Protection of Marine Archaeological Resources

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

4. Removal of the “Reason to Believe” Standard and the Use of Alternatives to Direct Sources

5. Compliance With the National Historic Preservation Act

C. Technical Comments

1. Use of Direct High Resolution Geophysical Surveys

2. Technical Parameters for Conducting Direct Surveys

3. Archaeological Reports

4. Seafloor Disturbing Operations

5. Definitions

V. Summary of Economic Impacts and Benefits

A. What are the economic impacts?

B. What are the benefits?

VI. Section-by-Section Analysis

VII. Statutory and Executive Order Reviews

A. Executive Orders 12866: Regulatory Planning and Review, as Amended by Executive Order 14094: Modernizing Regulatory Review, and Executive Order 13563: Improving Regulation and Regulatory Review

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act

D. Unfunded Mandates Reform Act

E. Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights

F. Executive Order 13132: Federalism

G. Executive Order 12988: Civil Justice Reform

H. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

I. Paperwork Reduction Act

J. National Environmental Policy Act

K. Data Quality Act

L. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

M. Congressional Review Act

I. General Information

A. Executive Summary

1. Purpose of This Regulatory Action

The purpose of this rule is to address concerns regarding BOEM's regulatory requirements for protecting marine archaeological resources; specifically, BOEM's inability to accurately identify the location of such potential resources and BOEM's long term historic policy of requiring archaeological surveys only in cases where there is evidence that a resource exists. This rule amends the existing provisions to require lessees and operators to submit an archaeological report with any oil and gas exploration or development plan they submit to BOEM for approval of proposed activities on the OCS.

2. Summary of Major Provisions

The two major provisions finalized in this rule are: (1) the replacement of the “reason to believe” standard in the current regulations with the requirement that all proposed exploration or development plans that would result in seabed disturbance must be accompanied by an archaeological report, and (2) the codification of minimum requirements for any new high-resolution geophysical (HRG) surveys. The standards for new HRG surveys are generally defined in performance terms based on scientific standards, rather than using specific parameters. This provision allows lessees and operators greater flexibility in determining how to conduct their surveys and how to produce the resulting archaeological reports.

3. Costs and Benefits

BOEM estimates that the changes will increase total OCS archaeology survey costs over the next 20 years by $5.9 million (at a 3 percent discount rate). The majority of the revisions in this final rule will have no or negligible cost impacts for lessees and operators. All expected incremental costs of the rule are due to the requirement for HRG archaeological surveys in water depths of less than or equal to 100 meters and for a magnetometer, gradiometer, or the equivalent towed at an altitude and line spacing sufficient to detect ferrous metals or other magnetically susceptible materials of at least 1,000 pounds.

B. Does this action apply to me?

Entities potentially affected by this final action are holders of oil, gas, and sulfur leases on the OCS and associated operators.

C. Where can I get a copy of this document and other related information?

In addition to being available in the docket, BOEM will post an electronic copy of the documents related to this final action at: https://www.boem.gov/regulations-and-guidance.

II. Background

A. BOEM Statutory Authority and Responsibilities

Section 5 of the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1334, authorizes the Secretary of the Interior (Secretary) to issue regulations to administer OCS leasing for mineral development. Section 5(a) of OCSLA (43 U.S.C. 1334(a)) authorizes the Secretary to “prescribe such rules and regulations as may be necessary to carry out [provisions of OCSLA]” related to leasing on the OCS. Section 5(b) of OCSLA (43 U.S.C. 1334(b)) provides that “compliance with regulations issued under” OCSLA must be a condition for “[t]he issuance and continuance in effect of any lease, or of any assignment or other transfer of any lease, under the provisions of” OCSLA. Section 18 of OCSLA (43 U.S.C. 1344) states that “[m]anagement of the [OCS] shall be conducted in a manner which considers economic, social, and environmental values of the renewable and nonrenewable resources contained in the [OCS].”

Secretary's Order 3299 (as amended) established BOEM and delegated to it the authority to carry out conventional ( e.g., oil and gas) and renewable energy-related functions on the OCS, including, but not limited to, activities involving resource evaluation, planning, and leasing under the provisions of OCSLA. As such, BOEM is responsible for managing development of the Nation's offshore energy, mineral, and geological resources in an environmentally and economically responsible way. BOEM requires a lessee to submit a detailed plan of its proposed activities for review before BOEM will approve, among other activities, the installation of any facility, structure, or pipeline on the OCS. As part of the plan submission, BOEM requires detailed information regarding the nature and location of historic properties that may be affected by the proposed activities. This information is used to assist the Bureau in meeting its obligation under section 106 of the NHPA and the National Environmental Policy Act (NEPA).

B. History of Protection of Marine Archaeological Resource Regulations and Guidance

Beginning in 1982, BOEM's predecessor agency, the Minerals Management Service (MMS), developed a predictive model to attempt to define where archaeological resources were “likely” to exist in the Gulf of Mexico. MMS, and later BOEM, used the predictive model to designate certain OCS lease blocks as possessing a high- or low-probability for containing archaeological resources. This model relied primarily on archival evidence of reported lost shipwrecks.

Prior to 2006, the Department's regulation at then 30 CFR 250.194, “What archaeological reports and surveys must I submit?” stated: “If it is likely that an archaeological resource exists in the lease area, the Regional Director will notify you in writing.” That regulation was revised in 2006 to clarify the basis for requiring an archaeological survey ( i.e., a type of geophysical survey that is suitable for locating potential archaeological resources). The revised regulation stated: “If the Regional Director has reason to believe that an archaeological resource may exist in the lease area, the 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 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.

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 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 § 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 § 550.194, provides for the following:

• Each HRG survey must be conducted using state-of-the-art instrumentation and methodology that meet or exceed scientific standards for conducting marine archaeological surveys.
• Lessees must comply with the outlined minimum scientific standards; however, BOEM recognizes that emerging technologies and methods may be used to achieve or exceed these standards. In these instances, BOEM may approve a departure from the standard provisions of the rule on a case-by-case basis if it meets the objectives specified in the regulations.
• The survey vessel's navigation system must continuously register its surface position, specify the logging position data, and specify the presentation of geodesy information.
• HRG surveys must use a total field magnetometer, gradiometer, or other similar instrument having equal or superior measurement capability for surveys conducted in waters of 100-meter depth or less. This rule also establishes the requirements for the collection of data necessary to assist in the identification of archaeological resources on the OCS. The sensor must be towed in such a manner that a magnetic field produced by ferrous metal associated with a historic shipwreck ( e.g., a wooden ship's fasteners, anchors, and cannons) can be detected.

• For geophysical surveys conducted in water depths of 140 meters (459 ft) or less, a sub-bottom profiler system must be used to identify potential areas of prior human occupation that may exist within the horizontal and vertical Area of Potential Effect (APE), taking into account the geomorphology of the operational area and the parameters of the proposed project (including the maximum depth of disturbance from the proposed activities).
• Every survey on the OCS subject to this rule must meet various performance standards to ensure that archaeological resources are not overlooked. The results of every survey must be collected and analyzed by a qualified marine archaeologist who meets the Secretary of the Interior's Standards and Guidelines and must have experience in conducting or overseeing HRG surveys and processing and interpreting the resulting data for archaeological potential.

• In all water depths, a side-scan sonar or equivalent system must be used to provide continuous planimetric imagery of the seafloor to identify potential archaeological resources partly embedded in the seafloor. To provide sufficient resolution of seafloor features, this rule requires the use of a system that operates at as high a frequency as practicable based on the factors of line spacing, instrument range, and water depth.
• In all water depths, an echo-sounder or equivalent system must be used to measure accurate water depths across the area. Where swath bathymetry data are acquired, BOEM recommends that backscatter values from the seabed returns are logged and processed for use in seabed characterization to support and complement the side-scan sonar data. Single beam echo sounder data should be used to verify the results of swath bathymetry data to check for gross error.
• Existing lessees and operators may, during the first year after the effective date of this final rule, apply the prior regulations and standards to surveys conducted during that time. New lessees and operators will be required to apply the requirements of this rule from the effective date of the rule.
• An archaeological survey conducted prior to the effective date of this rule may be used in lieu of conducting a new survey, subject to BOEM approval, provided the lessee or operator can demonstrate that such survey was conducted in such a manner as to meet the performance requirements of this rule.
• If a lessee or operator discovers any unanticipated archaeological resource while conducting operations on the lease or right-of-way area, they must immediately halt seafloor disturbing operations within at least 305 meters (1,000 feet) of the area of the discovery and report the discovery to the BOEM Regional Director within 72 hours.

The standards described above are generally defined in this rule in performance terms based on scientific standards, rather than using specific parameters. This will allow lessees and operators greater flexibility in determining how to conduct their surveys and how to produce the resulting archaeological reports.

IV. Summary of Public Comments and BOEM's Corresponding Responses

A. Overview of Comments

A total of 32 comments were received in response to the proposed rule. The majority of the comments (15) came from individual archaeologists and technical specialists. An additional 6 comments came from trade or cultural 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: