment. A detailed environmental
analysis under NEPA is not required
because this final rule is covered by a
categorical exclusion (see 43 CFR
46.205). This final rule meets the
criteria set forth at 43 CFR 46.210(e) for
a Departmental categorial exclusion in
that this action is ‘‘nondestructive data
collection, inventory, study, research,
and monitoring activities’’ and the
criteria set forth at 43 CFR 46.210(i) for
a Departmental categorical exclusion in
that this action is ‘‘of an administrative,
financial, legal, technical, or procedural
nature.’’ Additionally, these activities
meet the criteria for a categorical
exclusion based on the Department
Manual in sections 15.4(A)(1), (C)(1),
and (C)(13). BOEM has also determined
that the final rule does not involve any
of the extraordinary circumstances
listed in 43 CFR 46.215 that would
require further analysis under NEPA.
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K. Data Quality Act
In promulgating this rule, BOEM did
not conduct or use a study, experiment,
or survey requiring peer review under
the Data Quality Act (Pub. L. 106–554,
app. C, sec. 515, 114 Stat. 2763, 2763A–
153–154). In accordance with the Data
Quality Act, the Department has issued
guidance regarding the quality of
information that it relies upon for
regulatory decisions. This guidance is
available at the Department’s website at:
https://www.doi.gov/ocio/policy-mgmtsupport/information-and-recordsmanagement/iq.
No comments were received on the
Data Quality Act during the public
comment period.
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L. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
Under E.O. 13211, BOEM is required
to prepare and submit to OMB a
‘‘Statement of Energy Effects for
significant energy actions.’’ This should
include a detailed statement of any
adverse effects on energy supply,
distribution, or use (including a
shortfall in supply, price increases, and
increased use of foreign supplies)
expected to result from the action and
a discussion of reasonable alternatives
and their effects. This rulemaking will
not have an effect on the production,
supply, distribution, or use of energy
and is not expected to have any effect
on the energy industry.
No comments were received on E.O.
13211 during the public comment
period.
M. Congressional Review Act
This action is subject to the
Congressional Review Act (CRA), 5
U.S.C. 801 et seq. BOEM will submit a
rule report to each chamber of Congress
and to the Comptroller General of the
United States. This action does not meet
the criteria in 5 U.S.C. 804(2).
List of Subjects in 30 CFR Part 550
Administrative practice and
procedure, Air pollution control,
Continental shelf, Environmental
impact statements, Environmental
protection, Federal lands, Government
contracts, Investigations, Mineral
resources, Oil and gas exploration, Oil
pollution, Outer continental shelf,
Penalties, Pipelines, Public lands—
rights-of-way, Reporting and
recordkeeping requirements, Rights-ofway, Sulfur.
This action by the Principal Deputy
Assistant Secretary is taken herein
pursuant to an existing delegation of
authority.
Steven H. Feldgus,
Principal Deputy Assistant Secretary, Land
and Minerals Management.
For the reasons stated in the
preamble, BOEM amends 30 CFR part
550 as follows:
PART 550—OIL AND GAS AND
SULFUR OPERATIONS IN THE OUTER
CONTINENTAL SHELF
1. The authority citation for part 550
is revised to read as follows:
■
Authority: 25 U.S.C. 3001 et seq.; 30 U.S.C.
1751; 31 U.S.C. 9701; 43 U.S.C. 1334.
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Subpart A—General
2. Amend § 550.105 by revising the
definition of ‘‘Archaeological resource’’
to read as follows:
■
§ 550.105
Definitions.
*
*
*
*
*
Archaeological resource means the
material remains of human life or
activities that are at least 50 years of age
and that are of archaeological interest,
including any historic property
described by the National Historic
Preservation Act, as defined in 36 CFR
800.16(l).
*
*
*
*
*
■ 3. Revise § 550.194 to read as follows:
§ 550.194 How must I conduct my
approved activities to protect
archaeological resources?
(a) To protect archaeological
resources, your EP, DOCD, or DPP that
proposes activities involving
disturbance of the seafloor must be
accompanied by or contain one of the
following:
(1) An archaeological report based on
a high-resolution geophysical (HRG)
survey of the APE defined, pursuant to
36 CFR 800.16(d) of the Advisory
Council on Historic Preservation’s
regulations implementing section 106 of
the NHPA, as the depth and breadth of
the seabed that could potentially be
impacted by proposed activities;
(2) A reference to an archaeological
report based on an HRG survey of the
APE that you previously submitted for
your lease, provided that any previously
submitted survey complies with the
survey parameters identified in these
regulations and the results of the survey
are, in BOEM’s judgment, valid. BOEM
may consider a survey or the resulting
report to be invalid if BOEM suspects
that changes to the seafloor environment
warrant acquiring additional data,
considering, for example, the time
elapsed since the prior survey or change
in seafloor from a geological event such
as a mudslide; or
(3) Evidence demonstrating to
BOEM’s satisfaction that a reasonable
and good faith effort to identify
archaeological resources within the APE
has already been performed, provided
that the past efforts are sufficient to
identify possible marine archaeological
resources at a degree of certainty
reasonably similar to or better than an
HRG survey.
(b) The archaeological report and
evidence described in paragraph (a) of
this section must have been or be
prepared and signed by a qualified
marine archaeologist. A qualified
marine archaeologist must meet the
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Secretary of the Interior’s ‘‘Standards
and Guidelines for Historic Preservation
Projects: Professional Qualifications
Standards’’ as developed per the
National Historic Preservation Act (54
U.S.C. 306131), and any subsequent
updates to those standards and
guidelines, and must have experience in
conducting or overseeing HRG surveys
and processing and interpreting the
resulting data for archaeological
potential.
(c) The geophysical survey resolution
for the surveys described in paragraph
(a) of this section must be sufficiently
detailed to identify potential
archaeological resources and must be
performed using instrumentation and
methodology that is state-of-the-art and
that meets or exceeds scientific
standards for conducting marine
archaeological surveys. The surveys
must, at a minimum, adhere to the
following operational requirements and
performance standards:
(1) A state-of-the-art navigation
system with sub-meter accuracy able to
continuously determine the surface
position of the survey vessel and inwater position of towed and
autonomous survey sensors. Position
fixes must be digitally and continuously
logged along the vessel track. Geodesy
information must be clearly presented
and consistent across all data types.
Navigation systems meeting the criteria
outlined in this section do not require
prior approval by BOEM.
(2) For geophysical surveys conducted
in water depths of 100 meters (328 feet)
or less, the survey must employ a total
field magnetometer, gradiometer, or
other similar instrument having equal or
superior measurement capability. The
magnetometer, gradiometer, or its
equivalent must be towed as close to the
seafloor as possible and sufficiently far
from the vessel to isolate the sensor
from the magnetic field of the survey
vessel and the other survey instruments.
The magnetometer, gradiometer, or its
equivalent must be towed at a sufficient
altitude to detect ferrous metals or other
magnetically susceptible materials of at
least 1,000 pounds (453 kilograms) in
mass with a minimum magnetic
deflection of 5 gamma (g; 5 nanotesla
[nT]). An accurate method must be used
to record the height of the
magnetometer, gradiometer, or its
equivalent in the water column. The
altitude of the magnetometer,
gradiometer, or its equivalent must be
continuously recorded during data
acquisition along the survey. The
instrument’s sensitivity must be 1 g (1
nT) or less. Background noise level must
not exceed a total of 3 g peak to peak
with data samples of at least 2 points
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per meter along the survey track. All
collected data must be recorded on a
digital medium that can be linked
electronically to the positioning data.
Survey line, time, position, altitude, and
speed must be annotated on all output
data. The data must be post-processed
and contoured in a manner to best
facilitate the interpretation of potential
archaeological resources.
(3) For geophysical surveys conducted
to locate potential areas of prior human
occupation, a sub-bottom profiler
system must be used to identify and
map buried geomorphological features
of archaeological potential that may
exist within the horizontal and vertical
APE, taking into account the
geomorphology of the operational area
and the parameters of the proposed
project (including the maximum depth
of disturbance from the proposed
activities). The use of a sub-bottom
profiler is required in water depths of
140 meters or less, unless BOEM
specifies a different water depth based
on its determination of the furthest
extent of prior human occupation on the
OCS. The sub-bottom profiler system
must be capable of achieving a depth of
penetration and resolution of vertical
bed separation that is sufficient to allow
for the identification and cross-track
mapping of features of archaeological
potential (e.g., shell middens,
paleochannels, levees, inset terraces,
paleolagoon systems, and other relict
landforms). The sub-bottom profiler
system employed must be capable of
achieving a resolution of vertical bed
separation of at least 0.3 meters (1 foot)
in the uppermost 10 to 15 meters (33 to
50 feet) of sediments, depending on the
substrate.
(4) In all water depths, a side-scan
sonar or equivalent system must be used
to provide continuous planimetric
imagery of the seafloor to identify
potential archaeological resources on
and partly embedded in the seafloor. To
provide sufficient resolution of seafloor
features, BOEM requires the use of a
system that operates at as high a
frequency as practicable based on the
factors of line spacing, instrument
range, and water depth. The sonar
system must detect small, discrete
targets 0.5 meters (1.6 feet) in length at
maximum range, along the track. The
instrument range must provide at least
100 percent overlapping coverage (i.e.,
200 percent seafloor coverage) between
adjacent primary survey lines. Greater
than 200 percent overlapping coverage
may be necessary to guarantee nadir
coverage and account for survey vessel
drift between lines, which may be an
important consideration when
surveying in deep water. The side-scan
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71183
sonar sensor must be towed above the
seafloor at a height that is 10 to 20
percent of the range of the instrument.
Data must be digitally recorded and
visually displayed to monitor data
quality and identify targets of interest
during acquisition. The data must be
post-processed to improve data quality
by, for example, adjusting for slant
range effects and variable speed along
line.
(5) In all water depths, an echo
sounder or equivalent system must be
used to measure accurate water depths
across the area. Where swath
bathymetry data are acquired, it is
recommended that backscatter values
from the seabed returns are logged and
processed for use in seabed
characterization to support and
complement the side scan sonar data.
Single beam echo sounder data (or data
from the equivalent system) must be
used to verify the results of swath
bathymetry data to check for gross error.
The bathymetry systems must be set up
to accurately record data across the
range of water depths expected in the
survey area. Care must be taken in
selection of operating frequencies such
that the individual systems do not
interfere with each other. The
bathymetry systems must be used in
conjunction with an accurate motion
sensor to compensate for vessel motion.
Water column sound velocity must be
determined as a minimum at the start
and end of data acquisition, and at
suitable intervals throughout the
project, by use of a conductivity,
salinity, and temperature depth probe or
a direct reading sound velocity probe
suitable for use in the maximum water
depths expected within the survey area.
Water depths must be corrected for
vessel draft, tidal level, and referenced
to the appropriate vertical datum (LAT,
MSL, etc.). The final processed digital
terrain model data cell size covering the
entire survey area, without gaps, must
reflect the frequency of the system being
used, data density, and altitude above
seabed of the transducer head.
(6) An archaeological survey
conducted prior to the effective date of
these regulations may be used in lieu of
conducting a new survey, subject to
BOEM approval, provided the lessee or
operator can demonstrate that such
survey was conducted in such a manner
as to meet the objectives of this
paragraph (c).
(d) The Regional Director may
approve a departure from the provisions
of paragraph (c) of this section on a
case-by-case basis if the Regional
Director deems the departure necessary
because the applicable requirements, as
applied to a specific circumstance:
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Federal Register / Vol. 89, No. 170 / Tuesday, September 3, 2024 / Rules and Regulations
(1) Are impractical or unduly
burdensome;
(2) Are not necessary to achieve the
intended objectives of the marine
archaeology program;
(3) Fail to conserve the natural
resources of the OCS;
(4) Fail to protect life (including
human and wildlife), property, or the
marine, coastal, or human environment;
or
(5) Fail to protect sites, structures, or
objects of historical or archaeological
significance.
(e) Any departure approved under
this section must:
(1) Be consistent with requirements of
the OCS Lands Act;
(2) Protect the archaeological
resources to the same degree as if there
was no approved departure from the
regulations;
(3) Satisfy section 106 of the National
Historic Preservation Act and achieve
results for identifying archaeological
resources as if there was no approved
departure from the regulations;
(4) Not impair the rights of third
parties; and
(5) Be documented in writing.
(f) BOEM may reject any
archaeological report if the survey was
not prepared in accordance with the
requirements of paragraph (c) in this
section or any BOEM-approved
departure to the survey requirements.
BOEM may also reject any
archaeological report if the results
produced from the survey do not meet
the data and resolution requirements
specified under paragraph (c), regardless
of whether the survey was otherwise
conducted appropriately.
(g) If the archaeological report or
evidence mentioned in paragraph (a) of
this section suggests that an
archaeological resource may be present,
you must:
(1) Situate your operations so as not
to adversely affect the area where the
known or suspected archaeological
resource may be located; or,
(2) Establish, to the satisfaction of the
Regional Director, that an archaeological
resource does not exist by conducting
further archaeological investigation,
under the supervision of a qualified
marine archaeologist, using equipment
and techniques the Regional Director
considers appropriate. You must submit
a report documenting the further
investigation to the Regional Director for
review;
(i) If the further investigation cannot
establish to the satisfaction of the
Regional Director that an archaeological
resource is not likely to be present at the
operational site, you must demonstrate
to the satisfaction of the Regional
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15:49 Aug 30, 2024
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Director that your operations will not
adversely affect the suspected resource;
or,
(ii) If, based on the additional
archaeological investigation, the
Regional Director determines that an
archaeological resource is likely to be
present in the operational site and may
be adversely affected by operations, you
must take whatever additional steps are
specified by the Regional Director to
protect the archaeological resource
before you conduct any further
operations at the operational site; or,
(3) If the Regional Director determines
that an archaeological resource is likely
to be present in the lease area, that it is
likely to be adversely affected by your
operations, and that there are no feasible
means to avoid this adverse effect, the
Regional Director may prohibit your
operations in the APE.
(h) Any lessee or operator that has an
existing lease in effect prior to October
3, 2024 may apply the regulations in
effect prior to this date with respect to
the provisions of this section for such
lease for a period of time not to exceed
September 3, 2025.
■ 4. Add § 550.195 to read as follows:
§ 550.195 What must I do if I discover a
potential archaeological resource while
conducting operations on the lease or rightof-way area?
(a) If you discover any unanticipated
archaeological resources while
conducting operations on the lease or
right-of-way area, you must immediately
halt seafloor disturbing operations
within at least 305 meters (1,000 feet) of
the area of the discovery and report the
discovery to the Regional Director
within 72 hours.
(b) If BOEM determines that the
resource may be eligible for listing on
the National Register of Historic Places
in accordance with the applicable
regulations, the Regional Director will
specify measures you must take to
protect the resource during operations
and activities.
(c) For activities and operations under
BSEE jurisdiction, BOEM will refer the
discovery to BSEE to determine if the
resource may have been adversely
impacted by your operations and
activities prior to or during its discovery
in paragraph (a). The Regional Director
of BSEE will specify measures you must
take to either demonstrate that no
adverse impacts have occurred or to
document the extent of adverse impacts
that have occurred. BSEE may further
specify measures you must take to
remediate adverse impacts to any
archaeological resources resulting from
your operations and activities and will
relay to BOEM both the results of its
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Sfmt 9990
investigation and any further measures
it has imposed to remediate the adverse
impacts that may have occurred.
[FR Doc. 2024–19188 Filed 8–30–24; 8:45 am]
BILLING CODE 4340–98–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2022–0222]
RIN 1625–AA09
Drawbridge Operation Regulation;
Okeechobee Waterway, Stuart, FL;
Correction
Coast Guard, DHS.
Temporary interim rule;
correction.
AGENCY:
ACTION:
The Coast Guard is correcting
a temporary interim rule with request
for comments that appeared in the
Federal Register on August 7, 2024. The
temporary interim rule temporarily
modifies the operating schedule that
governs the Florida East Coast Railroad
Bridge, across the Okeechobee
Waterway, mile 7.41, at Stuart, FL. The
temporary interim rule had a
typographical error in one of the
amendatory instructions. This
document corrects that error.
DATES: Effective September 3, 2024.
FOR FURTHER INFORMATION CONTACT: For
information about this document call or
email Ms. Jennifer Zercher, Bridge
Management Specialist, Seventh Coast
Guard District; telephone 571–607–
5951, email Jennifer.N.Zercher@
uscg.mil.
SUMMARY:
In FR Doc.
2024–17452 appearing on page 64369 in
the Federal Register of Wednesday,
August 7, 2024, the following correction
is made:
SUPPLEMENTARY INFORMATION:
§ 117.317
[Corrected]
1. On page 64369, at the bottom of the
first column, in part 117, in amendment
2, the instruction ‘‘Section 117.261 is
amended by staying paragraph (c) and
adding paragraph (k).’’ is corrected to
read ‘‘Section 117.317 is amended by
staying paragraph (c) and adding
paragraph (k).’’
■
Dated: August 28, 2024.
Michael. T. Cunningham,
Chief, Office of Regulations and
Administrative Law, U.S. Coast Guard.
[FR Doc. 2024–19697 Filed 8–30–24; 8:45 am]
BILLING CODE 9110–04–P
E:\FR\FM\03SER1.SGM
03SER1
Agencies
[Federal Register Volume 89, Number 170 (Tuesday, September 3, 2024)]
[Rules and Regulations]
[Pages 71160-71184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19188]
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DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
30 CFR Part 550
[Docket No. BOEM-2023-0012]
RIN 1010-AE11
Protection of Marine Archaeological Resources
AGENCY: Bureau of Ocean Energy Management, Interior.
ACTION: Final rule.
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SUMMARY: The Department of the Interior (the Department or DOI), acting
through the Bureau of Ocean Energy Management (BOEM), is finalizing
regulatory amendments to require lessees and operators to submit an
archaeological report with any oil and gas exploration or development
plan they submit to BOEM for approval of proposed activities on the
Outer Continental Shelf (OCS). The previous
[[Page 71161]]
regulations required an archaeological report only if the plan covered
an area that a BOEM Regional Director had ``reason to believe'' may
have contained an archaeological resource. This final rule will
increase the protection of archaeological resources in compliance with
section 106 of the National Historic Preservation Act (NHPA) by
acknowledging that there is a greater likelihood that such resources
exist, thereby increasing the likelihood that these resources will be
located and identified before they can be inadvertently damaged by an
OCS operator. This rule defines the minimum level of survey information
necessary to support the conclusions in the archaeological report, the
procedures for reporting possible archaeological resources and
continuing operations when a possible resource is present, and what to
do if an unanticipated archaeological resource is discovered during
operations.
DATES: This final rule is effective October 3, 2024. You may make
comments on the information collection (IC) burden in this rulemaking
and the Office of Management and Budget (OMB) and BOEM must receive
such comments on or before October 3, 2024. The IC burden comment
opportunity does not affect the final rule effective date.
ADDRESSES: BOEM has established a docket for this action under Docket
No. BOEM-2023-0012. All documents in the docket are listed on the
https://www.regulations.gov website and can be found by entering the
Docket No. in the ``Enter Keyword or ID'' search box and clicking
``search''.
You may submit comments on the IC to OMB's desk officer for the
Department of the Interior through https://www.reginfo.gov/public/do/PRAMain. From this main web page, you can find and submit comments on
this particular information collection by proceeding to the boldface
heading ``Currently under Review--Open for Public Comments,'' selecting
``Department of the Interior'' in the ``Select Agency'' pull down menu,
clicking ``Submit,'' then checking the box ``Only Show ICR for Public
Comment'' on the next web page, scrolling to this final rule, and
clicking the ``Comment'' button at the right margin. Additionally, you
may use the search function to locate the IC request related to the
rule on the main web page. Please provide a copy of your comments to
the Information Collection Clearance Officer, Office of Regulations,
BOEM, Attention: Anna Atkinson, 45600 Woodland Road, Sterling, Virginia
20166; or by email to [email protected]. Please reference OMB
Control Number 1010-0196 in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Karen Thundiyil, Chief, Office of
Regulations, BOEM, 1849 C Street NW, Washington, DC 20240, at email
address [email protected] or at telephone number (202) 742-0970.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services for contacting
the contacts listed in this section. These services are available 24
hours a day, 7 days a week, to leave a message or question with the
above individual. You will receive a reply during normal business
hours. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. Multiple acronyms are included
in this preamble. While this list may not be exhaustive, to ease the
reading of this preamble and for reference purposes, BOEM explains the
following acronyms here:
AAA American Anthropological Association
ACRA American Cultural Resources Association
ACUA Advisory Council on Underwater Archaeology
AKDNR Alaska Department of Natural Resources
AKSHPO Alaska State Historic Preservation Office
ANCSA Alaska Native Claims Settlement Act
APE Area of Potential Effect
API American Petroleum Institute
ARPA Archaeological Resources Protection Act
BOEM Bureau of Ocean Energy Management
BOEMRE Bureau of Ocean Energy Management, Regulation and Enforcement
BSEE Bureau of Safety and Environmental Enforcement
CAH Coalition for American Heritage
CFR Code of Federal Regulations
CRA Congressional Review Act
DOI Department of the Interior
DOCD Development Operations Coordination Document
DPP Development and Production Plan
E.O. Executive Order
EP Exploration Plan
FR Federal Register
HRG High-Resolution Geophysical
IC Information Collection
MMS Minerals Management Service
NAGPRA Native American Graves Protection and Repatriation Act
NAICS North American Industry Classification System
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NOAA National Oceanic and Atmospheric Administration
NOPC National Ocean Policy Coalition
NPS National Park Service
NRHP National Register of Historic Places
nT Nano-tesla
NTL Notice to Lessees
OIRA Office of Information and Regulatory Affairs (a component of
OMB)
OMB Office of Management and Budget
OOC Offshore Operators Committee
OCS Outer Continental Shelf
OCSLA Outer Continental Shelf Lands Act
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
SAA Society for American Archaeology
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act
SHA Society for Historical Archaeology
TXHC Texas Historical Commission
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code
WADAHP Washington Department of Archaeology and Historic
Preservation
Background information. On February 15, 2023, the Department
proposed revisions to the regulations for the protection of marine
archaeological resources on the OCS. The comments received regarding
the proposed rule, some of which resulted in regulatory changes, and
their corresponding responses are summarized in this preamble. A
``track changes'' version of the regulatory language that identifies
the changes in this action compared to the current regulations is also
available in the docket.
Organization of this document. The information in this preamble is
organized as follows:
I. General Information
A. Executive Summary
1. Purpose of This Regulatory Action
2. Summary of Major Provisions
3. Costs and Benefits
B. Does this action apply to me?
C. Where can I get a copy of this document and other related
information?
II. Background
A. BOEM Statutory Authority and Responsibilities
B. History of Protection of Marine Archaeological Resource
Regulations and Guidance
C. Purpose of This Rulemaking
D. Summary of the February 15, 2023, Proposed Rule
III. Key Provisions of the Final Rule
IV. Summary of Public Comments and BOEM's Corresponding Responses
A. Overview of Comments
B. General Comments
1. Regulatory Authority
2. Cost Implications
3. Tribal Implications
[[Page 71162]]
4. Removal of the ``Reason to Believe'' Standard and the Use of
Alternatives to Direct Sources
5. Compliance With the National Historic Preservation Act
C. Technical Comments
1. Use of Direct High Resolution Geophysical Surveys
2. Technical Parameters for Conducting Direct Surveys
3. Archaeological Reports
4. Seafloor Disturbing Operations
5. Definitions
V. Summary of Economic Impacts and Benefits
A. What are the economic impacts?
B. What are the benefits?
VI. Section-by-Section Analysis
VII. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Review, as
Amended by Executive Order 14094: Modernizing Regulatory Review, and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act
D. Unfunded Mandates Reform Act
E. Executive Order 12630: Governmental Actions and Interference
With Constitutionally Protected Property Rights
F. Executive Order 13132: Federalism
G. Executive Order 12988: Civil Justice Reform
H. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Data Quality Act
L. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
M. Congressional Review Act
I. General Information
A. Executive Summary
1. Purpose of This Regulatory Action
The purpose of this rule is to address concerns regarding BOEM's
regulatory requirements for protecting marine archaeological resources;
specifically, BOEM's inability to accurately identify the location of
such potential resources and BOEM's long term historic policy of
requiring archaeological surveys only in cases where there is evidence
that a resource exists. This rule amends the existing provisions to
require lessees and operators to submit an archaeological report with
any oil and gas exploration or development plan they submit to BOEM for
approval of proposed activities on the OCS.
2. Summary of Major Provisions
The two major provisions finalized in this rule are: (1) the
replacement of the ``reason to believe'' standard in the current
regulations with the requirement that all proposed exploration or
development plans that would result in seabed disturbance must be
accompanied by an archaeological report, and (2) the codification of
minimum requirements for any new high-resolution geophysical (HRG)
surveys. The standards for new HRG surveys are generally defined in
performance terms based on scientific standards, rather than using
specific parameters. This provision allows lessees and operators
greater flexibility in determining how to conduct their surveys and how
to produce the resulting archaeological reports.
3. Costs and Benefits
BOEM estimates that the changes will increase total OCS archaeology
survey costs over the next 20 years by $5.9 million (at a 3 percent
discount rate). The majority of the revisions in this final rule will
have no or negligible cost impacts for lessees and operators. All
expected incremental costs of the rule are due to the requirement for
HRG archaeological surveys in water depths of less than or equal to 100
meters and for a magnetometer, gradiometer, or the equivalent towed at
an altitude and line spacing sufficient to detect ferrous metals or
other magnetically susceptible materials of at least 1,000 pounds.
B. Does this action apply to me?
Entities potentially affected by this final action are holders of
oil, gas, and sulfur leases on the OCS and associated operators.
C. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, BOEM will post an
electronic copy of the documents related to this final action at:
https://www.boem.gov/regulations-and-guidance.
II. Background
A. BOEM Statutory Authority and Responsibilities
Section 5 of the Outer Continental Shelf Lands Act (OCSLA), 43
U.S.C. 1334, authorizes the Secretary of the Interior (Secretary) to
issue regulations to administer OCS leasing for mineral development.
Section 5(a) of OCSLA (43 U.S.C. 1334(a)) authorizes the Secretary to
``prescribe such rules and regulations as may be necessary to carry out
[provisions of OCSLA]'' related to leasing on the OCS. Section 5(b) of
OCSLA (43 U.S.C. 1334(b)) provides that ``compliance with regulations
issued under'' OCSLA must be a condition for ``[t]he issuance and
continuance in effect of any lease, or of any assignment or other
transfer of any lease, under the provisions of'' OCSLA. Section 18 of
OCSLA (43 U.S.C. 1344) states that ``[m]anagement of the [OCS] shall be
conducted in a manner which considers economic, social, and
environmental values of the renewable and nonrenewable resources
contained in the [OCS].''
Secretary's Order 3299 (as amended) established BOEM and delegated
to it the authority to carry out conventional (e.g., oil and gas) and
renewable energy-related functions on the OCS, including, but not
limited to, activities involving resource evaluation, planning, and
leasing under the provisions of OCSLA. As such, BOEM is responsible for
managing development of the Nation's offshore energy, mineral, and
geological resources in an environmentally and economically responsible
way. BOEM requires a lessee to submit a detailed plan of its proposed
activities for review before BOEM will approve, among other activities,
the installation of any facility, structure, or pipeline on the OCS. As
part of the plan submission, BOEM requires detailed information
regarding the nature and location of historic properties that may be
affected by the proposed activities. This information is used to assist
the Bureau in meeting its obligation under section 106 of the NHPA and
the National Environmental Policy Act (NEPA).
B. History of Protection of Marine Archaeological Resource Regulations
and Guidance
Beginning in 1982, BOEM's predecessor agency, the Minerals
Management Service (MMS), developed a predictive model to attempt to
define where archaeological resources were ``likely'' to exist in the
Gulf of Mexico. MMS, and later BOEM, used the predictive model to
designate certain OCS lease blocks as possessing a high- or low-
probability for containing archaeological resources. This model relied
primarily on archival evidence of reported lost shipwrecks.
Prior to 2006, the Department's regulation at then 30 CFR 250.194,
``What archaeological reports and surveys must I submit?'' stated: ``If
it is likely that an archaeological resource exists in the lease area,
the Regional Director will notify you in writing.'' That regulation was
revised in 2006 to clarify the basis for requiring an archaeological
survey (i.e., a type of geophysical survey that is suitable for
locating potential archaeological resources). The revised regulation
stated: ``If the Regional Director has reason to believe that an
archaeological resource may exist in the lease area, the
[[Page 71163]]
Regional Director will require in writing that your EP, DOCD, or DPP be
accompanied by an archaeological report.'' In explaining the revision,
the preamble to the 2006 final rule (71 FR 23858, April 25, 2006)
clarified the basis upon which the Regional Director would invoke the
requirement for an archaeological survey on a lease area:
Because it cannot be determined whether it is ``likely'' that an
archaeological resource exists on a specific lease area until the
archaeological survey has first been conducted, the wording would be
changed to state, ``if the Regional Director has reason to believe
that an archaeological resource may exist.'' The ``reason to
believe'' is established by a technical analysis of existing
archaeological, geological, and other pertinent environmental data.
Under the regulations after 2006, if the Regional Director
exercises the requirement for an archaeological survey on a lease area
in accordance with 30 CFR 550.194(a), the lessee or operator must
produce an archaeological report. If the archaeological report suggests
that an archaeological resource may be present, then an operator or
lessee must either: ``(1) Locate the site of any operation so as not to
adversely affect the area where the archaeological resource may be; or
(2) Establish to the satisfaction of the Regional Director that an
archaeological resource does not exist or will not be adversely
affected by operations.'' To meet this second option, further
archaeological investigation must be conducted by a qualified marine
archaeologist and a geophysicist, using survey equipment and techniques
the Regional Director considers appropriate. Finally, for the Regional
Director to confirm that an archaeological resource does not exist, the
lessee and operator must submit the investigation report to the
Regional Director for review.
The MMS tested the predictive model in 2003 and found that there
was no significant difference in the likelihood of finding a shipwreck
in lease blocks designated as high probability under the predictive
model compared to lease blocks without that designation. That led
BOEM's predecessor agency, the Bureau of Ocean Energy Management,
Regulation and Enforcement (BOEMRE), to implement a new seabed
disturbance survey procedure, which BOEMRE presented to operators
during a workshop in March 2011. This procedure involved conducting an
environmental assessment under NEPA for all new and revised exploration
and development plans in deep water. BOEM currently applies this
approach, when appropriate, to plans in lease areas outside of OCS
lease blocks designated by its predictive model as highly probable for
containing archaeological resources. As discussed in the preamble to
the 2023 proposed rule (88 FR at 9800), since implementation of the
pre-seabed disturbance survey policy in 2011, over 100 new confirmed or
potential shipwrecks have been identified, most of which are located in
lease blocks that would not have been surveyed if BOEM had relied only
on the predictive model. This includes three of the most historically
significant shipwrecks ever found in the Gulf of Mexico.
After evaluating over 40 years of empirical evidence collected
through research conducted by and for the oil and gas industry,
academic institutions, and Federal and State agencies, BOEM has
concluded that the model was at times incomplete and inaccurate and,
therefore, unhelpful. BOEM's predictive model, despite several attempts
at updating it, has often failed to accurately predict the presence or
absence of ship or plane wrecks. In many cases, archaeological
resources have been discovered in lease blocks where the model had not
``predicted'' any, and, conversely, operators surveyed lease blocks
where the historical evidence suggested that a shipwreck should be
located and found nothing. This problem is compounded by the fact that
the scarcity of historical and archival materials correlates to the age
of the shipwreck or archaeological resource, such that the resources
least likely to be accurately identified in the models are sometimes
the oldest and most important for understanding our Nation's history.
BOEM determined that it was possible that previously undiscovered ship
or plane wrecks could be present in any OCS lease block in any BOEM
region regardless of the model's results. Because the model's accuracy
is dependent on the availability and adequacy of the underlying
historical data, and because such data is often neither available nor
adequate for the offshore environment, BOEM determined that a better
approach is necessary.
BOEM's existing regulations require operators \1\ to submit an
archaeological report with an Exploration Plan (EP), a Development
Operations Coordination Document (DOCD), or a Development and
Production Plan (DPP) (collectively, the ``plans'') seeking BOEM
authorization to disturb the seafloor only if a BOEM Regional Director
has a ``reason to believe'' that an archaeological resource may be
present. The agency interpreted this ``reason to believe'' standard as
requiring its Regional Directors either to have evidence that such a
resource is present or to use a predictive model that indicates a
resource is likely to be present in the area.
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\1\ In some cases, lessees perform the functions of operators
acting on their own behalf and, in other cases, operators are
contracted to perform certain functions on behalf of the lessee(s).
For the purposes of this preamble, any reference to the term
``operator'' should be considered to apply to lessee(s), as well, to
the extent that they perform the functions that would typically be
contracted to an operator.
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With this rule, BOEM is finalizing regulatory amendments to remove
the ``reason to believe'' standard and to require lessees and operators
to submit an archaeological report with all plans that propose seabed
disturbance. This report must be based on a site-specific HRG survey
that effectively identifies potential archaeological resources; HRG
surveys are already required to identify shallow hazards in 30 CFR
550.214(e) and 550.244(e). HRG surveys are routinely used in the
offshore environment to identify the presence or absence of potential
geological and man-made hazards, sensitive biological habitats, and
archaeological resources. In keeping with professional standards that
have evolved since the existing regulations were adopted, this revision
would define the minimum level of survey information necessary to
support the conclusions in the archaeological report. These changes
would facilitate BOEM's obligation to undertake a ``reasonable and good
faith effort'' to carry out our appropriate historic property
identification efforts under the NHPA (see 36 CFR 800.4(b)(1)) and its
analysis of appropriate mitigation measures to avoid damaging historic
and archaeological resources under NEPA.
Additionally, during oil and gas operations on the OCS, a lessee or
operator may find or unearth unanticipated ``cultural items'' as
defined in the Native American Graves Protection and Repatriation Act
(NAGPRA), 25 U.S.C. 3001-3013. Lessees and operators are subject to the
marine archaeology requirements provided for in this rule during their
OCS operations, and they may also be subject to other laws, such as
NAGPRA, in the event they discover cultural or other items. NAGPRA has
its own regulatory requirements separate and distinct from this final
rule.
C. Purpose of This Rulemaking
The purpose of this final rule is to address concerns that BOEM's
existing regulatory requirements fail to adequately protect marine
archaeological resources. This rule
[[Page 71164]]
implements new regulatory provisions that require lessees and operators
to submit an archaeological report with any oil and gas exploration or
development plan.
D. Summary of the February 15, 2023, Proposed Rule
On February 15, 2023, DOI published a notice of proposed rulemaking
in the Federal Register at 88 FR 9797, which proposed amendments to 30
CFR part 550. The proposed rule would have required lessees and
operators to submit an archaeological report with any oil and gas
exploration or development plan they submit to BOEM for approval of
proposed activities on the OCS. Under the existing regulations, an
archaeological report was required only if the plan would cover an area
that a BOEM Regional Director had reason to believe would contain an
archaeological resource. The objective of the proposed rule was to
increase protection of archaeological resources in compliance with
section 106 of the NHPA by assuming that there is a greater likelihood
that such resources exist, thereby increasing the probability that they
are located and identified before they are inadvertently damaged by an
OCS operator. Additionally, the proposed rule defined the minimum level
of survey information necessary to support the conclusions in the
archaeological report, the procedure for reporting possible
archaeological resources, the procedure for continuing operations when
a possible resource is present, and what to do if an unanticipated
archaeological resource is discovered during operation.
III. Key Provisions of the Final Rule
The most important amendment made by this final rule to the
Department's existing regulations is to eliminate the ``reason to
believe'' standard from Sec. 550.194, whereby lessees were required to
conduct marine archaeological surveys only in cases where ``the
Regional Director has reason to believe that an archaeological resource
may exist in the lease area.'' Instead, the revised section of the
regulations will require the submission, with all proposals for seabed
disturbance in an EP, DOCD, or DPP, of an archaeological report based
on a site-specific HRG survey designed in such a manner as to
effectively identify potential archaeological resources.
This final rule, in Sec. 550.194, provides for the following:
Each HRG survey must be conducted using state-of-the-art
instrumentation and methodology that meet or exceed scientific
standards for conducting marine archaeological surveys.
Lessees must comply with the outlined minimum scientific
standards; however, BOEM recognizes that emerging technologies and
methods may be used to achieve or exceed these standards. In these
instances, BOEM may approve a departure from the standard provisions of
the rule on a case-by-case basis if it meets the objectives specified
in the regulations.
The survey vessel's navigation system must continuously
register its surface position, specify the logging position data, and
specify the presentation of geodesy information.
HRG surveys must use a total field magnetometer,
gradiometer, or other similar instrument having equal or superior
measurement capability for surveys conducted in waters of 100-meter
depth or less. This rule also establishes the requirements for the
collection of data necessary to assist in the identification of
archaeological resources on the OCS. The sensor must be towed in such a
manner that a magnetic field produced by ferrous metal associated with
a historic shipwreck \2\ (e.g., a wooden ship's fasteners, anchors, and
cannons) can be detected.
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\2\ A metal hulled shipwreck or a wooden shipwreck with large
anchors or iron cannon would most likely be recorded using a
magnetometer. Most ships through history were wooden shipwrecks
until the modern era. These wrecks are more difficult to locate
using geophysical methods.
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For geophysical surveys conducted in water depths of 140
meters (459 ft) or less, a sub-bottom profiler system must be used to
identify potential areas of prior human occupation that may exist
within the horizontal and vertical Area of Potential Effect (APE),
taking into account the geomorphology of the operational area and the
parameters of the proposed project (including the maximum depth of
disturbance from the proposed activities).
Every survey on the OCS subject to this rule must meet
various performance standards to ensure that archaeological resources
are not overlooked. The results of every survey must be collected and
analyzed by a qualified marine archaeologist who meets the Secretary of
the Interior's Standards and Guidelines \3\ and must have experience in
conducting or overseeing HRG surveys and processing and interpreting
the resulting data for archaeological potential.
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\3\ Available at: https://www.nps.gov/articles/series.htm?id=62144687-B082-538A-A0174FFF26496394.
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In all water depths, a side-scan sonar or equivalent
system must be used to provide continuous planimetric imagery of the
seafloor to identify potential archaeological resources partly embedded
in the seafloor. To provide sufficient resolution of seafloor features,
this rule requires the use of a system that operates at as high a
frequency as practicable based on the factors of line spacing,
instrument range, and water depth.
In all water depths, an echo-sounder or equivalent system
must be used to measure accurate water depths across the area. Where
swath bathymetry data are acquired, BOEM recommends that backscatter
values from the seabed returns are logged and processed for use in
seabed characterization to support and complement the side-scan sonar
data. Single beam echo sounder data should be used to verify the
results of swath bathymetry data to check for gross error.
Existing lessees and operators may, during the first year
after the effective date of this final rule, apply the prior
regulations and standards to surveys conducted during that time. New
lessees and operators will be required to apply the requirements of
this rule from the effective date of the rule.
An archaeological survey conducted prior to the effective
date of this rule may be used in lieu of conducting a new survey,
subject to BOEM approval, provided the lessee or operator can
demonstrate that such survey was conducted in such a manner as to meet
the performance requirements of this rule.
If a lessee or operator discovers any unanticipated
archaeological resource while conducting operations on the lease or
right-of-way area, they must immediately halt seafloor disturbing
operations within at least 305 meters (1,000 feet) of the area of the
discovery and report the discovery to the BOEM Regional Director within
72 hours.
The standards described above are generally defined in this rule in
performance terms based on scientific standards, rather than using
specific parameters. This will allow lessees and operators greater
flexibility in determining how to conduct their surveys and how to
produce the resulting archaeological reports.
IV. Summary of Public Comments and BOEM's Corresponding Responses
A. Overview of Comments
A total of 32 comments were received in response to the proposed
rule. The majority of the comments (15) came from individual
archaeologists and technical specialists. An additional 6 comments came
from trade or cultural
[[Page 71165]]
associations, 4 comments came from State government agencies, 2 came
from individual Native American Tribes, and 5 came from offshore energy
trade associations or companies. Specifically, commenting individuals
and organizations consisted of the following:
Table 1--Summary of Commenters
------------------------------------------------------------------------
Organization type Organization names Count
------------------------------------------------------------------------
Individual Archaeologists or .......................... 15.
General Members of the Public.
Archaeological/Cultural Association American Cultural 6.
Resources Center.
Advisory Council on
Underwater Archaeology..
American Anthropological
Association..
Coalition for American
Heritage..
Society for Historical
Archaeology Ocean
Foundation..
State Agency....................... Alaska Department of 4.
Natural Resources.
Alaska State Historic
Preservation Office..
State of Washington Dept.
of Archaeology and
History Preservation..
Texas Historical
Commission..
Native American Tribe.............. Chickahominy Tribe........ 2.
Rappahannock Tribe........
Industry Trade Association......... American Petroleum 3.
Institute.
National Ocean Policy
Coalition..
Offshore Operators
Committee..
Offshore Operators of Surveying Echo Offshore............. 2.
Equipment. P&C Scientific............
------------------------------------------------------------------------
The vast majority of the responses (28 out of 32) were supportive
of the proposed rule. All of the comments submitted by individuals were
supportive of the rule, and several included technical suggestions
related to archaeological reports, data collection, and data analysis.
The two Native American Tribes submitted supportive comments and noted
that the proposed rule was an important step in ensuring that Tribal
cultural heritage is protected for future generations, and that BOEM
should fully evaluate a project's potential effects on Tribes. All
archaeological associations and societies that submitted comments on
the proposed rule expressed support and provided clarifying
recommendations for implementing the final rule, as well as technical
suggestions related to archaeological reports and data collection. One
individual supported the proposed rule and supported collaboration
between BOEM and the National Park Service (NPS) to further specify the
submerged archaeological resources professional qualification standard
in the Secretary of the Interior's Professional Qualification Standards
for Archaeology and Historic Preservation. One advocacy group (The
Ocean Foundation) expressed support for the proposed rule, particularly
the amendment to include historic resources on the National Register of
Historic Places (NRHP) into the definition of archaeological resources.
Two offshore operators of surveying equipment (Echo Offshore and P&C
Scientific) provided technical suggestions related to archaeological
reports, equipment specifications, and data collection. Multiple state
agencies (Alaska State Historic Preservation Office (AKSHPO), Texas
Historical Commission (TXHC), and the Washington State Department of
Archaeology and Historic Preservation (WADAHP)) expressed support for
the rulemaking and provided clarifying recommendations for implementing
the final rule, as well as technical suggestions related to
archaeological reports and data collection.
Four comments were received that were generally not supportive of
the proposed rule. These consisted of one state agency and three
offshore energy trade associations. The three offshore energy trade
associations (American Petroleum Institute (API), National Ocean Policy
Coalition (NOPC), and Offshore Operators Committee (OOC)) commented
that the rule is too burdensome and that BOEM did not accurately
represent the cost of the rulemaking. They requested that BOEM re-
propose the rule and associated regulatory impact analysis (RIA) to
allow for adequate stakeholder assessment and the opportunity to
provide additional comments. API asserted that it was unclear what
activities would be covered by the proposed rule and that more
certainty is needed to adequately assess potential impacts to
operations. One state agency (Alaska Department of Natural Resources
(AKDNR)) did not support the rulemaking and stated that BOEM may not
have the authority to require ``another expensive survey.'' This
conclusion contrasted with that of another agency in the same state,
the AKSHPO, which strongly supported the proposed rule.
B. General Comments
1. Regulatory Authority
Comment: The Ocean Foundation, Advisory Council on Underwater
Archaeology (ACUA), American Anthropological Association (AAA),
Coalition for American Heritage (CAH), and Society for Historical
Archaeology (SHA) recommended that the final rule include references to
the Secretary of the Interior's Guidelines, the NHPA, the
Archaeological Resources Protection Act (ARPA), and the Antiquities Act
under the legal authorities section.
Response: In response to this comment, BOEM has modified the
authority citation for part 550 to include the NHPA.\4\ The commenters
did not specify which Secretary of the Interior guidelines to reference
for the legal authorities. In any event, BOEM does not include
guidelines in the legal authorities section for Departmental
regulations. Furthermore, while the Antiquities Act may be applicable
(and this rulemaking makes no statement regarding the applicability of
that act), OCSLA is the statute that provides the authority for DOI to
issue this rule. The Antiquities Act does not require or authorize any
activity that is cited in these regulations. Lastly, the ARPA
explicitly excludes the OCS from the definition of public lands and
should not be cited as an authority for this rule.
---------------------------------------------------------------------------
\4\ National Historic Preservation Act Amendments Act of 2006,
Public Law 109-453 (codified at 54 U.S.C. 300101 et seq.).
---------------------------------------------------------------------------
[[Page 71166]]
Comment: AKDNR expressed concern that the proposed rule was
``arbitrarily requiring private companies to do expensive
archaeological surveys for all development activities'' and that
``[a]dding another expensive survey over an expansive area that does
not serve any purpose other than to provide general archaeological
survey data may not be justified under BOEM's authorities.''
Response: BOEM disagrees with the commenter's assertion for several
reasons: (1) the surveys are not being required arbitrarily but only in
the areas where oil and gas development activities proposed by the
lease holder would disturb the seafloor and therefore would have the
potential to affect historic properties, including archaeological
resources; (2) BOEM is not proposing adding any surveys as a result of
this rule but is only requiring that surveys that would already occur
take place in a manner capable of identifying archaeological resources
(i.e., shallow hazards surveys); and (3) BOEM has evaluated the
potential costs and concluded that this rule will not cause a
substantial financial burden.
2. Cost Implications
Comment: The American Cultural Resources Association (ACRA)
expressed support for the proposed rule and stated that the proposed
``approach also benefits lessees and operations as it reduces risk and
potential mitigation costs related to the inadvertent discovery of a
submerged cultural resource during the construction phase.''
Response: BOEM acknowledges the commenter's support and is
finalizing regulatory amendments to address the protection of marine
archaeological resources with this rulemaking.
Comment: NOPC expressed opposition to the proposed rule and stated
it is ``concerned that the proposed rule as currently drafted could
result in added costs, delays, and confusion that hinders domestic
exploration and production of the nation's offshore energy resources,
to the detriment of businesses, communities, and individuals throughout
the United States who rely on access to affordable and reliable energy
and the conservation and restoration activities that offshore energy
development helps fund.''
Response: BOEM disagrees for the following reasons: (1) no
additional surveys would be required by the rule compared to current
practice because the rule does not mandate additional surveys but
simply specifies the requirements that future surveys must adhere to;
(2) the rule was crafted to specify clear performance standards that
provide lessees with more flexibility to design and conduct
archaeological surveys, thereby lessening confusion during domestic
exploration and production of the Nation's offshore oil and gas
resources; (3) the area covered by surveys under the rule will not
increase because the final rule does not change the requirements for
when surveys are required or where the surveys must be conducted; (4)
BOEM has determined that the additional costs of implementing this
rule, if any, are minimal (i.e., all expected incremental costs of the
rule are due to the requirement for HRG archaeological surveys in water
depths of less than or equal to 100 meters, and for a magnetometer,
gradiometer, or the equivalent towed at an altitude and line spacing
sufficient to detect ferrous metals or other magnetically susceptible
materials of at least 1,000 pounds); and, (5) BOEM does not agree that
the requirements of this rule will delay projects to any meaningful
extent and could even reduce delays by reducing the risk of
unanticipated findings of resources that would halt operations once
started. During the project planning process, lessees already include
plans for conducting HRG surveys to satisfy engineering requirements
and regulatory requirements, including the identification of
archaeological resources.
Comment: AKDNR expressed concern regarding the potential impacts on
Hilcorp in the Cook Inlet. Specifically, the department stated ``this
proposed rule has the potential effect of burdening the sole current
leaseholder . . . with millions of dollars of unnecessary and expensive
survey requirements on top of what it would already be doing as a
prudent operator of an oil and gas project. . . . the development of
natural gas in Cook Inlet is the primary source of energy for most of
the citizens of Alaska, and overly burdensome requirements for its
development threaten energy security.''
Response: BOEM agrees with the commenter's assertion that the
current leaseholders in Alaska will incur additional costs as a result
of this rule, as some surveys are expected to require narrower liner
spacing and therefore will take longer and cost more to conduct.
Alaska's offshore oil and gas project economics are challenging, and
BOEM finds that archaeological surveys there are generally more
expensive than in the Gulf of Mexico. BOEM disagrees with the claim
that the rule's archaeological survey requirements are unnecessary or
overly burdensome because no additional surveys are required by this
rule except in the very rare instance where a lessee wants to rely on
the results of a very old survey (likely 20 or 30 years old) that was
conducted in a manner that would not meet the current survey standards.
The commenter did not provide any additional justification or cost
estimates for its claim.
Comment: OOC expressed opposition to BOEM's assertion that the
final rule will not have any additional burden on industry.
Specifically, the organization refers to the following statement in the
preamble ``[t]he burdens related to the submission of archaeological
resource information are accounted for in OMB approved Control Number
1010-0151. Therefore, BOEM has determined there will likely not be an
additional burden on industry with this proposed provision.'' It
further states that ``the recent request for re-approval for the
revised OMB approved Control Number 1010-0151 for Plans (issued 3/3/23)
has not been approved yet. . . . In the request for re-approval--with
revisions--BOEM provides burden hour estimates for `shallow hazards
surveys . . . G&G, archaeological surveys & reports (550.194)' (as well
as for the time it takes an archaeologist to create reports). The
burden hour estimates between this proposed rule and the re-approval of
OMB approved Control Number 1010-0151 for Plans should be consistent.''
Response: BOEM reviews and considers all public comments related to
the Paperwork Reduction Act (PRA) requirements. These comments allow
BOEM to make adjustments and improvements to information collection
burden estimates.
OOC indicated that BOEM's current information collection
requirements underestimate the information collection burden. After
considering this comment, BOEM is revising the information collection
burden estimates with this rule to align with existing industry
practice. As stated in the PRA section of the preamble, the new and
revised information collections requirement for 30 CFR 550.194 and
550.195 would increase overall annual information submission burdens.
BOEM plans to add the increases in annual burden hours to OMB approved
Control Number 1010-0114, 30 CFR 550, subpart A, General and subpart K,
Oil and Gas Production (expiration May 31, 2026), and not to OMB
Control Number 1010-0151, 30 CFR 550, subpart B, Plans and Information.
Currently, OMB has approved 12 annual burden hours for preparation
and submission of archaeological
[[Page 71167]]
reports and/or supporting evidence per response. BOEM believes this
number is low and has increased the annual burden hours to 50 hours per
response. The burden increase would revise OMB Control Number 1010-
0114, and not OMB Control Number 1010-0151. When the final rule becomes
effective and the related information collection request is approved by
OMB, BOEM will add the burden increase to the correct OMB Control
Number. If the annual burden hours should be adjusted in the future
based on reported feedback from OCS operators, BOEM will work closely
with OMB to revise the numbers accordingly.
BOEM finds that the method of quantifying burdens is dependent on
the specific analysis and regulatory context. The cost factors
associated with surveys in the RIA include the day rate of the survey
vessel, the time required to complete the survey, and the resources
spent processing and interpreting the survey results. While other
documents may use hourly estimates, a dollar amount estimate was deemed
appropriate for this analysis to capture an economic impact while
taking into account various cost factors to fulfill the information
collection. BOEM believes that this approach provides a sufficient
evaluation of the incremental burdens resulting from this final rule.
3. Tribal Implications
Comment: The Chickahominy and the Rappahannock Indian Tribes
expressed support for the proposed rule and stated that ``this proposed
rule will reduce Federal conflicts with tribes, who have a particular
interest in their cultural patrimony associated with pre-Contact
submerged terrestrial sites. This proposed rule is an important step in
ensuring that our cultural heritage is protected for future generations
and that BOEM fully evaluates projects' potential effects on tribes.''
Response: BOEM acknowledges the commenter's support and agrees that
the final rule will assist BOEM in obtaining information that will help
it to evaluate projects' potential effects on Tribal interests.
Comment: The Society for American Archaeology (SAA) expressed
support for the proposed rule, but also expressed concern that ``ways
to further advance the involvement of Tribes and native Hawaiian
organizations in the identification of sites that are culturally
important sites'' were only discussed in the preamble and not in the
regulatory text, ``even though Tribal consultation has influenced
BOEM's protection of marine archaeological resources in past
undertakings.'' Specifically, the group further states that ``[o]ther
than giving acknowledgement to the special expertise of Indian Tribes
and native Hawaiian organizations in the preamble, the proposed rules
do not incorporate how their expertise will be applied by BOEM in
decisions concerning the protection of marine archaeological resources.
Greater clarity is needed on Tribal and native Hawaiian organization
involvement throughout BOEM's presentation of the actual [regulatory
text].''
Response: This rule is designed to strengthen the required methods
for the identification of potential archaeological resources, including
historic properties and submerged landforms that may have been
habitable when that part of the OCS was above sea level and could
potentially contain pre-contact archaeological sites. This rule does
not change or impede the BOEM's or DOI's government-to-government
consultations with Indian Tribes, Native Hawaiian Community through
Native Hawaiian Organizations, and appropriate Alaska Native Claims
Settlement Act (ANCSA) Corporation officials. This rule specifies the
actions that OCS lessees and operators must perform to identify and
protect archaeological resources during oil and gas exploration and
development operations.
Comment: The WADAHP highlighted that the State of Washington's
marine waters contain significant historic military aircraft and burial
locations along the submerged coastal plains that reflect thousands of
years of Native American occupancy and expressed concern that the focus
of the proposed rule on archaeological resources is broadly referenced
as shipwrecks. It noted that these resources also implicate BOEM's
trust responsibilities with federally recognized Tribal Nations.
Similarly, ACRA expressed concern related to the focus of shipwrecks in
the preamble but were ``encouraged by the requirement for surveys that
address the potential for precontact archaeological material.''
Response: BOEM acknowledges the commenters' concern but highlights
that its archaeological requirements in 30 CFR part 550 (and previously
part 250) have for over 40 years focused on the identification of
historic properties, for example shipwrecks, submerged aircraft,
archaeological resources, and submerged landforms that may have been
habitable when that part of the OCS was above sea level and have
implemented mitigations requiring avoidance when identified.
Comment: An independent marine archaeologist requested that BOEM
standardize how underwater indigenous resources are referred to
throughout the rule. ``For example, in section 550.194(c), the text
variably reads, `pre-European contact archaeological sites from the end
of the last Ice Age,' `pre-contact archaeological material,' and
`buried landforms that might have been habitable by indigenous
Americans during the end of the last Ice Age.' '' The archaeologist
recommended that BOEM define underwater indigenous resources as
``dating since the end of the last Ice Age.''
Response: BOEM appreciates the comment and notes that the
discussion to which the commenter is referring is in the preamble and
not in the regulatory text in Sec. 550.194(c). The regulatory text in
this final rule refers to these sites as ``potential areas of prior
human occupation.'' BOEM also notes that there is a difference between
an identified pre-contact archaeological site or material and a
submerged landform that may have been habitable when that part of the
OCS was above sea level. A submerged landform may or may not contain
pre-contact archaeological sites and still have meaning to many Indian
Tribes and Native American people indigenous to the United States.
Furthermore, submerged landforms can be located through interpretation
of the archaeological survey data, while pre-contact sites generally
are only located through more rigorous archaeological methods that are
outside the scope of this rulemaking.
4. Removal of the ``Reason to Believe'' Standard and the Use of
Alternatives to Direct Sources
Comment: The Rappahannock and Chickahominy Indian Tribes, ACUA,
SAA, AAA, CAH, and SHA expressed support for the removal of the
``reason to believe'' standard. The Tribes asserted the standard is
``outdated'' and ``ineffective . . . [at] identifying potential
archaeological resources, while the proposed rule would be more
`proactive and precautionary.' '' They also expressed appreciation for
BOEM's recognition that predictive models do not provide sufficiently
accurate data to base decisions regarding underwater archaeological
resource potential. The Tribes further expressed support for the
proposed approach to archaeological surveying that accounts for the
unique characteristics of each lease block and stated that ``projects
that propose to disturb the ocean floor should be required to provide
due diligence in the form of marine archaeological surveys as part of
their permit review requirements.''
[[Page 71168]]
ACUA, SAA, AAA, CAH, and SHA asserted that eliminating the ``reason
to believe'' standard would reduce ambiguity surrounding survey
requirements and would constitute a reasonable and good faith effort to
identify archaeological resources. ACRA expressed support for the
proposal to use HRG surveys in lieu of the predictive models and stated
that ``the predictive model approach does not provide detailed, site-
specific survey or review for the potential of a lease area to contain
ancient, submerged landform features.'' WADAHP expressed support for
the proposal and asserted that a more robust effort is necessary to
ensure identification of historic shipwrecks and aircraft, due to the
uncertainty of their locations on the seafloor. It stated that rapid
technological advancements would allow for this more robust effort.
The TXHC provided supportive context for the proposal to move away
from predictive models and stated that in the TXHC marine archaeology
program's experience, ``these predictability models do not work well in
practice for any water depths, nearshore included, due to the
unpredictable nature of shipwreck losses and wreck locations. Though
the [TXHC] model is still helpful in defining areas that have a greater
potential to contain underwater archeological resources, it is no
longer used to preclude whole Texas State tracts from archeological
remote-sensing survey, as had once been policy.'' Additionally, two
independent marine archaeologists expressed support for the use of
surveys in lieu of the predictive model.
Response: BOEM acknowledges the commenters' support and, in
response to comments, is finalizing regulatory amendments, as proposed
in Sec. 550.194(a), to require the use of HRG surveys to identify
archaeological resources. BOEM believes that the evidence on this point
(see discussion in the Background section of this preamble), combined
with BOEM's many years of experience in this field, is overwhelming and
that retaining the existing approach is no longer a responsible option
for BOEM to use to satisfy its obligations under the NHPA and OCSLA.
Comment: The OOC expressed opposition to the removal of the
``reason to believe'' standard and stated that ``[t]here is nothing
under the current regulations preventing BOEM from identifying lease
areas with potential archaeological resources that may exist in
multiple lease areas, as they have done historically, while also
excluding lease areas that, based on information BOEM has been provided
over many decades, would not require additional reporting.'' NOPC also
expressed opposition to the removal of the standard and stated that the
``expanded applicability of the proposed requirement threatens to add
substantial burdens for activities supportive of domestic energy
exploration and production that have either already been subject to
surveying and/or constitute minor activities that would not impact
archaeological resources in any event.''
Response: Both based on its historical experience (see discussion
in the Background section of this preamble and the preamble to the 2023
proposed rule at 88 FR 9800) and the comments received, BOEM believes
that there is no workable way to retain the ``reason to believe''
standard and comply with its obligations under the NHPA and OCSLA. In
other words, in the context of the OCS, the ``reason to believe''
approach itself cannot meet the NHPA requirements for a reasonable and
good faith effort to identify and protect archaeological resources.
BOEM disagrees with the commenters' assertion that the rule adds
substantial burdens for activities supportive of domestic energy
exploration and production because it does not believe that the costs
of the rule are substantial (see the memorandum titled Protection of
Marine Archaeological Resources: Benefit-Cost Analysis in the docket
for this rulemaking). The commenters did not provide any additional
justification or cost estimates for its claim.
5. Compliance With the National Historic Preservation Act
Comment: Several independent marine archaeologists expressed
support for the proposed rule, stating that it would bring BOEM into
compliance with the NHPA, but also noted it would align the agency with
similar regulatory and policy requirements already promulgated by other
Federal agencies, such as the U.S. Navy and National Oceanic and
Atmospheric Administration (NOAA), as well as the historic preservation
requirements of many coastal states. WADAHP, the Rappahannock and
Chickahominy Indian Tribes, ACRA, ACUA, AAA, and CAH expressed support
for the proposed changes and stated that they would improve BOEM's
conformance with the NHPA section 106 compliance process. Additionally,
the Rappahannock Indian Tribe commented that the ``proposed changes
will improve BOEM's fulfillment of its `reasonable and good faith
identification effort' under the National Historic Preservation Act,
enabling the avoidance of damage to historic and archaeological
resources and the development of appropriate mitigation measures.''
Response: BOEM acknowledges the commenters' support and is
finalizing regulatory amendments with this rulemaking, as proposed, to
improve compliance with the NHPA.
Comment: An independent marine archaeologist suggested that BOEM
add a maximum response time, such as 30 or 45 days, for BOEM
archaeologists to complete their evaluation of a resource's eligibility
for the NRHP.
Response: BOEM disagrees that the final rule should define a
maximum response time for BOEM archaeologists to complete their
evaluation of a resource's eligibility for the NRHP. The language in
the rule states that ``If BOEM determines that the resource may be
eligible . . .'', which is different from making an official
determination of eligibility for listing on the NRHP. BOEM's historic
preservation staff possess the experience and expertise necessary to
make an expeditious determination about whether a resource may be
eligible for listing on the NRHP. Making an official determination
about a resource's eligibility for the NRHP can be a complex and time-
consuming process in the marine environment and may not be necessary if
damage to the potential archaeological resource can be avoided (e.g.,
through changes to the footprint of the proposed activities).
C. Technical Comments
1. Use of Direct High Resolution Geophysical Surveys
Comment: WADAHP expressed support for using HRG surveys to
effectively identify potential archaeological resources. It stated that
``HRG surveys are routinely used in the offshore environment to
identify the presence or absence of potential geological and manmade
hazards, sensitive biological habitats, and marine archaeological
resources.'' ACRA also expressed support for the use of HRG surveys and
stated that it will ``allow for the identification and delineation of
cultural resources within a specific lease development area and for the
protection of these resources prior to construction activities.''
Response: BOEM acknowledges the commenters' support and is
finalizing regulatory amendments with this rulemaking, as proposed, to
require the use of HRG surveys for archaeological purposes in Sec.
550.194(a).
Comment: OOC commented that ``if an earlier survey was done that
meets all requirements, then another survey
[[Page 71169]]
does not need to be done.'' It also requested that BOEM remove language
suggesting that BOEM's judgment dictate whether a previous survey is
valid for archaeological resource identification efforts ``considering,
for example, the time elapsed since the prior survey'' because anything
of archaeological interest would have been identified and an avoidance
criterion could be applied. Additionally, it stated that the proposed
rule lacks clear parameters to determine what constitutes a ``valid''
survey and how BOEM will make that determination. API also requested
that BOEM ``provide explicit evaluation criteria for acceptability of
previous archaeological surveys.'' P&C Scientific commented that a
demonstration that a reasonable and good faith effort to identify
archaeological resources within the APE has already been performed
should only be allowed if the non-operator commissioned sources meet or
exceed BOEM's archaeological survey requirements.
Response: The proposed rule specified when an operator may comply
with Sec. 550.194 by submitting a reference to an archaeological
report based on an HRG survey of the APE that was previously submitted
for the lease. BOEM is finalizing this provision, as proposed, in Sec.
550.194(a)(2). BOEM has decided to retain the language providing
discretion on determining when a previous survey is valid, as proposed,
in Sec. 550.194(a)(2). Time is not the only variable BOEM evaluates
when making this determination; it also considers alterations in the
seafloor from, for example, hurricanes, submarine mudslides, and
seafloor instability events. Because of the many variables that may
alter the analytical conclusions of a previous survey, BOEM is not
providing explicit evaluation criteria for acceptability of previous
archaeological surveys. BOEM welcomes discussion with lease holders on
how best to meet the requirements of this rule on a case-by-case basis.
2. Technical Parameters for Conducting Direct Surveys
Comment: OOC noted that the proposed rule will establish the
requirements for the navigation system to continuously register surface
position of the survey vessel, specify the logging position data, and
specify the presentation of geodesy information. OOC recommended that
BOEM include a statement in the final rule to clarify that navigation
systems meeting the criteria outlined in Sec. 550.194(c)(1) do not
require approval by BOEM.
Response: BOEM agrees and added ``Navigation systems meeting the
criteria outlined in this section do not require prior approval by
BOEM'' to Sec. 550.194(c)(1).
Comment: ACRA, SHA, ACUA, AAA, and CAH recommended adding a
requirement for acoustic tracking of towed sensors or autonomous
underwater vehicles in deep water, consistent with the Shallow Hazards
Notice to Lessees and Operators (NTL 2022-G01, part III.A).
Response: Tracking of towed sensors or autonomous underwater
vehicles is required in the final rule, as proposed. It can be found
under Sec. 550.194(c)(1), which states, ``[a] state-of-the-art
navigation system with sub-meter accuracy able to continuously
determine the surface position of the survey vessel and in-water
position of towed and autonomous survey sensors. Position fixes must be
digitally and continuously logged along the vessel track. Geodesy
information must be clearly presented and consistent across all data
types. Navigation systems meeting the criteria outlined in this section
do not require prior approval by BOEM.''
Comment: Echo Offshore asked for clarification for the line spacing
requirements in over 100 meters of water when using a total field
magnetometer, gradiometer, or other equivalent instrument. The company
stated that ``[t]he current line spacing per NTL 2005-G05-Rev is 300m
line spacing in depths over 300m,'' and asked, ``will this be retained,
or since NTL 2022-G01 requires 150m line spacing throughout will this
spacing be adopted in these depths?'' Additionally, it asked for
clarification on ultra-short baseline acoustic tracking requirements in
depths over 91 meters.
Response: This final rule requires the use of a total field
magnetometer, gradiometer, or other instrument having equal or superior
measurement capability for surveys conducted in waters of 100-meter
depth or less in Sec. 550.194(c)(2). For archaeological purposes,
magnetometry is not being requested in water depths over 100 meters.
This rule does not change the current guidance of NTL 2022-G01, which
is for shallow hazard surveys. While previous BOEM guidance has
specified various line spacing requirements, this final rule is based
on data resolution requirements to allow the lessees flexibility in
designing a survey necessary to identify potential archaeological
resources. Tracking of towed or autonomous survey sensors is required
in the final rule (30 CFR 550.194(c)(1)) irrespective of depth.
Comment: Echo Offshore stated that the ``new rules state that
magnetometers must have an altimeter. In our experience magnetometer
altimeters are not as reliable or as accurate as depth sensors. Depth
sensor data can be subtracted from water depth data and integrated into
the magnetometer data output to provide a more reliable altitude. The
stated requirement seemingly precludes the ability to do this. It is
recommended that the requirement be to record accurate altitude for the
magnetometer, but the method be left up to the operator.''
Response: Section 550.194(c)(2) of the final rule has been modified
from the proposed language to remove the altimeter requirement in favor
of a more general requirement that an accurate measurement of the
altitude of the magnetometer must be used. BOEM agrees that subtracting
the value of the depth sensor from the water depth can be used to
provide an altitude of the magnetometer provided that the water depth
is also recorded. BOEM included a requirement in the final rule at
Sec. 550.194(c)(5) to collect accurate depth measurements throughout
the survey area. These changes in the final rule provide more
flexibility to the lessee in conducting surveys to meet the performance
requirements.
Comment: An independent marine archaeologist requested
clarification about whether prior surveys conducted on a lease at 50-
meter spacing will still be viable or if the surveys will have to be
conducted again at 30-meter lines spacing.
Response: This final rule includes a provision at Sec.
550.194(a)(3) that allows the submission of previous surveys for review
by BOEM to determine if a new survey will be required. BOEM will make
this determination on a case-by-case basis.
Comment: ACRA stated that the wording of the proposed ``rule
implies that BOEM will no longer require magnetometer survey[s] for
archaeology in water depths more than 100 meters'' and asserted that
magnetometer data have been safely and efficiently collected in these
greater water depths under NTL 2005-G07. They also noted that
magnetometer surveys at greater depths are currently recommended for
Shallow Hazards under NTL 2022-G01 part III.C.1 and asked for BOEM's
rationale for the measurement reduction for magnetometer data
acquisition. Similarly, ACUA and SHA recommended that BOEM include
magnetometer data acquisition in water depths up to 200 meters to
ensure identification and protection of underwater cultural heritage in
deeper
[[Page 71170]]
waters and consistency across standards.
Response: BOEM has been receiving data from surveys since the
implementation of the original NTL 2005-G07. BOEM has observed, on most
surveys, that it is extremely difficult to deploy magnetometers at
depths greater than 100 meters water depth and maintain the appropriate
height above the seafloor. This is exacerbated by extreme bathymetry
fluctuation typical on the Gulf of Mexico OCS between 100 and 200
meters. BOEM has heard directly that numerous survey companies have
struggled to comply with the previous guidance. Even though the
previous guidance recommended the use of the magnetometer data for
depths more than 100 meters, BOEM believes it is better to focus on
improving performance standards for magnetometry in water depths where
its use has proven consistently useful in identifying significant
archaeological resources. No changes were made to the final rule as a
result of this comment.
Comment: An independent marine archaeologist recommended that
``[w]hen a total field magnetometer, but not a gradiometer, is employed
the survey should also utilize a base station magnetometer deployed
within 20 kilometers of the survey (deployed over geologic material
comparable to the geology of the survey area) and used to collect
background magnetic field readings at a minimum of twice per minute to
allow the investigators to correct for the diurnal variation of the
earth's magnetic field.'' They also recommended that the magnetometer
sampling rate not be specified, but rather the samples per meter along
the survey track be the guiding requirement. Additionally, they stated
that ``limiting the depth at which a magnetometer must be used to
survey in less than 100 feet of water seems arbitrary from the point of
view of archaeological site detection.''
Response: In response to this comment, BOEM has removed the
magnetometer sampling rate stipulation from the final rule in Sec.
550.194(c)(2) and replaced it with a samples per meter requirement. The
potential for sites to be completely buried under sediment decreases
substantially with increasing distance from the coast and depth of
water. For most of the OCS, shipwrecks beyond the 100-meter mark are
found to have a surface expression that is more effectively located via
side-scan sonar and BOEM has no evidence, to date, to the contrary.
Nothing, however, precludes the operator from using a magnetometer at
deeper depths if they wish to have additional information related to
surface anomalies.
Comment: OOC provided the following editorial suggestions for Sec.
550.194(c)(2) to maintain consistency with the NTL 2005-G007 and the
preamble: ``The magnetometer, gradiometer, or its equivalent must be
towed [strikeout: as close to the seafloor as possible] no higher than
20 feet above the sea floor and sufficiently far from the vessel to
isolate the sensor from the magnetic field of the survey vessel and the
other survey instruments . . .''
Response: BOEM thanks the commenter for its suggestion but has
chosen not to incorporate the suggested edit in the final rule in Sec.
550.194(c)(2). The final rule has been crafted to specify clear
performance standards that provide lessees with more flexibility to
design and conduct archaeological surveys in a manner that meets those
performance standards, including the altitude of the magnetometer,
gradiometer, or its equivalent necessary to detect ferrous metals or
other magnetically susceptible materials of at least 1,000 pounds (453
kilograms) in mass with a minimum magnetic deflection of 5 gamma
([gamma]; 5 nanotesla [nT]).
Comment: In response to the proposed amendment in Sec.
550.194(c)(3) to require the use of a sub-bottom profiler system for
surveys conducted in water depths of less than 140 meters, P&C
Scientific stated that sub-bottom profiler data should be required
throughout the Gulf of Mexico.
Response: Sub-bottom profiler data can be used for various
purposes, including locating potential areas of prior human occupation.
BOEM believes that in the Gulf of Mexico, the 140-meter cutoff best
encompasses the farthest likely extent of prior human occupation. This
depth is based on information presented by submerged paleolandscape and
submerged archaeological experts at the Paleo Workshop 2018:
Reevaluating the Submerged Paleoindian Landscape of the Gulf of
Mexico.\5\ Similarly, a recent study for the Alaska region also
recommended using sub-bottom profilers during archaeological surveys in
waters 140 meters or less.\6\ In the Pacific Region, studies have found
that a 130-meter cutoff is appropriate.\7\ After careful review and
analysis by BOEM subject matter experts, BOEM concluded that these
findings and recommendations were warranted and worthy of incorporation
into this rule. BOEM has included in Sec. 550.194(c)(3) in this final
rule that the use of a sub-bottom profiler is required in water depths
of 140 meters or less, unless BOEM specifies a different water depth
based on its determination of the furthest likely extent of prior human
occupation on the OCS. The depths are based on current scientific
understanding of sea-level rise and could change in the future as
additional information becomes available.
---------------------------------------------------------------------------
\5\ https://www.boem.gov/environment/paleo-workshop-2018-agenda.
\6\ Sassorossi, W.S., Tuttle, M.C., Evans, A.M., Rawls, J.,
Holland, SE, Fadem, C.M., Stotts, I., Miller, H.L., Identifying
Coastal and Submerged Cultural Heritage on the Alaska Outer
Continental Shelf (Gray & Pape, Inc., Cincinnati, OH, 2023); U.S.
Department of the Interior, Bureau of Ocean Energy Management,
Anchorage, AK, Report No.: OCS Study BOEM 2024-011. Contract No.:
140M0121F0047, p.167.
\7\ Clark J, Moitrovica J, Alder J., Coastal paleogeography of
the California-Oregon-Washington and Bering Sea continental shelves
during the latest Pleistocene and Holocene: implications for the
archaeological record, Journal of Archaeological Science. 52:12-23
(2014), https://doi:10.1016/j.jas.2014.07.030; ICF International,
Davis Geoarchaeological Research, and Southeastern Archaeological
Research, Inventory and Analysis of Coastal and Submerged
Archaeological Stie Occurrence on the Pacific Outer Continental
Shelf (2013); U.S. Department of the Interior, Bureau of Ocean
Energy Management, Pacific OCS Region, Camarillo, CA, OCS Study BOEM
2013-0115.
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Comment: ACUA, SAA, CAH, AAA, and SHA expressed support for the
proposal to require the use of a sub-bottom profiler system for surveys
conducted in water depths of less than 140 meters but noted that the
rule does not ``include any requirement for acquisition of bathymetry
data which is necessary to calculate the total depth below sea level of
interpreted horizons. This total depth below sea level is needed to
identify the timing of subaerial exposure and marine inundation of the
feature, based on depth within the context of a regionally accurate sea
level curve.'' They asserted that this would ensure ``the most
effective identification and protection of pre-contact submerged
underwater cultural heritage.''
Response: Based on requests from multiple commenters, BOEM has
incorporated a requirement in the final rule at Sec. 550.194(c)(5) to
acquire bathymetry data, which is similar to guidance found in the NTL
2022-G01. The addition of a bathymetry requirement is needed to ensure
the accurate determination of the depth of the seafloor to interpret
the geophysical data, as well as to determine the accurate height of
the magnetometer and other sensors if a depth sensor is used instead of
an altimeter. The latter gives the lessee additional flexibility in
determining the best methods and deployment of survey instrumentation
[[Page 71171]]
to meet the requirements specified in the rule.
Comment: An independent marine archaeologist expressed support for
the inclusion of sub-bottom profilers and requested clarification if,
based on changes in NTL 2022-G01, there would be any recommendations in
the final rule regarding the use of a multibeam echosounder, which is a
type of sonar that is used to map the seabed by emitting acoustic waves
in a fan shape beneath its transceiver.
Response: Based on requests from multiple stakeholders, BOEM has
incorporated the bathymetry data collection in line with guidance found
in NTL 2022-G01. The bathymetry data collection requirement finalized
in Sec. 550.194(c)(5) is flexible enough to allow for a multibeam
echosounder but does not require it; it requires an echosounder or
equivalent system.
Comment: An independent marine archaeologist commented that the
proposed rule will require a sub-bottom profiler out to 140 meters, but
that the rule does not specify the line spacing requirements for that
sensor. The archaeologist requested clarification as to whether the
current maximum line spacing of 300 meters will remain the required
line spacing for the sub-bottom profiler.
Response: This rule does not specify maximum line spacing for sub-
bottom profilers. During an archaeological survey, lessees who deploy
different sensors that are run concurrently will need to collect and
process the data to meet the performance standards, which could entail
different survey intervals. This final rule, as proposed, has been
crafted to specify clear performance standards that provide lessees
with more flexibility to design and conduct archaeological surveys in a
manner that meets those performance standards, including spacing of
survey transects.
Comment: OOC recommended that BOEM delete the proposed requirement
for the use of a sub-bottom profiler system for surveys conducted in
water depths of less than 140 meters because BOEM established in Sec.
550.194(c) the sea change height as being 200 feet. It also requested
clarification on the sea level change referenced in the preamble. The
commenter stated that the preamble references 460 feet, but the BOEM
guidance references a 200-foot change. The organization states ``this
variation of definition is significant and the preamble to the proposed
rule requires surveys in water depths where no material remains of
human life existed.''
Response: BOEM could not find a reference to sea change height as
being 200 feet in Sec. 550.194(c). The reference to a sea change
height of 200 feet may be from a BOEM website and has been changed to
reflect our current understanding of sea-level rise and the peopling of
the Americas. The website information was out of date and has been
updated based on the information provided below (see https://www.boem.gov/regions/gulf-mexico-ocs-region/office-environment/gulf-mexico-archaeological-information).
Sub-bottom profiler data can be used for various purposes,
including locating potential areas of prior human occupation. BOEM has
concluded that, in the Gulf of Mexico, the 140-meter cutoff best
encompasses the furthest likely extent of prior human occupation. As
discussed earlier in this preamble, this depth is based on information
presented by submerged paleolandscape and submerged archaeological
experts at the Paleo Workshop 2018: Reevaluating the Submerged
Paleoindian Landscape of the Gulf of Mexico. Similarly, a recent study
for the Alaska region also recommended using sub-bottom profilers
during archaeological surveys in waters 140 meters or less. In the
Pacific Region, studies have found that a 130-meter cutoff is
appropriate. After careful review and analysis by BOEM subject matter
experts, BOEM concluded that the findings and recommendations from
these experts and studies were warranted and worthy of incorporation
into this rule. These depths are based on current scientific
understanding of sea-level rise and could change in the future as
additional information becomes available.
Comment: In response to the proposed amendment to Sec.
550.194(c)(4) that would require the use of a side-scan sonar or
equivalent system in all water depths, P&C Scientific commented that
the statement ``Side-scan sonars may either be towed behind a ship or
mounted in an autonomous underwater vehicle'' is too limiting. It
clarified that in some shallow water areas, a bow mount or a pole mount
for a sonar system may be required.
Response: There are flexibilities in the rule at Sec. 550.194(d)
that allow lessees to propose alternate methodologies to meet the
performance standards specified in the rule. Lessees may reach out to
staff to discuss, review, and approve innovative survey
instrumentations and methodologies to meet both agency and lessee
needs. Lessees may also formally request a departure under Sec.
550.194(d).
Comment: ACUA, SAA, CAH, AAA, and SHA suggested that the language
in the rule requiring a sonar survey in all water depths be clarified
to indicate if archaeological surveys are required for all activities.
Response: The final rule is specific to oil and gas and sulfur
operations in the OCS and is applicable for all EPs, DOCDs, or DPPs
that involve disturbance of the seafloor. In such instances, Sec.
550.194(a) specifies that, to protect archaeological resources, a plan
or other request must be accompanied by or contain an archaeological
report based on an HRG survey of the APE, a reference to an
archaeological report based on an HRG survey of the APE previously
submitted for the lease, or evidence demonstrating to BOEM's
satisfaction that a reasonable and good faith effort to identify
archaeological resources within the APE has already been performed.
Because the final rule already states the types of plans, (i.e., EP,
DOCD, or DPP that propose activities involving seafloor disturbance)
that require the submission of an archaeological report based on HRG
surveys, BOEM does not feel that further clarification is warranted.
Comment: Echo Offshore requested clarification as to whether the
preamble statement that side-scan sonar data is required to ``resolve
small, discrete targets 0.5 meters in length at maximum range'' is
intended for ``resolution'' or ``object detection.'' The company stated
that ``resolution is the ability to discern one object from another,
while detection is the ability to image an object'' and provided
additional information needed for both ``resolution'' or ``object
detection'' in the final rule. It explained that ``A better
understanding of what is meant by the ability to resolve an object 0.5
meters in length is critical for our ability to operate under these
proposed requirements. Depending on the definition, this may negate the
ability to operate side-scan sonars at the higher altitudes and wider
range settings that are typically utilized in deep water applications
and may have substantial cost impacts . . .''
Similarly, OOC commented that the proposed rule requires ``the
ability to `resolve an object 0.5 meters in length' with side-scan
sonar.'' It asserted that: ``First, the language is unclear on what
criteria are to be used for this (resolution vs detection, number of
pings, along track/cross track, etc.). Second, depending on the answers
to the criteria, this may result in the wide line spacing surveys using
100kHz class side-scans on [autonomous underwater vehicles] and in
deeper towed scenarios becoming unusable. In order for survey companies
to detect an object of that size, it may be necessary to run upwards of
50-meter line spacing in deeper water depth depending on [autonomous
underwater vehicle] speed, ping rate, etc.'' It also stated that there
is no
[[Page 71172]]
mention regarding line spacing in depths over 100 meters.
Response: In response to this comment, BOEM has replaced the word
``resolve'' with the word ``detect'' in Sec. 550.194(c) of the final
rule. BOEM has not specified line spacing in depths over 100 meters
with this final rule. During an archaeological survey, lessees who
deploy different sensors that are run concurrently will need to collect
and process the data to meet the performance standards, which could
entail different survey intervals. The rule has been crafted to specify
clear performance standards that provide lessees with more flexibility
to design and conduct archaeological surveys in a manner that meets
those performance standards, including spacing of survey transects.
Comment: ACUA, SAA, CAH, AAA, and SHA stated that the ``proposed
rule requires that the sonar system must be able to `resolve small,
discrete targets 0.5 meters (1.6 feet) in length at maximum range,' but
does not specify if this is in reference to the along-track detection
or across-track resolution. These are significantly different but will
have a fundamental impact on the line spacing and sonar frequency
required to achieve the stated target detection while maintaining the
specified sensor altitude to range necessary for 200 percent seafloor
coverage. Clarification within the rule change is recommended.''
Response: In response to comments, BOEM has revised the phrasing to
clarify that it refers to along-track detection and replaced the word
``resolve'' with the word ``detect'' in Sec. 550.194 of the final
rule.
Comment: An independent marine archaeologist stated that
``[c]urrently some areas (specifically in the Gulf of Mexico) designate
side scan sonar to be run at a maximum line spacing of 50 meters for
some areas and 300-meter line spacing for others (with stipulation
regarding percentage of coverage).'' The commenter stated further that
the proposed rule does not specify the maximum line spacing requirement
for side scan sonar, but states that the ``instrument range must
provide at least 100 percent overlapping coverage (i.e., 200 percent
seafloor coverage) between adjacent primary survey lines . . .'' The
archaeologist requested clarification about whether the current line
spacing designations remain in place, or if there will there be new
line spacing requirements specified at a later date, or if the
statement regarding percentage of survey coverage is a new guideline
for all areas without a specific maximum line spacing requirement.
Response: This final rule does not contain any specific line
spacing requirements, and no changes were made in response to this
comment. During an archaeological survey, lessees who deploy different
sensors that are run concurrently will need to collect and process the
data to meet the performance standards, which could entail different
survey intervals. BOEM has crafted the rule to specify clear
performance standards that provide lessees with more flexibility to
design and conduct archaeological surveys in a manner that meets those
performance standards, including spacing of survey transects.
Comment: ACRA highlighted the proposed language in Sec.
550.194(c)(4) that states ``The 0.5-meter resolution standard is
consistent with the capabilities of modern sonar systems when operated
at appropriate frequency and range settings'' and asked if this
language refers to along-track detection or across-track resolution
because the implications for each are significantly different.
Response: The intent of the regulation was to use along-track
detection and, in response to comments, the final rule has been updated
to state ``along-track'' detection in Sec. 550.194(c).
Comment: OOC stated that the proposal to require the use of a base
station or gradiometer during solar storms is unrealistic for Gulf of
Mexico projects, and ``the gradiometer array is an added expense in
both upfront costs, added redundancy costs, added maintenance costs,
increased down time, increased processing analysis time costs, etc.''
Response: BOEM is not explicitly requiring the use of a
gradiometer, but rather providing examples where its use may be more
appropriate. BOEM has not made any revisions to the final rule as a
result of this comment.
Comment: An independent marine archaeologist requested
clarification on why the specific altitude for magnetometer collection
was removed.
Response: During an archaeological survey, lessees who deploy
different sensors that are run concurrently will need to collect and
process the data to meet the performance standards, which could entail
different survey intervals. The final rule has been crafted to specify
clear performance standards that provide lessees with more flexibility
to design and conduct archaeological surveys in a manner that meets
those performance standards, including the altitude of the
magnetometer, gradiometer, or its equivalent necessary to detect
ferrous metals or other magnetically susceptible materials of at least
1,000 pounds (453 kilograms) in mass with a minimum magnetic deflection
of 5 gamma ([gamma]; 5 nanotesla [nT]).
Comment: ACRA remarked that the discussion of line spacing refers
to prior NTL 2005-G07 recommendations for line spacing of 50 meters in
water depths of 200 meters or less but fails to mention the
recommendation for 300-meter line spacing in all water depths greater
than 200 meter as specified in NTL 2011-JOINT-G01. The commenter
requested clarification of these technical matters to avoid guidance
issues in the future.
Response: BOEM has not specified line spacing requirements with
this final rule. During an archaeological survey, lessees who deploy
different sensors that are run concurrently will need to collect and
process the data to meet the performance standards, which could entail
different survey intervals. BOEM has crafted the rule to specify clear
performance standards that provide lessees with more flexibility to
design and conduct archaeological surveys in a manner that meets those
performance standards, including spacing of survey transects.
3. Archaeological Reports
Comment: The TXHC recommended that BOEM provide additional guidance
or requirements for the presentation of the data in the technical
reports produced for the OCS surveys. It also recommended that BOEM
require presentation of contoured magnetic data in the technical
reports, including a discussion of processing parameters, data
interpretation methodologies, and the selection criteria for
``significant magnetic targets.'' The TXHC discussed similar state-
level requirements that are performed inconsistently due to a lack of
in-depth experience conducting, processing, presenting, and
interpreting archaeological surveys. The commenter asserted that these
issues should be of concern to BOEM, because BOEM is introducing
similar requirements without professional requirements for underwater
archaeologists.
Response: BOEM may provide guidance for implementing the new rule,
including recommendations for how best to present data in the
archaeological reports. BOEM supports the idea of requiring contoured
magnetic data in archaeological reports and has included a requirement
in Sec. 550.194(c)(2) of the final rule that data be post-processed
and contoured. Requiring the contouring of magnetometer data for
inclusion in the archaeological reports will facilitate the
interpretation of potential
[[Page 71173]]
archaeological resources. The processing of magnetometer data is mainly
automated through survey software already in use by industry, and this
requirement simply ensures that the data is included in the
archaeological report.
Comment: P&C Scientific expressed concerns that the proposed rule's
requirement that the archaeological report be prepared and signed by a
qualified marine archaeologist is too vague regarding how much
experience and what level of experience is required. Additionally, it
states the proposed rule ``must have a specific minimum amount of time
listed for experience and must stipulate actual field experience, not
field schools or projects where the individual was part of a larger
team but was not responsible for project oversight.'' An individual
commenter recommended that BOEM add specificity to the submerged
archaeological resources professional qualification standard. It
recommended that ``individuals overseeing archeological assessments
possess at least one year of full-time professional experience at a
supervisory level in the techniques and technologies of underwater
archeology and the study of archeological resources in a maritime
context.'' An independent marine archaeologist commented that it would
``be helpful if in addition to the SOI \8\ years of experience and
degree requirements that would apply, the rule was clearer as to (a)
how many years of offshore archaeological experience were necessary at
a minimum, (b) what area of technical expertise that experience was
needed in, e.g., technical archaeological diving expertise, desktop
data collection and/or interpretation, or (c) what level of overall
project experience is necessary for supervising projects of similar
offshore complexity and size.''
---------------------------------------------------------------------------
\8\ The Secretary of the Interior's (SOI) historic preservation
professional qualifications standards are described in the
following: Archaeology and Historic Preservation; Secretary of the
Interior's Standards and Guidelines, 48 FR 44716 (Sept. 29, 1983).
Available at: https://www.nps.gov/subjects/historicpreservation/upload/standards-guidelines-archeology-historic-preservation.pdf.
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Response: BOEM expects that there should be flexibility in the
factors and how they are combined to ensure the marine archaeologist is
qualified. The length and type of experience may be sufficient even
without supervision of projects directly. As such, BOEM plans to issue
guidance discussing factors and how they may be combined or
substituted. There would be too many possible permutations (and those
could change over time as marine archaeology continues to grow as a
field of study and certification) to appropriately address in this
rulemaking.
Comment: OOC commented that there ``should be a grandfathering
exception or delayed implementation on areas which were surveyed prior
to the final rule but where work is conducted after the rule is
issued.''
Response: BOEM has included language in the final rule in Sec.
550.194(a)(3), as proposed, to provide for this situation.
Additionally, BOEM has included a one-year compliance period for
implementation of these new standards for existing lessees, as provided
in Sec. 550.194(h) of this rule, in order to accommodate budgeting,
existing survey agreements, and schedules for prior planned operations.
New leases issued after the effective date of this final rule will be
required to implement the new regulations immediately. Once the lease
has expired and if new ownership or activity is planned, then new HRG
survey data would be required for the latest lessee.
4. Seafloor Disturbing Operations
Comment: OOC, NOPC, and an independent marine archaeologist
commented that NTL No. 2005-G07 states that notification of the
discovery of an unanticipated archaeological resource while conducting
operations should occur within 48 hours of those activities, while the
proposed rule states 72 hours. OOC and NOPC asserted that ``[g]iven the
conflicts with existing agency guidance, they recommend BOEM
specifically address whether it intends to rescind (or revise, and if
so, how) NTL No. 2005-G07 and its Guidance for Compliance with
Mitigation 3.20.''
Response: The commenter is correct that previous BOEM guidance
recommended notification of discovery within 48 hours. The requirements
of this final rule supersede all previous NTLs issued concerning marine
archaeology. BOEM intends to rescind those NTLs and any other outdated
guidance to avoid confusion about BOEM's prior regulatory requirements
and guidance. However, because there are lessees and operators that may
come under the purview of 30 CFR 550.194(h) and be exempt from full
compliance with the new regulatory changes for a period of time (i.e.,
up to 365 days from the effective date of this rule), BOEM will ensure
that the applicable NTLs remain on the website during that period so
that those lessees and operators will have access to those NTLs to
reference as they prepare to comply with the full regulatory amendments
concerning marine archaeology in 30 CFR part 550. BOEM will include
explanatory text on its website regarding these NTLs and their limited
applicability to lessees and operators subject to 30 CFR 550.194(h).
Comment: An independent marine archaeologist suggested reducing the
notification period in Sec. 550.195(a) for notifying the BOEM Regional
Director that a discovery of an unanticipated archaeological resource
has occurred from 72 hours to 24 hours to minimize the lease owner's
down time, allow BOEM to begin assessments sooner, and facilitate
important conversations with consulting Native American Tribes.
Response: BOEM has determined that 72 hours is a reasonable time
period for reporting the discovery of an unanticipated archaeological
resource and gives the operator needed time to consult with a qualified
marine archaeologist and analyze the data. As required in Sec.
550.195(a), the 72-hour time period is a maximum time for reporting and
does not preclude the operator from notifying the BOEM Regional
Director earlier.
Comment: NOPC commented that ``the proposed rule's existing text
would conflict with BOEM guidance on avoidance of archaeological
resources, which notes that, `[i]n most cases, conditions of approval
will not be applied in areas that have been heavily disturbed or to
proposed activities where the disturbance is minimal such as cores and
borings.' ''
Response: The language referenced in this comment refers to the
Guidance for Compliance with Mitigation 3.20, which provides guidance
to site-specific conditions of plan approval and not to the survey
requirements for EPs, DOCDs, and DPPs that will be implemented with
this rule. BOEM intends to rescind the referenced guidance document and
any other outdated guidance, including NTLs, and then issue new NTLs as
necessary to provide updated guidance on best practices for
implementing this rule.
Comment: An independent marine archaeologist commented that the
proposed rule would not address, ``impacts from pipelines and structure
removals, both of which are under the permit authority of . . . [the
Bureau of Safety and Environmental Enforcement (BSEE)] . . .'' The
commenter added that, ``[u]nder MMS, numerous historically significant
shipwrecks, such as the German U-Boat U-166 and the `Mardi Gras
Shipwreck,' were located during pipeline surveys.'' They also noted
that the shipwrecks have been ``adversely impacted by pipeline
construction as a result of inadequate identification efforts.'' They
stated that
[[Page 71174]]
``[w]ithout equivalent regulations promulgated by BSEE, significant
historic resources remain at risk from the offshore oil and gas
program. Since BOEM retains responsibility for conducting NEPA reviews
of BSEE permitting actions, BOEM should make clear that these permit
applications should be accompanied by an archaeological survey and
report under 40 CFR 1502.21. . . .''
Similarly, Echo Offshore addressed the proposed requirement that
BOEM refer a discovery to BSEE to determine if the resource may have
been adversely impacted by operations. It asked BOEM to clarify whether
there was an agreement between BOEM and BSEE to ensure that both
bureaus use the same set of rules for evaluating resources. It also
noted that many of the projects in the Gulf of Mexico are under BSEE
jurisdiction and the applicability of current requirements is unclear.
Response: For pipeline operations (e.g., installation,
modification, or decommissioning of a pipeline) proposed under an
approved EP, DOCD, or DPP, the lessee and operator are required to
submit a permit application to BSEE, pursuant to 30 CFR 550.281(a) and
250.1007. Existing BSEE regulations also require submission of a
shallow hazards survey report and potentially an archaeological
resource report with any pipeline permit application and require all
operations to immediately halt if an archaeological resource is
discovered while conducting operations. See 30 CFR 250.1007(a)(5),
250.194(c), and 250.1010(c). The regulations likewise require that all
pipeline removal applications include plans to protect archaeological
features during removal operations. Id. at Sec. 250.1752(a)(6).
Although BSEE ultimately determines whether to approve or deny a
pipeline operation permit, BOEM conducts the required environmental
analyses on behalf of BSEE for any permit application proposing bottom
disturbing activities (e.g., installation of new or relocation of
existing segments or components), which includes ensuring that the
proposed activity does not adversely affect potential archaeological
resources. BSEE subsequently uses BOEM's environmental analyses to
fulfill its obligations under NEPA and section 106 of the NHPA. This
final rule will enhance the capacity of both BOEM and BSEE to identify
and protect potential archaeological resources that might be adversely
affected by pipeline operations. Additionally, this rule does not
directly apply to BSEE's authorizations under part 250, and does not
amend those regulations.
Comment: OOC and NOPC recommended that if BOEM removes the ``reason
to believe'' standard, it should remove the phrase ``or any other
request to obtain an authorization or permit from BOEM that involves
disturbance of the seafloor'' from the proposed Sec. 550.194(a). They
asserted that if BOEM is not willing to remove this phrase in the final
rule, BOEM should define which authorizations and permits would be
subject to the new requirement and revise the RIA if the definition
includes all or most permits or authorizations associated with offshore
exploration and production.
Response: In response to this comment, BOEM has revised Sec.
550.195(a) to remove the phrase as recommended by the commenter. That
section now states: ``To protect archaeological resources, your EP,
DOCD, or DPP that proposes activities involving disturbance of the
seafloor . . .''. BOEM agrees that the phrase is not needed to protect
archaeological resources and could be misinterpreted to include
activities not pertaining to this section.
5. Definitions
Comment: The Ocean Foundation expressed support for the inclusion
of historic resources on the NRHP in the definition of archaeological
resources. API and OOC requested clarification on the definition of an
archaeological resource and how it would be interpreted moving forward.
Response: BOEM has amended the definition of the term
``Archaeological resource'' in Sec. 550.105 of the final rule, as
proposed, to clarify that any historic property, as described in the
NHPA, is considered an archaeological resource for the purpose of
BOEM's regulations. As discussed in the preamble to the proposed rule
at 88 FR 9803, this revised definition would encompass historical
properties, as defined in 36 CFR 800.16(l). These properties include
any prehistoric or historic district, site, building, structure, or
object included in or eligible for inclusion in the NRHP maintained by
the Secretary of the Interior. The term ``historic property'' also
includes artifacts, records, and remains that are related to and
located within such properties, and properties of traditional religious
and cultural importance to an Indian Tribe or Native Hawaiian
organization and that meet the National Register criteria. BOEM has
responded to the comments from API and OOC that were sufficiently
specific, but API and OOC do not provide enough additional information
about the aspects of the definition that they claim are ambiguous and
require additional definitions and clarifications to enable further
response.
Comment: An independent marine archaeologist stated that the term
``high resolution'' is not clearly defined. They also requested
clarification regarding the phrase ``proposed seabed disturbance,''
specifically whether it will include permitted activity or whether it
will also include supplemental activity, such as coring, rig moves,
etc. Another marine archaeologist recommended that BOEM clarify whether
there is a depth below the seafloor or type of disturbance that would
be exempt from classification as a ``bottom disturbing activity.''
Response: In keeping with professional standards that have evolved
since the existing regulations were adopted, this final rule defines
the minimum level of survey information necessary to support the
conclusions in the archaeological report. The rule has been crafted to
specify clear performance standards that provide lessees with more
flexibility to design and conduct archaeological surveys in a manner
that meets those performance standards, and therefore BOEM believes it
is not necessary to define ``high resolution'' as a distinct term. BOEM
cannot clarify whether there is a depth below the seafloor or type of
disturbance that would be exempt from classification as a ``bottom
disturbing activity'' without knowing the depth or the type of
disturbance. Section 550.194(d) of the final rule provides a process
where the lessee may request a departure on a case-by-case basis. In
response to the request to clarify if ``proposed seabed disturbance''
includes permitted activity only or also includes supplemental
activity, the regulations state that all activities covered by an EP,
DOCD, or a DPP that propose to disturb the seafloor would be covered.
V. Summary of Economic Impacts and Benefits
A. What are the economic impacts?
The costs and benefits of the final rule are compared against the
baseline scenario. The baseline scenario, or status quo, represents
BOEM's assessment of the current practices under the current regulatory
framework, including current industry practices and standards that are
consistent with that framework. To define the baseline, BOEM examined
the best available information regarding the current regulatory
requirements and industry standards for conducting an HRG survey, which
is the procedure for identifying possible archaeological resources.
[[Page 71175]]
In 2011, BOEM's predecessor, BOEMRE, implemented a new pre-seabed
disturbance survey policy, which BOEMRE presented to operators during a
workshop held in March 2011. Those surveys were conducted, when
appropriate, in lease areas that were not designated as highly probable
for containing archaeological resource by the predictive model. BOEM
advised that, prior to conducting any bottom-disturbing activity on the
OCS that could damage archaeological resources, operators should
perform a survey of the seafloor where the activities were to take
place and prepare an archaeological assessment. Additionally, HRG
surveys are already required to identify shallow hazards in 30 CFR
550.214(e) and 550.244(e).
Under the Gulf of Mexico region baseline scenario, HRG
archaeological surveys are conducted, with very rare exceptions, using
methods consistent with guidelines provided in NTL 2005-G07, titled,
``Archaeological Resource Reports and Surveys,'' \9\ which recommends a
maximum line spacing of 50 meters in water depths of 200 meters or
less. As such, BOEM concludes that most operators are already in
compliance with the requirements being codified in this final rule.
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\9\ https://www.boem.gov/sites/default/files/documents/newsroom/BOEM20NTL20No.202005-G07.pdf.
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In the Alaska region, all HRG archaeological surveys completed
since 2011 have been conducted using methods consistent with guidelines
provided in NTL 2005-A01, titled, ``Shallow Hazards Survey and
Evaluation for OCS Exploration and Development Drilling,'' \10\ and NTL
2005-A03, titled, ``Archaeological Survey and Evaluation for
Exploration and Development Activities.'' \11\ These NTLs provide
archaeological survey guidance that includes detailed coverage of 1,200
meters or greater in all directions from a proposed activity and survey
line spacing of 150 meters by 300 meters or less. Alaska's offshore oil
and gas project economics are challenging, and BOEM finds that
archaeological surveys there are generally more expensive than in the
Gulf of Mexico and therefore may incur additional cost as a result of
this final rule.
---------------------------------------------------------------------------
\10\ https://www.bsee.gov/sites/bsee.gov/files/notices-to-lessees-ntl/drilling/05-a01.pdf.
\11\ https://www.boem.gov/sites/default/files/documents/oil-gas-energy/BOEM20NTL20No.202005-A03.pdf.
---------------------------------------------------------------------------
Most of the revisions in this final rule will have no or negligible
cost impacts for operators. All expected incremental costs of the final
rule are due to the requirement for HRG archaeological surveys in water
depths of less than or equal to 100 meters and for a magnetometer,
gradiometer, or the equivalent towed at an altitude and line spacing
sufficient to detect ferrous metals or other magnetically susceptible
materials of at least 1,000 pounds. This additional cost is expected to
be from the tighter line spacing required for the surveys as compared
to the existing NTL. BOEM has determined that the performance standard
necessary to detect ferrous metal of at least 1,000 pounds is met by
conducting archaeological surveys with a maximum line spacing of 30
meters.\12\
---------------------------------------------------------------------------
\12\ The explanation for this statement is provided in section
VII of the preamble of the proposed rule under Sec. 550.194(c)(2),
where it states: ``If the sensor is sensitive to detecting a
variable of one gamma with no more than 3 gammas of interference,
the ferrous mass that might be associated with an historic shipwreck
should be detectable as a distinct anomaly from a horizontal
distance of 50 feet (15 meters) or less from the sensor to the
ferrous mass and a vertical distance of 20 ft (6 meters) or less
from the sensor to the seafloor.'' Based on the reports cited above
[in the preceding footnote], a survey design of no more than 30-
meter line spacing and a magnetometer, gradiometer, or their
equivalent towed no more than 6 meters from the seafloor should be
sufficient to locate most historically significant shipwrecks on the
OCS.
---------------------------------------------------------------------------
BOEM estimates that the changes would increase total OCS
archaeology survey costs over the next 20 years by $5.9 million (using
a 3 percent discount rate). Most of the revisions in this final rule
will have no or negligible cost impacts for lessees and operators.
Table 1 presents a summary of the qualitative benefits and a
quantitative estimate of the annualized and total costs for the rule.
BOEM estimates that the changes would increase total OCS archaeology
survey costs over the next 20 years by $5,925,770, using a 3 percent
discount rate, or by $4,452,834, using a 7 percent discount rate.
Table 1--Summary of Benefits and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Units
------------------------------------------------
Category Estimate Discount rate Period Notes
Year dollars (%) covered
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
-------------------------------------------------------------------------------------------------------------
Qualitative........................... Assures compliance with NHPA and strengthens archaeological resource protections.
Reduces the likelihood of disturbing shipwrecks or other historical sites.
Provides regulatory clarity and certainty for operators.
Reduces risk and potential mitigation costs to O&G operators.
-------------------------------------------------------------------------------------------------------------
Costs:
-------------------------------------------------------------------------------------------------------------
Annualized Incremental Costs.......... $398,305 2024 3 20 years Increased compliance costs due to increased
measurement capability requirements in
water depths less than or equal to 100
meters.
420,316 7
Total Incremental Costs........... 5,925,770 3
4,452,834 7
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 71176]]
B. What are the benefits?
The estimated benefits associated with this final rulemaking are
qualitative benefits and are as follows:
Assures compliance with NHPA and strengthens
archaeological resource protections;
Reduces the likelihood of disturbing shipwrecks or other
historical sites;
Provides regulatory clarity and certainty for operators;
and
Reduces risk and potential mitigation costs to offshore
oil and gas operators.
VI. Section-by-Section Analysis
Part 550--Oil and Gas and Sulfur Operations in the Outer Continental
Shelf
Subpart A--General
Section 550.105 Definitions
The Department is finalizing, as proposed, amendments to the
definition of the term ``Archaeological resource'' to clarify that any
historic property described by the NHPA is considered an archaeological
resource for the purpose of BOEM's regulations. The new definition of
``Archaeological resource'' reads as follows: ``the material remains of
human life or activities that are at least 50 years of age and that are
of archaeological interest, including any historic property described
by the National Historic Preservation Act, as defined in 36 CFR
800.16(l).''
As discussed in the preamble to the proposed rule at 88 FR 9803,
this revised definition will encompass the historic properties as
defined in 36 CFR 800.16(l). These properties include any prehistoric
or historic district, site, building, structure, or object included in,
or eligible for, inclusion in the NRHP maintained by the Secretary of
the Interior. The term ``historic property'' also includes artifacts,
records, and remains that are related to and located within such
properties, and properties of traditional religious and cultural
importance to an Indian Tribe or Native Hawaiian organization and that
meet the National Register criteria.
Section 550.194 How must I conduct my approved activities to protect
archaeological resources?
The Department is finalizing, as proposed, the revision of the
title of Sec. 550.194 from ``How must I protect archaeological
resources?'' to ``How must I conduct my approved activities to protect
archaeological resources?'' to reflect that the response to a discovery
of potential archaeological resources and the remediation process is no
longer included in the content of Sec. 550.194 but has been moved to a
new section (i.e., Sec. 550.195).
The Department is finalizing, as proposed, amendments to Sec.
550.194(a) to remove the ``reason to believe'' standard with respect to
individual leases, as discussed in section II.B of this preamble. This
final rule requires operators to submit to BOEM an archaeological
report, refer to a previously submitted report meeting the necessary
standards, or submit evidence demonstrating that a reasonable and good
faith identification effort has already been performed. Operators must
include these submissions with any EP, DOCD, or DPP that proposes
activities involving disturbance of the seafloor.
The Department is finalizing, as proposed, amendments to Sec.
550.194(a)(1). The existing regulation requires operations to be
located at a site that would not adversely affect an area containing an
archaeological resource if an archaeological report suggests that a
resource may be present. This final rule relocates the requirements for
a response to a discovery of potential archaeological resource to a new
section (i.e., Sec. 550.195). This rule specifies that an
archaeological report must be based on an HRG survey, as discussed in
section II.B of this preamble. This final rule allows operators to
submit an archaeological report based on an HRG survey of the APE as
one option for complying with the requirement in Sec. 550.194 to
protect archaeological resources.
The Department is finalizing amendments to Sec. 550.194(a)(2) to
replace the text requiring an operator to establish that an
archaeological resource does not exist in a proposed site of operation
with text specifying that operators can submit a reference to an
archaeological report based on an HRG survey of the APE that was
previously submitted for the lease as a means to comply with the
requirement in Sec. 550.194. This amendment reflects the relocation of
the requirements for a response to a discovery of potential
archaeological resource to a new section (i.e., Sec. 550.195).
Under Sec. 550.194(a)(2) of the final rule, an operator may submit
a reference to an archaeological report if the previously submitted
survey complies with the parameters identified in the final rule and if
the results of that previous survey reasonably remain valid, as
determined by BOEM. This provision is designed to minimize duplicative
surveys by allowing operators to use the data from previously conducted
surveys, such as certain shallow hazard reports. The amendments in this
final rule specify that BOEM may consider a previous survey and its
associated report invalid if BOEM suspects that the seafloor
environment has changed sufficiently to warrant a new HRG survey (e.g.,
time elapsed since prior survey, change from a geological event such as
a mudslide).
The Department is finalizing, as proposed, new Sec. 550.194(a)(3),
to allow operators to comply with the requirement in Sec. 550.194 by
demonstrating that a reasonable and good faith effort to identify
archaeological resources within the APE has already been performed.
This provision is designed to minimize duplicative surveys by allowing
operators to use, for example, previously collected data from non-
operator commissioned sources, such as NOAA coastal surveys. BOEM will
allow the use of such data if BOEM determines these sources are
sufficient to identify possible marine archaeological resources at a
degree of certainty reasonably similar to or better than an HRG survey.
The Department is finalizing amendments in Sec. 550.194(b) to
replace the text stating that the Regional Director will notify an
operator if they determine that an archaeological resource is likely to
be present with the requirement that the archaeological report or
evidence required by Sec. 550.194(a) be prepared and signed by a
qualified marine archaeologist. This amendment reflects the relocation
of the requirements for a response to a discovery of potential
archaeological resource to Sec. 550.195. The requirement that the
report or evidence must be prepared and signed by a qualified marine
archaeologist applies regardless of which option described in Sec.
550.194(a) is used as the basis of the archaeological report or
evidence. As a result of public comment, this final rule further
defines a qualified marine archaeologist as one who meets the Secretary
of the Interior's ``Standards and Guidelines for Historic Preservation
Projects: Professional Qualification Standards'' and any subsequent
updates to those standards and guidelines and has experience in
conducting or overseeing HRG surveys and processing and interpreting
the resulting data for archaeological potential.
The Department is finalizing, as proposed, amendments to Sec.
550.194(c) to replace the requirement to immediately halt operations if
an archaeological resource is discovered while conducting operations
with text establishing the minimum standards for conducting the
geophysical survey upon
[[Page 71177]]
which the archaeological report is based. This amendment reflects the
relocation of the requirements for a response to a discovery of
potential archaeological resource to Sec. 550.195.
Section 550.194(c) of this final rule requires that geophysical
surveys must be conducted using state-of-the-art instrumentation and
methodology that meets or exceeds scientific standards for conducting
marine archaeological surveys. While BOEM outlines the minimum
scientific standards in paragraph (c), BOEM recognizes that emerging
technologies and methods may be used to achieve or exceed these
standards. In these instances, BOEM may approve a departure from the
provisions of paragraph (c) of Sec. 550.194 on a case-by-case basis if
it meets the requirements in paragraph (d).
The Department is finalizing Sec. 550.194(c)(1) to establish the
requirements for the survey vessel's navigation system to continuously
register its surface position, specify the logging position data, and
specify the presentation of geodesy information. With this rulemaking,
the regulatory text in Sec. 550.194(c)(1) includes a statement added
based on public comments that navigation systems meeting the criteria
outlined in Sec. 550.194 do not require prior approval by BOEM.
The Department is finalizing Sec. 550.194(c)(2) to require the use
of a total field magnetometer, gradiometer, or other similar instrument
having equal or superior measurement capability for surveys conducted
in waters of 100-meter depth or less. It also establishes the
requirements for the collection of data necessary to assist in the
identification of archaeological resources on the OCS. The sensor will
be required to be towed in such a manner that a magnetic field produced
by ferrous metal associated with a historic shipwreck (e.g., a wooden
ship's fasteners, anchors, and cannons) can be detected. The data must
be post-processed and contoured in a manner to best facilitate the
interpretation of potential archaeological resources. Additionally,
requiring the contouring of magnetometer data for inclusion in the
archaeological reports will facilitate the interpretation of potential
archaeological resources. See the preamble to the proposed rule at 88
FR 9804 for more details. Based on public comment, BOEM has removed the
altimeter requirement as proposed Sec. 550.194(c)(2) in favor of a
more general requirement that an accurate measurement of the altitude
of the magnetometer must be used.
The Department is finalizing Sec. 550.194(c)(3) to require the use
of a sub-bottom profiler system for surveys conducted to locate
potential areas of prior human occupation. BOEM believes that in the
Gulf of Mexico and the Alaska OCS, the 140-meter cutoff best
encompasses the furthest likely extent of prior human occupation, as
discussed in section III of this preamble. To establish a default water
depth applicable to the requirement to use a sub-bottom profiler, this
rule requires the sub-bottom profiler in water depths of 140 meters or
less. The depths are based on current scientific understanding of sea-
level rise and could change in the future as additional information
becomes available.
The Department is finalizing Sec. 550.194(c)(4) to require the use
of a side-scan sonar or equivalent system in all water depths. It also
establishes the technical requirements for the use of this equipment
and for the post-processing of data. To ensure that the nadir is
imaged, the sonar should have overlapping coverage between the right
and left channels on adjacent survey transects. A 100 percent
overlapping coverage of the seafloor (i.e., 200 percent seafloor
coverage) ensures that significant archaeological resources are not
missed in the survey. Greater than 200 percent overlapping coverage may
be necessary to guarantee nadir coverage and account for survey vessel
drift between lines, which may be an important consideration when
surveying in deep water. The sonar system must be able to detect small,
discrete targets 0.5 meters (1.6 feet) in length at maximum range,
along the track. Post-processing can improve sonar data quality by, for
example, adjusting for slant range effects and variable speed along
line. This provision requires post-processing to ensure that the data
is useful for interpretation and mapping. For more details, see the
preamble to the proposed rule at 88 FR 9805. Based on public comment,
this section has been revised to replace ``resolve'' with ``detect''
and to clarify that the sonar detection is ``along the track.''
The Department is finalizing Sec. 550.194(c)(5) as proposed to
require the use of an echo sounder or equivalent system in all water
depths. This new provision also establishes the technical requirements
for the use of this equipment and for the post-processing of data.
Bathymetric surveys are conducted using an echo sounder attached to
or towed by a survey boat or sometimes mounted to an autonomous
underwater vehicle. As the boat moves across the water, the echo
sounder generates electrical signals. These are then converted into
soundwaves by an under-water transducer. A single-beam sonar uses just
one transducer to map the seafloor, while multibeam sonar sends out
multiple, simultaneous sonar beams (or sound waves) at once in a fan-
shaped pattern. This covers the space both directly under the ship and
out to each side.
Bathymetry data must be acquired to measure accurate water depths
across the area. Where swath bathymetry data are acquired, it is
recommended that backscatter values from the seabed returns are logged
and processed for use in seabed characterization to support and
complement the side scan sonar data. Single beam echo sounder data (or
data from the equivalent system) should be used to verify the results
of swath bathymetry data to check for gross error.
The bathymetry systems must be set up to accurately record data
across the range of water depths expected in the survey area. Care
should be taken in selection of operating frequencies such that the
individual systems do not interfere with each other. The bathymetry
systems must be used in conjunction with an accurate motion sensor to
compensate for vessel motion. Water column sound velocity should be
determined as a minimum at the start and end of data acquisition, and
at suitable intervals throughout the project, by use of a conductivity,
salinity, and temperature depth probe or a direct reading sound-
velocity probe suitable for use in the maximum water depths expected
within the survey area. Water depths should be corrected for vessel
draft, tidal level, and referenced to the appropriate vertical datum
(LAT, MSL, etc.). The final processed digital terrain model data cell
size covering the entire survey area, without gaps, should reflect the
frequency of the system being used, data density, and altitude above
seabed of the transducer head.
The Department is finalizing Sec. 550.194(c)(6) as proposed to
allow BOEM to accept the results of an archaeological survey conducted
prior to the effective date of these regulations in lieu of conducting
a new survey, provided the lessee or operator can demonstrate that such
survey was conducted in such a manner as to meet the objectives of
Sec. 550.194(c). Some OCS lessees and operators have conducted OCS
surveys using advanced techniques and technologies, such that any new
survey would be highly unlikely to yield substantially different
results. In those situations, subject to BOEM approval, a lessee or
operator may be able to use an existing survey that meets
[[Page 71178]]
or exceeds the requirements in the final rule, rather than conduct a
new survey.
The Department is finalizing, as proposed, new Sec. 550.194(d) to
provide that the Regional Director may approve departures, on a case-
by-case basis, from the performance standards outlined in Sec.
550.194(c). The Regional Director will determine if the departure is
necessary because ordinary application of those standards would be
impractical or unduly burdensome; would be unnecessary to achieve the
intended objectives of the marine archaeology program; would fail to
conserve the natural resources of the OCS; would fail to protect life
(including human and wildlife), property, or the marine, coastal, or
human environment; or would fail to protect sites, structures, or
objects of historical or archaeological significance.
The Department is finalizing, as proposed, new Sec. 550.194(e) to
provide that any departures approved under Sec. 550.194(d) must be
documented in writing and must be: consistent with OCSLA; protect the
archaeological resources to the same degree as if there was no approved
departure from the regulations; satisfy NHPA section 106 and achieve
results for identifying archaeological resources as if there was no
approved departure from the regulations; and not impair the rights of
third parties. This will allow BOEM to ensure that its archaeological
report requirements remain in compliance with the NHPA.
The Department is finalizing, as proposed, new Sec. 550.194(f) to
provide that BOEM may reject any archaeological report if the survey
was not prepared in accordance with the requirements of Sec.
550.194(c) or any BOEM-approved departure to the survey requirements.
This final rule also provides that BOEM may reject any archaeological
report if the results produced from the survey do not meet the data and
resolution requirements specified in Sec. 550.194(c), regardless of
whether the survey was otherwise conducted appropriately. For more
details, see the preamble to the proposed rule at 88 FR 9806.
The Department is finalizing, as proposed, new Sec. 550.194(g) to
provide specifications for what must be done if the archaeological
report or evidence mentioned in Sec. 550.194(a) suggests that an
archaeological resource may be present. This final rule establishes the
two courses of action for operators to proceed with operations if the
archaeological report or evidence required by Sec. 550.194(a) suggests
that an archaeological resource may be present.
The Department is finalizing, as proposed, new Sec. 550.194(g)(1)
to provide operators the option of relocating operations so as not to
adversely affect an area where known or suspected archaeological
resources exist.
The Department is finalizing, as proposed, relocated Sec.
550.194(a)(2) as Sec. 550.194(g)(2) to provide an alternative to Sec.
550.194(g)(1). This alternative provides operators the option of
establishing, to the satisfaction of the Regional Director, that an
archaeological resource does not exist or will not be affected by
operations or that the operator will take measures determined by the
Regional Director to protect the archaeological resource during
operations. If the Regional Director requires additional
investigations, the operator will be required to submit a report
documenting the investigation to the Regional Director for review.
The Department is finalizing, as proposed in new Sec.
550.194(g)(2)(i), that if further investigation cannot establish to the
satisfaction of the Regional Director that an archaeological resource
is not likely to be present at the operational site, the lessee or
operator must demonstrate to the satisfaction of the Regional Director
either that its operations will not adversely affect the suspected
resource or else commit to undertaking the steps required in Sec.
550.194(g)(2)(ii).
This final rule replaces the existing Sec. 550.194(b) with Sec.
550.194(g)(2)(ii), as proposed, and emphasizes that the operator must
take no action that may adversely affect an archaeological resource
until the Regional Director specifies measures the operator must take
to protect the resource.
The Department is finalizing, as proposed in new Sec.
550.194(g)(3), that if the Regional Director determines that an
archaeological resource is likely to be present in the lease area and
is likely to be adversely affected by operations, and if the Regional
Director determines that there is no feasible means to avoid this
adverse effect, the Regional Director will be allowed to prohibit
operations in the APE.
The Department is finalizing, based on public comments discussed in
section III of this preamble, a new Sec. 550.194(h) to allow that any
lessee or operator that has an existing lease executed prior to the
effective date of this final rule to apply the regulations in effect
prior to the effective date with respect to the provisions of this
section for a period of time not to exceed 365 days after the effective
date of this final rule. The intent of this new provision is to avoid
forcing lessees and operators to renegotiate existing agreements with
companies that will be providing archaeological surveys where a survey
contract has already been negotiated for future survey activities.
Section 550.195 What must I do if I discover a potential archaeological
resource while conducting operations on the lease or right-of-way area?
The Department is finalizing, as proposed, amendments to move
existing 30 CFR 550.194(c) to a new section at 550.195, titled ``What
must I do if I discover a potential archaeological resource while
conducting operations on the lease or right-of-way area?'' Moving the
provisions to a separate section will improve the overall organization
of the regulations. In addition to moving the provision to a stand-
alone section, BOEM is expanding on the specificity of the
requirements. The existing regulations require that operations be
halted immediately within the area of the discovery and that the
discovery be reported to the BOEM Regional Director.
The Department is finalizing, as proposed, new Sec. 550.195(a) to
require the operator to immediately halt seafloor disturbing operations
within at least 305 meters (1,000 feet) of the area of the discovery
and report the discovery to the Regional Director within 72 hours. This
final rule establishes these requirements to minimize the potential for
risk to the resource.
The Department is finalizing, as proposed, new Sec. 550.195(b) to
clarify that if BOEM determines that the resource is eligible for
listing on the NRHP in accordance with the applicable regulations, the
Regional Director will specify measures that the lessee and operator
must take to protect the resource during operations and activities. The
final regulations in Sec. 550.194(g) state that if the resource is
present, the Regional Director will determine how to protect it. If
BOEM were to determine that the resource is eligible for listing on the
NRHP, and the operations and activities are under the jurisdiction of
BSEE, BOEM will inform the BSEE Regional Director that the resource has
been determined to be historically significant and advise BSEE on the
appropriate means to protect it.\13\
---------------------------------------------------------------------------
\13\ This is BOEM's current practice. When BOEM is notified of a
National Register-eligible archaeological discovery, it will notify
BSEE's archaeologists, particularly if the discovery happens during
post-permit-approved activities that are within BSEE's area of
jurisdiction. Both agencies share the same GIS database of known
NRHP eligible sites, so this information is further available for
review as a routine part of each agency's review processes.
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[[Page 71179]]
The Department is finalizing, as proposed, new Sec. 550.195(c)
that provides, for activities and operations under BSEE jurisdiction,
that BOEM will refer the discovery to BSEE to determine if the resource
may have been adversely impacted by operations. The BSEE Regional
Director will specify measures the lessee or operator must take either
to demonstrate that no adverse impacts have occurred or to document the
adverse impacts. BSEE may specify additional measures that it
determines are necessary to remediate adverse impacts to any
archaeological resources resulting from operations that have been
discovered and will relay to BOEM both the results of its investigation
and any further measures it has imposed to remediate the adverse
impacts that may have occurred.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, as Amended by
Executive Order 14094: Modernizing Regulatory Review, and Executive
Order 13563: Improving Regulation and Regulatory Review
Executive Order (E.O.) 12866, as amended by E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in OMB
will review all significant rules. OIRA has determined that this final
rule is not a significant action under E.O. 12866.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
E.O. 13563 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. BOEM has developed this rule in a manner
consistent with these requirements.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires
agencies to analyze the economic impact of regulations when a
significant economic impact on a substantial number of small entities
is likely and to consider regulatory alternatives that will achieve the
agency's goals while minimizing the burden on small entities. When an
agency issues a notice of rulemaking, the RFA requires the agency to
``prepare a final regulatory flexibility analysis'' that will give ``a
description of and an estimate of the number of small entities to which
the rule will apply'' (5 U.S.C. 604(a)).
BOEM has determined that this rule will affect a substantial number
of small entities. Operators under this rule primarily fall under the
Small Business Administration's (SBA) North American Industry
Classification System (NAICS) codes 211120 (crude petroleum extraction)
and 211130 (natural gas extraction). For NAICS classifications 211120
and 211130, SBA defines a small business as one with fewer than 1,251
employees. All 70 OCS operating companies would be impacted by the rule
if they engage in activities disturbing the seafloor in areas that have
not been previously surveyed and that would require an HRG survey and
an archaeological report under the rule. BOEM estimates that of the 70
OCS lease operators, 21 are large and 49 are small.
The regulatory changes in this rule are primarily clarifications,
codifications of existing practice, or reflections of NHPA regulations.
Most operators have been conducting HRG surveys and the archaeological
analysis consistent with the regulatory requirements in this rule since
at least 2011. Therefore, BOEM does not anticipate that these
regulatory updates will have a significant economic impact on small or
large operators. The expected incremental compliance costs of the rule
derive from the requirement that HRG archaeological surveys in water
depths less than or equal to 100 meters have a magnetometer,
gradiometer, or the equivalent towed at an altitude and line spacing
sufficient to detect ferrous metals or other magnetically susceptible
materials of at least 1,000 pounds. This performance standard typically
can be met by operators conducting archaeological surveys with a
maximum line spacing of 30 meters at a height of no more than 6 meters
from the seafloor.
BOEM estimates that the changes would increase OCS archaeology
survey costs by $7,595,000 over the next 20 years. The Gulf of Mexico
archaeological survey costs are estimated to increase by $2,520,000,
while the Alaska costs increase by $5,075,000, depending on activity
and cost factors discussed in section II of the Benefit-Cost Analysis.
BOEM's estimate of the rule's economic impact on small entities
would vary depending on the OCS region where the archaeological surveys
occur. Typically, the increased compliance cost would impact operators
conducting activities in water depths of 100 meters or less. Small
entity operators account for the vast majority of activity in the Gulf
of Mexico OCS's shallow water depths. Therefore, BOEM estimates that up
to 100 percent of the increased Gulf of Mexico compliance cost for
survey line spacing of 30 meters would be borne by operators that are
small entities. In the Alaska region, all archaeological surveys are
expected to be conducted by large entities. On the Alaska OCS, one
company currently holds all OCS oil and gas leases. This company is
considered a large entity under the SBA's definition. Therefore, BOEM
estimates the increased compliance cost in Alaska would be borne by an
operator that is a large entity. Compliance costs by business size can
be seen in Table 2 with discount rates. BOEM does not expect new
archaeological surveys in other OCS regions over the next 20 years.
Table 2--20 Year Compliance Cost Associated with Rule by Business Size
----------------------------------------------------------------------------------------------------------------
Undiscounted Discounted at Discounted at
cost 3% 7%
----------------------------------------------------------------------------------------------------------------
Large Business Total Incremental Costs.......................... $5,075,000 $3,959,525 $2,972,956
Small Business Total Incremental Costs.......................... 2,520,000 1,966,245 1,479,878
----------------------------------------------------------------------------------------------------------------
C. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA), 5
U.S.C. 804(2), requires BOEM to perform a regulatory flexibility
analysis, provide guidance, and help small businesses comply with
statutes and regulations for major rulemakings. This action is not
subject to the SBREFA because it does not have an annual effect on the
economy of $100 million or more.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538,
requires
[[Page 71180]]
BOEM, unless otherwise prohibited by law, to assess the effects of
regulatory actions on State, local, and Tribal governments, and the
private sector. Section 202 of UMRA generally requires BOEM to prepare
a written statement, including a cost-benefit analysis, for each
proposed and final rule with ``Federal mandates'' that may result in
expenditures by State, local, and Tribal governments, in the aggregate,
or to the private sector, of $100 million or more in any one year. This
action does not contain a Federal mandate under UMRA that may result in
expenditures of $100 million or more for State, local and Tribal
governments, in the aggregate, or the private sector in any one year.
Accordingly, a statement containing the information required by the
UMRA is not required.
This action is not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
substantially or uniquely affect small governments.
E. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
E.O. 12630 ensures that government actions affecting the use of
private property are undertaken on a well-reasoned basis with due
regard for the potential financial impacts imposed by the government.
This action does not effect a taking of private property or otherwise
have taking implications under E.O. 12630, and therefore, a takings
implication assessment is not required. Additionally, no comments were
received on E.O. 12630 during the public comment period.
F. Executive Order 13132: Federalism
Regulatory actions that have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government are subject to E.O. 13132. Under the
criteria in section 1 of E.O. 13132, this final rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. It will not have substantial
direct effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. No comments
were received on E.O. 13132 during the public comment period.
G. Executive Order 12988: Civil Justice Reform
This final rule complies with the requirements of E.O. 12988.
Specifically, this rule:
(1) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(2) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
No comments were received on E.O. 12988 during the public comment
period.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
E.O. 13175 defines polices that have Tribal implications as
regulations, legislative comments or proposed legislation, and other
policy statements or actions that will or may have a substantial direct
effect on one or more Indian Tribes, or on the relationship between the
Federal Government and one or more Indian Tribes. Additionally, the
DOI's consultation policy for Tribal Nations and ANCSA Corporations, as
described in Departmental Manual part 512 chapter 4, expands on the
above definition from E.O. 13175 and requires that BOEM invite Indian
Tribes and ANCSA Corporations ``early in the planning process to
consult whenever a Departmental plan or action with Tribal Implications
arises.'' BOEM strives to strengthen its government-to-government
relationships with Tribal Nations through a commitment to consultation
with Tribes, recognition of their right to self-governance and Tribal
sovereignty, and honoring BOEM's trust responsibilities for Tribal
Nations. BOEM also is respectful of its responsibilities for
consultation with corporations established pursuant to ANCSA, 43 U.S.C.
1601 et seq.
As discussed in the preamble to the 2023 proposed rule (88 FR
9809), BOEM evaluated the proposed rule under DOI's consultation policy
and under the criteria in E.O. 13175 and determined that this rule may
have Tribal implications.
BOEM sent letters to all Tribes and ANCSA Corporations on March 3,
2023, to ensure they were aware of the proposed rulemaking, to answer
any immediate questions they may have, and to invite formal
consultation if they would like to consult. Only one request for
consultation was received; consultation was held with the Mashpee
Wampanoag on March 14, 2024, and meeting notes are included in the
docket (memorandum titled Tribal Outreach: Mashpee Wampanoag). For more
details on E.O. 13175, the DOI's consultation policy for Tribal Nations
and ANCSA Corporations, and the consultations conducted regarding this
rulemaking, see the memo in the docket titled, Tribal Outreach: Summary
of Engagement Activities. BOEM can consult at any time with federally
recognized Tribes as sovereign nations.
I. Paperwork Reduction Act
This final rule references existing and new IC requirements for
regulations at 30 CFR part 550, subpart A. Submission to OMB for review
under the PRA of 1995 (44 U.S.C. 3501 et seq.) is required. Therefore,
BOEM submitted an IC request to OMB for review and approval and
requested a new OMB control number. The information collections
relative to this rule are assigned OMB Control Number 1010-0196,
Protection of Marine Archaeological Resources Final Rulemaking. Once
the 1010-AE11 final rule is effective, BOEM will transfer the hour
burden from 1010-0196 to existing OMB Control Number 1010-0114, which
covers other information collections for this part and expires on May
31, 2026, then discontinue the new number associated with this
rulemaking. The IC related to this rulemaking concerns requirements
under 30 CFR 550.194 and 550.195. BOEM may neither conduct nor sponsor,
nor are respondents required to respond to, a collection of information
unless it displays a currently valid OMB control number.
BOEM is revising its IC burden estimates with the final rule to
align with the regulations that codify existing industry practice. The
new and revised IC requirements for 30 CFR 550.194 and 550.195
identified below require approval by OMB. BOEM would increase the
overall annual burden by 505 hours. The burden hours related to this
rulemaking are shown in the following table, and burden hour changes
are discussed below.
[[Page 71181]]
----------------------------------------------------------------------------------------------------------------
Reporting or Annual
Citation 30 CFR 550 subpart A recordkeeping Hour Average number of annual burden
and related forms/NTLs requirement burden responses hours
----------------------------------------------------------------------------------------------------------------
Non-hour cost burdens
----------------------------------------------------------------------------------------------------------------
Information and Reporting Requirements
----------------------------------------------------------------------------------------------------------------
194(a), (c)..................... Prepare and/or submit 50 10 submissions................ 500
archaeological reports
or evidence. Submit
archaeological and
follow-up reports and
additional information.
-----------------------------------------------------
194(g).......................... Locate and protect Requirement not considered IC under 5 CFR
archaeological sites. 1320.3(b)(2).
Submit archaeological
and follow-up reports
and additional
information *.
-----------------------------------------------------
195(a).......................... Report archaeological 1 3 reports..................... 3
discoveries to the
Regional Director.
194............................. Request departures from 1 2 requests.................... 2
conducting
archaeological
resources surveys and/
or submitting reports
**.
Total burden................ ........................ ......... 15 responses.................. 505
------------------------------------------
........................ ......... $0 Non-hour cost burdens
----------------------------------------------------------------------------------------------------------------
* The time and financial resources necessary to comply with this requirement would be incurred in the normal
course of business using existing contracts already in place by the operator.
** Departure requests do not occur often but are included in burden calculation to allow for the rare occurrence
when a company would request a departure from conducting a survey or submitting a report.
30 CFR 550.194(a): This final rule will require that any
EP, DOCD, or DPP that proposes activities involving disturbance of the
seafloor must be accompanied by or contain an archaeological report and
supporting evidence. BOEM proposes to increase the estimated annual
burden hours related to this subsection to 500 hours (+500 annual
burden hours over the currently approved burden).
30 CFR 550.194(c): This final rule will require that
archaeological reports must be based on an HRG survey of the APE. The
HRG requirements described in 30 CFR 550.194(c) are also part of the
requirements used for geological and geophysical IC (i.e., shallow
hazards surveys) under 30 CFR 550.214 and 550.244 that OMB approved in
Control Number 1010-0151. Therefore, no additional burdens are expected
to be placed on industry.
30 CFR 550.194(g): If an archaeological resource is likely
to be present,\14\ this final rule will require an operator to either
relocate the proposed operations to avoid adversely affecting the
resource or establish that the resource does not exist, will not be
adversely affected by the operations, or will be protected by
mitigation measures during the operations. The likelihood that
operators would establish the archaeological resource is not present is
low. If operators relocate the project to avoid the known
archaeological resource, they could use resources already contracted
and available on the project (without the delay of additional
investigation). The operator likely will submit information related to
archaeological resources to BOEM. The burdens related to the submission
of archaeological resource information are accounted for in OMB
approved Control Number 1010-0151. Therefore, BOEM has determined there
will likely not be an additional burden on industry with this final
rule provision.
---------------------------------------------------------------------------
\14\ Often, based on the archaeological report, a sonar
signature or magnetic anomaly will likely represent an
archaeological resource, but that fact can only be confirmed through
more in-depth study. Thus, an option available to the operator is to
avoid it or to show that their operations will be designed not to
harm the potential archaeological resources identified by the HRG
survey.
---------------------------------------------------------------------------
30 CFR 550.195(a): This final rule will require the
operator to notify the BOEM Regional Director of any unanticipated
archaeological resource discovery. This notification would likely occur
during the operator's remote sensing phase or during deployment by a
remotely operated vehicle for surveys related to hydrophones. BOEM
expects that the occurrence will be low, so BOEM estimates the annual
burden hours to equal 3 hours (1 hour x 3 responses) (+3 annual burden
hours above the currently approved burden).
The annual burden hours for departure requests will be 2
annual burden hours. (+2 annual burden hours above the currently
approved burden).
Title of Collection: Protection of Marine Archaeological Resources
(Notice of Proposed Rulemaking).
OMB Control Number: 1010-0196.
Form Numbers: None.
Type of Review: New.
Total Estimated Number of Annual Responses: 15 responses.
Total Estimated Number of Annual Burden Hours: 505 hours.
Respondent's Obligations: Mandatory.
Frequency of Collection: On occasion.
Once this final rule becomes effective and OMB approves the IC
request 1010-0196, BOEM will revise the existing OMB Control Number
1010-0114 for the affected subpart discussed above and will adjust the
annual burden hours accordingly. The IC related to 30 CFR part 550 does
not include questions of a sensitive nature. BOEM will continue to
protect proprietary information according to the Freedom of Information
Act and the Department of the Interior's implementing regulations.
In addition, the PRA requires agencies to estimate the total annual
reporting and recordkeeping non-hour cost burdens resulting from the
collection of information. BOEM solicits your comments regarding non-
hour cost burdens arising from this final rule. For reporting and
recordkeeping only, your response should split the cost estimate into
two components: (1) total capital and startup costs, and (2) annual
operation, maintenance, and disclosure costs to provide the
information. You should describe the methods you use to estimate your
cost components, including system and technology acquisition, expected
useful life of capital equipment, discount rates, and the period over
which you 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 arising from this
final rule; (3) for reasons other than to provide information or to
keep records for the U.S. Government; or (4) as part
[[Page 71182]]
of customary and usual business or private practices.
As part of BOEM's continuing effort to reduce paperwork and
respondent burdens, BOEM invites the public and other Federal agencies
to comment on any aspect of this IC, including:
(1) Whether or not the collection of information is necessary,
including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
respondents.
J. National Environmental Policy Act
This final rule does not constitute a major Federal action
significantly affecting the quality of the human environment. A
detailed environmental analysis under NEPA is not required because this
final rule is covered by a categorical exclusion (see 43 CFR 46.205).
This final rule meets the criteria set forth at 43 CFR 46.210(e) for a
Departmental categorial exclusion in that this action is
``nondestructive data collection, inventory, study, research, and
monitoring activities'' and the criteria set forth at 43 CFR 46.210(i)
for a Departmental categorical exclusion in that this action is ``of an
administrative, financial, legal, technical, or procedural nature.''
Additionally, these activities meet the criteria for a categorical
exclusion based on the Department Manual in sections 15.4(A)(1),
(C)(1), and (C)(13). BOEM has also determined that the final rule does
not involve any of the extraordinary circumstances listed in 43 CFR
46.215 that would require further analysis under NEPA.
K. Data Quality Act
In promulgating this rule, BOEM did not conduct or use a study,
experiment, or survey requiring peer review under the Data Quality Act
(Pub. L. 106-554, app. C, sec. 515, 114 Stat. 2763, 2763A-153-154). In
accordance with the Data Quality Act, the Department has issued
guidance regarding the quality of information that it relies upon for
regulatory decisions. This guidance is available at the Department's
website at: https://www.doi.gov/ocio/policy-mgmt-support/information-and-records-management/iq.
No comments were received on the Data Quality Act during the public
comment period.
L. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Under E.O. 13211, BOEM is required to prepare and submit to OMB a
``Statement of Energy Effects for significant energy actions.'' This
should include a detailed statement of any adverse effects on energy
supply, distribution, or use (including a shortfall in supply, price
increases, and increased use of foreign supplies) expected to result
from the action and a discussion of reasonable alternatives and their
effects. This rulemaking will not have an effect on the production,
supply, distribution, or use of energy and is not expected to have any
effect on the energy industry.
No comments were received on E.O. 13211 during the public comment
period.
M. Congressional Review Act
This action is subject to the Congressional Review Act (CRA), 5
U.S.C. 801 et seq. BOEM will submit a rule report to each chamber of
Congress and to the Comptroller General of the United States. This
action does not meet the criteria in 5 U.S.C. 804(2).
List of Subjects in 30 CFR Part 550
Administrative practice and procedure, Air pollution control,
Continental shelf, Environmental impact statements, Environmental
protection, Federal lands, Government contracts, Investigations,
Mineral resources, Oil and gas exploration, Oil pollution, Outer
continental shelf, Penalties, Pipelines, Public lands--rights-of-way,
Reporting and recordkeeping requirements, Rights-of-way, Sulfur.
This action by the Principal Deputy Assistant Secretary is taken
herein pursuant to an existing delegation of authority.
Steven H. Feldgus,
Principal Deputy Assistant Secretary, Land and Minerals Management.
For the reasons stated in the preamble, BOEM amends 30 CFR part 550
as follows:
PART 550--OIL AND GAS AND SULFUR OPERATIONS IN THE OUTER
CONTINENTAL SHELF
0
1. The authority citation for part 550 is revised to read as follows:
Authority: 25 U.S.C. 3001 et seq.; 30 U.S.C. 1751; 31 U.S.C.
9701; 43 U.S.C. 1334.
Subpart A--General
0
2. Amend Sec. 550.105 by revising the definition of ``Archaeological
resource'' to read as follows:
Sec. 550.105 Definitions.
* * * * *
Archaeological resource means the material remains of human life or
activities that are at least 50 years of age and that are of
archaeological interest, including any historic property described by
the National Historic Preservation Act, as defined in 36 CFR 800.16(l).
* * * * *
0
3. Revise Sec. 550.194 to read as follows:
Sec. 550.194 How must I conduct my approved activities to protect
archaeological resources?
(a) To protect archaeological resources, your EP, DOCD, or DPP that
proposes activities involving disturbance of the seafloor must be
accompanied by or contain one of the following:
(1) An archaeological report based on a high-resolution geophysical
(HRG) survey of the APE defined, pursuant to 36 CFR 800.16(d) of the
Advisory Council on Historic Preservation's regulations implementing
section 106 of the NHPA, as the depth and breadth of the seabed that
could potentially be impacted by proposed activities;
(2) A reference to an archaeological report based on an HRG survey
of the APE that you previously submitted for your lease, provided that
any previously submitted survey complies with the survey parameters
identified in these regulations and the results of the survey are, in
BOEM's judgment, valid. BOEM may consider a survey or the resulting
report to be invalid if BOEM suspects that changes to the seafloor
environment warrant acquiring additional data, considering, for
example, the time elapsed since the prior survey or change in seafloor
from a geological event such as a mudslide; or
(3) Evidence demonstrating to BOEM's satisfaction that a reasonable
and good faith effort to identify archaeological resources within the
APE has already been performed, provided that the past efforts are
sufficient to identify possible marine archaeological resources at a
degree of certainty reasonably similar to or better than an HRG survey.
(b) The archaeological report and evidence described in paragraph
(a) of this section must have been or be prepared and signed by a
qualified marine archaeologist. A qualified marine archaeologist must
meet the
[[Page 71183]]
Secretary of the Interior's ``Standards and Guidelines for Historic
Preservation Projects: Professional Qualifications Standards'' as
developed per the National Historic Preservation Act (54 U.S.C.
306131), and any subsequent updates to those standards and guidelines,
and must have experience in conducting or overseeing HRG surveys and
processing and interpreting the resulting data for archaeological
potential.
(c) The geophysical survey resolution for the surveys described in
paragraph (a) of this section must be sufficiently detailed to identify
potential archaeological resources and must be performed using
instrumentation and methodology that is state-of-the-art and that meets
or exceeds scientific standards for conducting marine archaeological
surveys. The surveys must, at a minimum, adhere to the following
operational requirements and performance standards:
(1) A state-of-the-art navigation system with sub-meter accuracy
able to continuously determine the surface position of the survey
vessel and in-water position of towed and autonomous survey sensors.
Position fixes must be digitally and continuously logged along the
vessel track. Geodesy information must be clearly presented and
consistent across all data types. Navigation systems meeting the
criteria outlined in this section do not require prior approval by
BOEM.
(2) For geophysical surveys conducted in water depths of 100 meters
(328 feet) or less, the survey must employ a total field magnetometer,
gradiometer, or other similar instrument having equal or superior
measurement capability. The magnetometer, gradiometer, or its
equivalent must be towed as close to the seafloor as possible and
sufficiently far from the vessel to isolate the sensor from the
magnetic field of the survey vessel and the other survey instruments.
The magnetometer, gradiometer, or its equivalent must be towed at a
sufficient altitude to detect ferrous metals or other magnetically
susceptible materials of at least 1,000 pounds (453 kilograms) in mass
with a minimum magnetic deflection of 5 gamma ([gamma]; 5 nanotesla
[nT]). An accurate method must be used to record the height of the
magnetometer, gradiometer, or its equivalent in the water column. The
altitude of the magnetometer, gradiometer, or its equivalent must be
continuously recorded during data acquisition along the survey. The
instrument's sensitivity must be 1 [gamma] (1 nT) or less. Background
noise level must not exceed a total of 3 [gamma] peak to peak with data
samples of at least 2 points per meter along the survey track. All
collected data must be recorded on a digital medium that can be linked
electronically to the positioning data. Survey line, time, position,
altitude, and speed must be annotated on all output data. The data must
be post-processed and contoured in a manner to best facilitate the
interpretation of potential archaeological resources.
(3) For geophysical surveys conducted to locate potential areas of
prior human occupation, a sub-bottom profiler system must be used to
identify and map buried geomorphological features of archaeological
potential that may exist within the horizontal and vertical APE, taking
into account the geomorphology of the operational area and the
parameters of the proposed project (including the maximum depth of
disturbance from the proposed activities). The use of a sub-bottom
profiler is required in water depths of 140 meters or less, unless BOEM
specifies a different water depth based on its determination of the
furthest extent of prior human occupation on the OCS. The sub-bottom
profiler system must be capable of achieving a depth of penetration and
resolution of vertical bed separation that is sufficient to allow for
the identification and cross-track mapping of features of
archaeological potential (e.g., shell middens, paleochannels, levees,
inset terraces, paleolagoon systems, and other relict landforms). The
sub-bottom profiler system employed must be capable of achieving a
resolution of vertical bed separation of at least 0.3 meters (1 foot)
in the uppermost 10 to 15 meters (33 to 50 feet) of sediments,
depending on the substrate.
(4) In all water depths, a side-scan sonar or equivalent system
must be used to provide continuous planimetric imagery of the seafloor
to identify potential archaeological resources on and partly embedded
in the seafloor. To provide sufficient resolution of seafloor features,
BOEM requires the use of a system that operates at as high a frequency
as practicable based on the factors of line spacing, instrument range,
and water depth. The sonar system must detect small, discrete targets
0.5 meters (1.6 feet) in length at maximum range, along the track. The
instrument range must provide at least 100 percent overlapping coverage
(i.e., 200 percent seafloor coverage) between adjacent primary survey
lines. Greater than 200 percent overlapping coverage may be necessary
to guarantee nadir coverage and account for survey vessel drift between
lines, which may be an important consideration when surveying in deep
water. The side-scan sonar sensor must be towed above the seafloor at a
height that is 10 to 20 percent of the range of the instrument. Data
must be digitally recorded and visually displayed to monitor data
quality and identify targets of interest during acquisition. The data
must be post-processed to improve data quality by, for example,
adjusting for slant range effects and variable speed along line.
(5) In all water depths, an echo sounder or equivalent system must
be used to measure accurate water depths across the area. Where swath
bathymetry data are acquired, it is recommended that backscatter values
from the seabed returns are logged and processed for use in seabed
characterization to support and complement the side scan sonar data.
Single beam echo sounder data (or data from the equivalent system) must
be used to verify the results of swath bathymetry data to check for
gross error. The bathymetry systems must be set up to accurately record
data across the range of water depths expected in the survey area. Care
must be taken in selection of operating frequencies such that the
individual systems do not interfere with each other. The bathymetry
systems must be used in conjunction with an accurate motion sensor to
compensate for vessel motion. Water column sound velocity must be
determined as a minimum at the start and end of data acquisition, and
at suitable intervals throughout the project, by use of a conductivity,
salinity, and temperature depth probe or a direct reading sound
velocity probe suitable for use in the maximum water depths expected
within the survey area. Water depths must be corrected for vessel
draft, tidal level, and referenced to the appropriate vertical datum
(LAT, MSL, etc.). The final processed digital terrain model data cell
size covering the entire survey area, without gaps, must reflect the
frequency of the system being used, data density, and altitude above
seabed of the transducer head.
(6) An archaeological survey conducted prior to the effective date
of these regulations may be used in lieu of conducting a new survey,
subject to BOEM approval, provided the lessee or operator can
demonstrate that such survey was conducted in such a manner as to meet
the objectives of this paragraph (c).
(d) The Regional Director may approve a departure from the
provisions of paragraph (c) of this section on a case-by-case basis if
the Regional Director deems the departure necessary because the
applicable requirements, as applied to a specific circumstance:
[[Page 71184]]
(1) Are impractical or unduly burdensome;
(2) Are not necessary to achieve the intended objectives of the
marine archaeology program;
(3) Fail to conserve the natural resources of the OCS;
(4) Fail to protect life (including human and wildlife), property,
or the marine, coastal, or human environment; or
(5) Fail to protect sites, structures, or objects of historical or
archaeological significance.
(e) Any departure approved under this section must:
(1) Be consistent with requirements of the OCS Lands Act;
(2) Protect the archaeological resources to the same degree as if
there was no approved departure from the regulations;
(3) Satisfy section 106 of the National Historic Preservation Act
and achieve results for identifying archaeological resources as if
there was no approved departure from the regulations;
(4) Not impair the rights of third parties; and
(5) Be documented in writing.
(f) BOEM may reject any archaeological report if the survey was not
prepared in accordance with the requirements of paragraph (c) in this
section or any BOEM-approved departure to the survey requirements. BOEM
may also reject any archaeological report if the results produced from
the survey do not meet the data and resolution requirements specified
under paragraph (c), regardless of whether the survey was otherwise
conducted appropriately.
(g) If the archaeological report or evidence mentioned in paragraph
(a) of this section suggests that an archaeological resource may be
present, you must:
(1) Situate your operations so as not to adversely affect the area
where the known or suspected archaeological resource may be located;
or,
(2) Establish, to the satisfaction of the Regional Director, that
an archaeological resource does not exist by conducting further
archaeological investigation, under the supervision of a qualified
marine archaeologist, using equipment and techniques the Regional
Director considers appropriate. You must submit a report documenting
the further investigation to the Regional Director for review;
(i) If the further investigation cannot establish to the
satisfaction of the Regional Director that an archaeological resource
is not likely to be present at the operational site, you must
demonstrate to the satisfaction of the Regional Director that your
operations will not adversely affect the suspected resource; or,
(ii) If, based on the additional archaeological investigation, the
Regional Director determines that an archaeological resource is likely
to be present in the operational site and may be adversely affected by
operations, you must take whatever additional steps are specified by
the Regional Director to protect the archaeological resource before you
conduct any further operations at the operational site; or,
(3) If the Regional Director determines that an archaeological
resource is likely to be present in the lease area, that it is likely
to be adversely affected by your operations, and that there are no
feasible means to avoid this adverse effect, the Regional Director may
prohibit your operations in the APE.
(h) Any lessee or operator that has an existing lease in effect
prior to October 3, 2024 may apply the regulations in effect prior to
this date with respect to the provisions of this section for such lease
for a period of time not to exceed September 3, 2025.
0
4. Add Sec. 550.195 to read as follows:
Sec. 550.195 What must I do if I discover a potential archaeological
resource while conducting operations on the lease or right-of-way area?
(a) If you discover any unanticipated archaeological resources
while conducting operations on the lease or right-of-way area, you must
immediately halt seafloor disturbing operations within at least 305
meters (1,000 feet) of the area of the discovery and report the
discovery to the Regional Director within 72 hours.
(b) If BOEM determines that the resource may be eligible for
listing on the National Register of Historic Places in accordance with
the applicable regulations, the Regional Director will specify measures
you must take to protect the resource during operations and activities.
(c) For activities and operations under BSEE jurisdiction, BOEM
will refer the discovery to BSEE to determine if the resource may have
been adversely impacted by your operations and activities prior to or
during its discovery in paragraph (a). The Regional Director of BSEE
will specify measures you must take to either demonstrate that no
adverse impacts have occurred or to document the extent of adverse
impacts that have occurred. BSEE may further specify measures you must
take to remediate adverse impacts to any archaeological resources
resulting from your operations and activities and will relay to BOEM
both the results of its investigation and any further measures it has
imposed to remediate the adverse impacts that may have occurred.
[FR Doc. 2024-19188 Filed 8-30-24; 8:45 am]
BILLING CODE 4340-98-P