[Federal Register Volume 88, Number 31 (Wednesday, February 15, 2023)]
[Proposed Rules]
[Pages 9797-9812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02903]
=======================================================================
-----------------------------------------------------------------------
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 (BOEM), Interior.
ACTION: Notice of proposed rulemaking and request for comment.
-----------------------------------------------------------------------
SUMMARY: BOEM proposes 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 activities proposed on the
Outer Continental Shelf (OCS). An archaeological report is currently
required only if the plan covers an area that a BOEM Regional Director
has reason to believe may contain an archaeological resource. This
proposed rule would increase the likelihood that archaeological
resources are located and identified before they are inadvertently
damaged by an OCS operator, thereby assuring compliance with section
106 of the National Historic Preservation Act (NHPA). This proposed
rule would define the minimum level of survey information necessary to
support the conclusions in the archaeological report, the procedure for
reporting possible
[[Page 9798]]
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.
DATES: Your comments on the substance of this rulemaking must be
received by BOEM on or before April 17, 2023. BOEM may not consider
comments received after this date. Your comments on the information
collection (IC) burden in this rulemaking must be received by the
Office of Management and Budget (OMB) and BOEM on or before March 17,
2023. The IC deadline does not affect the deadline for public comments
on the substance of the proposed regulations.
ADDRESSES: You may submit comments on the rulemaking by any of the
following methods. Please reference in your comment ``Protection of
Marine Archaeological Resources, RIN 1010-AE11.''
Federal rulemaking portal: https://www.regulations.gov. In
the search box entitled ``Search for dockets and documents on agency
actions,'' enter ``BOEM-2023-0012'' and click search. Follow the
instructions to submit public comments and view supporting and related
materials available for this rulemaking.
Mail, delivery service, or email: Send comments to the
Department of the Interior, Bureau of Ocean Energy Management, Office
of Regulations, Attention: Peter Meffert, 1849 C Street NW, Mailstop
DM5238, Washington, DC 20240; or email to: [email protected].
You may submit comments on the IC burden of this rulemaking at
www.reginfo.gov/public/do/PRAMain. From this main web page, find and
submit comments on this particular information collection by selecting
``Currently under Review--Open for Public Comments'' or by using the
search function. Please provide a copy of your comments to the
Information Collection Clearance Officer, Office of Regulations, Bureau
of Ocean Energy Management, Attention: Anna Atkinson, 45600 Woodland
Road, (Mail code VAE-ORP), Sterling, VA 20166; or by email to
[email protected]. Please reference OMB Control Number 1010-NEW in
the subject line of your comments.
Instructions: All comments must include the agency name and docket
number or the regulatory information number (RIN) for this rulemaking.
All comments received will be posted without change to
www.regulations.gov, including any personal information provided. For
detailed instructions on sending comments and additional information on
the rulemaking process, see the ``Public Availability of Comments''
heading under the SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to www.Regulations.gov and search for the heading
of BOEM-2023-0012 or contact BOEM at 1849 ``C'' Street NW, Washington,
DC 20240, Attn: Bureau of Ocean Energy Management, Office of
Regulations, ``Comments on the proposed Marine Archeology Rule.
FOR FURTHER INFORMATION CONTACT: For questions on any issues related to
this rulemaking, contact Peter Meffert, Office of Regulations, Bureau
of Ocean Energy Management (BOEM), at [email protected] or at
(703) 787-1610.
To see a copy of the IC request submitted to OMB, go to https://www.reginfo.gov (select ``Information Collection Review'', then go to
``Currently under Review'' to search for the rule). You may obtain a
copy of the supporting statement for BOEM's IC by contacting
Information Collection Clearance Officer, Office of Regulations, Bureau
of Ocean Energy Management, Attention: Anna Atkinson, 45600 Woodland
Road, (Mail code VAE-ORP), Sterling, VA 20166, or by emailing:
[email protected].
SUPPLEMENTARY INFORMATION:
Public Availability of Comments: Please include your name, return
address, and phone number or email address with your comment, so we may
contact you if we have questions regarding it. BOEM may post all
submitted comments to the docket for this rulemaking.
You should be aware that your entire comment--including your name,
address, phone number, email address, and any other personally
identifiable information that you include--may be made publicly
available. In order for BOEM to withhold from disclosure your
personally identifiable information, you must identify, in a cover
letter, any information contained in your comment that, if released,
would constitute a clearly unwarranted invasion of your personal
privacy. You must also briefly describe in such cover letter any
possible harmful consequences of the disclosure of information, such as
embarrassment, injury, or other harm. While you can ask us in your
comment to withhold your personally identifiable information from
public review, we cannot guarantee that we will be able to do so. Even
if we withhold your information in the context of this rulemaking, your
comment is subject to the Freedom of Information Act (FOIA) and any
relevant court orders. If your comment is requested under FOIA or such
court order, your information will only be withheld if we determine
that one of FOIA's exemptions to disclosure applies or if the relevant
court order is challenged. Such a determination will be made in
accordance with the Department of the Interior's FOIA regulations and
applicable law.
I. Table of Acronyms and Terms
Several acronyms and terms are included in this preamble. To ease
the reading of this preamble and for reference purposes, we list the
following acronyms and their meanings here.
ACHP Advisory Council on Historic Preservation
ANCSA Alaska Native Claims Settlement Act
APE Area of Potential Effect
BOEM Bureau of Ocean Energy Management
BSEE Bureau of Safety and Environmental Enforcement
CHIRP Compressed High Intensity Radar Pulse
CFR Code of Federal Regulations
CRA Congressional Review Act
DM Department Manual (Interior)
DOI Department of the Interior
DOCD Development Operations Coordination Document
DPP Development and Production Plan
EA Environmental Assessment
E.O. Executive Order
EP Exploration Plan
FOIA Freedom of Information Act
FR Federal Register
GOM Gulf of Mexico
GPS Global Positioning System
HRG High Resolution Geophysical
IC Information Collection
MMS Minerals Management Service
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
nT Nano-tesla
NTL Notice to Lessees
OIRA Office of Information and Regulatory Affairs (a component of
OMB)
OMB Office of Management and Budget
OCS Outer Continental Shelf
OCSLA Outer Continental Shelf Lands Act
PRA Paperwork Reduction Act
RIA Regulatory Impact Analysis
ROWs Rights-of-Way
SBA Small Business Administration
SHPO State Historic Preservation Office(r)
THPO Tribal Historic Preservation Office(r)
U.S.C. United States Code
II. Background
BOEM's existing regulations require operators \1\ to submit an
archaeological
[[Page 9799]]
report with an Exploration Plan (EP), a Development Operations
Coordination Document (DOCD), a Development and Production Plan (DPP),
or any other requests (e.g., exploration permit requests) seeking BOEM
authorization to disturb the seafloor (collectively, the ``plans'')
only when a BOEM Regional Director has a ``reason to believe'' that an
archaeological resource may be present. BOEM interprets this ``reason
to believe'' standard as requiring its Regional Directors to either
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.
---------------------------------------------------------------------------
\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 document, 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 a third party.
---------------------------------------------------------------------------
Prior to 2005, BOEM's predecessor agency, the Minerals Management
Service's (MMS) regulation under 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 2005 to
clarify the basis for requiring an archaeological survey, 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 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 2005 proposed
rule 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.
(70 FR 14607, 14608, March 23, 2005.) \2\
---------------------------------------------------------------------------
\2\ https://www.federalregister.gov/documents/2005/03/23/05-5678/oil-and-gas-and-sulphur-operations-in-the-outer-continental-shelf-ocs-data-release-and-definitions.
Under the regulations after 2005, if the Regional Director invokes
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.
Beginning in 1982, MMS, developed a predictive model to attempt to
define where archaeological resources were ``likely'' to exist in the
Gulf of Mexico. MMS and BOEM used the 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.
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 concluded
the model is unhelpful. BOEM's predictive model, despite several
attempts at updating, has often failed to accurately predict the
presence or absence of marine archaeological resources. In many cases,
shipwrecks have been discovered in lease blocks where the model had not
``predicted'' any, and, conversely, operators surveyed lease blocks
where the historical evidence suggested 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 significant (see discussion in section III of this
preamble). BOEM determined that previously undiscovered archaeological
resources may be present in any OCS lease block in any BOEM region
regardless of the model's results. Because the model's accuracy hinges
on sufficiently accurate and robust underlying data and because such
data is neither accurate nor robust for the offshore environment, BOEM
determined that a better approach is necessary.
BOEM proposes to delete 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, high-resolution geophysical (HRG) survey that
effectively identifies potential archaeological resources. 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 marine archaeological resources. In keeping
with professional standards that have evolved since the existing
regulations were adopted, this proposed revision would define the
minimum level of survey information necessary to support the
conclusions in the archaeological report. The proposed changes would
improve BOEM's fulfillment of its ``reasonable and good faith
identification effort'' under the NHPA and its development of
appropriate mitigations to avoid damaging historic and archaeological
resources under the National Environmental Policy Act (NEPA).
---------------------------------------------------------------------------
\3\ BOEM has additional models that focus on sea-level rise and
where previously habitable lands may have existed during the last
glacial maximum. These gross resolution models provide information
related to the depths where the sub-bottom profiler data will be
required.
---------------------------------------------------------------------------
III. Critique of the Predictive Model and Other Alternatives to Direct
Survey \3\
In 2003, MMS tested the accuracy of the predictive model, and ``it
was found that many of the wrecks identified in offshore surveys are
not located in designated high-probability blocks. Statistical analyses
revealed that there is no significant difference in the likelihood of
finding a shipwreck in a designated high-probability lease block and
finding one in a lease block not so designated.'' \4\ Because
shipwrecks potentially may be found in all federally managed OCS
acreage, BOEM's use of predictive models may be under-predicting
shipwreck locations. Additional BOEM-funded studies \5\ have
[[Page 9800]]
reinforced this conclusion, such as is demonstrated in a peer-reviewed
article by Lugo-Fern[aacute]ndez et al. (2007), which stated that this
model has proven itself to be ineffective at predicting the location of
shipwreck sites on the Gulf of Mexico OCS and in deep water.\6\
---------------------------------------------------------------------------
\4\ Pearson, C.E.; S.R. James, Jr., M.C. Krivor, S.D. El
Darragi, and L. Cunningham. 2003. Refining and revising the Gulf of
Mexico OCS Region High Probability Model for Historic Shipwrecks
(Volume 1). URL: https://espis.boem.gov/final%20reports/3033.pdf.
\5\ See: Enright, J.M., R. Gearhart II, D. Jones, and J.
Enright. 2006. Study to Conduct National Register of Historic Places
Evaluations of Submerged Sites on the Gulf of Mexico Outer
Continental Shelf. U.S. Department of the Interior, Minerals
Management Service, Gulf of Mexico OCS Region, New Orleans, LA. OCS
Study MMS 2006-036. URL: https://espis.boem.gov/final%20reports/3595.pdf. 136 pp; Evans, A.M., M.E. Keith, E.E. Voisin, P. Hesp, G.
Cook, M. Allison, G. da Silva, and E. Swanson. 2013. Archaeological
analysis of submerged sites on the Gulf of Mexico Outer Continental
Shelf. U.S. Department of the Interior, Bureau of Ocean Energy
Management, Gulf of Mexico OCS Region, New Orleans, LA. OCS Study
BOEM 2013-01110. URL: https://espis.boem.gov/final%20reports/5332.pdf 432 p.; and Krivor, M.C., J. de Bry, N.J. Linville, and
D.J. Wells. 2011. Archival investigations for Colonial-era
shipwrecks in ultra-deepwater within the Gulf of Mexico. U.S. Dept.
of the Interior, Bureau of Ocean Energy Management, Regulation and
Enforcement, Gulf of Mexico OCS Region, New Orleans, LA. OCS Study
BOEMRE 2011-004. URL: https://espis.boem.gov/final%20reports/5109.pdf 166 pp.
\6\ Horrell, C.E., D. Ball, M. Damour, and J.B. Irion. 2010.
Issue of Historic Preservation in the Gulf of Mexico Region. U.S.
Dept. of the Interior, Bureau of Ocean Energy Management Gulf of
Mexico OCS Region, New Orleans, LA. OCS Study BOEM 2010-000. 17 pp.
See also: Lugo-Fern[aacute]ndez, A., D.A. Ball, M. Gravois, C.
Horrell, and J.B. Irion. 2007. Analysis of the Gulf of Mexico's
Veracruz-Havana route of La Flota de La Nueva Espa[ntilde]a. Journal
of Maritime Archaeology 2:24-47. URL: https://link.springer.com/article/10.1007/s11457-007-9015-5.
See also: Damour 2011.
---------------------------------------------------------------------------
These conclusions led BOEM's predecessor agency, the Bureau of
Ocean Energy Management, Regulation and Enforcement (BOEMRE), to
implement a new pre-seabed disturbance survey policy, which BOEMRE
presented to operators during a workshop held in March 2011. BOEM
currently applies this policy, when appropriate, to plans in lease
areas outside of OCS lease blocks designated by its predictive model as
highly probable for containing archaeological resources.
Under this policy, BOEM prepares an environmental assessment under
NEPA for any plan that includes a subsea or floating blowout
preventor.\7\ These environmental assessments require an archaeological
analysis regardless of whether the lease block had been designated as
high probability. To provide the information necessary to complete the
environmental assessment, BOEM applies the pre-seabed disturbance
policy to plans for areas that are not the subject of an existing
archaeological report or adequate HRG survey. Under the pre-seabed
disturbance policy, before BOEM allows any bottom-disturbing activity
on the OCS that could damage archaeological resources, operators are
required to perform a HRG survey of the seafloor where the planned
activities would take place and to prepare an archaeological assessment
to inform the environmental assessment.
---------------------------------------------------------------------------
\7\ A blowout preventer (BOP) is a specialized valve or similar
mechanical device, used to seal, control and monitor oil and gas
wells to prevent blowouts, the uncontrolled release of crude oil or
natural gas from a well. Blowout preventers were developed to cope
with extreme erratic pressures and uncontrolled flow (formation
kick) emanating from a well reservoir during drilling, which could
lead to a potentially catastrophic event known as a blowout.
---------------------------------------------------------------------------
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 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.\8\
---------------------------------------------------------------------------
\8\ Brennan, M., J. Irion, F. Cantelas, J. Delgado, A. Borgens,
F. Hanselmann, C. Horrell, The Monterrey Shipwrecks:
Characterization of Three Early 19th Century Shipwrecks in the Gulf
of Mexico, Oceanography 27(1) Supplement: 30-32.
---------------------------------------------------------------------------
Subsequent guidance from the Advisory Council on Historic
Preservation (ACHP) clarified that: ``Federal agencies should evaluate
the reliability and accuracy of any past work [past planning, research,
and studies in determining the appropriate level of effort for
identification, as well as past consultation efforts] because that
factor,\9\ as well as changing perceptions of significance, may affect
what is considered `reasonable.'' \10\ The ACHP also states on its
website that the ``[r]eview of existing information also assists in
determining the types of eligible archaeological sites that might be
present and their possible location. The lack of published regional
archaeological information does not necessarily mean no eligible
archaeological sites are present in the [Area of Potential Effect].''
\11\
---------------------------------------------------------------------------
\9\ The factor is the reliability and accuracy of any past work,
as defined by the brackets. See the guidance questions cited in
subsequent footnote for additional information.
\10\ https://www.achp.gov/Section_106_Archaeology_Guidance/Questions%20and%20Answers/Determining_which_archaeological_sites_are_significant_identification
.
\11\ https://www.achp.gov/Section_106_Archaeology_Guidance/Questions%20and%20Answers/Determining_which_archaeological_sites_are_significant_identification
. Response to question 24.
---------------------------------------------------------------------------
Archival material indicative of the suspected location of
shipwrecks is an inherently flawed dataset. First, not all wrecks were
reported, and thus the historic record is incomplete. Shipwrecks
occurring far from shore likely had no witnesses or survivors to make a
wreck report. The reports that are in the record are most often
associated with more recent losses (e.g., post-19th century), meaning
the older the shipwreck, the less likely archival information of its
loss exists. Of the shipwreck sites now identified in the Gulf of
Mexico, for example, over 58 percent cannot conclusively be associated
with any archival evidence whatsoever. Second, of those that were
reported (typically by the surviving family or businesses making claims
to insurance companies against losses), a majority were listed as
``somewhere in the Gulf of Mexico.'' Though evidence of these reported
wrecks exists, useful information pertaining to their location is often
limited or nonexistent. For those few wrecks with a location listed in
the record, the reliability of the wreck location is necessarily
suspect \12\ given the obvious absence of modern navigational and
communications technology (e.g., GPS).\13\ Subject matter experts have
acknowledged this ``unreliability in the reported positions of loss for
so many vessels. Because of the nature of the reports of loss on these
vessels, it is impossible to entirely overcome this built-in error in
the data.'' \14\
---------------------------------------------------------------------------
\12\ Navigation accuracy is one factor that impacts the
reliability of a wreck location: As the ship sinks, sea state and
currents act on it. As a result, the wreck does not necessarily
settle intact immediately under its surface location. Over time, geo
and hydro forces may act on the wreck to further move its location.
Another factor is the ability to communicate the floundering ship's
location to other, off-ship people.
\13\ Although the Global Positioning System (GPS) was not
initially envisioned for worldwide civilian use, the U.S. Government
redefined the mission of GPS to include international civilian uses
in 1983. Until May 2000, the GPS service provider intentionally
degraded the signal to deny accurate positioning service to U.S.
adversaries. For this reason, reports of shipwreck losses made and
wreck locations identified prior to May 2000 will be of limited
utility, even if the report or wreck occurred after the advent of
GPS. In all cases, the older the wreck, the less accurate the
archival information pertaining to its location. U.S. Department of
Transportation. 2009. Global Positioning System (GPS) Civil
Monitoring Performance Specification. Available at: https://www.gps.gov/technical/ps/2009-civil-monitoring-performance-specification.pdf.
\14\ Pearson et al. 2003 (Volume II: Technical Narrative).
---------------------------------------------------------------------------
The predictive model approach may work onshore, where decades of
development have resulted in extensive documentation of archaeological
resources by State historic preservation offices (SHPOs), Tribal
historic preservation offices (THPOs), Federal agencies, land records
offices, academic researchers, and non-governmental organizations
(NGOs), and where the onshore topography is readily accessible for
analyzing past settlement patterns. In contrast, the OCS remains a
frontier territory that has yet to be fully explored for archaeological
resources. In most cases, cultural resource documentation
[[Page 9801]]
does not exist unless or until a lessee or operator chooses to develop
a lease area.
Regardless of whether archival information exists, BOEM's subject
matter experts, consultations, and scientific studies have demonstrated
that extensive empirical evidence supports the proposition that
shipwrecks potentially may be found within any lease block on the OCS.
In 2021, BOEM undertook a study to compile maps of historic ship routes
through the Gulf of Mexico over the past 400 years. The study
conclusively determined that every part of the Gulf of Mexico
potentially could contain a shipwreck site.\15\ Therefore, any seabed-
disturbing activities conducted in the Gulf of Mexico have the
potential to cause an effect on historic properties, and, pursuant to
36 CFR 800.3(a)(1), that potential requires BOEM to comply with section
106 of the NHPA.
---------------------------------------------------------------------------
\15\ https://www.boem.gov/oil-gas-energy/mapping-and-data/map-gallery/historic-sailing-routes-gulf-mexico-application.
---------------------------------------------------------------------------
IV. National Historic Preservation Act
Section 106 of NHPA requires Federal agencies to consider the
impacts its undertakings will have on historic properties. The ACHP is
responsible for overseeing the Federal historic preservation review
process established by section 106. Based on authority granted by NHPA,
ACHP issued regulations (36 CFR part 800) that direct how Federal
agencies, such as BOEM, should meet their section 106 responsibilities
efficiently and effectively while giving due consideration to the
historic properties that communities value. Notably, 36 CFR 800.4(b)(1)
establishes the level of effort that agencies must exercise to identify
potentially impacted historical resources. Agencies must make a
``reasonable and good faith effort'' to identify historic properties
within the areas potentially affected by their actions. 36 CFR
800.4(b)(1). This effort may include the use of historical evidence,
consultations, field samples, and surveys. Id.
In accordance with these regulations and the ACHP's updated
advisory guidance, Federal agencies must define the ``area of potential
effect'' (APE) when determining what is a reasonable and good faith
effort to identify potentially affected historic properties. The
``identification effort [to identify historic properties] is reasonable
when it is logically designed to identify eligible properties that may
be affected by the undertaking, without being excessive or inadequate
in light of [the background research, consultation, oral history
interviews, sample field investigations, and field surveys].'' \16\
---------------------------------------------------------------------------
\16\ https://www.achp.gov/sites/default/files/guidance/2018-05/reasonable_good_faith_identification.pdf.
---------------------------------------------------------------------------
BOEM's determination that it should use a better method than the
predictive model stems from the culmination of its past planning,
research, studies, and findings that the predictive model is
unreliable, as described in section II of this preamble.
Locating historic shipwrecks offshore present unique issues
compared to locating terrestrial archaeological sites. Onshore,
historic properties, including archaeological sites, are generally
located where they are for a discernible cultural or practical purpose.
Therefore, the location of these sites can often be determined through
historical records, consultation with Tribes and SHPOs, or by examining
the landscape itself. Conversely, historic shipwrecks are a result of
unintended catastrophic events often occurring at random locations in
the open ocean. Therefore, as discussed in section II, records of
shipwrecks are scarce, and the records that do exist are often highly
inaccurate. Where historical records or surveys fail to identify a
historical resource onshore, an operator is typically onsite and can
see and halt operations upon an unanticipated discovery. In contrast,
offshore operations are underwater in locations that are not readily
accessible and that have no sunlight. Compounding this problem, in many
cases shipwrecks are partially or completely buried in sand and
sediment below the seabed. As a result, they are not easily identified
and may suffer extensive potential damage during offshore operations
before the operator notices the site, if it is noticed at all.
Additional guidance from the Secretary of the Interior's standards
and guidelines for identification of historical sites also highlights
the unique circumstances posed by marine archaeology. The guidelines
state that ``[s]pecial survey techniques may be needed in certain
situations. [Specifically,] [r]emote sensing techniques may be the most
effective way to gather background environmental data, plan more
detailed field investigations, discover certain classes of properties,
map sites, locate and confirm the presence of predicted sites, and
define features within properties. Remote sensing techniques include
aerial, subsurface and underwater techniques.'' \17\
---------------------------------------------------------------------------
\17\ https://www.nps.gov/articles/sec-stds-identification-guidelines.htm.
---------------------------------------------------------------------------
V. Why the Proposed Standard Constitutes a Reasonable and Good Faith
Effort
The ACHP has prepared regulations and guidance that outline what is
required to meet the ``reasonable and good faith'' identification
standard as part of the section 106 review process.\18\ Before
beginning the identification stage in the section 106 process, the ACHP
regulations (36 CFR 800.4) require each Federal agency to:
---------------------------------------------------------------------------
\18\ https://www.achp.gov/sites/default/files/guidance/2018-05/reasonable_good_faith_identification.pdf.
---------------------------------------------------------------------------
(1) Determine and document the APE in order to define where the
agency will look for historic properties that may be directly or
indirectly affected by the undertaking;
(2) Review existing information on known and potential historic
properties within the APE, so the agency will have current data; and
(3) Seek information from others who may have knowledge of historic
properties in the area. This includes the SHPO, THPO and, as
appropriate, Indian Tribes or Native Hawaiian organizations who may
have concerns about historic properties of religious and cultural
significance to them within the APE. BOEM has and continues to follow
these steps, as appropriate, in areas where surveys will be conducted.
Following these initial steps, the ACHP regulations set out several
factors an agency must consider in determining what is a ``reasonable
and good faith effort'' to identify historic properties. 36 CFR
800.4(b)(1). The regulations call for the agency to ``take into account
past planning, research and studies, the magnitude and nature of the
undertaking and the degree of Federal involvement, the nature and
extent of potential effects on historic properties, and the likely
nature and location of historic properties within the area of potential
effects.'' Id. The Secretary of the Interior's standards and guidelines
for identification provide guidance on this subject.\19\ Although the
ACHP standards note that the agency should also consider other
applicable professional, State, Tribal, and local laws, standards, and
guidelines, most of these materials do not apply in the OCS
environment.
---------------------------------------------------------------------------
\19\ https://www.achp.gov/sites/default/files/guidance/2018-05/reasonable_good_faith_identification.pdf.
---------------------------------------------------------------------------
As noted, there are two prongs to the section 106 identification
effort for historic properties, including archeological resources:
reasonableness and good faith. As to reasonableness, the ACHP notes in
a guidance document
[[Page 9802]]
that a reasonable identification plan is one that includes
consideration of the following factors:
Documentation of the horizontal and vertical extent of the
APE that accounts for direct and indirect effects;
An explanation of how the factors cited above inform the
content and intensity of the identification plan. This could include
information on past work in the area, scope of Federal involvement in
the undertaking, and the undertaking's magnitude and anticipated
effects on any historic properties that might exist in the APE;
A review of existing information on historic properties
within the APE, including information about possible historic
properties not yet identified;
A cognizance of applicable professional, State, Tribal,
and local laws, standards, and guidelines;
A familiarity with methodologies used in other historic
property surveys in the area that have been effective in terms of time
and cost;
A clear description of the steps that will be taken during
field investigations, during the analysis of field results, and in the
subsequent reporting and consultation, to determine the presence or
absence of historic properties within the APE.\20\
---------------------------------------------------------------------------
\20\ https://www.achp.gov/sites/default/files/guidance/2018-05/reasonable_good_faith_identification.pdf.
---------------------------------------------------------------------------
Of these factors, the last two have the greatest relevance to the
unique and largely unexplored OCS environment that BOEM manages.
Based on its review of all the applicable data and resources
available, BOEM has concluded that modifying the existing survey
requirements would be the most effective method for complying with the
ACHP guidelines, including the reasonableness prong of the section 106
identification effort for historical properties and other archeological
resources. BOEM believes this proposed rule is not excessively
burdensome given the minimal incremental cost to operators. Requiring
HRG surveys would not impose an excessive burden on operators because
the archaeological survey would constitute only a minor addition to the
other survey activities currently required and would impose a
negligible cost relative to that of the overall operation.
Additionally, under the reasonableness prong, NHPA requires BOEM to
consider the effects of the agency's actions on significant
archaeological and cultural sites and take steps to eliminate or
mitigate adverse effects. This proposed rule would help protect
significant historical sites, such as shipwrecks, which may be
difficult to impossible to remediate after the fact if damaged or
harmed, by requiring operators to submit an archaeological report or
other evidence based on an HRG survey. Due to higher resolution data
from HRG surveys and increased confidence in determining the locations
of potential archaeological sites, the proposed rule would enhance
survey requirements and would likely result in more accurate location
data and, thus, in generally less restrictive conditions of approval or
areas of avoidance. The current policy risks disrupting oil and gas
operations indefinitely in the case of an unanticipated discovery of an
historic property during exploration, development, and production.
The second prong of the ACHP analysis is the good faith standard.
According to the ACHP, an identification plan that is appropriate to
the nature and scale of the undertaking is carried out in good faith
when it meets the following criteria:
The plan is carried out in consultation with, as
appropriate, the SHPO, THPO, and any Indian tribe or Native Hawaiian
organization that might attach religious and cultural significance to
historic properties within the APE;
Is initiated in a timely manner that allows for
appropriate analysis and reporting, with adequate time for review by
the consulting parties;
Is carried out by a qualified individual or individuals
who meet the Secretary of the Interior's qualification standards and
have a demonstrated familiarity with the range of potentially historic
properties that may be encountered and their characteristics;
Acknowledges the special expertise possessed by Indian
Tribes and Native Hawaiian organizations in assessing the eligibility
of historic properties that may possess religious and cultural
significance to them (regardless of whether or not such Tribes and
organizations meet the Secretary's qualification standards);
Is fully supported by adequate funding and other necessary
resources; and
Is not compromised by lack of integrity or omission, such
as manipulating or ignoring evidence.\21\
---------------------------------------------------------------------------
\21\ https://www.achp.gov/sites/default/files/guidance/2018-05/reasonable_good_faith_identification.pdf.
---------------------------------------------------------------------------
The proposed rule would fully comply with these criteria to satisfy
the good faith prong of the section 106 identification effort for
historical properties and other archeological resources. To the extent
that BOEM is aware of any potential offshore resources that may be of
concern to any Tribes or other Native American populations, those
Tribes would be notified of any relevant survey activities in their
areas of interest. The survey requirements, which BOEM proposes to
modify, would be implemented during the plan or application process
when an operator requests approval to engage in any activity that would
involve potential site disturbance. The approval would be contingent on
the site evaluation activities described below and would necessarily
precede any operational or development activity at the proposed site.
The qualification requirements for those conducting and evaluating the
surveys are currently, and would continue to be, aligned with the
Secretary's standards. The data used to prepare the relevant
archaeological reports would be retained for BOEM's further review and
analysis in accordance with sections 30 CFR 550.201(b) and 550.210(b).
VI. Implications for Lessees and Operators
As discussed in the RIA, the archaeological analysis and reporting
requirements represent an extremely small marginal addition to the
survey activities that BOEM already requires, and an even smaller
portion of the overall OCS oil and gas development costs. The HRG
survey data, from which archaeological assessments and reports are
prepared, would be part of the same dataset that is already required of
operators to identify shallow hazards (such as unexploded ordinance,
shallow gas, pipelines, and other seafloor and sub-seafloor hazards)
and to look for seafloor compatibility for oil and gas development
activities.
If a potential archaeological resource is identified, the operator
may be required to amend the project design to avoid the resource.
However, this contingency is not substantially different from the
current practice of modifying a project to find a more suitable
substrate or to avoid shallow drilling hazards. Operators and lessees
often reposition their planned construction or installation activities
for reasons other than the presence of archaeological resources.
Currently, pre-development surveys occasionally identify natural,
geological, and modern anthropomorphic features through which operators
do not wish to drill or lay a pipeline. In addition, the costs of
conducting HRG surveys and archaeological assessments have been reduced
significantly in recent years
[[Page 9803]]
with the improvement of remote sensing and navigation technologies.
Furthermore, the benefits to industry of performing archaeological
surveys and assessments before disturbing the seafloor are widely known
and understood, and currently represent the common industry practice.
Most operators understand that these surveys and reporting activities
are necessary and that performing them is in their best interest. These
surveys help avoid unanticipated delays caused by the discovery of
archaeological resources after exploration and development activities
commence.\22\ If an operator discovers a seafloor hazard or
archaeological site too late, it would be in danger of damaging it;
this could cause the operator or lessee to incur significant costs
while ``standing down'' expensive equipment.
---------------------------------------------------------------------------
\22\ ``One of the reasons the ACHP's regulation contains a post-
review discovery provision [36 CFR 800.13] is that the level of
effort is reasonable and in good faith, not 100 percent or
exhaustive. The costs attendant with work stoppage because of a[n
unanticipated] discovery should be reason enough for a Federal
agency to put forth a competent professional effort at the
identification stage.'' See https://www.achp.gov/Section_106_Archaeology_Guidance/Questions%20and%20Answers/Determining_which_archaeological_sites_are_significant_identification
. Response to question 18.
---------------------------------------------------------------------------
The current regulations (which would be revised and redesignated as
Sec. 550.195 under this proposed rule) require operators to cease
operations in the event an unanticipated archaeological resource is
discovered. Existing 30 CFR 550.194(c). The ensuing cost from these
delays have been high and have exceeded the annualized incremental
direct costs that would be imposed by this proposed rule. The proposed
rule is intended precisely to avoid such unanticipated discoveries,
expenses, and delays.
Under the current regulations, lessees and operators also risk
paying for costly mitigation. For instance, in 2001, one operator paid
$250,000 to mitigate impacts to the Mica shipwreck, a post-installation
discovery, after placing a pipeline through the center of the
wreck.\23\ Finally, impacting a site, damaging equipment, or both can
cause adverse environmental impacts through contaminant releases or
discharges, such as fuel, oil, and lubricants, from a shipwreck,\24\ or
by compromising pipeline integrity where a pipeline is placed
unknowingly across an archaeological resource. For example, a pipeline
inadvertently placed across a shipwreck may affect the wreck and the
pipeline's integrity, especially if the pipeline was not designed for
additional stresses from the potential shifting of the wreck as it is
degraded by the presence and weight of the pipeline.
---------------------------------------------------------------------------
\23\ Atauz AD, Bryant W, Jones T, Phaneuf B. 2006. Mica
shipwreck project deepwater archaeological investigation of a 19th
century shipwreck in the Gulf of Mexico. 142 p. OCS Study 2006-072.
Obligation No.: 14-35-01-01-CA-31178.
\24\ https://sanctuaries.noaa.gov/protect/ppw/welcome.html.
---------------------------------------------------------------------------
An HRG survey would reduce operator risk downstream in the project
development, would enhance operator confidence that its activities
would be conducted safely, and would lead to a better experience during
the build or drill phases. Therefore, BOEM expects the incremental cost
increase to industry of this proposed rule would be outweighed by the
reduction in risks of unexpected delay and avoidable site damage.
VII. Section-by-Section Analysis
Part 550--Oil and Gas and Sulfur Operations in the Outer Continental
Shelf
Subpart A--General
Sec. 550.105 Definitions
The proposed rule would amend the definition of the term
``Archeological resources'' to clarify that any historic property, as
described in the National Historic Preservation Act (NHPA), would be
considered an archeological resource for the purpose of BOEM's
regulations. The new definition of Archeological resource would read as
follows:
Archeological 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).
This definition would encompass the following historical
properties, as defined in 36 CFR 800.16(l):
(1) Historic property means any prehistoric or historic
district, site, building, structure, or object included in, or
eligible for inclusion in, the National Register of Historic Places
maintained by the Secretary of the Interior. This term includes
artifacts, records, and remains that are related to and located
within such properties. The term includes properties of traditional
religious and cultural importance to an Indian tribe or Native
Hawaiian organization and that meet the National Register criteria.
(2) The term eligible for inclusion in the National Register
includes both properties formally determined as such in accordance
with regulations of the Secretary of the Interior and all other
properties that meet the National Register criteria.
This change is made to clarify that BOEM's use of the term
archeological resource is meant encompass any property covered by the
NHPA.
Sec. 550.194 How must I conduct my approved activities to protect
archaeological resources?
The title of this section has been updated to reflect the fact that
the response to an archeological discovery, and the remediation
process, is no longer included in the content of this section but has
been moved to the subsequent section.
Sec. 550.194(a)
The proposed rule would eliminate the ``reason to believe''
standard in the current regulations with respect to individual leases.
It would recognize that universal performance of field surveys is
necessary to identify potential archaeological resources and to assist
BOEM in better meeting its NHPA section 106 obligations to make a
``reasonable and good faith effort'' to identify archaeological
resources under ACHP's regulations. The proposed rule would require
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 would include these
submissions with any EP, DOCD, or DPP, or other authorization permit
requests that require disturbance of the seafloor.
Sec. 550.194(a)(1)
The proposed rule would also clarify that an archaeological report
must be based on an HRG survey, because an HRG survey is the most
scientifically sound means of obtaining the data for the archaeological
report. The proposed rule would allow 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.
Sec. 550.194(a)(2)
The proposed rule would allow operators to 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. Such a reference would be allowed if the
previously submitted survey complies with the parameters identified in
the proposed 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.
BOEM
[[Page 9804]]
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.
Sec. 550.194(a)(3)
The proposed rule would 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 would allow the use of such data it BOEM
determines these sources are sufficient to identify possible marine
archaeological resources at a degree of certainty reasonably similar or
better than an HRG survey.
Sec. 550.194(b)
The proposed rule would require that the archaeological report or
evidence required by Sec. 550.194(a) be prepared and signed by a
qualified marine archaeologist. This requirement would apply regardless
of which option described in Sec. 550.194(a) is used as the basis of
the archaeological report or evidence. The proposed rule would further
define a qualified marine archaeologist as one who meets the Secretary
of the Interior's (Historic Preservation) professional qualifications
standards \25\ and has experience in conducting HRG surveys and
processing and interpreting the resulting data for archaeological
potential.\26\
---------------------------------------------------------------------------
\25\ Archeology and Historic Preservation; Secretary of the
Interior's Standards and Guidelines, 48 FR 44716 (Sept. 29 1983)
https://www.nps.gov/subjects/historicpreservation/upload/standards-guidelines-archeology-historic-preservation.pdf.
\26\ Id.
---------------------------------------------------------------------------
Sec. 550.194(c)
The proposed rule would establish the minimum standards for
conducting the geophysical survey upon which the archaeological report
is based. It would also recognize that this survey would likely
identify anomalous features on the seafloor that may not readily be
identified, or excluded, as an archaeological resource. Archaeological
resources on the OCS are likely to consist of either
(1) post-European contact shipwrecks or aircraft, or
(2) pre-European contact archaeological sites from the end of the
last Ice Age,\27\ when sea levels were about 460 feet (140 meters)
lower than the present day and much of the OCS was exposed as dry land.
---------------------------------------------------------------------------
\27\ The last glacial period began about 100,000 years ago and
lasted until 25,000 years ago.
---------------------------------------------------------------------------
The proposed rule would require that geophysical surveys 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 proposed 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 this section on a case-by-case basis if
it meets the requirements in proposed paragraph (d).
Sec. 550.194(c)(1)
The proposed rule would 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.
Sec. 550.194(c)(2)
The proposed rule would 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 would also establish the requirements for the
collection of data necessary to assist in the identification of
archaeological resources on the OCS. The sensor would be required to be
towed in such a manner that a magnetic field produced by ferrous metal
associated with a historic shipwreck \28\ (e.g., a wooden ship's
fasteners, anchors, and cannons) can be detected.
---------------------------------------------------------------------------
\28\ A metal hulled shipwreck would most likely be recorded
using a magnetometer. Most of ships through history were wooden
shipwrecks until the modern era. These wrecks are more difficult to
locate via geophysical methods.
---------------------------------------------------------------------------
The size of the magnetic field is directly related to the mass of
ferrous material present. Magnetometers, gradiometers, or their
equivalent are commonly used to detect historic shipwrecks because of
the presence of ferrous material (e.g., iron or iron alloy) associated
with such shipwrecks. Although iron hulls only became popular beginning
in the middle of the 19th century, even wooden ships contain ferrous
materials. This material produces a magnetic field of varying size and
intensity that is detectable by a magnetometer, gradiometer, or their
equivalent as a distinct anomaly from the ambient magnetic field of the
earth.
The magnetometer, gradiometer, or an equivalent sensor must collect
data at a sufficient rate and pass through a shipwreck's magnetic field
to register a reading. Therefore, the closer the sensor is to the
source of the magnetism, the more readily it is detectable. The
sensor's height above the seafloor should balance the proximity
necessary to detect the presence of a shipwreck with ferrous materials
on the one hand, and, on the other, the risk of snagging the instrument
on the seafloor. In addition, it is important to minimize ``noise''
from extraneous electrical interference that produces false readings
and impedes the sensor's ability to accurately register the magnetic
signature of a shipwreck or other historic property. 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 feet (6 meters) or less,
measured from the sensor to the seafloor.\29\
---------------------------------------------------------------------------
\29\ See Gearhart, II, R., D. Jones, A. Borgens, S. Laurence, T.
DeMunda, and J. Shipp. 2011. Impacts of recent hurricane activity on
historic shipwrecks in the Gulf of Mexico Outer Continental Shelf.
U.S. Dept. of the Interior, Bureau of Ocean Energy Management,
Regulation and Enforcement, Gulf of Mexico OCS Region, New Orleans,
LA. OCS Study BOEMRE 2011-003. URL: https://espis.boem.gov/final%20reports/5111.pdf. 202 pp., and Camidge, K., P. Holt, C.
Johns, L. Randall and A. Schmidt. 2009 Developing magnetometer
techniques to identify submerged archaeological sites: Theoretical
study report. Cornwall, UK: Cornwall Council 2009 Report Number:
2010R012. URL: https://archaeologydataservice.ac.uk/catalogue/adsdata/arch-983-1/dissemination/pdf/Report/Developing_Magnetometer_Techniques_Theoretical_Study_Final_Report_Rev_02.pdf.
---------------------------------------------------------------------------
Because magnetometers measure total magnetic field strength, they
may not be suitable in the vicinity of large structures, such as oil
and gas platforms, pipelines, or wind turbine foundations, which mask
the magnetic signature of smaller features. A gradiometer system, which
measures gradient between two or more closely spaced magnetometers, or
other comparable or novel technologies, should be considered for more
precise results (e.g., in identifying historically significant wooden
merchant shipwrecks in the vicinity of the survey area) and for surveys
close to large structures.
A wide array of archaeological resources might be encountered
during a marine magnetic survey. At the extremes of this range, the
largest
[[Page 9805]]
resources should prove easy to identify, whereas the smallest would
only be detected by the highest resolution magnetic surveys. However, a
survey designed to resolve anomalies of at least 1,000 pounds (453
kilograms), with a minimum detectable deflection of 5 gamma ([gamma]; 5
nanotesla [nT]), can be expected to identify archaeological material,
such as a ship's guns, anchors, and concreted amalgamations of
fastenings and fittings. Based on the reports cited above, 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 would typically be sufficient to locate most historically
significant shipwrecks on the OCS.
Sec. 550.194(c)(3)
The proposed rule would require the use of a sub-bottom profiler
system for surveys conducted in water depths of less than 140 meters
(459 feet). It would also establish the technical requirements for the
use of this equipment. For all sub-bottom systems used to comply with
this paragraph, data produced from the system must be digitally
recorded to allow signal processing to improve data quality and to
export data to a workstation for integrated interpretation and mapping.
BOEM requests comment on whether modifications to this provision should
be considered in situations where the proposed activity has the
potential to disturb pre-contact archaeological material. The Gulf of
Mexico (GOM) may contain areas where the sediment overlying any
potential archaeological resources may be so thick that the proposed
activity would not have the potential to affect a site even if one were
present.
Sub-bottom profilers work by transmitting sound energy in the form
of a short pulse towards the seabed. The reflected energy intensity
depends on the different densities of the sediments. The denser
(harder) the sediments, the stronger the reflected signal. The
principal use of sub-bottom profilers in archaeology is identifying
submerged and buried landforms that might have been habitable by
indigenous Americans during the end of the last Ice Age. The reflected
energy can identify buried river channels, levees, point bars, and lake
and marsh margins that are known to have been favored sites for
settlement based on studies of analogous sites located on land. Imaging
a vertical bed separation of 0.3 meters (1 foot) in the upper 10 to 15
meters (33 to 50 feet) of sediment allows for reconstruction of the
paleo-landscape and identification of possible human habitation, which
in turn provides the data necessary to avoid harming sites of potential
scientific and Tribal interest. For example, high frequency Compressed
High Intensity Radar Pulse (CHIRP) and parametric systems alone may be
used to achieve this level of resolution and depth of penetration to
adequately image the APE, and thereby provide suitable archaeological
information.
Sec. 550.194(c)(4)
The proposed rule would require the use of a side-scan sonar or
equivalent system in all water depths. It would also establish the
technical requirements for the use of this equipment and for the post-
processing of data.
The side-scan sonar is an acoustic instrument that uses reflected
sound waves to image the seafloor. Side-scan sonars may either be towed
behind a ship or mounted in an autonomous underwater vehicle. Pulsed
signals are transmitted from each side of the instrument and are
reflected back from the seafloor and objects on it. The sonar signal is
concentrated in narrow beams on both sides of the instrument. Sensitive
hydrophones receive the returning sound. The signals from the
hydrophone are sent to the ship for processing, and an image shows the
strength of the returned sound. The darker parts of the image represent
greater echo strength.
A higher frequency sonar will emit many pulses of sound per second,
resulting in many more reflections being returned to the hydrophone.
Like pixels in a photograph, more sound reflections result in a higher
resolution image of the object reflecting the sound waves. A trade-off
exists between resolution and range: given how sound travels in water,
the higher the frequency of the sound, the shorter the distance over
which it will travel. The greater the range, the fewer passes are
needed to image the seafloor, but the less resolute the resulting image
may be. Apart from this range versus resolution trade-off, a gap or
``nadir'' exists directly below the instrument, where no sound waves
were directed.
Deploying the sensor at a height above the seafloor of 10 to 20
percent of the range ensures that the nadir is minimized and that
objects at the farthest extreme of the range are detected. To ensure
that the nadir is imaged, the sonar should have overlapping coverage
between the right and left channels on adjacent survey transects. One
hundred percent overlapping coverage of the seafloor (i.e., 200 percent
seafloor coverage) ensures that significant resources are not missed in
the survey. (For comparison, 150 percent seafloor coverage only extends
half-way across the swath coverage from an adjacent line.) Greater than
200 percent overlapping coverage may be recommended to guarantee nadir
coverage and account for survey vessel drift between lines, which may
be an important consideration when surveying in deep water. The 0.5-
meter resolution standard is consistent with the capabilities of modern
sonar systems when operated at appropriate frequency and range
settings. This resolution is also consistent with current BOEM survey
guidelines for shallow hazards.
Post-processing can improve sonar data quality by, for example,
adjusting for slant range effects and variable speed along line. This
provision would require post-processing in order to ensure that the
data useful for interpretation and mapping.
Sec. 550.194(d)
The proposed rule would 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 would
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 not conserve the natural resources of the
OCS; would not protect life (including human and wildlife), property,
or the marine, coastal, or human environment; or would not protect
sites, structures, or objects of historical or archaeological
significance.
Sec. 550.194(e)
Any departures approved under proposed Sec. 550.194(d) must be
documented in writing, consistent with the OCS Lands Act, protect the
archaeological resources to the same degree as if there was no approved
departure from the regulations, meet the same reasonable and good faith
identification effort required by NHPA section 106, and not impair the
rights of third parties. This would allow BOEM to ensure that its
archaeological report requirements remain in compliance with the NHPA.
Sec. 550.194(f)
The proposed rule would permit BOEM to reject any archeological
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. The proposed rule would
[[Page 9806]]
also permit BOEM to reject any archaeological report if the results
produced from the survey do not meet the data and resolution
requirements specified in paragraph (c), regardless of whether the
survey was otherwise conducted appropriately.
BOEM recognizes that a properly conducted survey may fail to
identify potential archaeological resources as a result of equipment
failure, processing errors, instrument interference, adverse weather,
or other non-survey parameter related failure. For example, geomagnetic
storms occurring during an archaeological survey can produce false
positives when using a magnetometer (i.e., produce a magnetic signature
that can easily be mistaken as a potential archaeological resource).
Survey designs should avoid the collection of data during geomagnetic
storms or incorporate a base station or gradiometer, as these
configurations are effective at removing temporal variance and
isolating spatial variance in magnetic data.\30\ The operators are
responsible for following the standards in Sec. 550.194(c) to obtain
useable information. Operators must ensure that any factors affecting
the quality of the data are avoided and addressed, or areas resurveyed
as necessary.
---------------------------------------------------------------------------
\30\ Carrier, B. and M. Heinz. 2017. Geomagnetic Storms in
Marine Magnetometer Data at Low Latitudes. Offshore Technology
Conference. Houston, Texas, USA. May 1-4, 2017. Carrier, B. M., A.
Pulkkinen, and M. Heinz. 2016. Recognizing Geomagnetic Storms in
Marine Magnetometer Data: Toward Improved Archaeological Resources
Identification Practices. STAR: Science & Technology of
Archaeological Research. 2:1. URL: https://www.tandfonline.com/doi/full/10.1080/20548923.2015.1099375.
---------------------------------------------------------------------------
Sec. 550.194(g)
This provision specified what must be done if the archaeological
report or evidence mentioned in paragraph (a) of this regulation
suggests that an archaeological resource may be present. The proposed
rule would establish 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.
Sec. 550.194(g)(1)
The proposed rule would provide operators the option of relocating
operations so as not to adversely affect an area where known or
suspected archaeological resources exist.
Sec. 550.194(g)(2)
The proposed rule would, in the alternative to paragraph (g)(1),
also provide 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. The rule would further
specify that, if high-resolution remote sensing alone is not sufficient
to determine whether a seabed anomaly is an archaeological resource,
the Regional Director may require the operator to conduct further
archaeological investigation, under the supervision of a qualified
marine archaeologist, using equipment and techniques the Regional
Director considers appropriate.
In the event that the Regional Director requires additional
investigations, the operator would be required to submit a report
documenting the investigation to the Regional Director for review.
Sec. 550.194(g)(2)(ii)
The proposed rule would provide that, if, based on the information
in the archaeological report or other evidence, 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 operator immediately of the steps to
be taken to protect the archaeological resource.
The proposed rule would replace the current Sec. 550.194(b) and
emphasize 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.
Sec. 550.194(g)(3)
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 would be allowed to prohibit operations in the APE.
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?
BOEM proposes to move the current 30 CFR 550.194(c) to the new
Sec. 550.195. Moving the provisions to a separate section would
improve the overall organization of the regulations. In addition to
moving the provision to its own section, BOEM proposes expanding on the
specificity of the requirements. The existing regulations simply
require that operations be halted immediately within the area of the
discovery and that the discovery be reported to the BOEM Regional
Director.
Sec. 550.195(a)
Paragraph (a) of the proposed rule would 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 proposed rule
would establish these requirements to minimize the potential for risk
to the resource.
Sec. 550.195(b)
Paragraph (b) would clarify that if BOEM determines that the
resource is eligible for listing on the National Register of Historic
Places 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 current
regulations in Sec. 550.194(c) state that if the resource is
significant, the Regional Director will determine how to protect it. If
BOEM were to determine that the resource is eligible for listing on the
National Register of Historic Places, 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 significant and
advise BSEE on the appropriate means to protect it.\31\
---------------------------------------------------------------------------
\31\ 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
National Register of Historic Places eligible sites, so this kind of
information is further available there for review as a routine part
of each agency's review processes.
---------------------------------------------------------------------------
Sec. 550.195(c)
Paragraph (c) would require that BOEM 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 to either demonstrate that no adverse impacts
have occurred or to document the adverse impacts. BSEE would have the
ability to take any additional measures that it determines are
necessary to protect, or remediate damage to, any archeological
resources that have been discovered.
VIII. Procedural Matters
A. Regulatory Planning and Review (Executive Order (E.O.) 12866 and
13563)
E.O. 12866 provides that the Office of Information and Regulatory
Affairs
[[Page 9807]]
(OIRA) in OMB will review all significant rules. OIRA has reviewed this
proposed rule and determined that it 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 use the best, most innovative,
and least burdensome tools for achieving regulatory ends. The E.O.
directs agencies to consider regulatory approaches that reduce burdens
and maintain flexibility and freedom of choice for the public where
these approaches are relevant, feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes that regulations must be based on the
best available science and that the rulemaking process must allow for
public participation and open exchange of ideas. BOEM has developed
this rule in a manner consistent with these requirements.
The costs and benefits of the proposed rulemaking 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 a
HRG survey, which is the procedure for identifying possible
archaeological resources.
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
of containing archaeological resource by the predictive model. These
requirements included guidance 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.
Under the GOM region baseline scenario, HRG archaeological surveys are
conducted using methods consistent with guidelines provided in Notice
to Lessee (NTL) 2005-G07, entitled ``Archaeological Resource Reports
and Surveys,'' \32\ which recommends a maximum line spacing of 50
meters in water depths of 200 meters or less.
---------------------------------------------------------------------------
\32\ https://www.boem.gov/sites/default/files/documents/newsroom/BOEM%20NTL%20No.%202005-G07.pdf.
---------------------------------------------------------------------------
In the Alaska region, all HRG archaeological surveys completed
since 2011 have been conducted using methods consistent with guidelines
provided in NTL 2005-A01, ``Shallow Hazards Survey and Evaluation for
OCS Exploration and Development Drilling,'' \33\ and NTL 2005-A03,
``Archaeological Survey and Evaluation for Exploration and Development
Activities.'' \34\ These NTLs create 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.
---------------------------------------------------------------------------
\33\ https://www.bsee.gov/sites/bsee.gov/files/notices-to-lessees-ntl/drilling/05-a01.pdf.
\34\ https://www.boem.gov/sites/default/files/documents/oil-gas-energy/BOEM%20NTL%20No.%202005-A03.pdf.
---------------------------------------------------------------------------
Most of the revisions in the proposed rule would have no or
negligible cost impacts for operators. All expected incremental costs
of the proposed 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
lane spacing sufficient to detect ferrous metals or other magnetically
susceptible materials of at least 1,000 pounds. 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 lane spacing of 30 meters.\35\
---------------------------------------------------------------------------
\35\ The explanation for this statement is provided in section
VII of the preamble under Sec. 550.194(c)(2), where it states: ``If
the sensor 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.
---------------------------------------------------------------------------
Table 1 presents a summary of the qualitative benefits and an
quantitative estimate of the annualized and total costs for the
proposed rule. BOEM estimates that the proposed changes would increase
total OCS archaeology survey costs over the next 10 years by
$4,109,599, using a 3% discount rate or by $3,463,520, using a 7%
discount rate.
Table 1--Summary of Benefits and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Units
------------------------------------------------
Category Estimate Discount rate Period covered Notes
Year dollars (percent) (years)
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs:
Annualized Incremental Costs.......... $410,960 2022 3 10 Increased compliance costs due to increased
346,352 .............. 7 measurement capability requirements in
water depths less than or equal to 100
meters.
-------------------------------------------------------------------------------------------------------------
Total Incremental Costs........... 4,109,599 2022 3
3,463,520 .............. 7
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 9808]]
BOEM welcomes comments on the regulatory impact analysis (RIA) for
this proposed rule. The initial RIA can be found in the rulemaking
docket at www.regulations.gov.
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 there is
likely to be a significant economic impact on a substantial number of
small entities 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 proposed rulemaking, the
RFA requires the agency to ``prepare and make available for public
comment an initial regulatory flexibility analysis'' which will
``describe the impact of the proposed rule on small entities.'' (5
U.S.C. 603(a)).
BOEM has determined that this proposed rule would affect a
substantial number of small entities. Operators under this proposed
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 proposed 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 archeological report under
the proposed rule. BOEM estimates that of the 70 OCS lease operators,
21 are large and 49 are small.
The regulatory changes in this proposed rule are primarily
clarifications, codifying existing practice, or reflect BOEM regulatory
updates to maintain consistency with NHPA regulations. Most operators
have been conducting HRG surveys and the archeological analysis
consistent with the regulatory requirements in this proposed 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
proposed rule derive from the proposed 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 lane spacing sufficient to detect ferrous metals or other
magnetically susceptible materials of at least 1,000 pounds. This
performance standard is met by the requirement that operators conduct
archaeological surveys with a maximum lane spacing of 30 meters.
BOEM estimates that the proposed changes would increase OCS
archaeology survey costs by $4,725,000 over the next 10 years. The GOM
archaeological survey costs are estimated to increase by $1,680,000,
the Alaska costs by $3,045,000, depending on activity and cost factors
discussed in section II of the initial RIA.
BOEM's estimate of the proposed rule's 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. Operators
that meet the definition of a small entity dominate the oil and gas
industry on the GOM OCS, which is submerged generally under waters 200
meters or less in depth. Therefore, BOEM estimates most of the
increased GOM compliance cost for survey lane 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 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 various discount
rates. BOEM does not expect new archaeological surveys in other OCS
regions over the next decade.
Table 2--Small Business 10 Year Compliance Cost Associated With Proposed Rule
----------------------------------------------------------------------------------------------------------------
Undiscounted Discounted at Discounted at
cost 3% 7%
----------------------------------------------------------------------------------------------------------------
Large Business Total Incremental Costs (AK OCS Region).......... $3,045,000 $2,633,533 $2,200,961
Small Business Total Incremental Costs (GOM OCS Region)......... 1,680,000 1,476,066 1,262,559
----------------------------------------------------------------------------------------------------------------
C. Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act, because it: (a)
will not have an annual effect on the economy of $100 million or more;
(b) will not cause a major increase in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions; and (c) will not have significant adverse effects
on competition, employment, investment, productivity, innovation, or
the ability of U.S.-based enterprises to compete with foreign-based
enterprises.
D. Unfunded Mandates Reform Act of 1995
This proposed rule does not impose an unfunded mandate on State,
local, or Tribal governments, or the private sector of more than $100
million per year. This rule does not have a significant or unique
effect on State, local, or Tribal governments or the private sector.
Moreover, the proposed rule would not have disproportionate budgetary
effects on these governments. BOEM has also determined that this
proposed rule would not impose costs on the private sector of more than
$100 million in a single year. A statement containing the information
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required and BOEM has chosen not to prepare such a statement.
E. Takings Implication Assessment (E.O. 12630)
This proposed rule does not effect a taking of private property or
otherwise have takings implications under E.O. 12630. Therefore, a
takings implication assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this proposed rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. Therefore, a
federalism summary impact statement is not required.
[[Page 9809]]
G. Civil Justice Reform (E.O. 12988)
This proposed 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.
H. Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)
BOEM strives to strengthen its government-to-government
relationship with American Indian and Alaska Native tribes through a
commitment to consultation with the Tribes and recognition of their
right to self-governance and Tribal sovereignty. BOEM also is
respectful of its responsibilities for consultation with corporations
established pursuant to the Alaska Native Claims Settlement Act, 43
U.S.C. 1601 et seq. (ANCSA). BOEM has evaluated this proposed rule
under the criteria in E.O. 13175, DOI's consultation policy, as
described in the Department of the Interior Departmental Manual, part
512, chapters 4 \36\ and 5 \37\ (December 1, 2022), and BOEM's tribal
consultation guidance (outlined in the Memorandum from William Y.
Brown, Chief Environmental Officer, Bureau of Ocean Energy Management,
to Bureau Program Chiefs and Regional Directors (June 29, 2018)).\38\
BOEM has determined that the proposed rule may have tribal
implications. BOEM has begun outreach to the Tribes and ANCSA
corporations, and will follow Departmental and Bureau procedures for
consultation during the development of this action.
---------------------------------------------------------------------------
\36\ Available at https://www.doi.gov/sites/doi.gov/files/elips/documents/512-dm-4_2.pdf.
\37\ Available at https://www.doi.gov/sites/doi.gov/files/elips/documents/512-dm-5_2.pdf.
\38\ Available at https://www.boem.gov/BOEM-Tribal-Consultation-Guidance/.
---------------------------------------------------------------------------
I. Paperwork Reduction Act (PRA)
This proposed rule references existing and new IC requirements for
regulations at 30 CFR part 550, subpart A. Submission to OMB for review
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is
required. Therefore, BOEM will submit an IC request to OMB for review
and approval and will request a new OMB control number, designated in
this discussion as ``1010-NEW.'' Once the 1010-AE11 final rule is
effective, BOEM will transfer the hour burden from 1010-NEW to OMB
Control Number 1010-0114, which expires February 28, 2023, then
discontinue the new number associated with this rulemaking. The ICs
related to this rulemaking concern requirements under 30 CFR 550.194
and proposed 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.
The new and revised information collection requirements for 30 CFR
550.194 and proposed 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.
----------------------------------------------------------------------------------------------------------------
Non-hour cost burdens
Citation 30 CFR 550 subpart A Reporting or ---------------------------------------------------------
and related forms/NTLs recordkeeping Average number of Annual burden
requirement Hour burden annual responses hours
----------------------------------------------------------------------------------------------------------------
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 1320.3(b)(2).
archaeological sites.
Submit archaeological
and follow-up reports
and additional
information.[*].
---------------------------------------------------------
195 (a)....................... Report archaeological 1 3 reports............. 3 hours.
discoveries to the
Regional Director.
194........................... Request departures 1 2 requests............ 2 hours.
from 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.
Proposed 30 CFR 550.194(a): The proposed rule would
require that any EP, DOCD, or DPP, or any other request to conduct
activities that may disturb the seafloor be accompanied by or contain
an archaeological report and supporting evidence. BOEM proposes to
increase the estimated annual burden hours to 500 hours (+500 annual
burden hours over the currently approved burden).
Proposed 30 CFR 550.194(c): The proposed rule would
require that archaeological reports be based on a HRG survey of the
APE. The high-resolution geophysical requirements proposed 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.
Proposed 30 CFR 550.194(g): If an archaeological resource
is likely to be present, the proposed rule would require an operator to
either relocate the proposed operations to avoid adversely
[[Page 9810]]
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 proposed
provision.
Proposed 30 CFR 550.195(a): The proposed rule would
require the operator to notify the BOEM Regional Director of any
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 would 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 would 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-NEW.
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.
If this proposed rule becomes effective and OMB approves the IC
request 1010-NEW, BOEM would revise the existing OMB Control Number
1010-0114 for the affected subpart discussed above and would adjust the
annual burden hours accordingly. The IC related to 30 CFR part 550 do
not include questions of a sensitive nature. BOEM will continue to
protect proprietary information according to FOIA and the Department of
the Interior's implementing regulations.
In addition, 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 proposed 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
proposed rule; (3) for reasons other than to provide information or to
keep records for the U.S. Government; or (4) as part 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
BOEM proposes to comply with NEPA by relying on an existing
categorical exclusion.\39\ This proposed rule, if finalized, meets the
criteria for categorical exclusion because the proposed activities fall
within the bounds of 516 DM 15.4.C(1) and 43 CFR 46.210(e), which
address regulatory functions ``for which the impacts are limited to
administrative, economic, or technical effects and the environmental
impacts are minimal.'' (516 DM 15.4(C)(1) The actions required by this
rule are fundamentally administrative and technical and do not have the
potential to cause significant individual or cumulative effects on the
quality of the human environment. In addition, 516 DM 15.4.C(13) covers
the category of actions required by this rule:
---------------------------------------------------------------------------
\39\ See 43 CFR 46.205.
Preliminary activities conducted on a lease prior to approval of
an exploration or development/production plan or a Development
Operations Coordination Plan. These are activities such as
geological, geophysical, and other surveys necessary to develop a
comprehensive exploration plan, development/production plan, or
---------------------------------------------------------------------------
Development Operations Coordination Plan.
BOEM preliminarily has determined that this proposed rule, if
finalized, would not involve any of the extraordinary circumstances
that require further analysis under NEPA.\40\ The final decision on the
appropriate level of NEPA analysis will be made at the final rule
stage.
---------------------------------------------------------------------------
\40\ See 43 CFR 46.215.
---------------------------------------------------------------------------
K. Data Quality Act
In developing this proposed rule, we 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).
L. Effects on the Nation's Energy Supply (E.O. 13211)
Under E.O. 13211, agencies are 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 have no effect on the production,
supply, distribution, or use of energy and is not expected to have any
effect on the energy industry.
M. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq. BOEM will
submit a rule report to each House of the Congress and to the
Comptroller General of the United States along with the final version
of this rule. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
N. Clarity of This Regulation
BOEM is required by E.O. 12866, E.O. 12988, and by the Presidential
memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule BOEM publishes must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
[[Page 9811]]
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that BOEM has not met these requirements, send comments
by one of the methods listed in the ADDRESSES section. To better help
BOEM revise the proposed rule, your comments should be as specific as
possible. For example, you should specify the number of the sections or
paragraphs that you find unclear, which sections or sentences are too
long, the sections where you feel lists or tables would be useful, etc.
List of Subjects 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, Reporting and recordkeeping
requirements, Rights-of-way, Sulfur.
Laura Daniel-Davis,
Principal Deputy Assistant Secretary, Land and Minerals Management.
For the reasons discussed in the preamble, the Bureau of Ocean
Energy Management proposes to amend 30 CFR part 550 as follows:
Title 30--Mineral Resources
CHAPTER V--BUREAU OF OCEAN ENERGY MANAGEMENT, DEPARTMENT OF THE
INTERIOR
SUBCHAPTER B--OFFSHORE
PART 550--OIL AND GAS AND SULFUR OPERATIONS IN THE OUTER
CONTINENTAL SHELF
0
1. The authority citation for part 550 continues to read as follows:
Authority: 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 Archeological
resource as follows:
Sec. 550.105 Definitions.
* * * * *
Archeological 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, or
any other request to obtain an authorization or permit from BOEM that
involves disturbance of the seafloor, must be accompanied by or contain
one of the following:
(1) an archaeological report based on a high-resolution geophysical
survey of the Area of Potential Effects (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 a high-
resolution geophysical 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
(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 be prepared and signed by a qualified marine
archaeologist. A qualified marine archaeologist must meet ``the
Secretary of the Interior's (Historic Preservation) Professional
Qualifications Standards'' and must have experience in conducting high-
resolution geophysical 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.
(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 kg) in mass with a
minimum magnetic deflection of 5 gamma ([gamma]; 5 nanotesla [nT]),
conducting archaeological surveys with a maximum lane spacing of 30
meters. An altimeter 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 1.0 [gamma] (1.0 nT) or less.
Background noise level must not exceed a total of 3.0 [gamma] peak to
peak. The data sampling rate must be greater than 4.0 Hz to ensure
sufficient data point density of at least 2 points per meter. 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.
(3) For geophysical surveys conducted in water depths of 140 meters
(459 ft) or less, 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 sub-bottom system must be capable of
achieving a depth of penetration and resolution of vertical bed
separation that is sufficient to allow
[[Page 9812]]
for the identification and cross-track mapping of features of
archaeological potential (e.g., shell middens, paleochannels, levees,
inset terraces, paleolagoon systems). 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 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 resolve small, discrete targets 0.5
meters (1.6 feet) in length at maximum range. 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.
(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:
(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 archeological 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 archeological report if the survey was not
prepared in accordance with the requirements of paragraph (c) of 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) of this section, 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; or,
(i) if the further investigation cannot establish to the
satisfaction of the Regional Director that an archeological resource it
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.
0
4. Add Sec. 550.195 to read as follows:
Sec. 550.195 What must I do if I discover a potential archeological
resource while conducting operations on the lease or right-of-way area?
(a) If you discover any unanticipated archaeological resource 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) of this section. 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 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. 2023-02903 Filed 2-14-23; 8:45 am]
BILLING CODE 4340-98-P