Rule2024-19188
Protection of Marine Archaeological Resources
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 3, 2024
Effective
October 3, 2024
Issuing agencies
Interior DepartmentOcean Energy Management Bureau
Abstract
The Department of the Interior (the Department or DOI), acting through the Bureau of Ocean Energy Management (BOEM), is finalizing regulatory amendments to require lessees and operators to submit an archaeological report with any oil and gas exploration or development plan they submit to BOEM for approval of proposed activities on the Outer Continental Shelf (OCS). The previous regulations required an archaeological report only if the plan covered an area that a BOEM Regional Director had "reason to believe" may have contained an archaeological resource. This final rule will increase the protection of archaeological resources in compliance with section 106 of the National Historic Preservation Act (NHPA) by acknowledging that there is a greater likelihood that such resources exist, thereby increasing the likelihood that these resources will be located and identified before they can be inadvertently damaged by an OCS operator. This rule defines the minimum level of survey information necessary to support the conclusions in the archaeological report, the procedures for reporting possible archaeological resources and continuing operations when a possible resource is present, and what to do if an unanticipated archaeological resource is discovered during operations.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 170 (Tuesday, September 3, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 170 (Tuesday, September 3, 2024)]
[Rules and Regulations]
[Pages 71160-71184]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-19188]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
30 CFR Part 550
[Docket No. BOEM-2023-0012]
RIN 1010-AE11
Protection of Marine Archaeological Resources
AGENCY: Bureau of Ocean Energy Management, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior (the Department or DOI), acting
through the Bureau of Ocean Energy Management (BOEM), is finalizing
regulatory amendments to require lessees and operators to submit an
archaeological report with any oil and gas exploration or development
plan they submit to BOEM for approval of proposed activities on the
Outer Continental Shelf (OCS). The previous
[[Page 71161]]
regulations required an archaeological report only if the plan covered
an area that a BOEM Regional Director had ``reason to believe'' may
have contained an archaeological resource. This final rule will
increase the protection of archaeological resources in compliance with
section 106 of the National Historic Preservation Act (NHPA) by
acknowledging that there is a greater likelihood that such resources
exist, thereby increasing the likelihood that these resources will be
located and identified before they can be inadvertently damaged by an
OCS operator. This rule defines the minimum level of survey information
necessary to support the conclusions in the archaeological report, the
procedures for reporting possible archaeological resources and
continuing operations when a possible resource is present, and what to
do if an unanticipated archaeological resource is discovered during
operations.
DATES: This final rule is effective October 3, 2024. You may make
comments on the information collection (IC) burden in this rulemaking
and the Office of Management and Budget (OMB) and BOEM must receive
such comments on or before October 3, 2024. The IC burden comment
opportunity does not affect the final rule effective date.
ADDRESSES: BOEM has established a docket for this action under Docket
No. BOEM-2023-0012. All documents in the docket are listed on the
<a href="https://www.regulations.gov">https://www.regulations.gov</a> website and can be found by entering the
Docket No. in the ``Enter Keyword or ID'' search box and clicking
``search''.
You may submit comments on the IC to OMB's desk officer for the
Department of the Interior through <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>. From this main web page, you can find and submit comments on
this particular information collection by proceeding to the boldface
heading ``Currently under Review--Open for Public Comments,'' selecting
``Department of the Interior'' in the ``Select Agency'' pull down menu,
clicking ``Submit,'' then checking the box ``Only Show ICR for Public
Comment'' on the next web page, scrolling to this final rule, and
clicking the ``Comment'' button at the right margin. Additionally, you
may use the search function to locate the IC request related to the
rule on the main web page. Please provide a copy of your comments to
the Information Collection Clearance Officer, Office of Regulations,
BOEM, Attention: Anna Atkinson, 45600 Woodland Road, Sterling, Virginia
20166; or by email to <a href="/cdn-cgi/l/email-protection#a8c9c6c6c986c9dcc3c1c6dbc7c6e8cac7cdc586cfc7de"><span class="__cf_email__" data-cfemail="ea8b84848bc48b9e818384998584aa88858f87c48d859c">[email protected]</span></a>. Please reference OMB
Control Number 1010-0196 in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Karen Thundiyil, Chief, Office of
Regulations, BOEM, 1849 C Street NW, Washington, DC 20240, at email
address <a href="/cdn-cgi/l/email-protection#246f4556414a0a704c514a404d5d4d4864464b41490a434b52"><span class="__cf_email__" data-cfemail="175c7665727939437f6279737e6e7e7b577578727a39707861">[email protected]</span></a> or at telephone number (202) 742-0970.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services for contacting
the contacts listed in this section. These services are available 24
hours a day, 7 days a week, to leave a message or question with the
above individual. You will receive a reply during normal business
hours. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. Multiple acronyms are included
in this preamble. While this list may not be exhaustive, to ease the
reading of this preamble and for reference purposes, BOEM explains the
following acronyms here:
AAA American Anthropological Association
ACRA American Cultural Resources Association
ACUA Advisory Council on Underwater Archaeology
AKDNR Alaska Department of Natural Resources
AKSHPO Alaska State Historic Preservation Office
ANCSA Alaska Native Claims Settlement Act
APE Area of Potential Effect
API American Petroleum Institute
ARPA Archaeological Resources Protection Act
BOEM Bureau of Ocean Energy Management
BOEMRE Bureau of Ocean Energy Management, Regulation and Enforcement
BSEE Bureau of Safety and Environmental Enforcement
CAH Coalition for American Heritage
CFR Code of Federal Regulations
CRA Congressional Review Act
DOI Department of the Interior
DOCD Development Operations Coordination Document
DPP Development and Production Plan
E.O. Executive Order
EP Exploration Plan
FR Federal Register
HRG High-Resolution Geophysical
IC Information Collection
MMS Minerals Management Service
NAGPRA Native American Graves Protection and Repatriation Act
NAICS North American Industry Classification System
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NOAA National Oceanic and Atmospheric Administration
NOPC National Ocean Policy Coalition
NPS National Park Service
NRHP National Register of Historic Places
nT Nano-tesla
NTL Notice to Lessees
OIRA Office of Information and Regulatory Affairs (a component of
OMB)
OMB Office of Management and Budget
OOC Offshore Operators Committee
OCS Outer Continental Shelf
OCSLA Outer Continental Shelf Lands Act
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
SAA Society for American Archaeology
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act
SHA Society for Historical Archaeology
TXHC Texas Historical Commission
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code
WADAHP Washington Department of Archaeology and Historic
Preservation
Background information. On February 15, 2023, the Department
proposed revisions to the regulations for the protection of marine
archaeological resources on the OCS. The comments received regarding
the proposed rule, some of which resulted in regulatory changes, and
their corresponding responses are summarized in this preamble. A
``track changes'' version of the regulatory language that identifies
the changes in this action compared to the current regulations is also
available in the docket.
Organization of this document. The information in this preamble is
organized as follows:
I. General Information
A. Executive Summary
1. Purpose of This Regulatory Action
2. Summary of Major Provisions
3. Costs and Benefits
B. Does this action apply to me?
C. Where can I get a copy of this document and other related
information?
II. Background
A. BOEM Statutory Authority and Responsibilities
B. History of Protection of Marine Archaeological Resource
Regulations and Guidance
C. Purpose of This Rulemaking
D. Summary of the February 15, 2023, Proposed Rule
III. Key Provisions of the Final Rule
IV. Summary of Public Comments and BOEM's Corresponding Responses
A. Overview of Comments
B. General Comments
1. Regulatory Authority
2. Cost Implications
3. Tribal Implications
[[Page 71162]]
4. Removal of the ``Reason to Believe'' Standard and the Use of
Alternatives to Direct Sources
5. Compliance With the National Historic Preservation Act
C. Technical Comments
1. Use of Direct High Resolution Geophysical Surveys
2. Technical Parameters for Conducting Direct Surveys
3. Archaeological Reports
4. Seafloor Disturbing Operations
5. Definitions
V. Summary of Economic Impacts and Benefits
A. What are the economic impacts?
B. What are the benefits?
VI. Section-by-Section Analysis
VII. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Review, as
Amended by Executive Order 14094: Modernizing Regulatory Review, and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act
D. Unfunded Mandates Reform Act
E. Executive Order 12630: Governmental Actions and Interference
With Constitutionally Protected Property Rights
F. Executive Order 13132: Federalism
G. Executive Order 12988: Civil Justice Reform
H. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Data Quality Act
L. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
M. Congressional Review Act
I. General Information
A. Executive Summary
1. Purpose of This Regulatory Action
The purpose of this rule is to address concerns regarding BOEM's
regulatory requirements for protecting marine archaeological resources;
specifically, BOEM's inability to accurately identify the location of
such potential resources and BOEM's long term historic policy of
requiring archaeological surveys only in cases where there is evidence
that a resource exists. This rule amends the existing provisions to
require lessees and operators to submit an archaeological report with
any oil and gas exploration or development plan they submit to BOEM for
approval of proposed activities on the OCS.
2. Summary of Major Provisions
The two major provisions finalized in this rule are: (1) the
replacement of the ``reason to believe'' standard in the current
regulations with the requirement that all proposed exploration or
development plans that would result in seabed disturbance must be
accompanied by an archaeological report, and (2) the codification of
minimum requirements for any new high-resolution geophysical (HRG)
surveys. The standards for new HRG surveys are generally defined in
performance terms based on scientific standards, rather than using
specific parameters. This provision allows lessees and operators
greater flexibility in determining how to conduct their surveys and how
to produce the resulting archaeological reports.
3. Costs and Benefits
BOEM estimates that the changes will increase total OCS archaeology
survey costs over the next 20 years by $5.9 million (at a 3 percent
discount rate). The majority of the revisions in this final rule will
have no or negligible cost impacts for lessees and operators. All
expected incremental costs of the rule are due to the requirement for
HRG archaeological surveys in water depths of less than or equal to 100
meters and for a magnetometer, gradiometer, or the equivalent towed at
an altitude and line spacing sufficient to detect ferrous metals or
other magnetically susceptible materials of at least 1,000 pounds.
B. Does this action apply to me?
Entities potentially affected by this final action are holders of
oil, gas, and sulfur leases on the OCS and associated operators.
C. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, BOEM will post an
electronic copy of the documents related to this final action at:
<a href="https://www.boem.gov/regulations-and-guidance">https://www.boem.gov/regulations-and-guidance</a>.
II. Background
A. BOEM Statutory Authority and Responsibilities
Section 5 of the Outer Continental Shelf Lands Act (OCSLA), 43
U.S.C. 1334, authorizes the Secretary of the Interior (Secretary) to
issue regulations to administer OCS leasing for mineral development.
Section 5(a) of OCSLA (43 U.S.C. 1334(a)) authorizes the Secretary to
``prescribe such rules and regulations as may be necessary to carry out
[provisions of OCSLA]'' related to leasing on the OCS. Section 5(b) of
OCSLA (43 U.S.C. 1334(b)) provides that ``compliance with regulations
issued under'' OCSLA must be a condition for ``[t]he issuance and
continuance in effect of any lease, or of any assignment or other
transfer of any lease, under the provisions of'' OCSLA. Section 18 of
OCSLA (43 U.S.C. 1344) states that ``[m]anagement of the [OCS] shall be
conducted in a manner which considers economic, social, and
environmental values of the renewable and nonrenewable resources
contained in the [OCS].''
Secretary's Order 3299 (as amended) established BOEM and delegated
to it the authority to carry out conventional (e.g., oil and gas) and
renewable energy-related functions on the OCS, including, but not
limited to, activities involving resource evaluation, planning, and
leasing under the provisions of OCSLA. As such, BOEM is responsible for
managing development of the Nation's offshore energy, mineral, and
geological resources in an environmentally and economically responsible
way. BOEM requires a lessee to submit a detailed plan of its proposed
activities for review before BOEM will approve, among other activities,
the installation of any facility, structure, or pipeline on the OCS. As
part of the plan submission, BOEM requires detailed information
regarding the nature and location of historic properties that may be
affected by the proposed activities. This information is used to assist
the Bureau in meeting its obligation under section 106 of the NHPA and
the National Environmental Policy Act (NEPA).
B. History of Protection of Marine Archaeological Resource Regulations
and Guidance
Beginning in 1982, BOEM's predecessor agency, the Minerals
Management Service (MMS), developed a predictive model to attempt to
define where archaeological resources were ``likely'' to exist in the
Gulf of Mexico. MMS, and later BOEM, used the predictive model to
designate certain OCS lease blocks as possessing a high- or low-
probability for containing archaeological resources. This model relied
primarily on archival evidence of reported lost shipwrecks.
Prior to 2006, the Department's regulation at then 30 CFR 250.194,
``What archaeological reports and surveys must I submit?'' stated: ``If
it is likely that an archaeological resource exists in the lease area,
the Regional Director will notify you in writing.'' That regulation was
revised in 2006 to clarify the basis for requiring an archaeological
survey (i.e., a type of geophysical survey that is suitable for
locating potential archaeological resources). The revised regulation
stated: ``If the Regional Director has reason to believe that an
archaeological resource may exist in the lease area, the
[[Page 71163]]
Regional Director will require in writing that your EP, DOCD, or DPP be
accompanied by an archaeological report.'' In explaining the revision,
the preamble to the 2006 final rule (71 FR 23858, April 25, 2006)
clarified the basis upon which the Regional Director would invoke the
requirement for an archaeological survey on a lease area:
Because it cannot be determined whether it is ``likely'' that an
archaeological resource exists on a specific lease area until the
archaeological survey has first been conducted, the wording would be
changed to state, ``if the Regional Director has reason to believe
that an archaeological resource may exist.'' The ``reason to
believe'' is established by a technical analysis of existing
archaeological, geological, and other pertinent environmental data.
Under the regulations after 2006, if the Regional Director
exercises the requirement for an archaeological survey on a lease area
in accordance with 30 CFR 550.194(a), the lessee or operator must
produce an archaeological report. If the archaeological report suggests
that an archaeological resource may be present, then an operator or
lessee must either: ``(1) Locate the site of any operation so as not to
adversely affect the area where the archaeological resource may be; or
(2) Establish to the satisfaction of the Regional Director that an
archaeological resource does not exist or will not be adversely
affected by operations.'' To meet this second option, further
archaeological investigation must be conducted by a qualified marine
archaeologist and a geophysicist, using survey equipment and techniques
the Regional Director considers appropriate. Finally, for the Regional
Director to confirm that an archaeological resource does not exist, the
lessee and operator must submit the investigation report to the
Regional Director for review.
The MMS tested the predictive model in 2003 and found that there
was no significant difference in the likelihood of finding a shipwreck
in lease blocks designated as high probability under the predictive
model compared to lease blocks without that designation. That led
BOEM's predecessor agency, the Bureau of Ocean Energy Management,
Regulation and Enforcement (BOEMRE), to implement a new seabed
disturbance survey procedure, which BOEMRE presented to operators
during a workshop in March 2011. This procedure involved conducting an
environmental assessment under NEPA for all new and revised exploration
and development plans in deep water. BOEM currently applies this
approach, when appropriate, to plans in lease areas outside of OCS
lease blocks designated by its predictive model as highly probable for
containing archaeological resources. As discussed in the preamble to
the 2023 proposed rule (88 FR at 9800), since implementation of the
pre-seabed disturbance survey policy in 2011, over 100 new confirmed or
potential shipwrecks have been identified, most of which are located in
lease blocks that would not have been surveyed if BOEM had relied only
on the predictive model. This includes three of the most historically
significant shipwrecks ever found in the Gulf of Mexico.
After evaluating over 40 years of empirical evidence collected
through research conducted by and for the oil and gas industry,
academic institutions, and Federal and State agencies, BOEM has
concluded that the model was at times incomplete and inaccurate and,
therefore, unhelpful. BOEM's predictive model, despite several attempts
at updating it, has often failed to accurately predict the presence or
absence of ship or plane wrecks. In many cases, archaeological
resources have been discovered in lease blocks where the model had not
``predicted'' any, and, conversely, operators surveyed lease blocks
where the historical evidence suggested that a shipwreck should be
located and found nothing. This problem is compounded by the fact that
the scarcity of historical and archival materials correlates to the age
of the shipwreck or archaeological resource, such that the resources
least likely to be accurately identified in the models are sometimes
the oldest and most important for understanding our Nation's history.
BOEM determined that it was possible that previously undiscovered ship
or plane wrecks could be present in any OCS lease block in any BOEM
region regardless of the model's results. Because the model's accuracy
is dependent on the availability and adequacy of the underlying
historical data, and because such data is often neither available nor
adequate for the offshore environment, BOEM determined that a better
approach is necessary.
BOEM's existing regulations require operators \1\ to submit an
archaeological report with an Exploration Plan (EP), a Development
Operations Coordination Document (DOCD), or a Development and
Production Plan (DPP) (collectively, the ``plans'') seeking BOEM
authorization to disturb the seafloor only if a BOEM Regional Director
has a ``reason to believe'' that an archaeological resource may be
present. The agency interpreted this ``reason to believe'' standard as
requiring its Regional Directors either to have evidence that such a
resource is present or to use a predictive model that indicates a
resource is likely to be present in the area.
---------------------------------------------------------------------------
\1\ In some cases, lessees perform the functions of operators
acting on their own behalf and, in other cases, operators are
contracted to perform certain functions on behalf of the lessee(s).
For the purposes of this preamble, any reference to the term
``operator'' should be considered to apply to lessee(s), as well, to
the extent that they perform the functions that would typically be
contracted to an operator.
---------------------------------------------------------------------------
With this rule, BOEM is finalizing regulatory amendments to remove
the ``reason to believe'' standard and to require lessees and operators
to submit an archaeological report with all plans that propose seabed
disturbance. This report must be based on a site-specific HRG survey
that effectively identifies potential archaeological resources; HRG
surveys are already required to identify shallow hazards in 30 CFR
550.214(e) and 550.244(e). HRG surveys are routinely used in the
offshore environment to identify the presence or absence of potential
geological and man-made hazards, sensitive biological habitats, and
archaeological resources. In keeping with professional standards that
have evolved since the existing regulations were adopted, this revision
would define the minimum level of survey information necessary to
support the conclusions in the archaeological report. These changes
would facilitate BOEM's obligation to undertake a ``reasonable and good
faith effort'' to carry out our appropriate historic property
identification efforts under the NHPA (see 36 CFR 800.4(b)(1)) and its
analysis of appropriate mitigation measures to avoid damaging historic
and archaeological resources under NEPA.
Additionally, during oil and gas operations on the OCS, a lessee or
operator may find or unearth unanticipated ``cultural items'' as
defined in the Native American Graves Protection and Repatriation Act
(NAGPRA), 25 U.S.C. 3001-3013. Lessees and operators are subject to the
marine archaeology requirements provided for in this rule during their
OCS operations, and they may also be subject to other laws, such as
NAGPRA, in the event they discover cultural or other items. NAGPRA has
its own regulatory requirements separate and distinct from this final
rule.
C. Purpose of This Rulemaking
The purpose of this final rule is to address concerns that BOEM's
existing regulatory requirements fail to adequately protect marine
archaeological resources. This rule
[[Page 71164]]
implements new regulatory provisions that require lessees and operators
to submit an archaeological report with any oil and gas exploration or
development plan.
D. Summary of the February 15, 2023, Proposed Rule
On February 15, 2023, DOI published a notice of proposed rulemaking
in the Federal Register at 88 FR 9797, which proposed amendments to 30
CFR part 550. The proposed rule would have required lessees and
operators to submit an archaeological report with any oil and gas
exploration or development plan they submit to BOEM for approval of
proposed activities on the OCS. Under the existing regulations, an
archaeological report was required only if the plan would cover an area
that a BOEM Regional Director had reason to believe would contain an
archaeological resource. The objective of the proposed rule was to
increase protection of archaeological resources in compliance with
section 106 of the NHPA by assuming that there is a greater likelihood
that such resources exist, thereby increasing the probability that they
are located and identified before they are inadvertently damaged by an
OCS operator. Additionally, the proposed rule defined the minimum level
of survey information necessary to support the conclusions in the
archaeological report, the procedure for reporting possible
archaeological resources, the procedure for continuing operations when
a possible resource is present, and what to do if an unanticipated
archaeological resource is discovered during operation.
III. Key Provisions of the Final Rule
The most important amendment made by this final rule to the
Department's existing regulations is to eliminate the ``reason to
believe'' standard from Sec. 550.194, whereby lessees were required to
conduct marine archaeological surveys only in cases where ``the
Regional Director has reason to believe that an archaeological resource
may exist in the lease area.'' Instead, the revised section of the
regulations will require the submission, with all proposals for seabed
disturbance in an EP, DOCD, or DPP, of an archaeological report based
on a site-specific HRG survey designed in such a manner as to
effectively identify potential archaeological resources.
This final rule, in Sec. 550.194, provides for the following:
<bullet> Each HRG survey must be conducted using state-of-the-art
instrumentation and methodology that meet or exceed scientific
standards for conducting marine archaeological surveys.
<bullet> Lessees must comply with the outlined minimum scientific
standards; however, BOEM recognizes that emerging technologies and
methods may be used to achieve or exceed these standards. In these
instances, BOEM may approve a departure from the standard provisions of
the rule on a case-by-case basis if it meets the objectives specified
in the regulations.
<bullet> The survey vessel's navigation system must continuously
register its surface position, specify the logging position data, and
specify the presentation of geodesy information.
<bullet> HRG surveys must use a total field magnetometer,
gradiometer, or other similar instrument having equal or superior
measurement capability for surveys conducted in waters of 100-meter
depth or less. This rule also establishes the requirements for the
collection of data necessary to assist in the identification of
archaeological resources on the OCS. The sensor must be towed in such a
manner that a magnetic field produced by ferrous metal associated with
a historic shipwreck \2\ (e.g., a wooden ship's fasteners, anchors, and
cannons) can be detected.
---------------------------------------------------------------------------
\2\ A metal hulled shipwreck or a wooden shipwreck with large
anchors or iron cannon would most likely be recorded using a
magnetometer. Most ships through history were wooden shipwrecks
until the modern era. These wrecks are more difficult to locate
using geophysical methods.
---------------------------------------------------------------------------
<bullet> For geophysical surveys conducted in water depths of 140
meters (459 ft) or less, a sub-bottom profiler system must be used to
identify potential areas of prior human occupation that may exist
within the horizontal and vertical Area of Potential Effect (APE),
taking into account the geomorphology of the operational area and the
parameters of the proposed project (including the maximum depth of
disturbance from the proposed activities).
<bullet> Every survey on the OCS subject to this rule must meet
various performance standards to ensure that archaeological resources
are not overlooked. The results of every survey must be collected and
analyzed by a qualified marine archaeologist who meets the Secretary of
the Interior's Standards and Guidelines \3\ and must have experience in
conducting or overseeing HRG surveys and processing and interpreting
the resulting data for archaeological potential.
---------------------------------------------------------------------------
\3\ Available at: <a href="https://www.nps.gov/articles/series.htm?id=62144687-B082-538A-A0174FFF26496394">https://www.nps.gov/articles/series.htm?id=62144687-B082-538A-A0174FFF26496394</a>.
---------------------------------------------------------------------------
<bullet> In all water depths, a side-scan sonar or equivalent
system must be used to provide continuous planimetric imagery of the
seafloor to identify potential archaeological resources partly embedded
in the seafloor. To provide sufficient resolution of seafloor features,
this rule requires the use of a system that operates at as high a
frequency as practicable based on the factors of line spacing,
instrument range, and water depth.
<bullet> In all water depths, an echo-sounder or equivalent system
must be used to measure accurate water depths across the area. Where
swath bathymetry data are acquired, BOEM recommends that backscatter
values from the seabed returns are logged and processed for use in
seabed characterization to support and complement the side-scan sonar
data. Single beam echo sounder data should be used to verify the
results of swath bathymetry data to check for gross error.
<bullet> Existing lessees and operators may, during the first year
after the effective date of this final rule, apply the prior
regulations and standards to surveys conducted during that time. New
lessees and operators will be required to apply the requirements of
this rule from the effective date of the rule.
<bullet> An archaeological survey conducted prior to the effective
date of this rule may be used in lieu of conducting a new survey,
subject to BOEM approval, provided the lessee or operator can
demonstrate that such survey was conducted in such a manner as to meet
the performance requirements of this rule.
<bullet> If a lessee or operator discovers any unanticipated
archaeological resource while conducting operations on the lease or
right-of-way area, they must immediately halt seafloor disturbing
operations within at least 305 meters (1,000 feet) of the area of the
discovery and report the discovery to the BOEM Regional Director within
72 hours.
The standards described above are generally defined in this rule in
performance terms based on scientific standards, rather than using
specific parameters. This will allow lessees and operators greater
flexibility in determining how to conduct their surveys and how to
produce the resulting archaeological reports.
IV. Summary of Public Comments and BOEM's Corresponding Responses
A. Overview of Comments
A total of 32 comments were received in response to the proposed
rule. The majority of the comments (15) came from individual
archaeologists and technical specialists. An additional 6 comments came
from trade or cultural
[[Page 71165]]
associations, 4 comments came from State government agencies, 2 came
from individual Native American Tribes, and 5 came from offshore energy
trade associations or companies. Specifically, commenting individuals
and organizations consisted of the following:
Table 1--Summary of Commenters
------------------------------------------------------------------------
Organization type Organization names Count
------------------------------------------------------------------------
Individual Archaeologists or .......................... 15.
General Members of the Public.
Archaeological/Cultural Association American Cultural 6.
Resources Center.
Advisory Council on
Underwater Archaeology..
American Anthropological
Association..
Coalition for American
Heritage..
Society for Historical
Archaeology Ocean
Foundation..
State Agency....................... Alaska Department of 4.
Natural Resources.
Alaska State Historic
Preservation Office..
State of Washington Dept.
of Archaeology and
History Preservation..
Texas Historical
Commission..
Native American Tribe.............. Chickahominy Tribe........ 2.
Rappahannock Tribe........
Industry Trade Association......... American Petroleum 3.
Institute.
National Ocean Policy
Coalition..
Offshore Operators
Committee..
Offshore Operators of Surveying Echo Offshore............. 2.
Equipment. P&C Scientific............
------------------------------------------------------------------------
The vast majority of the responses (28 out of 32) were supportive
of the proposed rule. All of the comments submitted by individuals were
supportive of the rule, and several included technical suggestions
related to archaeological reports, data collection, and data analysis.
The two Native American Tribes submitted supportive comments and noted
that the proposed rule was an important step in ensuring that Tribal
cultural heritage is protected for future generations, and that BOEM
should fully evaluate a project's potential effects on Tribes. All
archaeological associations and societies that submitted comments on
the proposed rule expressed support and provided clarifying
recommendations for implementing the final rule, as well as technical
suggestions related to archaeological reports and data collection. One
individual supported the proposed rule and supported collaboration
between BOEM and the National Park Service (NPS) to further specify the
submerged archaeological resources professional qualification standard
in the Secretary of the Interior's Professional Qualification Standards
for Archaeology and Historic Preservation. One advocacy group (The
Ocean Foundation) expressed support for the proposed rule, particularly
the amendment to include historic resources on the National Register of
Historic Places (NRHP) into the definition of archaeological resources.
Two offshore operators of surveying equipment (Echo Offshore and P&C
Scientific) provided technical suggestions related to archaeological
reports, equipment specifications, and data collection. Multiple state
agencies (Alaska State Historic Preservation Office (AKSHPO), Texas
Historical Commission (TXHC), and the Washington State Department of
Archaeology and Historic Preservation (WADAHP)) expressed support for
the rulemaking and provided clarifying recommendations for implementing
the final rule, as well as technical suggestions related to
archaeological reports and data collection.
Four comments were received that were generally not supportive of
the proposed rule. These consisted of one state agency and three
offshore energy trade associations. The three offshore energy trade
associations (American Petroleum Institute (API), National Ocean Policy
Coalition (NOPC), and Offshore Operators Committee (OOC)) commented
that the rule is too burdensome and that BOEM did not accurately
represent the cost of the rulemaking. They requested that BOEM re-
propose the rule and associated regulatory impact analysis (RIA) to
allow for adequate stakeholder assessment and the opportunity to
provide additional comments. API asserted that it was unclear what
activities would be covered by the proposed rule and that more
certainty is needed to adequately assess potential impacts to
operations. One state agency (Alaska Department of Natural Resources
(AKDNR)) did not support the rulemaking and stated that BOEM may not
have the authority to require ``another expensive survey.'' This
conclusion contrasted with that of another agency in the same state,
the AKSHPO, which strongly supported the proposed rule.
B. General Comments
1. Regulatory Authority
Comment: The Ocean Foundation, Advisory Council on Underwater
Archaeology (ACUA), American Anthropological Association (AAA),
Coalition for American Heritage (CAH), and Society for Historical
Archaeology (SHA) recommended that the final rule include references to
the Secretary of the Interior's Guidelines, the NHPA, the
Archaeological Resources Protection Act (ARPA), and the Antiquities Act
under the legal authorities section.
Response: In response to this comment, BOEM has modified the
authority citation for part 550 to include the NHPA.\4\ The commenters
did not specify which Secretary of the Interior guidelines to reference
for the legal authorities. In any event, BOEM does not include
guidelines in the legal authorities section for Departmental
regulations. Furthermore, while the Antiquities Act may be applicable
(and this rulemaking makes no statement regarding the applicability of
that act), OCSLA is the statute that provides the authority for DOI to
issue this rule. The Antiquities Act does not require or authorize any
activity that is cited in these regulations. Lastly, the ARPA
explicitly excludes the OCS from the definition of public lands and
should not be cited as an authority for this rule.
---------------------------------------------------------------------------
\4\ National Historic Preservation Act Amendments Act of 2006,
Public Law 109-453 (codified at 54 U.S.C. 300101 et seq.).
---------------------------------------------------------------------------
[[Page 71166]]
Comment: AKDNR expressed concern that the proposed rule was
``arbitrarily requiring private companies to do expensive
archaeological surveys for all development activities'' and that
``[a]dding another expensive survey over an expansive area that does
not serve any purpose other than to provide general archaeological
survey data may not be justified under BOEM's authorities.''
Response: BOEM disagrees with the commenter's assertion for several
reasons: (1) the surveys are not being required arbitrarily but only in
the areas where oil and gas development activities proposed by the
lease holder would disturb the seafloor and therefore would have the
potential to affect historic properties, including archaeological
resources; (2) BOEM is not proposing adding any surveys as a result of
this rule but is only requiring that surveys that would already occur
take place in a manner capable of identifying archaeological resources
(i.e., shallow hazards surveys); and (3) BOEM has evaluated the
potential costs and concluded that this rule will not cause a
substantial financial burden.
2. Cost Implications
Comment: The American Cultural Resources Association (ACRA)
expressed support for the proposed rule and stated that the proposed
``approach also benefits lessees and operations as it reduces risk and
potential mitigation costs related to the inadvertent discovery of a
submerged cultural resource during the construction phase.''
Response: BOEM acknowledges the commenter's support and is
finalizing regulatory amendments to address the protection of marine
archaeological resources with this rulemaking.
Comment: NOPC expressed opposition to the proposed rule and stated
it is ``concerned that the proposed rule as currently drafted could
result in added costs, delays, and confusion that hinders domestic
exploration and production of the nation's offshore energy resources,
to the detriment of businesses, communities, and individuals throughout
the United States who rely on access to affordable and reliable energy
and the conservation and restoration activities that offshore energy
development helps fund.''
Response: BOEM disagrees for the following reasons: (1) no
additional surveys would be required by the rule compared to current
practice because the rule does not mandate additional surveys but
simply specifies the requirements that future surveys must adhere to;
(2) the rule was crafted to specify clear performance standards that
provide lessees with more flexibility to design and conduct
archaeological surveys, thereby lessening confusion during domestic
exploration and production of the Nation's offshore oil and gas
resources; (3) the area covered by surveys under the rule will not
increase because the final rule does not change the requirements for
when surveys are required or where the surveys must be conducted; (4)
BOEM has determined that the additional costs of implementing this
rule, if any, are minimal (i.e., all expected incremental costs of the
rule are due to the requirement for HRG archaeological surveys in water
depths of less than or equal to 100 meters, and for a magnetometer,
gradiometer, or the equivalent towed at an altitude and line spacing
sufficient to detect ferrous metals or other magnetically susceptible
materials of at least 1,000 pounds); and, (5) BOEM does not agree that
the requirements of this rule will delay projects to any meaningful
extent and could even reduce delays by reducing the risk of
unanticipated findings of resources that would halt operations once
started. During the project planning process, lessees already include
plans for conducting HRG surveys to satisfy engineering requirements
and regulatory requirements, including the identification of
archaeological resources.
Comment: AKDNR expressed concern regarding the potential impacts on
Hilcorp in the Cook Inlet. Specifically, the department stated ``this
proposed rule has the potential effect of burdening the sole current
leaseholder . . . with millions of dollars of unnecessary and expensive
survey requirements on top of what it would already be doing as a
prudent operator of an oil and gas project. . . . the development of
natural gas in Cook Inlet is the primary source of energy for most of
the citizens of Alaska, and overly burdensome requirements for its
development threaten energy security.''
Response: BOEM agrees with the commenter's assertion that the
current leaseholders in Alaska will incur additional costs as a result
of this rule, as some surveys are expected to require narrower liner
spacing and therefore will take longer and cost more to conduct.
Alaska's offshore oil and gas project economics are challenging, and
BOEM finds that archaeological surveys there are generally more
expensive than in the Gulf of Mexico. BOEM disagrees with the claim
that the rule's archaeological survey requirements are unnecessary or
overly burdensome because no additional surveys are required by this
rule except in the very rare instance where a lessee wants to rely on
the results of a very old survey (likely 20 or 30 years old) that was
conducted in a manner that would not meet the current survey standards.
The commenter did not provide any additional justification or cost
estimates for its claim.
Comment: OOC expressed opposition to BOEM's assertion that the
final rule will not have any additional burden on industry.
Specifically, the organization refers to the following statement in the
preamble ``[t]he burdens related to the submission of archaeological
resource information are accounted for in OMB approved Control Number
1010-0151. Therefore, BOEM has determined there will likely not be an
additional burden on industry with this proposed provision.'' It
further states that ``the recent request for re-approval for the
revised OMB approved Control Number 1010-0151 for Plans (issued 3/3/23)
has not been approved yet. . . . In the request for re-approval--with
revisions--BOEM provides burden hour estimates for `shallow hazards
surveys . . . G&G, archaeological surveys & reports (550.194)' (as well
as for the time it takes an archaeologist to create reports). The
burden hour estimates between this proposed rule and the re-approval of
OMB approved Control Number 1010-0151 for Plans should be consistent.''
Response: BOEM reviews and considers all public comments related to
the Paperwork Reduction Act (PRA) requirements. These comments allow
BOEM to make adjustments and improvements to information collection
burden estimates.
OOC indicated that BOEM's current information collection
requirements underestimate the information collection burden. After
considering this comment, BOEM is revising the information collection
burden estimates with this rule to align with existing industry
practice. As stated in the PRA section of the preamble, the new and
revised information collections requirement for 30 CFR 550.194 and
550.195 would increase overall annual information submission burdens.
BOEM plans to add the increases in annual burden hours to OMB approved
Control Number 1010-0114, 30 CFR 550, subpart A, General and subpart K,
Oil and Gas Production (expiration May 31, 2026), and not to OMB
Control Number 1010-0151, 30 CFR 550, subpart B, Plans and Information.
Currently, OMB has approved 12 annual burden hours for preparation
and submission of archaeological
[[Page 71167]]
reports and/or supporting evidence per response. BOEM believes this
number is low and has increased the annual burden hours to 50 hours per
response. The burden increase would revise OMB Control Number 1010-
0114, and not OMB Control Number 1010-0151. When the final rule becomes
effective and the related information collection request is approved by
OMB, BOEM will add the burden increase to the correct OMB Control
Number. If the annual burden hours should be adjusted in the future
based on reported feedback from OCS operators, BOEM will work closely
with OMB to revise the numbers accordingly.
BOEM finds that the method of quantifying burdens is dependent on
the specific analysis and regulatory context. The cost factors
associated with surveys in the RIA include the day rate of the survey
vessel, the time required to complete the survey, and the resources
spent processing and interpreting the survey results. While other
documents may use hourly estimates, a dollar amount estimate was deemed
appropriate for this analysis to capture an economic impact while
taking into account various cost factors to fulfill the information
collection. BOEM believes that this approach provides a sufficient
evaluation of the incremental burdens resulting from this final rule.
3. Tribal Implications
Comment: The Chickahominy and the Rappahannock Indian Tribes
expressed support for the proposed rule and stated that ``this proposed
rule will reduce Federal conflicts with tribes, who have a particular
interest in their cultural patrimony associated with pre-Contact
submerged terrestrial sites. This proposed rule is an important step in
ensuring that our cultural heritage is protected for future generations
and that BOEM fully evaluates projects' potential effects on tribes.''
Response: BOEM acknowledges the commenter's support and agrees that
the final rule will assist BOEM in obtaining information that will help
it to evaluate projects' potential effects on Tribal interests.
Comment: The Society for American Archaeology (SAA) expressed
support for the proposed rule, but also expressed concern that ``ways
to further advance the involvement of Tribes and native Hawaiian
organizations in the identification of sites that are culturally
important sites'' were only discussed in the preamble and not in the
regulatory text, ``even though Tribal consultation has influenced
BOEM's protection of marine archaeological resources in past
undertakings.'' Specifically, the group further states that ``[o]ther
than giving acknowledgement to the special expertise of Indian Tribes
and native Hawaiian organizations in the preamble, the proposed rules
do not incorporate how their expertise will be applied by BOEM in
decisions concerning the protection of marine archaeological resources.
Greater clarity is needed on Tribal and native Hawaiian organization
involvement throughout BOEM's presentation of the actual [regulatory
text].''
Response: This rule is designed to strengthen the required methods
for the identification of potential archaeological resources, including
historic properties and submerged landforms that may have been
habitable when that part of the OCS was above sea level and could
potentially contain pre-contact archaeological sites. This rule does
not change or impede the BOEM's or DOI's government-to-government
consultations with Indian Tribes, Native Hawaiian Community through
Native Hawaiian Organizations, and appropriate Alaska Native Claims
Settlement Act (ANCSA) Corporation officials. This rule specifies the
actions that OCS lessees and operators must perform to identify and
protect archaeological resources during oil and gas exploration and
development operations.
Comment: The WADAHP highlighted that the State of Washington's
marine waters contain significant historic military aircraft and burial
locations along the submerged coastal plains that reflect thousands of
years of Native American occupancy and expressed concern that the focus
of the proposed rule on archaeological resources is broadly referenced
as shipwrecks. It noted that these resources also implicate BOEM's
trust responsibilities with federally recognized Tribal Nations.
Similarly, ACRA expressed concern related to the focus of shipwrecks in
the preamble but were ``encouraged by the requirement for surveys that
address the potential for precontact archaeological material.''
Response: BOEM acknowledges the commenters' concern but highlights
that its archaeological requirements in 30 CFR part 550 (and previously
part 250) have for over 40 years focused on the identification of
historic properties, for example shipwrecks, submerged aircraft,
archaeological resources, and submerged landforms that may have been
habitable when that part of the OCS was above sea level and have
implemented mitigations requiring avoidance when identified.
Comment: An independent marine archaeologist requested that BOEM
standardize how underwater indigenous resources are referred to
throughout the rule. ``For example, in section 550.194(c), the text
variably reads, `pre-European contact archaeological sites from the end
of the last Ice Age,' `pre-contact archaeological material,' and
`buried landforms that might have been habitable by indigenous
Americans during the end of the last Ice Age.' '' The archaeologist
recommended that BOEM define underwater indigenous resources as
``dating since the end of the last Ice Age.''
Response: BOEM appreciates the comment and notes that the
discussion to which the commenter is referring is in the preamble and
not in the regulatory text in Sec. 550.194(c). The regulatory text in
this final rule refers to these sites as ``potential areas of prior
human occupation.'' BOEM also notes that there is a difference between
an identified pre-contact archaeological site or material and a
submerged landform that may have been habitable when that part of the
OCS was above sea level. A submerged landform may or may not contain
pre-contact archaeological sites and still have meaning to many Indian
Tribes and Native American people indigenous to the United States.
Furthermore, submerged landforms can be located through interpretation
of the archaeological survey data, while pre-contact sites generally
are only located through more rigorous archaeological methods that are
outside the scope of this rulemaking.
4. Removal of the ``Reason to Believe'' Standard and the Use of
Alternatives to Direct Sources
Comment: The Rappahannock and Chickahominy Indian Tribes, ACUA,
SAA, AAA, CAH, and SHA expressed support for the removal of the
``reason to believe'' standard. The Tribes asserted the standard is
``outdated'' and ``ineffective . . . [at] identifying potential
archaeological resources, while the proposed rule would be more
`proactive and precautionary.' '' They also expressed appreciation for
BOEM's recognition that predictive models do not provide sufficiently
accurate data to base decisions regarding underwater archaeological
resource potential. The Tribes further expressed support for the
proposed approach to archaeological surveying that accounts for the
unique characteristics of each lease block and stated that ``projects
that propose to disturb the ocean floor should be required to provide
due diligence in the form of marine archaeological surveys as part of
their permit review requirements.''
[[Page 71168]]
ACUA, SAA, AAA, CAH, and SHA asserted that eliminating the ``reason
to believe'' standard would reduce ambiguity surrounding survey
requirements and would constitute a reasonable and good faith effort to
identify archaeological resources. ACRA expressed support for the
proposal to use HRG surveys in lieu of the predictive models and stated
that ``the predictive model approach does not provide detailed, site-
specific survey or review for the potential of a lease area to contain
ancient, submerged landform features.'' WADAHP expressed support for
the proposal and asserted that a more robust effort is necessary to
ensure identification of historic shipwrecks and aircraft, due to the
uncertainty of their locations on the seafloor. It stated that rapid
technological advancements would allow for this more robust effort.
The TXHC provided supportive context for the proposal to move away
from predictive models and stated that in the TXHC marine archaeology
program's experience, ``these predictability models do not work well in
practice for any water depths, nearshore included, due to the
unpredictable nature of shipwreck losses and wreck locations. Though
the [TXHC] model is still helpful in defining areas that have a greater
potential to contain underwater archeological resources, it is no
longer used to preclude whole Texas State tracts from archeological
remote-sensing survey, as had once been policy.'' Additionally, two
independent marine archaeologists expressed support for the use of
surveys in lieu of the predictive model.
Response: BOEM acknowledges the commenters' support and, in
response to comments, is finalizing regulatory amendments, as proposed
in Sec. 550.194(a), to require the use of HRG surveys to identify
archaeological resources. BOEM believes that the evidence on this point
(see discussion in the Background section of this preamble), combined
with BOEM's many years of experience in this field, is overwhelming and
that retaining the existing approach is no longer a responsible option
for BOEM to use to satisfy its obligations under the NHPA and OCSLA.
Comment: The OOC expressed opposition to the removal of the
``reason to believe'' standard and stated that ``[t]here is nothing
under the current regulations preventing BOEM from identifying lease
areas with potential archaeological resources that may exist in
multiple lease areas, as they have done historically, while also
excluding lease areas that, based on information BOEM has been provided
over many decades, would not require additional reporting.'' NOPC also
expressed opposition to the removal of the standard and stated that the
``expanded applicability of the proposed requirement threatens to add
substantial burdens for activities supportive of domestic energy
exploration and production that have either already been subject to
surveying and/or constitute minor activities that would not impact
archaeological resources in any event.''
Response: Both based on its historical experience (see discussion
in the Background section of this preamble and the preamble to the 2023
proposed rule at 88 FR 9800) and the comments received, BOEM believes
that there is no workable way to retain the ``reason to believe''
standard and comply with its obligations under the NHPA and OCSLA. In
other words, in the context of the OCS, the ``reason to believe''
approach itself cannot meet the NHPA requirements for a reasonable and
good faith effort to identify and protect archaeological resources.
BOEM disagrees with the commenters' assertion that the rule adds
substantial burdens for activities supportive of domestic energy
exploration and production because it does not believe that the costs
of the rule are substantial (see the memorandum titled Protection of
Marine Archaeological Resources: Benefit-Cost Analysis in the docket
for this rulemaking). The commenters did not provide any additional
justification or cost estimates for its claim.
5. Compliance With the National Historic Preservation Act
Comment: Several independent marine archaeologists expressed
support for the proposed rule, stating that it would bring BOEM into
compliance with the NHPA, but also noted it would align the agency with
similar regulatory and policy requirements already promulgated by other
Federal agencies, such as the U.S. Navy and National Oceanic and
Atmospheric Administration (NOAA), as well as the historic preservation
requirements of many coastal states. WADAHP, the Rappahannock and
Chickahominy Indian Tribes, ACRA, ACUA, AAA, and CAH expressed support
for the proposed changes and stated that they would improve BOEM's
conformance with the NHPA section 106 compliance process. Additionally,
the Rappahannock Indian Tribe commented that the ``proposed changes
will improve BOEM's fulfillment of its `reasonable and good faith
identification effort' under the National Historic Preservation Act,
enabling the avoidance of damage to historic and archaeological
resources and the development of appropriate mitigation measures.''
Response: BOEM acknowledges the commenters' support and is
finalizing regulatory amendments with this rulemaking, as proposed, to
improve compliance with the NHPA.
Comment: An independent marine archaeologist suggested that BOEM
add a maximum response time, such as 30 or 45 days, for BOEM
archaeologists to complete their evaluation of a resource's eligibility
for the NRHP.
Response: BOEM disagrees that the final rule should define a
maximum response time for BOEM archaeologists to complete their
evaluation of a resource's eligibility for the NRHP. The language in
the rule states that ``If BOEM determines that the resource may be
eligible . . .'', which is different from making an official
determination of eligibility for listing on the NRHP. BOEM's historic
preservation staff possess the experience and expertise necessary to
make an expeditious determination about whether a resource may be
eligible for listing on the NRHP. Making an official determination
about a resource's eligibility for the NRHP can be a complex and time-
consuming process in the marine environment and may not be necessary if
damage to the potential archaeological resource can be avoided (e.g.,
through changes to the footprint of the proposed activities).
C. Technical Comments
1. Use of Direct High Resolution Geophysical Surveys
Comment: WADAHP expressed support for using HRG surveys to
effectively identify potential archaeological resources. It stated that
``HRG surveys are routinely used in the offshore environment to
identify the presence or absence of potential geological and manmade
hazards, sensitive biological habitats, and marine archaeological
resources.'' ACRA also expressed support for the use of HRG surveys and
stated that it will ``allow for the identification and delineation of
cultural resources within a specific lease development area and for the
protection of these resources prior to construction activities.''
Response: BOEM acknowledges the commenters' support and is
finalizing regulatory amendments with this rulemaking, as proposed, to
require the use of HRG surveys for archaeological purposes in Sec.
550.194(a).
Comment: OOC commented that ``if an earlier survey was done that
meets all requirements, then another survey
[[Page 71169]]
does not need to be done.'' It also requested that BOEM remove language
suggesting that BOEM's judgment dictate whether a previous survey is
valid for archaeological resource identification efforts ``considering,
for example, the time elapsed since the prior survey'' because anything
of archaeological interest would have been identified and an avoidance
criterion could be applied. Additionally, it stated that the proposed
rule lacks clear parameters to determine what constitutes a ``valid''
survey and how BOEM will make that determination. API also requested
that BOEM ``provide explicit evaluation criteria for acceptability of
previous archaeological surveys.'' P&C Scientific commented that a
demonstration that a reasonable and good faith effort to identify
archaeological resources within the APE has already been performed
should only be allowed if the non-operator commissioned sources meet or
exceed BOEM's archaeological survey requirements.
Response: The proposed rule specified when an operator may comply
with Sec. 550.194 by submitting a reference to an archaeological
report based on an HRG survey of the APE that was previously submitted
for the lease. BOEM is finalizing this provision, as proposed, in Sec.
550.194(a)(2). BOEM has decided to retain the language providing
discretion on determining when a previous survey is valid, as proposed,
in Sec. 550.194(a)(2). Time is not the only variable BOEM evaluates
when making this determination; it also considers alterations in the
seafloor from, for example, hurricanes, submarine mudslides, and
seafloor instability events. Because of the many variables that may
alter the analytical conclusions of a previous survey, BOEM is not
providing explicit evaluation criteria for acceptability of previous
archaeological surveys. BOEM welcomes discussion with lease holders on
how best to meet the requirements of this rule on a case-by-case basis.
2. Technical Parameters for Conducting Direct Surveys
Comment: OOC noted that the proposed rule will establish the
requirements for the navigation system to continuously register surface
position of the survey vessel, specify the logging position data, and
specify the presentation of geodesy information. OOC recommended that
BOEM include a statement in the final rule to clarify that navigation
systems meeting the criteria outlined in Sec. 550.194(c)(1) do not
require approval by BOEM.
Response: BOEM agrees and added ``Navigation systems meeting the
criteria outlined in this section do not require prior approval by
BOEM'' to Sec. 550.194(c)(1).
Comment: ACRA, SHA, ACUA, AAA, and CAH recommended adding a
requirement for acoustic tracking of towed sensors or autonomous
underwater vehicles in deep water, consistent with the Shallow Hazards
Notice to Lessees and Operators (NTL 2022-G01, part III.A).
Response: Tracking of towed sensors or autonomous underwater
vehicles is required in the final rule, as proposed. It can be found
under Sec. 550.194(c)(1), which states, ``[a] state-of-the-art
navigation system with sub-meter accuracy able to continuously
determine the surface position of the survey vessel and in-water
position of towed and autonomous survey sensors. Position fixes must be
digitally and continuously logged along the vessel track. Geodesy
information must be clearly presented and consistent across all data
types. Navigation systems meeting the criteria outlined in this section
do not require prior approval by BOEM.''
Comment: Echo Offshore asked for clarification for the line spacing
requirements in over 100 meters of water when using a total field
magnetometer, gradiometer, or other equivalent instrument. The company
stated that ``[t]he current line spacing per NTL 2005-G05-Rev is 300m
line spacing in depths over 300m,'' and asked, ``will this be retained,
or since NTL 2022-G01 requires 150m line spacing throughout will this
spacing be adopted in these depths?'' Additionally, it asked for
clarification on ultra-short baseline acoustic tracking requirements in
depths over 91 meters.
Response: This final rule requires the use of a total field
magnetometer, gradiometer, or other instrument having equal or superior
measurement capability for surveys conducted in waters of 100-meter
depth or less in Sec. 550.194(c)(2). For archaeological purposes,
magnetometry is not being requested in water depths over 100 meters.
This rule does not change the current guidance of NTL 2022-G01, which
is for shallow hazard surveys. While previous BOEM guidance has
specified various line spacing requirements, this final rule is based
on data resolution requirements to allow the lessees flexibility in
designing a survey necessary to identify potential archaeological
resources. Tracking of towed or autonomous survey sensors is required
in the final rule (30 CFR 550.194(c)(1)) irrespective of depth.
Comment: Echo Offshore stated that the ``new rules state that
magnetometers must have an altimeter. In our experience magnetometer
altimeters are not as reliable or as accurate as depth sensors. Depth
sensor data can be subtracted from water depth data and integrated into
the magnetometer data output to provide a more reliable altitude. The
stated requirement seemingly precludes the ability to do this. It is
recommended that the requirement be to record accurate altitude for the
magnetometer, but the method be left up to the operator.''
Response: Section 550.194(c)(2) of the final rule has been modified
from the proposed language to remove the altimeter requirement in favor
of a more general requirement that an accurate measurement of the
altitude of the magnetometer must be used. BOEM agrees that subtracting
the value of the depth sensor from the water depth can be used to
provide an altitude of the magnetometer provided that the water depth
is also recorded. BOEM included a requirement in the final rule at
Sec. 550.194(c)(5) to collect accurate depth measurements throughout
the survey area. These changes in the final rule provide more
flexibility to the lessee in conducting surveys to meet the performance
requirements.
Comment: An independent marine archaeologist requested
clarification about whether prior surveys conducted on a lease at 50-
meter spacing will still be viable or if the surveys will have to be
conducted again at 30-meter lines spacing.
Response: This final rule includes a provision at Sec.
550.194(a)(3) that allows the submission of previous surveys for review
by BOEM to determine if a new survey will be required. BOEM will make
this determination on a case-by-case basis.
Comment: ACRA stated that the wording of the proposed ``rule
implies that BOEM will no longer require magnetometer survey[s] for
archaeology in water depths more than 100 meters'' and asserted that
magnetometer data have been safely and efficiently collected in these
greater water depths under NTL 2005-G07. They also noted that
magnetometer surveys at greater depths are currently recommended for
Shallow Hazards under NTL 2022-G01 part III.C.1 and asked for BOEM's
rationale for the measurement reduction for magnetometer data
acquisition. Similarly, ACUA and SHA recommended that BOEM include
magnetometer data acquisition in water depths up to 200 meters to
ensure identification and protection of underwater cultural heritage in
deeper
[[Page 71170]]
waters and consistency across standards.
Response: BOEM has been receiving data from surveys since the
implementation of the original NTL 2005-G07. BOEM has observed, on most
surveys, that it is extremely difficult to deploy magnetometers at
depths greater than 100 meters water depth and maintain the appropriate
height above the seafloor. This is exacerbated by extreme bathymetry
fluctuation typical on the Gulf of Mexico OCS between 100 and 200
meters. BOEM has heard directly that numerous survey companies have
struggled to comply with the previous guidance. Even though the
previous guidance recommended the use of the magnetometer data for
depths more than 100 meters, BOEM believes it is better to focus on
improving performance standards for magnetometry in water depths where
its use has proven consistently useful in identifying significant
archaeological resources. No changes were made to the final rule as a
result of this comment.
Comment: An independent marine archaeologist recommended that
``[w]hen a total field magnetometer, but not a gradiometer, is employed
the survey should also utilize a base station magnetometer deployed
within 20 kilometers of the survey (deployed over geologic material
comparable to the geology of the survey area) and used to collect
background magnetic field readings at a minimum of twice per minute to
allow the investigators to correct for the diurnal variation of the
earth's magnetic field.'' They also recommended that the magnetometer
sampling rate not be specified, but rather the samples per meter along
the survey track be the guiding requirement. Additionally, they stated
that ``limiting the depth at which a magnetometer must be used to
survey in less than 100 feet of water seems arbitrary from the point of
view of archaeological site detection.''
Response: In response to this comment, BOEM has removed the
magnetometer sampling rate stipulation from the final rule in Sec.
550.194(c)(2) and replaced it with a samples per meter requirement. The
potential for sites to be completely buried under sediment decreases
substantially with increasing distance from the coast and depth of
water. For most of the OCS, shipwrecks beyond the 100-meter mark are
found to have a surface expression that is more effectively located via
side-scan sonar and BOEM has no evidence, to date, to the contrary.
Nothing, however, precludes the operator from using a magnetometer at
deeper depths if they wish to have additional information related to
surface anomalies.
Comment: OOC provided the following editorial suggestions for Sec.
550.194(c)(2) to maintain consistency with the NTL 2005-G007 and the
preamble: ``The magnetometer, gradiometer, or its equivalent must be
towed [strikeout: as close to the seafloor as possible] no higher than
20 feet above the sea floor and sufficiently far from the vessel to
isolate the sensor from the magnetic field of the survey vessel and the
other survey instruments . . .''
Response: BOEM thanks the commenter for its suggestion but has
chosen not to incorporate the suggested edit in the final rule in Sec.
550.194(c)(2). The final rule has been crafted to specify clear
performance standards that provide lessees with more flexibility to
design and conduct archaeological surveys in a manner that meets those
performance standards, including the altitude of the magnetometer,
gradiometer, or its equivalent necessary to detect ferrous metals or
other magnetically susceptible materials of at least 1,000 pounds (453
kilograms) in mass with a minimum magnetic deflection of 5 gamma
([gamma]; 5 nanotesla [nT]).
Comment: In response to the proposed amendment in Sec.
550.194(c)(3) to require the use of a sub-bottom profiler system for
surveys conducted in water depths of less than 140 meters, P&C
Scientific stated that sub-bottom profiler data should be required
throughout the Gulf of Mexico.
Response: Sub-bottom profiler data can be used for various
purposes, including locating potential areas of prior human occupation.
BOEM believes that in the Gulf of Mexico, the 140-meter cutoff best
encompasses the farthest likely extent of prior human occupation. This
depth is based on information presented by submerged paleolandscape and
submerged archaeological experts at the Paleo Workshop 2018:
Reevaluating the Submerged Paleoindian Landscape of the Gulf of
Mexico.\5\ Similarly, a recent study for the Alaska region also
recommended using sub-bottom profilers during archaeological surveys in
waters 140 meters or less.\6\ In the Pacific Region, studies have found
that a 130-meter cutoff is appropriate.\7\ After careful review and
analysis by BOEM subject matter experts, BOEM concluded that these
findings and recommendations were warranted and worthy of incorporation
into this rule. BOEM has included in Sec. 550.194(c)(3) in this final
rule that the use of a sub-bottom profiler is required in water depths
of 140 meters or less, unless BOEM specifies a different water depth
based on its determination of the furthest likely extent of prior human
occupation on the OCS. The depths are based on current scientific
understanding of sea-level rise and could change in the future as
additional information becomes available.
---------------------------------------------------------------------------
\5\ <a href="https://www.boem.gov/environment/paleo-workshop-2018-agenda">https://www.boem.gov/environment/paleo-workshop-2018-agenda</a>.
\6\ Sassorossi, W.S., Tuttle, M.C., Evans, A.M., Rawls, J.,
Holland, SE, Fadem, C.M., Stotts, I., Miller, H.L., Identifying
Coastal and Submerged Cultural Heritage on the Alaska Outer
Continental Shelf (Gray & Pape, Inc., Cincinnati, OH, 2023); U.S.
Department of the Interior, Bureau of Ocean Energy Management,
Anchorage, AK, Report No.: OCS Study BOEM 2024-011. Contract No.:
140M0121F0047, p.167.
\7\ Clark J, Moitrovica J, Alder J., Coastal paleogeography of
the California-Oregon-Washington and Bering Sea continental shelves
during the latest Pleistocene and Holocene: implications for the
archaeological record, Journal of Archaeological Science. 52:12-23
(2014), https://doi:10.1016/j.jas.2014.07.030; ICF International,
Davis Geoarchaeological Research, and Southeastern Archaeological
Research, Inventory and Analysis of Coastal and Submerged
Archaeological Stie Occurrence on the Pacific Outer Continental
Shelf (2013); U.S. Department of the Interior, Bureau of Ocean
Energy Management, Pacific OCS Region, Camarillo, CA, OCS Study BOEM
2013-0115.
---------------------------------------------------------------------------
Comment: ACUA, SAA, CAH, AAA, and SHA expressed support for the
proposal to require the use of a sub-bottom profiler system for surveys
conducted in water depths of less than 140 meters but noted that the
rule does not ``include any requirement for acquisition of bathymetry
data which is necessary to calculate the total depth below sea level of
interpreted horizons. This total depth below sea level is needed to
identify the timing of subaerial exposure and marine inundation of the
feature, based on depth within the context of a regionally accurate sea
level curve.'' They asserted that this would ensure ``the most
effective identification and protection of pre-contact submerged
underwater cultural heritage.''
Response: Based on requests from multiple commenters, BOEM has
incorporated a requirement in the final rule at Sec. 550.194(c)(5) to
acquire bathymetry data, which is similar to guidance found in the NTL
2022-G01. The addition of a bathymetry requirement is needed to ensure
the accurate determination of the depth of the seafloor to interpret
the geophysical data, as well as to determine the accurate height of
the magnetometer and other sensors if a depth sensor is used instead of
an altimeter. The latter gives the lessee additional flexibility in
determining the best methods and deployment of survey instrumentation
[[Page 71171]]
to meet the requirements specified in the rule.
Comment: An independent marine archaeologist expressed support for
the inclusion of sub-bottom profilers and requested clarification if,
based on changes in NTL 2022-G01, there would be any recommendations in
the final rule regarding the use of a multibeam echosounder, which is a
type of sonar that is used to map the seabed by emitting acoustic waves
in a fan shape beneath its transceiver.
Response: Based on requests from multiple stakeholders, BOEM has
incorporated the bathymetry data collection in line with guidance found
in NTL 2022-G01. The bathymetry data collection requirement finalized
in Sec. 550.194(c)(5) is flexible enough to allow for a multibeam
echosounder but does not require it; it requires an echosounder or
equivalent system.
Comment: An independent marine archaeologist commented that the
proposed rule will require a sub-bottom profiler out to 140 meters, but
that the rule does not specify the line spacing requirements for that
sensor. The archaeologist requested clarification as to whether the
current maximum line spacing of 300 meters will remain the required
line spacing for the sub-bottom profiler.
Response: This rule does not specify maximum line spacing for sub-
bottom profilers. During an archaeological survey, lessees who deploy
different sensors that are run concurrently will need to collect and
process the data to meet the performance standards, which could entail
different survey intervals. This final rule, as proposed, has been
crafted to specify clear performance standards that provide lessees
with more flexibility to design and conduct archaeological surveys in a
manner that meets those performance standards, including spacing of
survey transects.
Comment: OOC recommended that BOEM delete the proposed requirement
for the use of a sub-bottom profiler system for surveys conducted in
water depths of less than 140 meters because BOEM established in Sec.
550.194(c) the sea change height as being 200 feet. It also requested
clarification on the sea level change referenced in the preamble. The
commenter stated that the preamble references 460 feet, but the BOEM
guidance references a 200-foot change. The organization states ``this
variation of definition is significant and the preamble to the proposed
rule requires surveys in water depths where no material remains of
human life existed.''
Response: BOEM could not find a reference to sea change height as
being 200 feet in Sec. 550.194(c). The reference to a sea change
height of 200 feet may be from a BOEM website and has been changed to
reflect our current understanding of sea-level rise and the peopling of
the Americas. The website information was out of date and has been
updated based on the information provided below (see <a href="https://www.boem.gov/regions/gulf-mexico-ocs-region/office-environment/gulf-mexico-archaeological-information">https://www.boem.gov/regions/gulf-mexico-ocs-region/office-environment/gulf-mexico-archaeological-information</a>).
Sub-bottom profiler data can be used for various purposes,
including locating potential areas of prior human occupation. BOEM has
concluded that, in the Gulf of Mexico, the 140-meter cutoff best
encompasses the furthest likely extent of prior human occupation. As
discussed earlier in this preamble, this depth is based on information
presented by submerged paleolandscape and submerged archaeological
experts at the Paleo Workshop 2018: Reevaluating the Submerged
Paleoindian Landscape of the Gulf of Mexico. Similarly, a recent study
for the Alaska region also recommended using sub-bottom profilers
during archaeological surveys in waters 140 meters or less. In the
Pacific Region, studies have found that a 130-meter cutoff is
appropriate. After careful review and analysis by BOEM subject matter
experts, BOEM concluded that the findings and recommendations from
these experts and studies were warranted and worthy of incorporation
into this rule. These depths are based on current scientific
understanding of sea-level rise and could change in the future as
additional information becomes available.
Comment: In response to the proposed amendment to Sec.
550.194(c)(4) that would require the use of a side-scan sonar or
equivalent system in all water depths, P&C Scientific commented that
the statement ``Side-scan sonars may either be towed behind a ship or
mounted in an autonomous underwater vehicle'' is too limiting. It
clarified that in some shallow water areas, a bow mount or a pole mount
for a sonar system may be required.
Response: There are flexibilities in the rule at Sec. 550.194(d)
that allow lessees to propose alternate methodologies to meet the
performance standards specified in the rule. Lessees may reach out to
staff to discuss, review, and approve innovative survey
instrumentations and methodologies to meet both agency and lessee
needs. Lessees may also formally request a departure under Sec.
550.194(d).
Comment: ACUA, SAA, CAH, AAA, and SHA suggested that the language
in the rule requiring a sonar survey in all water depths be clarified
to indicate if archaeological surveys are required for all activities.
Response: The final rule is specific to oil and gas and sulfur
operations in the OCS and is applicable for all EPs, DOCDs, or DPPs
that involve disturbance of the seafloor. In such instances, Sec.
550.194(a) specifies that, to protect archaeological resources, a plan
or other request must be accompanied by or contain an archaeological
report based on an HRG survey of the APE, a reference to an
archaeological report based on an HRG survey of the APE previously
submitted for the lease, or evidence demonstrating to BOEM's
satisfaction that a reasonable and good faith effort to identify
archaeological resources within the APE has already been performed.
Because the final rule already states the types of plans, (i.e., EP,
DOCD, or DPP that propose activities involving seafloor disturbance)
that require the submission of an archaeological report based on HRG
surveys, BOEM does not feel that further clarification is warranted.
Comment: Echo Offshore requested clarification as to whether the
preamble statement that side-scan sonar data is required to ``resolve
small, discrete targets 0.5 meters in length at maximum range'' is
intended for ``resolution'' or ``object detection.'' The company stated
that ``resolution is the ability to discern one object from another,
while detection is the ability to image an object'' and provided
additional information needed for both ``resolution'' or ``object
detection'' in the final rule. It explained that ``A better
understanding of what is meant by the ability to resolve an object 0.5
meters in length is critical for our ability to operate under these
proposed requirements. Depending on the definition, this may negate the
ability to operate side-scan sonars at the higher altitudes and wider
range settings that are typically utilized in deep water applications
and may have substantial cost impacts . . .''
Similarly, OOC commented that the proposed rule requires ``the
ability to `resolve an object 0.5 meters in length' with side-scan
sonar.'' It asserted that: ``First, the language is unclear on what
criteria are to be used for this (resolution vs detection, number of
pings, along track/cross track, etc.). Second, depending on the answers
to the criteria, this may result in the wide line spacing surveys using
100kHz class side-scans on [autonomous underwater vehicles] and in
deeper towed scenarios becoming unusable. In order for survey companies
to detect an object of that size, it may be necessary to run upwards of
50-meter line spacing in deeper water depth depending on [autonomous
underwater vehicle] speed, ping rate, etc.'' It also stated that there
is no
[[Page 71172]]
mention regarding line spacing in depths over 100 meters.
Response: In response to this comment, BOEM has replaced the word
``resolve'' with the word ``detect'' in Sec. 550.194(c) of the final
rule. BOEM has not specified line spacing in depths over 100 meters
with this final rule. During an archaeological survey, lessees who
deploy different sensors that are run concurrently will need to collect
and process the data to meet the performance standards, which could
entail different survey intervals. The rule has been crafted to specify
clear performance standards that provide lessees with more flexibility
to design and conduct archaeological surveys in a manner that meets
those performance standards, including spacing of survey transects.
Comment: ACUA, SAA, CAH, AAA, and SHA stated that the ``proposed
rule requires that the sonar system must be able to `resolve small,
discrete targets 0.5 meters (1.6 feet) in length at maximum range,' but
does not specify if this is in reference to the along-track detection
or across-track resolution. These are significantly different but will
have a fundamental impact on the line spacing and sonar frequency
required to achieve the stated target detection while maintaining the
specified sensor altitude to range necessary for 200 percent seafloor
coverage. Clarification within the rule change is recommended.''
Response: In response to comments, BOEM has revised the phrasing to
clarify that it refers to along-track detection and replaced the word
``resolve'' with the word ``detect'' in Sec. 550.194 of the final
rule.
Comment: An independent marine archaeologist stated that
``[c]urrently some areas (specifically in the Gulf of Mexico) designate
side scan sonar to be run at a maximum line spacing of 50 meters for
some areas and 300-meter line spacing for others (with stipulation
regarding percentage of coverage).'' The commenter stated further that
the proposed rule does not specify the maximum line spacing requirement
for side scan sonar, but states that the ``instrument range must
provide at least 100 percent overlapping coverage (i.e., 200 percent
seafloor coverage) between adjacent primary survey lines . . .'' The
archaeologist requested clarification about whether the current line
spacing designations remain in place, or if there will there be new
line spacing requirements specified at a later date, or if the
statement regarding percentage of survey coverage is a new guideline
for all areas without a specific maximum line spacing requirement.
Response: This final rule does not contain any specific line
spacing requirements, and no changes were made in response to this
comment. During an archaeological survey, lessees who deploy different
sensors that are run concurrently will need to collect and process the
data to meet the performance standards, which could entail different
survey intervals. BOEM has crafted the rule to specify clear
performance standards that provide lessees with more flexibility to
design and conduct archaeological surveys in a manner that meets those
performance standards, including spacing of survey transects.
Comment: ACRA highlighted the proposed language in Sec.
550.194(c)(4) that states ``The 0.5-meter resolution standard is
consistent with the capabilities of modern sonar systems when operated
at appropriate frequency and range settings'' and asked if this
language refers to along-track detection or across-track resolution
because the implications for each are significantly different.
Response: The intent of the regulation was to use along-track
detection and, in response to comments, the final rule has been updated
to state ``along-track'' detection in Sec. 550.194(c).
Comment: OOC stated that the proposal to require the use of a base
station or gradiometer during solar storms is unrealistic for Gulf of
Mexico projects, and ``the gradiometer array is an added expense in
both upfront costs, added redundancy costs, added maintenance costs,
increased down time, increased processing analysis time costs, etc.''
Response: BOEM is not explicitly requiring the use of a
gradiometer, but rather providing examples where its use may be more
appropriate. BOEM has not made any revisions to the final rule as a
result of this comment.
Comment: An independent marine archaeologist requested
clarification on why the specific altitude for magnetometer collection
was removed.
Response: During an archaeological survey, lessees who deploy
different sensors that are run concurrently will need to collect and
process the data to meet the performance standards, which could entail
different survey intervals. The final rule has been crafted to specify
clear performance standards that provide lessees with more flexibility
to design and conduct archaeological surveys in a manner that meets
those performance standards, including the altitude of the
magnetometer, gradiometer, or its equivalent necessary to detect
ferrous metals or other magnetically susceptible materials of at least
1,000 pounds (453 kilograms) in mass with a minimum magnetic deflection
of 5 gamma ([gamma]; 5 nanotesla [nT]).
Comment: ACRA remarked that the discussion of line spacing refers
to prior NTL 2005-G07 recommendations for line spacing of 50 meters in
water depths of 200 meters or less but fails to mention the
recommendation for 300-meter line spacing in all water depths greater
than 200 meter as specified in NTL 2011-JOINT-G01. The commenter
requested clarification of these technical matters to avoid guidance
issues in the future.
Response: BOEM has not specified line spacing requirements with
this final rule. During an archaeological survey, lessees who deploy
different sensors that are run concurrently will need to collect and
process the data to meet the performance standards, which could entail
different survey intervals. BOEM has crafted the rule to specify clear
performance standards that provide lessees with more flexibility to
design and conduct archaeological surveys in a manner that meets those
performance standards, including spacing of survey transects.
3. Archaeological Reports
Comment: The TXHC recommended that BOEM provide additional guidance
or requirements for the presentation of the data in the technical
reports produced for the OCS surveys. It also recommended that BOEM
require presentation of contoured magnetic data in the technical
reports, including a discussion of processing parameters, data
interpretation methodologies, and the selection criteria for
``significant magnetic targets.'' The TXHC discussed similar state-
level requirements that are performed inconsistently due to a lack of
in-depth experience conducting, processing, presenting, and
interpreting archaeological surveys. The commenter asserted that these
issues should be of concern to BOEM, because BOEM is introducing
similar requirements without professional requirements for underwater
archaeologists.
Response: BOEM may provide guidance for implementing the new rule,
including recommendations for how best to present data in the
archaeological reports. BOEM supports the idea of requiring contoured
magnetic data in archaeological reports and has included a requirement
in Sec. 550.194(c)(2) of the final rule that data be post-processed
and contoured. Requiring the contouring of magnetometer data for
inclusion in the archaeological reports will facilitate the
interpretation of potential
[[Page 71173]]
archaeological resources. The processing of magnetometer data is mainly
automated through survey software already in use by industry, and this
requirement simply ensures that the data is included in the
archaeological report.
Comment: P&C Scientific expressed concerns that the proposed rule's
requirement that the archaeological report be prepared and signed by a
qualified marine archaeologist is too vague regarding how much
experience and what level of experience is required. Additionally, it
states the proposed rule ``must have a specific minimum amount of time
listed for experience and must stipulate actual field experience, not
field schools or projects where the individual was part of a larger
team but was not responsible for project oversight.'' An individual
commenter recommended that BOEM add specificity to the submerged
archaeological resources professional qualification standard. It
recommended that ``individuals overseeing archeological assessments
possess at least one year of full-time professional experience at a
supervisory level in the techniques and technologies of underwater
archeology and the study of archeological resources in a maritime
context.'' An independent marine archaeologist commented that it would
``be helpful if in addition to the SOI \8\ years of experience and
degree requirements that would apply, the rule was clearer as to (a)
how many years of offshore archaeological experience were necessary at
a minimum, (b) what area of technical expertise that experience was
needed in, e.g., technical archaeological diving expertise, desktop
data collection and/or interpretation, or (c) what level of overall
project experience is necessary for supervising projects of similar
offshore complexity and size.''
---------------------------------------------------------------------------
\8\ The Secretary of the Interior's (SOI) historic preservation
professional qualifications standards are described in the
following: Archaeology and Historic Preservation; Secretary of the
Interior's Standards and Guidelines, 48 FR 44716 (Sept. 29, 1983).
Available at: <a href="https://www.nps.gov/subjects/historicpreservation/upload/standards-guidelines-archeology-historic-preservation.pdf">https://www.nps.gov/subjects/historicpreservation/upload/standards-guidelines-archeology-historic-preservation.pdf</a>.
---------------------------------------------------------------------------
Response: BOEM expects that there should be flexibility in the
factors and how they are combined to ensure the marine archaeologist is
qualified. The length and type of experience may be sufficient even
without supervision of projects directly. As such, BOEM plans to issue
guidance discussing factors and how they may be combined or
substituted. There would be too many possible permutations (and those
could change over time as marine archaeology continues to grow as a
field of study and certification) to appropriately address in this
rulemaking.
Comment: OOC commented that there ``should be a grandfathering
exception or delayed implementation on areas which were surveyed prior
to the final rule but where work is conducted after the rule is
issued.''
Response: BOEM has included language in the final rule in Sec.
550.194(a)(3), as proposed, to provide for this situation.
Additionally, BOEM has included a one-year compliance period for
implementation of these new standards for existing lessees, as provided
in Sec. 550.194(h) of this rule, in order to accommodate budgeting,
existing survey agreements, and schedules for prior planned operations.
New leases issued after the effective date of this final rule will be
required to implement the new regulations immediately. Once the lease
has expired and if new ownership or activity is planned, then new HRG
survey data would be required for the latest lessee.
4. Seafloor Disturbing Operations
Comment: OOC, NOPC, and an independent marine archaeologist
commented that NTL No. 2005-G07 states that notification of the
discovery of an unanticipated archaeological resource while conducting
operations should occur within 48 hours of those activities, while the
proposed rule states 72 hours. OOC and NOPC asserted that ``[g]iven the
conflicts with existing agency guidance, they recommend BOEM
specifically address whether it intends to rescind (or revise, and if
so, how) NTL No. 2005-G07 and its Guidance for Compliance with
Mitigation 3.20.''
Response: The commenter is correct that previous BOEM guidance
recommended notification of discovery within 48 hours. The requirements
of this final rule supersede all previous NTLs issued concerning marine
archaeology. BOEM intends to rescind those NTLs and any other outdated
guidance to avoid confusion about BOEM's prior regulatory requirements
and guidance. However, because there are lessees and operators that may
come under the purview of 30 CFR 550.194(h) and be exempt from full
compliance with the new regulatory changes for a period of time (i.e.,
up to 365 days from the effective date of this rule), BOEM will ensure
that the applicable NTLs remain on the website during that period so
that those lessees and operators will have access to those NTLs to
reference as they prepare to comply with the full regulatory amendments
concerning marine archaeology in 30 CFR part 550. BOEM will include
explanatory text on its website regarding these NTLs and their limited
applicability to lessees and operators subject to 30 CFR 550.194(h).
Comment: An independent marine archaeologist suggested reducing the
notification period in Sec. 550.195(a) for notifying the BOEM Regional
Director that a discovery of an unanticipated archaeological resource
has occurred from 72 hours to 24 hours to minimize the lease owner's
down time, allow BOEM to begin assessments sooner, and facilitate
important conversations with consulting Native American Tribes.
Response: BOEM has determined that 72 hours is a reasonable time
period for reporting the discovery of an unanticipated archaeological
resource and gives the operator needed time to consult with a qualified
marine archaeologist and analyze the data. As required in Sec.
550.195(a), the 72-hour time period is a maximum time for reporting and
does not preclude the operator from notifying the BOEM Regional
Director earlier.
Comment: NOPC commented that ``the proposed rule's existing text
would conflict with BOEM guidance on avoidance of archaeological
resources, which notes that, `[i]n most cases, conditions of approval
will not be applied in areas that have been heavily disturbed or to
proposed activities where the disturbance is minimal such as cores and
borings.' ''
Response: The language referenced in this comment refers to the
Guidance for Compliance with Mitigation 3.20, which provides guidance
to site-specific conditions of plan approval and not to the survey
requirements for EPs, DOCDs, and DPPs that will be implemented with
this rule. BOEM intends to rescind the referenced guidance document and
any other outdated guidance, including NTLs, and then issue new NTLs as
necessary to provide updated guidance on best practices for
implementing this rule.
Comment: An independent marine archaeologist commented that the
proposed rule would not address, ``impacts from pipelines and structure
removals, both of which are under the permit authority of . . . [the
Bureau of Safety and Environmental Enforcement (BSEE)] . . .'' The
commenter added that, ``[u]nder MMS, numerous historically significant
shipwrecks, such as the German U-Boat U-166 and the `Mardi Gras
Shipwreck,' were located during pipeline surveys.'' They also noted
that the shipwrecks have been ``adversely impacted by pipeline
construction as a result of inadequate identification efforts.'' They
stated that
[[Page 71174]]
``[w]ithout equivalent regulations promulgated by BSEE, significant
historic resources remain at risk from the offshore oil and gas
program. Since BOEM retains responsibility for conducting NEPA reviews
of BSEE permitting actions, BOEM should make clear that these permit
applications should be accompanied by an archaeological survey and
report under 40 CFR 1502.21. . . .''
Similarly, Echo Offshore addressed the proposed requirement that
BOEM refer a discovery to BSEE to determine if the resource may have
been adversely impacted by operations. It asked BOEM to clarify whether
there was an agreement between BOEM and BSEE to ensure that both
bureaus use the same set of rules for evaluating resources. It also
noted that many of the projects in the Gulf of Mexico are under BSEE
jurisdiction and the applicability of current requirements is unclear.
Response: For pipeline operations (e.g., installation,
modification, or decommissioning of a pipeline) proposed under an
approved EP, DOCD, or DPP, the lessee and operator are required to
submit a permit application to BSEE, pursuant to 30 CFR 550.281(a) and
250.1007. Existing BSEE regulations also require submission of a
shallow hazards survey report and potentially an archaeological
resource report with any pipeline permit application and require all
operations to immediately halt if an archaeological resource is
discovered while conducting operations. See 30 CFR 250.1007(a)(5),
250.194(c), and 250.1010(c). The regulations likewise require that all
pipeline removal applications include plans to protect archaeological
features during removal operations. Id. at Sec. 250.1752(a)(6).
Although BSEE ultimately determines whether to approve or deny a
pipeline operation permit, BOEM conducts the required environmental
analyses on behalf of BSEE for any permit application proposing bottom
disturbing activities (e.g., installation of new or relocation of
existing segments or components), which includes ensuring that the
proposed activity does not adversely affect potential archaeological
resources. BSEE subsequently uses BOEM's environmental analyses to
fulfill its obligations under NEPA and section 106 of the NHPA. This
final rule will enhance the capacity of both BOEM and BSEE to identify
and protect potential archaeological resources that might be adversely
affected by pipeline operations. Additionally, this rule does not
directly apply to BSEE's authorizations under part 250, and does not
amend those regulations.
Comment: OOC and NOPC recommended that if BOEM removes the ``reason
to believe'' standard, it should remove the phrase ``or any other
request to obtain an authorization or permit from BOEM that involves
disturbance of the seafloor'' from the proposed Sec. 550.194(a). They
asserted that if BOEM is not willing to remove this phrase in the final
rule, BOEM should define which authorizations and permits would be
subject to the new requirement and revise the RIA if the definition
includes all or most permits or authorizations associated with offshore
exploration and production.
Response: In response to this comment, BOEM has revised Sec.
550.195(a) to remove the phrase as recommended by the commenter. That
section now states: ``To protect archaeological resources, your EP,
DOCD, or DPP that proposes activities involving disturbance of the
seafloor . . .''. BOEM agrees that the phrase is not needed to protect
archaeological resources and could be misinterpreted to include
activities not pertaining to this section.
5. Definitions
Comment: The Ocean Foundation expressed support for the inclusion
of historic resources on the NRHP in the definition of archaeological
resources. API and OOC requested clarification on the definition of an
archaeological resource and how it would be interpreted moving forward.
Response: BOEM has amended the definition of the term
``Archaeological resource'' in Sec. 550.105 of the final rule, as
proposed, to clarify that any historic property, as described in the
NHPA, is considered an archaeological resource for the purpose of
BOEM's regulations. As discussed in the preamble to the proposed rule
at 88 FR 9803, this revised definition would encompass historical
properties, as defined in 36 CFR 800.16(l). These properties include
any prehistoric or historic district, site, building, structure, or
object included in or eligible for inclusion in the NRHP maintained by
the Secretary of the Interior. The term ``historic property'' also
includes artifacts, records, and remains that are related to and
located within such properties, and properties of traditional religious
and cultural importance to an Indian Tribe or Native Hawaiian
organization and that meet the National Register criteria. BOEM has
responded to the comments from API and OOC that were sufficiently
specific, but API and OOC do not provide enough additional information
about the aspects of the definition that they claim are ambiguous and
require additional definitions and clarifications to enable further
response.
Comment: An independent marine archaeologist stated that the term
``high resolution'' is not clearly defined. They also requested
clarification regarding the phrase ``proposed seabed disturbance,''
specifically whether it will include permitted activity or whether it
will also include supplemental activity, such as coring, rig moves,
etc. Another marine archaeologist recommended that BOEM clarify whether
there is a depth below the seafloor or type of disturbance that would
be exempt from classification as a ``bottom disturbing activity.''
Response: In keeping with professional standards that have evolved
since the existing regulations were adopted, this final rule defines
the minimum level of survey information necessary to support the
conclusions in the archaeological report. The rule has been crafted to
specify clear performance standards that provide lessees with more
flexibility to design and conduct archaeological surveys in a manner
that meets those performance standards, and therefore BOEM believes it
is not necessary to define ``high resolution'' as a distinct term. BOEM
cannot clarify whether there is a depth below the seafloor or type of
disturbance that would be exempt from classification as a ``bottom
disturbing activity'' without knowing the depth or the type of
disturbance. Section 550.194(d) of the final rule provides a process
where the lessee may request a departure on a case-by-case basis. In
response to the request to clarify if ``proposed seabed disturbance''
includes permitted activity only or also includes supplemental
activity, the regulations state that all activities covered by an EP,
DOCD, or a DPP that propose to disturb the seafloor would be covered.
V. Summary of Economic Impacts and Benefits
A. What are the economic impacts?
The costs and benefits of the final rule are compared against the
baseline scenario. The baseline scenario, or status quo, represents
BOEM's assessment of the current practices under the current regulatory
framework, including current industry practices and standards that are
consistent with that framework. To define the baseline, BOEM examined
the best available information regarding the current regulatory
requirements and industry standards for conducting an HRG survey, which
is the procedure for identifying possible archaeological resources.
[[Page 71175]]
In 2011, BOEM's predecessor, BOEMRE, implemented a new pre-seabed
disturbance survey policy, which BOEMRE presented to operators during a
workshop held in March 2011. Those surveys were conducted, when
appropriate, in lease areas that were not designated as highly probable
for containing archaeological resource by the predictive model. BOEM
advised that, prior to conducting any bottom-disturbing activity on the
OCS that could damage archaeological resources, operators should
perform a survey of the seafloor where the activities were to take
place and prepare an archaeological assessment. Additionally, HRG
surveys are already required to identify shallow hazards in 30 CFR
550.214(e) and 550.244(e).
Under the Gulf of Mexico region baseline scenario, HRG
archaeological surveys are conducted, with very rare exceptions, using
methods consistent with guidelines provided in NTL 2005-G07, titled,
``Archaeological Resource Reports and Surveys,'' \9\ which recommends a
maximum line spacing of 50 meters in water depths of 200 meters or
less. As such, BOEM concludes that most operators are already in
compliance with the requirements being codified in this final rule.
---------------------------------------------------------------------------
\9\ <a href="https://www.boem.gov/sites/default/files/documents/newsroom/BOEM20NTL20No.202005-G07.pdf">https://www.boem.gov/sites/default/files/documents/newsroom/BOEM20NTL20No.202005-G07.pdf</a>.
---------------------------------------------------------------------------
In the Alaska region, all HRG archaeological surveys completed
since 2011 have been conducted using methods consistent with guidelines
provided in NTL 2005-A01, titled, ``Shallow Hazards Survey and
Evaluation for OCS Exploration and Development Drilling,'' \10\ and NTL
2005-A03, titled, ``Archaeological Survey and Evaluation for
Exploration and Development Activities.'' \11\ These NTLs provide
archaeological survey guidance that includes detailed coverage of 1,200
meters or greater in all directions from a proposed activity and survey
line spacing of 150 meters by 300 meters or less. Alaska's offshore oil
and gas project economics are challenging, and BOEM finds that
archaeological surveys there are generally more expensive than in the
Gulf of Mexico and therefore may incur additional cost as a result of
this final rule.
---------------------------------------------------------------------------
\10\ <a href="https://www.bsee.gov/sites/bsee.gov/files/notices-to-lessees-ntl/drilling/05-a01.pdf">https://www.bsee.gov/sites/bsee.gov/files/notices-to-lessees-ntl/drilling/05-a01.pdf</a>.
\11\ <a href="https://www.boem.gov/sites/default/files/documents/oil-gas-energy/BOEM20NTL20No.202005-A03.pdf">https://www.boem.gov/sites/default/files/documents/oil-gas-energy/BOEM20NTL20No.202005-A03.pdf</a>.
---------------------------------------------------------------------------
Most of the revisions in this final rule will have no or negligible
cost impacts for operators. All expected incremental costs of the final
rule are due to the requirement for HRG archaeological surveys in water
depths of less than or equal to 100 meters and for a magnetometer,
gradiometer, or the equivalent towed at an altitude and line spacing
sufficient to detect ferrous metals or other magnetically susceptible
materials of at least 1,000 pounds. This additional cost is expected to
be from the tighter line spacing required for the surveys as compared
to the existing NTL. BOEM has determined that the performance standard
necessary to detect ferrous metal of at least 1,000 pounds is met by
conducting archaeological surveys with a maximum line spacing of 30
meters.\12\
---------------------------------------------------------------------------
\12\ The explanation for this statement is provided in section
VII of the preamble of the proposed rule under Sec. 550.194(c)(2),
where it states: ``If the sensor is sensitive to detecting a
variable of one gamma with no more than 3 gammas of interference,
the ferrous mass that might be associated with an historic shipwreck
should be detectable as a distinct anomaly from a horizontal
distance of 50 feet (15 meters) or less from the sensor to the
ferrous mass and a vertical distance of 20 ft (6 meters) or less
from the sensor to the seafloor.'' Based on the reports cited above
[in the preceding footnote], a survey design of no more than 30-
meter line spacing and a magnetometer, gradiometer, or their
equivalent towed no more than 6 meters from the seafloor should be
sufficient to locate most historically significant shipwrecks on the
OCS.
---------------------------------------------------------------------------
BOEM estimates that the changes would increase total OCS
archaeology survey costs over the next 20 years by $5.9 million (using
a 3 percent discount rate). Most of the revisions in this final rule
will have no or negligible cost impacts for lessees and operators.
Table 1 presents a summary of the qualitative benefits and a
quantitative estimate of the annualized and total costs for the rule.
BOEM estimates that the changes would increase total OCS archaeology
survey costs over the next 20 years by $5,925,770, using a 3 percent
discount rate, or by $4,452,834, using a 7 percent discount rate.
Table 1--Summary of Benefits and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Units
------------------------------------------------
Category Estimate Discount rate Period Notes
Year dollars (%) covered
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits:
-------------------------------------------------------------------------------------------------------------
Qualitative........................... Assures compliance with NHPA and strengthens archaeological resource protections.
Reduces the likelihood of disturbing shipwrecks or other historical sites.
Provides regulatory clarity and certainty for operators.
Reduces risk and potential mitigation costs to O&G operators.
-------------------------------------------------------------------------------------------------------------
Costs:
-------------------------------------------------------------------------------------------------------------
Annualized Incremental Costs.......... $398,305 2024 3 20 years Increased compliance costs due to increased
measurement capability requirements in
water depths less than or equal to 100
meters.
420,316 7
Total Incremental Costs........... 5,925,770 3
4,452,834 7
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 71176]]
B. What are the benefits?
The estimated benefits associated with this final rulemaking are
qualitative benefits and are as follows:
<bullet> Assures compliance with NHPA and strengthens
archaeological resource protections;
<bullet> Reduces the likelihood of disturbing shipwrecks or other
historical sites;
<bullet> Provides regulatory clarity and certainty for operators;
and
<bullet> Reduces risk and potential mitigation costs to offshore
oil and gas operators.
VI. Section-by-Section Analysis
Part 550--Oil and Gas and Sulfur Operations in the Outer Continental
Shelf
Subpart A--General
Section 550.105 Definitions
The Department is finalizing, as proposed, amendments to the
definition of the term ``Archaeological resource'' to clarify that any
historic property described by the NHPA is considered an archaeological
resource for the purpose of BOEM's regulations. The new definition of
``Archaeological resource'' reads as follows: ``the material remains of
human life or activities that are at least 50 years of age and that are
of archaeological interest, including any historic property described
by the National Historic Preservation Act, as defined in 36 CFR
800.16(l).''
As discussed in the preamble to the proposed rule at 88 FR 9803,
this revised definition will encompass the historic properties as
defined in 36 CFR 800.16(l). These properties include any prehistoric
or historic district, site, building, structure, or object included in,
or eligible for, inclusion in the NRHP maintained by the Secretary of
the Interior. The term ``historic property'' also includes artifacts,
records, and remains that are related to and located within such
properties, and properties of traditional religious and cultural
importance to an Indian Tribe or Native Hawaiian organization and that
meet the National Register criteria.
Section 550.194 How must I conduct my approved activities to protect
archaeological resources?
The Department is finalizing, as proposed, the revision of the
title of Sec. 550.194 from ``How must I protect archaeological
resources?'' to ``How must I conduct my approved activities to protect
archaeological resources?'' to reflect that the response to a discovery
of potential archaeological resources and the remediation process is no
longer included in the content of Sec. 550.194 but has been moved to a
new section (i.e., Sec. 550.195).
The Department is finalizing, as proposed, amendments to Sec.
550.194(a) to remove the ``reason to believe'' standard with respect to
individual leases, as discussed in section II.B of this preamble. This
final rule requires operators to submit to BOEM an archaeological
report, refer to a previously submitted report meeting the necessary
standards, or submit evidence demonstrating that a reasonable and good
faith identification effort has already been performed. Operators must
include these submissions with any EP, DOCD, or DPP that proposes
activities involving disturbance of the seafloor.
The Department is finalizing, as proposed, amendments to Sec.
550.194(a)(1). The existing regulation requires operations to be
located at a site that would not adversely affect an area containing an
archaeological resource if an archaeological report suggests that a
resource may be present. This final rule relocates the requirements for
a response to a discovery of potential archaeological resource to a new
section (i.e., Sec. 550.195). This rule specifies that an
archaeological report must be based on an HRG survey, as discussed in
section II.B of this preamble. This final rule allows operators to
submit an archaeological report based on an HRG survey of the APE as
one option for complying with the requirement in Sec. 550.194 to
protect archaeological resources.
The Department is finalizing amendments to Sec. 550.194(a)(2) to
replace the text requiring an operator to establish that an
archaeological resource does not exist in a proposed site of operation
with text specifying that operators can submit a reference to an
archaeological report based on an HRG survey of the APE that was
previously submitted for the lease as a means to comply with the
requirement in Sec. 550.194. This amendment reflects the relocation of
the requirements for a response to a discovery of potential
archaeological resource to a new section (i.e., Sec. 550.195).
Under Sec. 550.194(a)(2) of the final rule, an operator may submit
a reference to an archaeological report if the previously submitted
survey complies with the parameters identified in the final rule and if
the results of that previous survey reasonably remain valid, as
determined by BOEM. This provision is designed to minimize duplicative
surveys by allowing operators to use the data from previously conducted
surveys, such as certain shallow hazard reports. The amendments in this
final rule specify that BOEM may consider a previous survey and its
associated report invalid if BOEM suspects that the seafloor
environment has changed sufficiently to warrant a new HRG survey (e.g.,
time elapsed since prior survey, change from a geological event such as
a mudslide).
The Department is finalizing, as proposed, new Sec. 550.194(a)(3),
to allow operators to comply with the requirement in Sec. 550.194 by
demonstrating that a reasonable and good faith effort to identify
archaeological resources within the APE has already been performed.
This provision is designed to minimize duplicative surveys by allowing
operators to use, for example, previously collected data from non-
operator commissioned sources, such as NOAA coastal surveys. BOEM will
allow the use of such data if BOEM determines these sources are
sufficient to identify possible marine archaeological resources at a
degree of certainty reasonably similar to or better than an HRG survey.
The Department is finalizing amendments in Sec. 550.194(b) to
replace the text stating that the Regional Director will notify an
operator if they determine that an archaeological resource is likely to
be present with the requirement that the archaeological report or
evidence required by Sec. 550.194(a) be prepared and signed by a
qualified marine archaeologist. This amendment reflects the relocation
of the requirements for a response to a discovery of potential
archaeological resource to Sec. 550.195. The requirement that the
report or evidence must be prepared and signed by a qualified marine
archaeologist applies regardless of which option described in Sec.
550.194(a) is used as the basis of the archaeological report or
evidence. As a result of public comment, this final rule further
defines a qualified marine archaeologist as one who meets the Secretary
of the Interior's ``Standards and Guidelines for Historic Preservation
Projects: Professional Qualification Standards'' and any subsequent
updates to those standards and guidelines and has experience in
conducting or overseeing HRG surveys and processing and interpreting
the resulting data for archaeological potential.
The Department is finalizing, as proposed, amendments to Sec.
550.194(c) to replace the requirement to immediately halt operations if
an archaeological resource is discovered while conducting operations
with text establishing the minimum standards for conducting the
geophysical survey upon
[[Page 71177]]
which the archaeological report is based. This amendment reflects the
relocation of the requirements for a response to a discovery of
potential archaeological resource to Sec. 550.195.
Section 550.194(c) of this final rule requires that geophysical
surveys must be conducted using state-of-the-art instrumentation and
methodology that meets or exceeds scientific standards for conducting
marine archaeological surveys. While BOEM outlines the minimum
scientific standards in paragraph (c), BOEM recognizes that emerging
technologies and methods may be used to achieve or exceed these
standards. In these instances, BOEM may approve a departure from the
provisions of paragraph (c) of Sec. 550.194 on a case-by-case basis if
it meets the requirements in paragraph (d).
The Department is finalizing Sec. 550.194(c)(1) to establish the
requirements for the survey vessel's navigation system to continuously
register its surface position, specify the logging position data, and
specify the presentation of geodesy information. With this rulemaking,
the regulatory text in Sec. 550.194(c)(1) includes a statement added
based on public comments that navigation systems meeting the criteria
outlined in Sec. 550.194 do not require prior approval by BOEM.
The Department is finalizing Sec. 550.194(c)(2) to require the use
of a total field magnetometer, gradiometer, or other similar instrument
having equal or superior measurement capability for surveys conducted
in waters of 100-meter depth or less. It also establishes the
requirements for the collection of data necessary to assist in the
identification of archaeological resources on the OCS. The sensor will
be required to be towed in such a manner that a magnetic field produced
by ferrous metal associated with a historic shipwreck (e.g., a wooden
ship's fasteners, anchors, and cannons) can be detected. The data must
be post-processed and contoured in a manner to best facilitate the
interpretation of potential archaeological resources. Additionally,
requiring the contouring of magnetometer data for inclusion in the
archaeological reports will facilitate the interpretation of potential
archaeological resources. See the preamble to the proposed rule at 88
FR 9804 for more details. Based on public comment, BOEM has removed the
altimeter requirement as proposed Sec. 550.194(c)(2) in favor of a
more general requirement that an accurate measurement of the altitude
of the magnetometer must be used.
The Department is finalizing Sec. 550.194(c)(3) to require the use
of a sub-bottom profiler system for surveys conducted to locate
potential areas of prior human occupation. BOEM believes that in the
Gulf of Mexico and the Alaska OCS, the 140-meter cutoff best
encompasses the furthest likely extent of prior human occupation, as
discussed in section III of this preamble. To establish a default water
depth applicable to the requirement to use a sub-bottom profiler, this
rule requires the sub-bottom profiler in water depths of 140 meters or
less. The depths are based on current scientific understanding of sea-
level rise and could change in the future as additional information
becomes available.
The Department is finalizing Sec. 550.194(c)(4) to require the use
of a side-scan sonar or equivalent system in all water depths. It also
establishes the technical requirements for the use of this equipment
and for the post-processing of data. To ensure that the nadir is
imaged, the sonar should have overlapping coverage between the right
and left channels on adjacent survey transects. A 100 percent
overlapping coverage of the seafloor (i.e., 200 percent seafloor
coverage) ensures that significant archaeological resources are not
missed in the survey. Greater than 200 percent overlapping coverage may
be necessary to guarantee nadir coverage and account for survey vessel
drift between lines, which may be an important consideration when
surveying in deep water. The sonar system must be able to detect small,
discrete targets 0.5 meters (1.6 feet) in length at maximum range,
along the track. Post-processing can improve sonar data quality by, for
example, adjusting for slant range effects and variable speed along
line. This provision requires post-processing to ensure that the data
is useful for interpretation and mapping. For more details, see the
preamble to the proposed rule at 88 FR 9805. Based on public comment,
this section has been revised to replace ``resolve'' with ``detect''
and to clarify that the sonar detection is ``along the track.''
The Department is finalizing Sec. 550.194(c)(5) as proposed to
require the use of an echo sounder or equivalent system in all water
depths. This new provision also establishes the technical requirements
for the use of this equipment and for the post-processing of data.
Bathymetric surveys are conducted using an echo sounder attached to
or towed by a survey boat or sometimes mounted to an autonomous
underwater vehicle. As the boat moves across the water, the echo
sounder generates electrical signals. These are then converted into
soundwaves by an under-water transducer. A single-beam sonar uses just
one transducer to map the seafloor, while multibeam sonar sends out
multiple, simultaneous sonar beams (or sound waves) at once in a fan-
shaped pattern. This covers the space both directly under the ship and
out to each side.
Bathymetry data must be acquired to measure accurate water depths
across the area. Where swath bathymetry data are acquired, it is
recommended that backscatter values from the seabed returns are logged
and processed for use in seabed characterization to support and
complement the side scan sonar data. Single beam echo sounder data (or
data from the equivalent system) should be used to verify the results
of swath bathymetry data to check for gross error.
The bathymetry systems must be set up to accurately record data
across the range of water depths expected in the survey area. Care
should be taken in selection of operating frequencies such that the
individual systems do not interfere with each other. The bathymetry
systems must be used in conjunction with an accurate motion sensor to
compensate for vessel motion. Water column sound velocity should be
determined as a minimum at the start and end of data acquisition, and
at suitable intervals throughout the project, by use of a conductivity,
salinity, and temperature depth probe or a direct reading sound-
velocity probe suitable for use in the maximum water depths expected
within the survey area. Water depths should be corrected for vessel
draft, tidal level, and referenced to the appropriate vertical datum
(LAT, MSL, etc.). The final processed digital terrain model data cell
size covering the entire survey area, without gaps, should reflect the
frequency of the system being used, data density, and altitude above
seabed of the transducer head.
The Department is finalizing Sec. 550.194(c)(6) as proposed to
allow BOEM to accept the results of an archaeological survey conducted
prior to the effective date of these regulations in lieu of conducting
a new survey, provided the lessee or operator can demonstrate that such
survey was conducted in such a manner as to meet the objectives of
Sec. 550.194(c). Some OCS lessees and operators have conducted OCS
surveys using advanced techniques and technologies, such that any new
survey would be highly unlikely to yield substantially different
results. In those situations, subject to BOEM approval, a lessee or
operator may be able to use an existing survey that meets
[[Page 71178]]
or exceeds the requirements in the final rule, rather than conduct a
new survey.
The Department is finalizing, as proposed, new Sec. 550.194(d) to
provide that the Regional Director may approve departures, on a case-
by-case basis, from the performance standards outlined in Sec.
550.194(c). The Regional Director will determine if the departure is
necessary because ordinary application of those standards would be
impractical or unduly burdensome; would be unnecessary to achieve the
intended objectives of the marine archaeology program; would fail to
conserve the natural resources of the OCS; would fail to protect life
(including human and wildlife), property, or the marine, coastal, or
human environment; or would fail to protect sites, structures, or
objects of historical or archaeological significance.
The Department is finalizing, as proposed, new Sec. 550.194(e) to
provide that any departures approved under Sec. 550.194(d) must be
documented in writing and must be: consistent with OCSLA; protect the
archaeological resources to the same degree as if there was no approved
departure from the regulations; satisfy NHPA section 106 and achieve
results for identifying archaeological resources as if there was no
approved departure from the regulations; and not impair the rights of
third parties. This will allow BOEM to ensure that its archaeological
report requirements remain in compliance with the NHPA.
The Department is finalizing, as proposed, new Sec. 550.194(f) to
provide that BOEM may reject any archaeological report if the survey
was not prepared in accordance with the requirements of Sec.
550.194(c) or any BOEM-approved departure to the survey requirements.
This final rule also provides that BOEM may reject any archaeological
report if the results produced from the survey do not meet the data and
resolution requirements specified in Sec. 550.194(c), regardless of
whether the survey was otherwise conducted appropriately. For more
details, see the preamble to the proposed rule at 88 FR 9806.
The Department is finalizing, as proposed, new Sec. 550.194(g) to
provide specifications for what must be done if the archaeological
report or evidence mentioned in Sec. 550.194(a) suggests that an
archaeological resource may be present. This final rule establishes the
two courses of action for operators to proceed with operations if the
archaeological report or evidence required by Sec. 550.194(a) suggests
that an archaeological resource may be present.
The Department is finalizing, as proposed, new Sec. 550.194(g)(1)
to provide operators the option of relocating operations so as not to
adversely affect an area where known or suspected archaeological
resources exist.
The Department is finalizing, as proposed, relocated Sec.
550.194(a)(2) as Sec. 550.194(g)(2) to provide an alternative to Sec.
550.194(g)(1). This alternative provides operators the option of
establishing, to the satisfaction of the Regional Director, that an
archaeological resource does not exist or will not be affected by
operations or that the operator will take measures determined by the
Regional Director to protect the archaeological resource during
operations. If the Regional Director requires additional
investigations, the operator will be required to submit a report
documenting the investigation to the Regional Director for review.
The Department is finalizing, as proposed in new Sec.
550.194(g)(2)(i), that if further investigation cannot establish to the
satisfaction of the Regional Director that an archaeological resource
is not likely to be present at the operational site, the lessee or
operator must demonstrate to the satisfaction of the Regional Director
either that its operations will not adversely affect the suspected
resource or else commit to undertaking the steps required in Sec.
550.194(g)(2)(ii).
This final rule replaces the existing Sec. 550.194(b) with Sec.
550.194(g)(2)(ii), as proposed, and emphasizes that the operator must
take no action that may adversely affect an archaeological resource
until the Regional Director specifies measures the operator must take
to protect the resource.
The Department is finalizing, as proposed in new Sec.
550.194(g)(3), that if the Regional Director determines that an
archaeological resource is likely to be present in the lease area and
is likely to be adversely affected by operations, and if the Regional
Director determines that there is no feasible means to avoid this
adverse effect, the Regional Director will be allowed to prohibit
operations in the APE.
The Department is finalizing, based on public comments discussed in
section III of this preamble, a new Sec. 550.194(h) to allow that any
lessee or operator that has an existing lease executed prior to the
effective date of this final rule to apply the regulations in effect
prior to the effective date with respect to the provisions of this
section for a period of time not to exceed 365 days after the effective
date of this final rule. The intent of this new provision is to avoid
forcing lessees and operators to renegotiate existing agreements with
companies that will be providing archaeological surveys where a survey
contract has already been negotiated for future survey activities.
Section 550.195 What must I do if I discover a potential archaeological
resource while conducting operations on the lease or right-of-way area?
The Department is finalizing, as proposed, amendments to move
existing 30 CFR 550.194(c) to a new section at 550.195, titled ``What
must I do if I discover a potential archaeological resource while
conducting operations on the lease or right-of-way area?'' Moving the
provisions to a separate section will improve the overall organization
of the regulations. In addition to moving the provision to a stand-
alone section, BOEM is expanding on the specificity of the
requirements. The existing regulations require that operations be
halted immediately within the area of the discovery and that the
discovery be reported to the BOEM Regional Director.
The Department is finalizing, as proposed, new Sec. 550.195(a) to
require the operator to immediately halt seafloor disturbing operations
within at least 305 meters (1,000 feet) of the area of the discovery
and report the discovery to the Regional Director within 72 hours. This
final rule establishes these requirements to minimize the potential for
risk to the resource.
The Department is finalizing, as proposed, new Sec. 550.195(b) to
clarify that if BOEM determines that the resource is eligible for
listing on the NRHP in accordance with the applicable regulations, the
Regional Director will specify measures that the lessee and operator
must take to protect the resource during operations and activities. The
final regulations in Sec. 550.194(g) state that if the resource is
present, the Regional Director will determine how to protect it. If
BOEM were to determine that the resource is eligible for listing on the
NRHP, and the operations and activities are under the jurisdiction of
BSEE, BOEM will inform the BSEE Regional Director that the resource has
been determined to be historically significant and advise BSEE on the
appropriate means to protect it.\13\
---------------------------------------------------------------------------
\13\ This is BOEM's current practice. When BOEM is notified of a
National Register-eligible archaeological discovery, it will notify
BSEE's archaeologists, particularly if the discovery happens during
post-permit-approved activities that are within BSEE's area of
jurisdiction. Both agencies share the same GIS database of known
NRHP eligible sites, so this information is further available for
review as a routine part of each agency's review processes.
---------------------------------------------------------------------------
[[Page 71179]]
The Department is finalizing, as proposed, new Sec. 550.195(c)
that provides, for activities and operations under BSEE jurisdiction,
that BOEM will refer the discovery to BSEE to determine if the resource
may have been adversely impacted by operations. The BSEE Regional
Director will specify measures the lessee or operator must take either
to demonstrate that no adverse impacts have occurred or to document the
adverse impacts. BSEE may specify additional measures that it
determines are necessary to remediate adverse impacts to any
archaeological resources resulting from operations that have been
discovered and will relay to BOEM both the results of its investigation
and any further measures it has imposed to remediate the adverse
impacts that may have occurred.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review, as Amended by
Executive Order 14094: Modernizing Regulatory Review, and Executive
Order 13563: Improving Regulation and Regulatory Review
Executive Order (E.O.) 12866, as amended by E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in OMB
will review all significant rules. OIRA has determined that this final
rule is not a significant action under E.O. 12866.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to promote
predictability, reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
E.O. 13563 directs agencies to consider regulatory approaches that
reduce burdens and maintain flexibility and freedom of choice for the
public where these approaches are relevant, feasible, and consistent
with regulatory objectives. BOEM has developed this rule in a manner
consistent with these requirements.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires
agencies to analyze the economic impact of regulations when a
significant economic impact on a substantial number of small entities
is likely and to consider regulatory alternatives that will achieve the
agency's goals while minimizing the burden on small entities. When an
agency issues a notice of rulemaking, the RFA requires the agency to
``prepare a final regulatory flexibility analysis'' that will give ``a
description of and an estimate of the number of small entities to which
the rule will apply'' (5 U.S.C. 604(a)).
BOEM has determined that this rule will affect a substantial number
of small entities. Operators under this rule primarily fall under the
Small Business Administration's (SBA) North American Industry
Classification System (NAICS) codes 211120 (crude petroleum extraction)
and 211130 (natural gas extraction). For NAICS classifications 211120
and 211130, SBA defines a small business as one with fewer than 1,251
employees. All 70 OCS operating companies would be impacted by the rule
if they engage in activities disturbing the seafloor in areas that have
not been previously surveyed and that would require an HRG survey and
an archaeological report under the rule. BOEM estimates that of the 70
OCS lease operators, 21 are large and 49 are small.
The regulatory changes in this rule are primarily clarifications,
codifications of existing practice, or reflections of NHPA regulations.
Most operators have been conducting HRG surveys and the archaeological
analysis consistent with the regulatory requirements in this rule since
at least 2011. Therefore, BOEM does not anticipate that these
regulatory updates will have a significant economic impact on small or
large operators. The expected incremental compliance costs of the rule
derive from the requirement that HRG archaeological surveys in water
depths less than or equal to 100 meters have a magnetometer,
gradiometer, or the equivalent towed at an altitude and line spacing
sufficient to detect ferrous metals or other magnetically susceptible
materials of at least 1,000 pounds. This performance standard typically
can be met by operators conducting archaeological surveys with a
maximum line spacing of 30 meters at a height of no more than 6 meters
from the seafloor.
BOEM estimates that the changes would increase OCS archaeology
survey costs by $7,595,000 over the next 20 years. The Gulf of Mexico
archaeological survey costs are estimated to increase by $2,520,000,
while the Alaska costs increase by $5,075,000, depending on activity
and cost factors discussed in section II of the Benefit-Cost Analysis.
BOEM's estimate of the rule's economic impact on small entities
would vary depending on the OCS region where the archaeological surveys
occur. Typically, the increased compliance cost would impact operators
conducting activities in water depths of 100 meters or less. Small
entity operators account for the vast majority of activity in the Gulf
of Mexico OCS's shallow water depths. Therefore, BOEM estimates that up
to 100 percent of the increased Gulf of Mexico compliance cost for
survey line spacing of 30 meters would be borne by operators that are
small entities. In the Alaska region, all archaeological surveys are
expected to be conducted by large entities. On the Alaska OCS, one
company currently holds all OCS oil and gas leases. This company is
considered a large entity under the SBA's definition. Therefore, BOEM
estimates the increased compliance cost in Alaska would be borne by an
operator that is a large entity. Compliance costs by business size can
be seen in Table 2 with discount rates. BOEM does not expect new
archaeological surveys in other OCS regions over the next 20 years.
Table 2--20 Year Compliance Cost Associated with Rule by Business Size
----------------------------------------------------------------------------------------------------------------
Undiscounted Discounted at Discounted at
cost 3% 7%
----------------------------------------------------------------------------------------------------------------
Large Business Total Incremental Costs.......................... $5,075,000 $3,959,525 $2,972,956
Small Business Total Incremental Costs.......................... 2,520,000 1,966,245 1,479,878
----------------------------------------------------------------------------------------------------------------
C. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA), 5
U.S.C. 804(2), requires BOEM to perform a regulatory flexibility
analysis, provide guidance, and help small businesses comply with
statutes and regulations for major rulemakings. This action is not
subject to the SBREFA because it does not have an annual effect on the
economy of $100 million or more.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538,
requires
[[Page 71180]]
BOEM, unless otherwise prohibited by law, to assess the effects of
regulatory actions on State, local, and Tribal governments, and the
private sector. Section 202 of UMRA generally requires BOEM to prepare
a written statement, including a cost-benefit analysis, for each
proposed and final rule with ``Federal mandates'' that may result in
expenditures by State, local, and Tribal governments, in the aggregate,
or to the private sector, of $100 million or more in any one year. This
action does not contain a Federal mandate under UMRA that may result in
expenditures of $100 million or more for State, local and Tribal
governments, in the aggregate, or the private sector in any one year.
Accordingly, a statement containing the information required by the
UMRA is not required.
This action is not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
substantially or uniquely affect small governments.
E. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
E.O. 12630 ensures that government actions affecting the use of
private property are undertaken on a well-reasoned basis with due
regard for the potential financial impacts imposed by the government.
This action does not effect a taking of private property or otherwise
have taking implications under E.O. 12630, and therefore, a takings
implication assessment is not required. Additionally, no comments were
received on E.O. 12630 during the public comment period.
F. Executive Order 13132: Federalism
Regulatory actions that have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government are subject to E.O. 13132. Under the
criteria in section 1 of E.O. 13132, this final rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. It will not have substantial
direct effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. No comments
were received on E.O. 13132 during the public comment period.
G. Executive Order 12988: Civil Justice Reform
This final rule complies with the requirements of E.O. 12988.
Specifically, this rule:
(1) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(2) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
No comments were received on E.O. 12988 during the public comment
period.
H. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
E.O. 13175 defines polices that have Tribal implications as
regulations, legislative comments or proposed legislation, and other
policy statements or actions that will or may have a substantial direct
effect on one or more Indian Tribes, or on the relationship between the
Federal Government and one or more Indian Tribes. Additionally, the
DOI's consultation policy for Tribal Nations and ANCSA Corporations, as
described in Departmental Manual part 512 chapter 4, expands on the
above definition from E.O. 13175 and requires that BOEM invite Indian
Tribes and ANCSA Corporations ``early in the planning process to
consult whenever a Departmental plan or action with Tribal Implications
arises.'' BOEM strives to strengthen its government-to-government
relationships with Tribal Nations through a commitment to consultation
with Tribes, recognition of their right to self-governance and Tribal
sovereignty, and honoring BOEM's trust responsibilities for Tribal
Nations. BOEM also is respectful of its responsibilities for
consultation with corporations established pursuant to ANCSA, 43 U.S.C.
1601 et seq.
As discussed in the preamble to the 2023 proposed rule (88 FR
9809), BOEM evaluated the proposed rule under DOI's consultation policy
and under the criteria in E.O. 13175 and determined that this rule may
have Tribal implications.
BOEM sent letters to all Tribes and ANCSA Corporations on March 3,
2023, to ensure they were aware of the proposed rulemaking, to answer
any immediate questions they may have, and to invite formal
consultation if they would like to consult. Only one request for
consultation was received; consultation was held with the Mashpee
Wampanoag on March 14, 2024, and meeting notes are included in the
docket (memorandum titled Tribal Outreach: Mashpee Wampanoag). For more
details on E.O. 13175, the DOI's consultation policy for Tribal Nations
and ANCSA Corporations, and the consultations conducted regarding this
rulemaking, see the memo in the docket titled, Tribal Outreach: Summary
of Engagement Activities. BOEM can consult at any time with federally
recognized Tribes as sovereign nations.
I. Paperwork Reduction Act
This final rule references existing and new IC requirements for
regulations at 30 CFR part 550, subpart A. Submission to OMB for review
under the PRA of 1995 (44 U.S.C. 3501 et seq.) is required. Therefore,
BOEM submitted an IC request to OMB for review and approval and
requested a new OMB control number. The information collections
relative to this rule are assigned OMB Control Number 1010-0196,
Protection of Marine Archaeological Resources Final Rulemaking. Once
the 1010-AE11 final rule is effective, BOEM will transfer the hour
burden from 1010-0196 to existing OMB Control Number 1010-0114, which
covers other information collections for this part and expires on May
31, 2026, then discontinue the new number associated with this
rulemaking. The IC related to this rulemaking concerns requirements
under 30 CFR 550.194 and 550.195. BOEM may neither conduct nor sponsor,
nor are respondents required to respond to, a collection of information
unless it displays a currently valid OMB control number.
BOEM is revising its IC burden estimates with the final rule to
align with the regulations that codify existing industry practice. The
new and revised IC requirements for 30 CFR 550.194 and 550.195
identified below require approval by OMB. BOEM would increase the
overall annual burden by 505 hours. The burden hours related to this
rulemaking are shown in the following table, and burden hour changes
are discussed below.
[[Page 71181]]
----------------------------------------------------------------------------------------------------------------
Reporting or Annual
Citation 30 CFR 550 subpart A recordkeeping Hour Average number of annual burden
and related forms/NTLs requirement burden responses hours
----------------------------------------------------------------------------------------------------------------
Non-hour cost burdens
----------------------------------------------------------------------------------------------------------------
Information and Reporting Requirements
----------------------------------------------------------------------------------------------------------------
194(a), (c)..................... Prepare and/or submit 50 10 submissions................ 500
archaeological reports
or evidence. Submit
archaeological and
follow-up reports and
additional information.
-----------------------------------------------------
194(g).......................... Locate and protect Requirement not considered IC under 5 CFR
archaeological sites. 1320.3(b)(2).
Submit archaeological
and follow-up reports
and additional
information *.
-----------------------------------------------------
195(a).......................... Report archaeological 1 3 reports..................... 3
discoveries to the
Regional Director.
194............................. Request departures from 1 2 requests.................... 2
conducting
archaeological
resources surveys and/
or submitting reports
**.
Total burden................ ........................ ......... 15 responses.................. 505
------------------------------------------
........................ ......... $0 Non-hour cost burdens
----------------------------------------------------------------------------------------------------------------
* The time and financial resources necessary to comply with this requirement would be incurred in the normal
course of business using existing contracts already in place by the operator.
** Departure requests do not occur often but are included in burden calculation to allow for the rare occurrence
when a company would request a departure from conducting a survey or submitting a report.
<bullet> 30 CFR 550.194(a): This final rule will require that any
EP, DOCD, or DPP that proposes activities involving disturbance of the
seafloor must be accompanied by or contain an archaeological report and
supporting evidence. BOEM proposes to increase the estimated annual
burden hours related to this subsection to 500 hours (+500 annual
burden hours over the currently approved burden).
<bullet> 30 CFR 550.194(c): This final rule will require that
archaeological reports must be based on an HRG survey of the APE. The
HRG requirements described in 30 CFR 550.194(c) are also part of the
requirements used for geological and geophysical IC (i.e., shallow
hazards surveys) under 30 CFR 550.214 and 550.244 that OMB approved in
Control Number 1010-0151. Therefore, no additional burdens are expected
to be placed on industry.
<bullet> 30 CFR 550.194(g): If an archaeological resource is likely
to be present,\14\ this final rule will require an operator to either
relocate the proposed operations to avoid adversely affecting the
resource or establish that the resource does not exist, will not be
adversely affected by the operations, or will be protected by
mitigation measures during the operations. The likelihood that
operators would establish the archaeological resource is not present is
low. If operators relocate the project to avoid the known
archaeological resource, they could use resources already contracted
and available on the project (without the delay of additional
investigation). The operator likely will submit information related to
archaeological resources to BOEM. The burdens related to the submission
of archaeological resource information are accounted for in OMB
approved Control Number 1010-0151. Therefore, BOEM has determined there
will likely not be an additional burden on industry with this final
rule provision.
---------------------------------------------------------------------------
\14\ Often, based on the archaeological report, a sonar
signature or magnetic anomaly will likely represent an
archaeological resource, but that fact can only be confirmed through
more in-depth study. Thus, an option available to the operator is to
avoid it or to show that their operations will be designed not to
harm the potential archaeological resources identified by the HRG
survey.
---------------------------------------------------------------------------
<bullet> 30 CFR 550.195(a): This final rule will require the
operator to notify the BOEM Regional Director of any unanticipated
archaeological resource discovery. This notification would likely occur
during the operator's remote sensing phase or during deployment by a
remotely operated vehicle for surveys related to hydrophones. BOEM
expects that the occurrence will be low, so BOEM estimates the annual
burden hours to equal 3 hours (1 hour x 3 responses) (+3 annual burden
hours above the currently approved burden).
<bullet> The annual burden hours for departure requests will be 2
annual burden hours. (+2 annual burden hours above the currently
approved burden).
Title of Collection: Protection of Marine Archaeological Resources
(Notice of Proposed Rulemaking).
OMB Control Number: 1010-0196.
Form Numbers: None.
Type of Review: New.
Total Estimated Number of Annual Responses: 15 responses.
Total Estimated Number of Annual Burden Hours: 505 hours.
Respondent's Obligations: Mandatory.
Frequency of Collection: On occasion.
Once this final rule becomes effective and OMB approves the IC
request 1010-0196, BOEM will revise the existing OMB Control Number
1010-0114 for the affected subpart discussed above and will adjust the
annual burden hours accordingly. The IC related to 30 CFR part 550 does
not include questions of a sensitive nature. BOEM will continue to
protect proprietary information according to the Freedom of Information
Act and the Department of the Interior's implementing regulations.
In addition, the PRA requires agencies to estimate the total annual
reporting and recordkeeping non-hour cost burdens resulting from the
collection of information. BOEM solicits your comments regarding non-
hour cost burdens arising from this final rule. For reporting and
recordkeeping only, your response should split the cost estimate into
two components: (1) total capital and startup costs, and (2) annual
operation, maintenance, and disclosure costs to provide the
information. You should describe the methods you use to estimate your
cost components, including system and technology acquisition, expected
useful life of capital equipment, discount rates, and the period over
which you incur costs. Generally, your estimates should not include
equipment or services purchased: (1) before October 1, 1995; (2) to
comply with requirements not associated with the IC arising from this
final rule; (3) for reasons other than to provide information or to
keep records for the U.S. Government; or (4) as part
[[Page 71182]]
of customary and usual business or private practices.
As part of BOEM's continuing effort to reduce paperwork and
respondent burdens, BOEM invites the public and other Federal agencies
to comment on any aspect of this IC, including:
(1) Whether or not the collection of information is necessary,
including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
respondents.
J. National Environmental Policy Act
This final rule does not constitute a major Federal action
significantly affecting the quality of the human environment. A
detailed environmental analysis under NEPA is not required because this
final rule is covered by a categorical exclusion (see 43 CFR 46.205).
This final rule meets the criteria set forth at 43 CFR 46.210(e) for a
Departmental categorial exclusion in that this action is
``nondestructive data collection, inventory, study, research, and
monitoring activities'' and the criteria set forth at 43 CFR 46.210(i)
for a Departmental categorical exclusion in that this action is ``of an
administrative, financial, legal, technical, or procedural nature.''
Additionally, these activities meet the criteria for a categorical
exclusion based on the Department Manual in sections 15.4(A)(1),
(C)(1), and (C)(13). BOEM has also determined that the final rule does
not involve any of the extraordinary circumstances listed in 43 CFR
46.215 that would require further analysis under NEPA.
K. Data Quality Act
In promulgating this rule, BOEM did not conduct or use a study,
experiment, or survey requiring peer review under the Data Quality Act
(Pub. L. 106-554, app. C, sec. 515, 114 Stat. 2763, 2763A-153-154). In
accordance with the Data Quality Act, the Department has issued
guidance regarding the quality of information that it relies upon for
regulatory decisions. This guidance is available at the Department's
website at: <a href="https://www.doi.gov/ocio/policy-mgmt-support/information-and-records-management/iq">https://www.doi.gov/ocio/policy-mgmt-support/information-and-records-management/iq</a>.
No comments were received on the Data Quality Act during the public
comment period.
L. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Under E.O. 13211, BOEM is required to prepare and submit to OMB a
``Statement of Energy Effects for significant energy actions.'' This
should include a detailed statement of any adverse effects on energy
supply, distribution, or use (including a shortfall in supply, price
increases, and increased use of foreign supplies) expected to result
from the action and a discussion of reasonable alternatives and their
effects. This rulemaking will not have an effect on the production,
supply, distribution, or use of energy and is not expected to have any
effect on the energy industry.
No comments were received on E.O. 13211 during the public comment
period.
M. Congressional Review Act
This action is subject to the Congressional Review Act (CRA), 5
U.S.C. 801 et seq. BOEM will submit a rule report to each chamber of
Congress and to the Comptroller General of the United States. This
action does not meet the criteria in 5 U.S.C. 804(2).
List of Subjects in 30 CFR Part 550
Administrative practice and procedure, Air pollution control,
Continental shelf, Environmental impact statements, Environmental
protection, Federal lands, Government contracts, Investigations,
Mineral resources, Oil and gas exploration, Oil pollution, Outer
continental shelf, Penalties, Pipelines, Public lands--rights-of-way,
Reporting and recordkeeping requirements, Rights-of-way, Sulfur.
This action by the Principal Deputy Assistant Secretary is taken
herein pursuant to an existing delegation of authority.
Steven H. Feldgus,
Principal Deputy Assistant Secretary, Land and Minerals Management.
For the reasons stated in the preamble, BOEM amends 30 CFR part 550
as follows:
PART 550--OIL AND GAS AND SULFUR OPERATIONS IN THE OUTER
CONTINENTAL SHELF
0
1. The authority citation for part 550 is revised to read as follows:
Authority: 25 U.S.C. 3001 et seq.; 30 U.S.C. 1751; 31 U.S.C.
9701; 43 U.S.C. 1334.
Subpart A--General
0
2. Amend Sec. 550.105 by revising the definition of ``Archaeological
resource'' to read as follows:
Sec. 550.105 Definitions.
* * * * *
Archaeological resource means the material remains of human life or
activities that are at least 50 years of age and that are of
archaeological interest, including any historic property described by
the National Historic Preservation Act, as defined in 36 CFR 800.16(l).
* * * * *
0
3. Revise Sec. 550.194 to read as follows:
Sec. 550.194 How must I conduct my approved activities to protect
archaeological resources?
(a) To protect archaeological resources, your EP, DOCD, or DPP that
proposes activities involving disturbance of the seafloor must be
accompanied by or contain one of the following:
(1) An archaeological report based on a high-resolution geophysical
(HRG) survey of the APE defined, pursuant to 36 CFR 800.16(d) of the
Advisory Council on Historic Preservation's regulations implementing
section 106 of the NHPA, as the depth and breadth of the seabed that
could potentially be impacted by proposed activities;
(2) A reference to an archaeological report based on an HRG survey
of the APE that you previously submitted for your lease, provided that
any previously submitted survey complies with the survey parameters
identified in these regulations and the results of the survey are, in
BOEM's judgment, valid. BOEM may consider a survey or the resulting
report to be invalid if BOEM suspects that changes to the seafloor
environment warrant acquiring additional data, considering, for
example, the time elapsed since the prior survey or change in seafloor
from a geological event such as a mudslide; or
(3) Evidence demonstrating to BOEM's satisfaction that a reasonable
and good faith effort to identify archaeological resources within the
APE has already been performed, provided that the past efforts are
sufficient to identify possible marine archaeological resources at a
degree of certainty reasonably similar to or better than an HRG survey.
(b) The archaeological report and evidence described in paragraph
(a) of this section must have been or be prepared and signed by a
qualified marine archaeologist. A qualified marine archaeologist must
meet the
[[Page 71183]]
Secretary of the Interior's ``Standards and Guidelines for Historic
Preservation Projects: Professional Qualifications Standards'' as
developed per the National Historic Preservation Act (54 U.S.C.
306131), and any subsequent updates to those standards and guidelines,
and must have experience in conducting or overseeing HRG surveys and
processing and interpreting the resulting data for archaeological
potential.
(c) The geophysical survey resolution for the surveys described in
paragraph (a) of this section must be sufficiently detailed to identify
potential archaeological resources and must be performed using
instrumentation and methodology that is state-of-the-art and that meets
or exceeds scientific standards for conducting marine archaeological
surveys. The surveys must, at a minimum, adhere to the following
operational requirements and performance standards:
(1) A state-of-the-art navigation system with sub-meter accuracy
able to continuously determine the surface position of the survey
vessel and in-water position of towed and autonomous survey sensors.
Position fixes must be digitally and continuously logged along the
vessel track. Geodesy information must be clearly presented and
consistent across all data types. Navigation systems meeting the
criteria outlined in this section do not require prior approval by
BOEM.
(2) For geophysical surveys conducted in water depths of 100 meters
(328 feet) or less, the survey must employ a total field magnetometer,
gradiometer, or other similar instrument having equal or superior
measurement capability. The magnetometer, gradiometer, or its
equivalent must be towed as close to the seafloor as possible and
sufficiently far from the vessel to isolate the sensor from the
magnetic field of the survey vessel and the other survey instruments.
The magnetometer, gradiometer, or its equivalent must be towed at a
sufficient altitude to detect ferrous metals or other magnetically
susceptible materials of at least 1,000 pounds (453 kilograms) in mass
with a minimum magnetic deflection of 5 gamma ([gamma]; 5 nanotesla
[nT]). An accurate method must be used to record the height of the
magnetometer, gradiometer, or its equivalent in the water column. The
altitude of the magnetometer, gradiometer, or its equivalent must be
continuously recorded during data acquisition along the survey. The
instrument's sensitivity must be 1 [gamma] (1 nT) or less. Background
noise level must not exceed a total of 3 [gamma] peak to peak with data
samples of at least 2 points per meter along the survey track. All
collected data must be recorded on a digital medium that can be linked
electronically to the positioning data. Survey line, time, position,
altitude, and speed must be annotated on all output data. The data must
be post-processed and contoured in a manner to best facilitate the
interpretation of potential archaeological resources.
(3) For geophysical surveys conducted to locate potential areas of
prior human occupation, a sub-bottom profiler system must be used to
identify and map buried geomorphological features of archaeological
potential that may exist within the horizontal and vertical APE, taking
into account the geomorphology of the operational area and the
parameters of the proposed project (including the maximum depth of
disturbance from the proposed activities). The use of a sub-bottom
profiler is required in water depths of 140 meters or less, unless BOEM
specifies a different water depth based on its determination of the
furthest extent of prior human occupation on the OCS. The sub-bottom
profiler system must be capable of achieving a depth of penetration and
resolution of vertical bed separation that is sufficient to allow for
the identification and cross-track mapping of features of
archaeological potential (e.g., shell middens, paleochannels, levees,
inset terraces, paleolagoon systems, and other relict landforms). The
sub-bottom profiler system employed must be capable of achieving a
resolution of vertical bed separation of at least 0.3 meters (1 foot)
in the uppermost 10 to 15 meters (33 to 50 feet) of sediments,
depending on the substrate.
(4) In all water depths, a side-scan sonar or equivalent system
must be used to provide continuous planimetric imagery of the seafloor
to identify potential archaeological resources on and partly embedded
in the seafloor. To provide sufficient resolution of seafloor features,
BOEM requires the use of a system that operates at as high a frequency
as practicable based on the factors of line spacing, instrument range,
and water depth. The sonar system must detect small, discrete targets
0.5 meters (1.6 feet) in length at maximum range, along the track. The
instrument range must provide at least 100 percent overlapping coverage
(i.e., 200 percent seafloor coverage) between adjacent primary survey
lines. Greater than 200 percent overlapping coverage may be necessary
to guarantee nadir coverage and account for survey vessel drift between
lines, which may be an important consideration when surveying in deep
water. The side-scan sonar sensor must be towed above the seafloor at a
height that is 10 to 20 percent of the range of the instrument. Data
must be digitally recorded and visually displayed to monitor data
quality and identify targets of interest during acquisition. The data
must be post-processed to improve data quality by, for example,
adjusting for slant range effects and variable speed along line.
(5) In all water depths, an echo sounder or equivalent system must
be used to measure accurate water depths across the area. Where swath
bathymetry data are acquired, it is recommended that backscatter values
from the seabed returns are logged and processed for use in seabed
characterization to support and complement the side scan sonar data.
Single beam echo sounder data (or data from the equivalent system) must
be used to verify the results of swath bathymetry data to check for
gross error. The bathymetry systems must be set up to accurately record
data across the range of water depths expected in the survey area. Care
must be taken in selection of operating frequencies such that the
individual systems do not interfere with each other. The bathymetry
systems must be used in conjunction with an accurate motion sensor to
compensate for vessel motion. Water column sound velocity must be
determined as a minimum at the start and end of data acquisition, and
at suitable intervals throughout the project, by use of a conductivity,
salinity, and temperature depth probe or a direct reading sound
velocity probe suitable for use in the maximum water depths expected
within the survey area. Water depths must be corrected for vessel
draft, tidal level, and referenced to the appropriate vertical datum
(LAT, MSL, etc.). The final processed digital terrain model data cell
size covering the entire survey area, without gaps, must reflect the
frequency of the system being used, data density, and altitude above
seabed of the transducer head.
(6) An archaeological survey conducted prior to the effective date
of these regulations may be used in lieu of conducting a new survey,
subject to BOEM approval, provided the lessee or operator can
demonstrate that such survey was conducted in such a manner as to meet
the objectives of this paragraph (c).
(d) The Regional Director may approve a departure from the
provisions of paragraph (c) of this section on a case-by-case basis if
the Regional Director deems the departure necessary because the
applicable requirements, as applied to a specific circumstance:
[[Page 71184]]
(1) Are impractical or unduly burdensome;
(2) Are not necessary to achieve the intended objectives of the
marine archaeology program;
(3) Fail to conserve the natural resources of the OCS;
(4) Fail to protect life (including human and wildlife), property,
or the marine, coastal, or human environment; or
(5) Fail to protect sites, structures, or objects of historical or
archaeological significance.
(e) Any departure approved under this section must:
(1) Be consistent with requirements of the OCS Lands Act;
(2) Protect the archaeological resources to the same degree as if
there was no approved departure from the regulations;
(3) Satisfy section 106 of the National Historic Preservation Act
and achieve results for identifying archaeological resources as if
there was no approved departure from the regulations;
(4) Not impair the rights of third parties; and
(5) Be documented in writing.
(f) BOEM may reject any archaeological report if the survey was not
prepared in accordance with the requirements of paragraph (c) in this
section or any BOEM-approved departure to the survey requirements. BOEM
may also reject any archaeological report if the results produced from
the survey do not meet the data and resolution requirements specified
under paragraph (c), regardless of whether the survey was otherwise
conducted appropriately.
(g) If the archaeological report or evidence mentioned in paragraph
(a) of this section suggests that an archaeological resource may be
present, you must:
(1) Situate your operations so as not to adversely affect the area
where the known or suspected archaeological resource may be located;
or,
(2) Establish, to the satisfaction of the Regional Director, that
an archaeological resource does not exist by conducting further
archaeological investigation, under the supervision of a qualified
marine archaeologist, using equipment and techniques the Regional
Director considers appropriate. You must submit a report documenting
the further investigation to the Regional Director for review;
(i) If the further investigation cannot establish to the
satisfaction of the Regional Director that an archaeological resource
is not likely to be present at the operational site, you must
demonstrate to the satisfaction of the Regional Director that your
operations will not adversely affect the suspected resource; or,
(ii) If, based on the additional archaeological investigation, the
Regional Director determines that an archaeological resource is likely
to be present in the operational site and may be adversely affected by
operations, you must take whatever additional steps are specified by
the Regional Director to protect the archaeological resource before you
conduct any further operations at the operational site; or,
(3) If the Regional Director determines that an archaeological
resource is likely to be present in the lease area, that it is likely
to be adversely affected by your operations, and that there are no
feasible means to avoid this adverse effect, the Regional Director may
prohibit your operations in the APE.
(h) Any lessee or operator that has an existing lease in effect
prior to October 3, 2024 may apply the regulations in effect prior to
this date with respect to the provisions of this section for such lease
for a period of time not to exceed September 3, 2025.
0
4. Add Sec. 550.195 to read as follows:
Sec. 550.195 What must I do if I discover a potential archaeological
resource while conducting operations on the lease or right-of-way area?
(a) If you discover any unanticipated archaeological resources
while conducting operations on the lease or right-of-way area, you must
immediately halt seafloor disturbing operations within at least 305
meters (1,000 feet) of the area of the discovery and report the
discovery to the Regional Director within 72 hours.
(b) If BOEM determines that the resource may be eligible for
listing on the National Register of Historic Places in accordance with
the applicable regulations, the Regional Director will specify measures
you must take to protect the resource during operations and activities.
(c) For activities and operations under BSEE jurisdiction, BOEM
will refer the discovery to BSEE to determine if the resource may have
been adversely impacted by your operations and activities prior to or
during its discovery in paragraph (a). The Regional Director of BSEE
will specify measures you must take to either demonstrate that no
adverse impacts have occurred or to document the extent of adverse
impacts that have occurred. BSEE may further specify measures you must
take to remediate adverse impacts to any archaeological resources
resulting from your operations and activities and will relay to BOEM
both the results of its investigation and any further measures it has
imposed to remediate the adverse impacts that may have occurred.
[FR Doc. 2024-19188 Filed 8-30-24; 8:45 am]
BILLING CODE 4340-98-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on September 3, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.