[Federal Register Volume 59, Number 203 (Friday, October 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26002]


[[Page Unknown]]

[Federal Register: October 21, 1994]


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DEPARTMENT OF THE INTERIOR

Minerals Management Service

30 CFR Parts 250, 256, 280, and 281

RIN 1010-AB63

 

Archaeological Resource Surveys and Reports on Outer Continental 
Shelf Lease Tracts

AGENCY: Minerals Management Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule amends the regulatory program of the Minerals 
Management Service (MMS) to state specifically the authority of MMS to 
require lessees or operators to conduct archaeological resource surveys 
and submit reports prior to exploration, development and production, or 
installation of lease term or right-of-way pipelines. This rule also 
standardizes the definition and use of the term ``archaeological 
resources'' within MMS's regulatory program.

EFFECTIVE DATE: November 21, 1994.

FOR FURTHER INFORMATION CONTACT:Kumkum Ray, Engineering and Standards 
Branch, telephone (703) 787-1600.

SUPPLEMENTARY INFORMATION: Since 1973, the Department of the Interior 
(DOI) has included a stipulation on the Outer Continental Shelf (OCS) 
mineral lease tracts to notify potential lessees that, where 
applicable, archaeological resource surveys and reports will be 
required. Lessees and operators have, since that time, submitted this 
information when the stipulation was invoked by MMS.
    The authority to require this information was identified, in a 
general fashion, in a final rule published by MMS in the Federal 
Register on April 1, 1988 (53 FR 10596). That rule granted authority to 
MMS Regions to ensure safety and environmental protection by requiring 
OCS lessees and operators to conduct needed surveys and submit reports 
when seeking approval of their plans to explore or develop and produce 
hydrocarbons or to install lease term or right-of-way pipelines.
    The MMS Regions issue further guidance in the form of Notices to 
Lessees and Operators (NTL's). These NTL's provide detailed information 
on archaeological resource requirements.
    In order to convert the requirements contained in the 
archaeological lease stipulation into regulations, a proposed rule was 
published by MMS on October 12, 1993 (58 FR 52731). The proposed rule 
sought to grant specific authority to each MMS Regional Director to 
require archaeological resource surveys and reports. The proposed rule 
also made minor modifications in 30 CFR parts 256 and 280 to 
standardize the use of the term ``archaeological resource,'' eliminate 
use of other terms such as ``cultural resources,'' and provide uniform 
definitions. The routine requirements for surveys and reports that were 
proposed in 30 CFR 250.26 are not located in Secs. 250.33 and 250.34. 
These surveys and reports, when required, will normally be included in 
the exploration report or the development and production report. Since 
Secs. 250.33 and 250.34 pertain to Exploration Plan and Development and 
Production Plan respectively, the change will help to clarify the 
requirements.
    The comments received during the public comment period were 
reviewed, and an analysis was conducted within MMS. The following is a 
discussion of the responses to comments received and any resultant text 
changes.

Narrative Response to Comments

Authority Citation

    Comment: One commenter suggested that we expand the authority 
section to include other applicable archaeological resource 
legislation.
    Response: The MMS has used the requirements of the National 
Historic Preservation Act of 1966 (NHPA) 16 U.S.C. 470 et seq., the 
Archaeological and Historic Preservation Act 16 U.S.C. 469-469c, and 
the Archaeological Resources Protection Act of 1979 (ARPA) 16 U.S.C. 
470aa-mm in developing the requirements in the regulations. However, 
MMS believes that the Outer Continental Shelf Lands Act provides 
sufficient authority for all requirements in the regulation.

Changes in Definitions

    Comment: Two commenters suggested that we define the term 
``archaeological resource'' to be consistent with the definition 
provided in implementing regulations for the ARPA, 16 U.S.C. 470aa-mm, 
43 CFR 7.3.
    Response: We have changed the definition of ``archaeological 
resource'' to the wording recommended by the commenters with one 
exception (with regard to the age criterion), to correspond to the 
definition provided in 43 CFR 7.3(a) (1) and (2). The exception was to 
change the 100-year-old criterion for the age of an archaeological 
resource to a 50-year-old criterion so that the MMS regulation is 
consistent with the NHPA criteria for eligibility to the National 
Register of Historic Places. To improve the clarity of the rule, MMS 
added a definition of significant archaeological resource.

Archaeological Report Standards

    Comment: One commenter suggested that we include documentation 
(report) standards in the archaeology rule. Another commenter suggested 
that the reports submitted conform to the ``Secretary of the Interior's 
Standards and Guidelines for Archaeology and Historic Preservation.''
    Response: The MMS has developed detailed survey and report 
standards for OCS archaeological surveys based on more than 20 years 
experience. These standards are contained in Region-specific NTL's. The 
MMS has chosen not to include the survey and report standards in the 
rule. These standards are very detailed and vary from region to region 
due to differences in regional geology and environmental conditions.

Basis for Requiring Archaeological Report

    Comment: One commenter was concerned that in the proposed rule, the 
Regional Director would be permitted to make the determination of 
whether an archaeological survey/report would be required. Another 
commenter suggested that we provide improved guidance about the basis 
upon which a Regional Director would make the regulatory determination 
that an archaeological resource exists in the proposed lease area.
    Response: This decision as to whether or not a report is required 
is not made arbitrarily by the Regional Director. The MMS conducts 
regional archaeological baseline studies to compile information on the 
locations of historic shipwrecks and coastal prehistoric archaeological 
sites. These data are also used to construct predictive criteria for 
the occurrence of unknown sites on the continental shelf.
    Using these predictive criteria, MMS can identify portions of the 
continental shelf having potential for archaeological resources. These 
``archaeologically sensitive'' areas are used as the basis for 
requiring marine remote sensing surveys to evaluate the archaeological 
site potential of individual lease tracts before permitting lease 
activities.

Information Submitted With the Archaeological Report

    Comment: One commenter suggested that a new Sec. 250.26(c) be added 
to require that the reports submitted to the Regional Director include 
all the data, artifacts, records, and remains obtained during the 
investigations conducted pursuant to 256.26 (a) and (b), pertaining to 
reporting requirements for the protection of possible or discovered 
archaeological resources.
    Response: The marine remote sensing survey data collected to 
evaluate archaeological resources is maintained by the lessee or right-
of-way holder; however, the data must be made available to MMS upon 
request. The MMS maintains copies of the archaeological reports 
prepared from the remote sensing survey data. Because the 
archaeological surveys conducted prior to OCS activities are 
reconnaissance surveys, evidence of potential resources is used to 
avoid lessee activity that could harm or disturb artifacts or remains. 
Thus, artifacts or remains are rarely recovered or disturbed.

Archaeological Surveys and Grandfathered Leases

    Comment: One commenter suggested that MMS should continue its 
practice of requiring no archaeological surveys for grandfathered 
leases. (The commenter's view is that a grandfathered lease is any 
lease issued by MMS prior to December 1973, the date the first lease 
with an archaeological resource stipulation was issued). The commenter 
also indicated that existing survey data on older leases should 
continue to be acceptable to MMS for exploration and most development 
activities for as long as the lease remains in force. The commenter 
believes that although the aforementioned practices are not 
specifically addressed or confirmed in the proposed regulations, it is 
implicit in the provisions thereof that MMS does not intend for the 
proposed changes to the regulations to change these existing 
procedures. It is the commenter's position that to do otherwise would 
directly impair existing lease contract rights.
    Response: The MMS does not agree that any lease issued prior to the 
inclusion of an archaeological resource lease stipulation in December 
1973 is grandfathered and exempt from the requirement to protect and 
preserve resources under either the existing or proposed regulations. 
The archaeological stipulations included in OCS leases in December 1973 
were designed to ensure that lessees and other interested parties were 
aware of the need to protect and preserve archaeological resources. The 
absence of an archaeological stipulation in an OCS lease issued prior 
to December 1973 does not free the lessee of its obligation to protect 
and preserve resources. In accordance to Sec. 250.33(b)(15) or 
Sec. 250.34(b)(8)(v)(A), if the Regional Director notifies the lessee 
that an archaeological resource may exist in the lease area, prior to 
commencing any operations, the lessee is required to prepare a report 
as specified by the Regional Director to determine the potential 
existence of any archaeological resource that may be affected by 
operations. Thus, the regulations are applicable to any new exploration 
or development operations except preliminary activities (250.31). If 
there are no new activities, production operations will continue with 
no changes in the status quo.

Chance Find Clause

    Comment: One commenter recommended that treatment of unanticipated 
discoveries of archaeological resources during operations be made 
consistent with DOI procedures by requiring a halt to operations until 
the Regional Director has told the lessee how to protect the resource. 
Other commenters suggested that this clause, commonly called the 
``chance finds clause,'' be changed to reflect the fact that not all 
discoveries made during operations will require protection.
    Response: In response to these comments, wording changes were made 
to clarify that not all discoveries made during operations, including 
operations conducted within a right-of-way, would require protection. 
To provide consistency between sections, the wording of Secs. 250.26(b) 
and 250.159(c)(4) has been changed.

Author

    This document was prepared by Kumkum Ray, Engineering and 
Technology Division, MMS and Melanie Stright, Environmental Policy 
and Programs Division, MMS.

Executive Order (E.O.) 12866

    This final rule was reviewed under E.O. 12866. The final rule was 
determined to not be a significant rule under the criteria of E.O. 
12866.

Regulatory Flexibility Act

    The DOI has determined that this rule will not have a significant 
effect on a substantial number of small entities. In general, the 
entities that engage in offshore activities are not considered small 
due to the technical and financial resources and experience necessary 
to safely conduct such activities.

Paperwork Reduction Act

    The collections of information contained in Secs. 250.26, 250.33 
and 250.34 have been approved by the Office of Management and Budget 
(OMB) under 44 U.S.C. 3501 et seq., and assigned clearance number 1010-
0049. The information will be used to protect archaeological resources. 
Response is mandatory in accordance with Sec. 204, Public Law 95-372, 
92 Stat. 629 (43 U.S.C. 1334).
    Public reporting burden for this collection of information is 
estimated to average 1 hour per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding this burden estimate 
or any other aspect of this collection of information, including 
suggestions for reducing the burden, to the Information Collection 
Clearance Officer; Minerals Management Service; Mail Stop 2053, 381 
Elden Street; Herndon, Virginia 22070-4817, and the Office of 
Management and Budget; Paperwork Reduction Project (1010-0049); 
Washington, DC 20503, telephone (202) 395-7340.

Takings Implication Assessment

    The DOI has determined that the rule does not represent a 
governmental action capable of interference with constitutionally 
protected property rights. Thus, a Takings Implication Assessment has 
not been prepared pursuant to E.O. 12630, Government Action and 
Interference with Constitutionally Protected Property Rights.

E.O. 12778

    The DOI has certified to OMB that this final rule meets the 
applicable civil justice reform standards provided in sections 2(a) and 
2(b)(2) of E.O. 12778.

National Environmental Policy Act

    The DOI has determined that this action does not constitute a major 
Federal action affecting the quality of the human environment; 
therefore, preparation of an Environmental Impact Statement is not 
required.

List of Subjects

30 CFR Part 250

    Continental shelf, Environmental impact statements, Environmental 
protection, Government contracts, Incorporation by reference, 
Investigations, Mineral royalties, Oil and gas development and 
production, Oil and gas exploration, Oil and gas reserves, Penalties, 
Pipelines, Public lands--mineral resources, Public lands--rights-of-
way, Reporting and recordkeeping requirements, Sulphur development and 
production, Sulphur exploration, Surety bonds.

30 CFR Part 256

    Administrative practice and procedure, Continental shelf, 
Government contracts, Oil and gas exploration, Public lands--mineral 
resources, Reporting and recordkeeping requirements, Surety bonds.

30 CFR Part 280

    Administrative practice and procedure, Bonds, Continental shelf, 
Environmental protection, Mines, Public lands--mineral resources, 
Reporting and recordkeeping requirements.

30 CFR Part 281

    Administrative practice and procedure, Bonds, Continental shelf, 
Mineral royalties, Mines, Public lands--mineral resources, Reporting 
and recordkeeping requirements.

    Dated: September 9, 1994.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.

    For the reasons set out in the preamble, 30 CFR parts 250, 256, 
280, and 281 are amended as follows:

PART 250--OIL AND GAS AND SULPHUR OPERATIONS IN THE OUTER 
CONTINENTAL SHELF

    1. The authority citation for part 250 is revised to read as 
follows:

    Authority: 43 U.S.C. 1334.

    2. Section 250.2 is amended by adding the following definitions, in 
alphabetical order, to read as follows:


Sec. 250.2  Definitions.

* * * * *
    Archaeological resource means any material remains of human life or 
activities that are at least 50 years of age and that are of 
archaeological interest.
* * * * *
    Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location, or context 
in which such evidence is situated.
* * * * *
    Of archaeological interest means capable of providing scientific or 
humanistic understanding of past human behavior, cultural adaptation, 
and related topics through the application of scientific or scholarly 
techniques, such as controlled observation, contextual measurement, 
controlled collection, analysis, interpretation, and explanation.
* * * * *
    Significant archaeological resource means those archaeological 
resources that meet the criteria of significance for eligibility to the 
National Register of Historic Places as defined in 36 CFR 60.4.
* * * * *
    3. A new Sec. 250.26 is added to subpart A to read as follows:


Sec. 250.26  Archaeological reports and surveys.

    (a) If the Regional Director believes that an archaeological 
resource may exist in the lease area, the Regional Director will notify 
the lessee in writing. The lessee shall include an archaeological 
report in the Exploration Plan or Development and Production Plan and 
shall comply with the following:
    (1) If the evidence suggests that an archaeological resource may be 
present, the lessee shall either:
    (i) Locate the site of any operation so as not to affect adversely 
the area where the archaeological resource may be; or
    (ii) Establish to the satisfaction of the Regional Director that an 
archaeological resource does not exist or will not be adversely 
affected by operations. This shall be done by further archaeological 
investigation, conducted by an archaeologist and a geophysicist, using 
survey equipment and techniques deemed necessary by the Regional 
Director. A report on the investigation shall be submitted to the 
Regional Director for review.
    (2) If the Regional Director determines that an archaeological 
resource is likely to be present in the lease area and may be adversely 
affected by operations, the Regional Director will notify the lessee 
immediately. The lessee shall take no action that may adversely affect 
the archaeological resource until the Regional Director has told the 
lessee how to protect it.
    (b) If the lessee discovers any archaeological resource while 
conducting operations in the lease area, the lessee shall immediately 
halt operations within the area of the discovery and report the 
discovery to the Regional Director. If investigations determine that 
the resource is significant, the Regional Director will inform the 
lessee how to protect it.
    4. Section 250.33 is amended by revising paragraphs (b)(15) and (o) 
to read as follows:


Sec. 250.33  Exploration Plan.

* * * * *
    (b) * * *
    (15) If the Regional Director believes that an archaeological 
resource may exist in the lease area, the Regional Director will notify 
the lessee in writing. Prior to commencing any operations, the lessee 
shall prepare a report, as specified by the Regional Director, to 
determine the potential existence of any archaeological resource that 
may be affected by operations. The report shall be prepared by an 
archaeologist and geophysicist and shall be based on an assessment of 
data from remote-sensing surveys and of other pertinent archaeological 
and environmental information.
* * * * *
    (o) To ensure safety and protection of the environment and 
archaeological resources, the Regional Director may authorize or direct 
the lessee to conduct geological, geophysical, biological, 
archaeological, or other surveys or monitoring programs. The lessee 
shall provide the Regional Director, upon request, with copies of any 
data obtained as a result of those surveys and monitoring programs.
* * * * *
    5. Section 250.34 is amended by revising paragraphs (b)(8)(v)(A) 
and (s) to read as follows:


Sec. 250.34  Development and Production Plan.

* * * * *
    (b) * * *
    (8) * * *
    (v) * * *
    (A) If the Regional Director believes that an archaeological 
resource may exist in the lease area, the Regional Director will notify 
the lessee in writing. Prior to commencing any operations, the lessee 
shall prepare a report, as specified by the Regional Director, to 
determine the potential existence of any archaeological resource that 
may be affected by operations. The report shall be prepared by an 
archaeologist and geophysicist and shall be based on an assessment of 
data from remote-sensing surveys and of other pertinent archaeological 
and environmental information.
* * * * *
    (s) To ensure safety and protection of the environment and 
archaeological resources, the Regional Director may authorize or direct 
the lessee to conduct geological, geophysical, biological, 
archaeological, or other surveys or monitoring programs. The lessee 
shall provide the Regional Director, upon request, copies of any data 
obtained as a result of those surveys and monitoring programs.
* * * * *
    6. Section 250.157 is amended by revising paragraph (a)(5) to read 
as follows:


Sec. 250.157  Applications.

    (a) * * *
    (5) The application shall include a shallow hazards survey report 
and, if required by the Regional Director, an archaeological resource 
report that covers the entire length of the pipeline. A shallow hazards 
analysis may be included in a lease term pipeline application in lieu 
of the shallow hazards survey report with the approval of the Regional 
Director. The Regional Director may require the submission of the data 
upon which the report or analysis is based.
* * * * *
    7. Section 250.159 is amended by revising paragraph (c)(4) to read 
as follows:


Sec. 250.159  General requirements for a pipeline right-of-way grant.

* * * * *
    (c) * * *
    (4) If the right-of-way holder discovers any archaeological 
resource while conducting operations within the right-of-way, the 
right-of-way holder shall immediately halt operations within the area 
of the discovery and report the discovery to the Regional Director. If 
investigations determine that the resource is significant, the Regional 
Director will inform the lessee how to protect it.
* * * * *

PART 256--OUTER CONTINENTAL SHELF MINERALS AND RIGHTS-OF-WAY 
MANAGEMENT, GENERAL

    9. The authority citation for part 256 is revised to read as 
follows:

    Authority: 43 U.S.C. 1331 et seq.

    9. Section 256.23 is amended by revising the last sentence in 
paragraph (b) to read as follows:


Sec. 256.23  Information on areas.

* * * * *
    (b) * * * For an oil and gas lease sale Call Area, the Director may 
request comments concerning geological conditions, including bottom 
hazards; archaeological sites on the seabed or nearshore; multiple uses 
of the proposed leasing area, including navigation, recreation, and 
fisheries; and other socioeconomic, biological, and environmental 
information.

PART 280--PROSPECTING FOR MINERALS OTHER THAN OIL, GAS, AND SULPHUR 
IN THE OUTER CONTINENTAL SHELF

    10. The authority citation for part 280 is revised to read as 
follows:

    Authority: 43 U.S.C. 1331 et seq., 42 U.S.C. 4332 et seq.

    11. Section 280.2 is amended by revising the definition of 
``archaeological resource'' and adding the following definitions in 
alphabetical order, to read as follows:


Sec. 280.2  Definitions.

* * * * *
    Archaeological resource means any material remains of human life or 
activities that are at least 50 years of age and that are of 
archaeological interest.
* * * * *
    Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location, or context 
in which such evidence is situated.
* * * * *
    Of archaeological interest means capable of providing scientific or 
humanistic understanding of past human behavior, cultural adaptation, 
and related topics through the application of scientific or scholarly 
techniques, such as controlled observation, contextual measurements, 
controlled collection, analysis, interpretation, and explanation.
* * * * *
    Significant archaeological resource means those archaeological 
resources that meet the criteria of significance for eligibility to the 
National Register of Historic Places as defined in 36 CFR 60.4.
* * * * *

PART 281--LEASING OF MINERALS OTHER THAN OIL, GAS, AND SULPHUR IN 
THE OUTER CONTINENTAL SHELF

    12. The authority citation for part 281 is revised to read as 
follows:

    Authority: 43 U.S.C. 1331 et seq.


Sec. 281.12  [Amended]

    13. In Sec. 281.12, paragraph (c) is amended by removing the word 
``archeological'' and adding in its place the word ``archaeological''.

[FR Doc. 94-26002 Filed 10-20-94; 8:45 am]
BILLING CODE 4310-MR-M