Archaeological Resource Surveys and Reports on Outer Continental Shelf Lease Tracts

DEPARTMENT OF THE INTERIOR

Minerals Management Service

30 CFR Parts 250, 256, 280, and 281

RIN 1010-AB63

Archaeological Resource Surveys and Reports on Outer Continental

Shelf Lease Tracts

AGENCY: Minerals Management Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule amends the regulatory program of the Minerals

Management Service (MMS) to state specifically the authority of MMS to

require lessees or operators to conduct archaeological resource surveys

and submit reports prior to exploration, development and production, or

installation of lease term or right-of-way pipelines. This rule also

standardizes the definition and use of the term ``archaeological

resources'' within MMS's regulatory program.

EFFECTIVE DATE: November 21, 1994.

FOR FURTHER INFORMATION CONTACT:Kumkum Ray, Engineering and Standards

Branch, telephone (703) 787-1600.

SUPPLEMENTARY INFORMATION: Since 1973, the Department of the Interior

(DOI) has included a stipulation on the Outer Continental Shelf (OCS)

mineral lease tracts to notify potential lessees that, where

applicable, archaeological resource surveys and reports will be

required. Lessees and operators have, since that time, submitted this

information when the stipulation was invoked by MMS.

The authority to require this information was identified, in a

general fashion, in a final rule published by MMS in the Federal

Register on April 1, 1988 (53 FR 10596). That rule granted authority to

MMS Regions to ensure safety and environmental protection by requiring

OCS lessees and operators to conduct needed surveys and submit reports

when seeking approval of their plans to explore or develop and produce

hydrocarbons or to install lease term or right-of-way pipelines.

The MMS Regions issue further guidance in the form of Notices to

Lessees and Operators (NTL's). These NTL's provide detailed information

on archaeological resource requirements.

In order to convert the requirements contained in the

archaeological lease stipulation into regulations, a proposed rule was

published by MMS on October 12, 1993 (58 FR 52731). The proposed rule

sought to grant specific authority to each MMS Regional Director to

require archaeological resource surveys and reports. The proposed rule

also made minor modifications in 30 CFR parts 256 and 280 to

standardize the use of the term ``archaeological resource,'' eliminate

use of other terms such as ``cultural resources,'' and provide uniform

definitions. The routine requirements for surveys and reports that were

proposed in 30 CFR 250.26 are not located in Secs. 250.33 and 250.34.

These surveys and reports, when required, will normally be included in

the exploration report or the development and production report. Since

Secs. 250.33 and 250.34 pertain to Exploration Plan and Development and

Production Plan respectively, the change will help to clarify the

requirements.

The comments received during the public comment period were

reviewed, and an analysis was conducted within MMS. The following is a

discussion of the responses to comments received and any resultant text

changes.

Narrative Response to Comments

Authority Citation

Comment: One commenter suggested that we expand the authority

section to include other applicable archaeological resource

legislation.

Response: The MMS has used the requirements of the National

Historic Preservation Act of 1966 (NHPA) 16 U.S.C. 470 et seq., the

Archaeological and Historic Preservation Act 16 U.S.C. 469-469c, and

the Archaeological Resources Protection Act of 1979 (ARPA) 16 U.S.C.

470aa-mm in developing the requirements in the regulations. However,

MMS believes that the Outer Continental Shelf Lands Act provides

sufficient authority for all requirements in the regulation.

Changes in Definitions

Comment: Two commenters suggested that we define the term

``archaeological resource'' to be consistent with the definition

provided in implementing regulations for the ARPA, 16 U.S.C. 470aa-mm,

43 CFR 7.3.

Response: We have changed the definition of ``archaeological

resource'' to the wording recommended by the commenters with one

exception (with regard to the age criterion), to correspond to the

definition provided in 43 CFR 7.3(a) (1) and (2). The exception was to

change the 100-year-old criterion for the age of an archaeological

resource to a 50-year-old criterion so that the MMS regulation is

consistent with the NHPA criteria for eligibility to the National

Register of Historic Places. To improve the clarity of the rule, MMS

added a definition of significant archaeological resource.

Archaeological Report Standards

Comment: One commenter suggested that we include documentation

(report) standards in the archaeology rule. Another commenter suggested

that the reports submitted conform to the ``Secretary of the Interior's

Standards and Guidelines for Archaeology and Historic Preservation.''

Response: The MMS has developed detailed survey and report

standards for OCS archaeological surveys based on more than 20 years

experience. These standards are contained in Region-specific NTL's. The

MMS has chosen not to include the survey and report standards in the

rule. These standards are very detailed and vary from region to region

due to differences in regional geology and environmental conditions.

Basis for Requiring Archaeological Report

Comment: One commenter was concerned that in the proposed rule, the

Regional Director would be permitted to make the determination of

whether an archaeological survey/report would be required. Another

commenter suggested that we provide improved guidance about the basis

upon which a Regional Director would make the regulatory determination

that an archaeological resource exists in the proposed lease area.

Response: This decision as to whether or not a report is required

is not made arbitrarily by the Regional Director. The MMS conducts

regional archaeological baseline studies to compile information on the

locations of historic shipwrecks and coastal prehistoric archaeological

sites. These data are also used to construct predictive criteria for

the occurrence of unknown sites on the continental shelf.

Using these predictive criteria, MMS can identify portions of the

continental shelf having potential for archaeological resources. These

``archaeologically sensitive'' areas are used as the basis for

requiring marine remote sensing surveys to evaluate the archaeological

site potential of individual lease tracts before permitting lease

activities.

Information Submitted With the Archaeological Report

Comment: One commenter suggested that a new Sec. 250.26(c) be added

to require that the reports submitted to the Regional Director include

all the data, artifacts, records, and remains obtained during the

investigations conducted pursuant to 256.26 (a) and (b), pertaining to

reporting requirements for the protection of possible or discovered

archaeological resources.

Response: The marine remote sensing survey data collected to

evaluate archaeological resources is maintained by the lessee or right-

of-way holder; however, the data must be made available to MMS upon

request. The MMS maintains copies of the archaeological reports

prepared from the remote sensing survey data. Because the

archaeological surveys conducted prior to OCS activities are

reconnaissance surveys, evidence of potential resources is used to

avoid lessee activity that could harm or disturb artifacts or remains.

Thus, artifacts or remains are rarely recovered or disturbed.

Archaeological Surveys and Grandfathered Leases

Comment: One commenter suggested that MMS should continue its

practice of requiring no archaeological surveys for grandfathered

leases. (The commenter's view is that a grandfathered lease is any

lease issued by MMS prior to December 1973, the date the first lease

with an archaeological resource stipulation was issued). The commenter

also indicated that existing survey data on older leases should

continue to be acceptable to MMS for exploration and most development

activities for as long as the lease remains in force. The commenter

believes that although the aforementioned practices are not

specifically addressed or confirmed in the proposed regulations, it is

implicit in the provisions thereof that MMS does not intend for the

proposed changes to the regulations to change these existing

procedures. It is the commenter's position that to do otherwise would

directly impair existing lease contract rights.

Response: The MMS does not agree that any lease issued prior to the

inclusion of an archaeological resource lease stipulation in December

1973 is grandfathered and exempt from the requirement to protect and

preserve resources under either the existing or proposed regulations.

The archaeological stipulations included in OCS leases in December 1973

were designed to ensure that lessees and other interested parties were

aware of the need to protect and preserve archaeological resources. The

absence of an archaeological stipulation in an OCS lease issued prior

to December 1973 does not free the lessee of its obligation to protect

and preserve resources. In accordance to Sec. 250.33(b)(15) or

Sec. 250.34(b)(8)(v)(A), if the Regional Director notifies the lessee

that an archaeological resource may exist in the lease area, prior to

commencing any operations, the lessee is required to prepare a report

as specified by the Regional Director to determine the potential

existence of any archaeological resource that may be affected by

operations. Thus, the regulations are applicable to any new exploration

or development operations except preliminary activities (250.31). If

there are no new activities, production operations will continue with

no changes in the status quo.

Chance Find Clause

Comment: One commenter recommended that treatment of unanticipated

discoveries of archaeological resources during operations be made

consistent with DOI procedures by requiring a halt to operations until

the Regional Director has told the lessee how to protect the resource.

Other commenters suggested that this clause, commonly called the

``chance finds clause,'' be changed to reflect the fact that not all

discoveries made during operations will require protection.

Response: In response to these comments, wording changes were made

to clarify that not all discoveries made during operations, including

operations conducted within a right-of-way, would require protection.

To provide consistency between sections, the wording of Secs. 250.26(b)

and 250.159(c)(4) has been changed.

Author

This document was prepared by Kumkum Ray, Engineering and

Technology Division, MMS and Melanie Stright, Environmental Policy

and Programs Division, MMS.

Executive Order (E.O.) 12866

This final rule was reviewed under E.O. 12866. The final rule was

determined to not be a significant rule under the criteria of E.O.

12866.

Regulatory Flexibility Act

The DOI has determined that this rule will not have a significant

effect on a substantial number of small entities. In general, the

entities that engage in offshore activities are not considered small

due to the technical and financial resources and experience necessary

to safely conduct such activities.

Paperwork Reduction Act

The collections of information contained in Secs. 250.26, 250.33

and 250.34 have been approved by the Office of Management and Budget

(OMB) under 44 U.S.C. 3501 et seq., and assigned clearance number 1010-

0049. The information will be used to protect archaeological resources.

Response is mandatory in accordance with Sec. 204, Public Law 95-372,

92 Stat. 629 (43 U.S.C. 1334).

Public reporting burden for this collection of information is

estimated to average 1 hour per response, including the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding this burden estimate

or any other aspect of this collection of information, including

suggestions for reducing the burden, to the Information Collection

Clearance Officer; Minerals Management Service; Mail Stop 2053, 381

Elden Street; Herndon, Virginia 22070-4817, and the Office of

Management and Budget; Paperwork Reduction Project (1010-0049);

Washington, DC 20503, telephone (202) 395-7340.

Takings Implication Assessment

The DOI has determined that the rule does not represent a

governmental action capable of interference with constitutionally

protected property rights. Thus, a Takings Implication Assessment has

not been prepared pursuant to E.O. 12630, Government Action and

Interference with Constitutionally Protected Property Rights.

E.O. 12778

The DOI has certified to OMB that this final rule meets the

applicable civil justice reform standards provided in sections 2(a) and

2(b)(2) of E.O. 12778.

National Environmental Policy Act

The DOI has determined that this action does not constitute a major

Federal action affecting the quality of the human environment;

therefore, preparation of an Environmental Impact Statement is not

required.

List of Subjects

30 CFR Part 250

Continental shelf, Environmental impact statements, Environmental

protection, Government contracts, Incorporation by reference,

Investigations, Mineral royalties, Oil and gas development and

production, Oil and gas exploration, Oil and gas reserves, Penalties,

Pipelines, Public lands--mineral resources, Public lands--rights-of-

way, Reporting and recordkeeping requirements, Sulphur development and

production, Sulphur exploration, Surety bonds.

30 CFR Part 256

Administrative practice and procedure, Continental shelf,

Government contracts, Oil and gas exploration, Public lands--mineral

resources, Reporting and recordkeeping requirements, Surety bonds.

30 CFR Part 280

Administrative practice and procedure, Bonds, Continental shelf,

Environmental protection, Mines, Public lands--mineral resources,

Reporting and recordkeeping requirements.

30 CFR Part 281

Administrative practice and procedure, Bonds, Continental shelf,

Mineral royalties, Mines, Public lands--mineral resources, Reporting

and recordkeeping requirements.

Dated: September 9, 1994.

Bob Armstrong,

Assistant Secretary, Land and Minerals Management.

For the reasons set out in the preamble, 30 CFR parts 250, 256,

280, and 281 are amended as follows:

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

CONTINENTAL SHELF

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

follows:

Authority: 43 U.S.C. 1334.

2. Section 250.2 is amended by adding the following definitions, in

alphabetical order, to read as follows:

Sec. 250.2 Definitions.

* * * * *

Archaeological resource means any material remains of human life or

activities that are at least 50 years of age and that are of

archaeological interest.

* * * * *

Material remains means physical evidence of human habitation,

occupation, use, or activity, including the site, location, or context

in which such evidence is situated.

* * * * *

Of archaeological interest means capable of providing scientific or

humanistic understanding of past human behavior, cultural adaptation,

and related topics through the application of scientific or scholarly

techniques, such as controlled observation, contextual measurement,

controlled collection, analysis, interpretation, and explanation.

* * * * *

Significant archaeological resource means those archaeological

resources that meet the criteria of significance for eligibility to the

National Register of Historic Places as defined in 36 CFR 60.4.

* * * * *

3. A new Sec. 250.26 is added to subpart A to read as follows:

Sec. 250.26 Archaeological reports and surveys.

(a) If the Regional Director believes that an archaeological

resource may exist in the lease area, the Regional Director will notify

the lessee in writing. The lessee shall include an archaeological

report in the Exploration Plan or Development and Production Plan and

shall comply with the following:

(1) If the evidence suggests that an archaeological resource may be

present, the lessee shall either:

(i) Locate the site of any operation so as not to affect adversely

the area where the archaeological resource may be; or

(ii) Establish to the satisfaction of the Regional Director that an

archaeological resource does not exist or will not be adversely

affected by operations. This shall be done by further archaeological

investigation, conducted by an archaeologist and a geophysicist, using

survey equipment and techniques deemed necessary by the Regional

Director. A report on the investigation shall be submitted to the

Regional Director for review.

(2) If the Regional Director determines that an archaeological

resource is likely to be present in the lease area and may be adversely

affected by operations, the Regional Director will notify the lessee

immediately. The lessee shall take no action that may adversely affect

the archaeological resource until the Regional Director has told the

lessee how to protect it.

(b) If the lessee discovers any archaeological resource while

conducting operations in the lease area, the lessee shall immediately

halt operations within the area of the discovery and report the

discovery to the Regional Director. If investigations determine that

the resource is significant, the Regional Director will inform the

lessee how to protect it.

4. Section 250.33 is amended by revising paragraphs (b)(15) and (o)

to read as follows:

Sec. 250.33 Exploration Plan.

* * * * *

(b) * * *

(15) If the Regional Director believes that an archaeological

resource may exist in the lease area, the Regional Director will notify

the lessee in writing. Prior to commencing any operations, the lessee

shall prepare a report, as specified by the Regional Director, to

determine the potential existence of any archaeological resource that

may be affected by operations. The report shall be prepared by an

archaeologist and geophysicist and shall be based on an assessment of

data from remote-sensing surveys and of other pertinent archaeological

and environmental information.

* * * * *

(o) To ensure safety and protection of the environment and

archaeological resources, the Regional Director may authorize or direct

the lessee to conduct geological, geophysical, biological,

archaeological, or other surveys or monitoring programs. The lessee

shall provide the Regional Director, upon request, with copies of any

data obtained as a result of those surveys and monitoring programs.

* * * * *

5. Section 250.34 is amended by revising paragraphs (b)(8)(v)(A)

and (s) to read as follows:

Sec. 250.34 Development and Production Plan.

* * * * *

(b) * * *

(8) * * *

(v) * * *

(A) If the Regional Director believes that an archaeological

resource may exist in the lease area, the Regional Director will notify

the lessee in writing. Prior to commencing any operations, the lessee

shall prepare a report, as specified by the Regional Director, to

determine the potential existence of any archaeological resource that

may be affected by operations. The report shall be prepared by an

archaeologist and geophysicist and shall be based on an assessment of

data from remote-sensing surveys and of other pertinent archaeological

and environmental information.

* * * * *

(s) To ensure safety and protection of the environment and

archaeological resources, the Regional Director may authorize or direct

the lessee to conduct geological, geophysical, biological,

archaeological, or other surveys or monitoring programs. The lessee

shall provide the Regional Director, upon request, copies of any data

obtained as a result of those surveys and monitoring programs.

* * * * *

6. Section 250.157 is amended by revising paragraph (a)(5) to read

as follows:

Sec. 250.157 Applications.

(a) * * *

(5) The application shall include a shallow hazards survey report

and, if required by the Regional Director, an archaeological resource

report that covers the entire length of the pipeline. A shallow hazards

analysis may be included in a lease term pipeline application in lieu

of the shallow hazards survey report with the approval of the Regional

Director. The Regional Director may require the submission of the data

upon which the report or analysis is based.

* * * * *

7. Section 250.159 is amended by revising paragraph (c)(4) to read

as follows:

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

* * * * *

(c) * * *

(4) If the right-of-way holder discovers any archaeological

resource while conducting operations within the right-of-way, the

right-of-way holder shall immediately halt operations within the area

of the discovery and report the discovery to the Regional Director. If

investigations determine that the resource is significant, the Regional

Director will inform the lessee how to protect it.

* * * * *

PART 256--OUTER CONTINENTAL SHELF MINERALS AND RIGHTS-OF-WAY

MANAGEMENT, GENERAL

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

follows:

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

9. Section 256.23 is amended by revising the last sentence in

paragraph (b) to read as follows:

Sec. 256.23 Information on areas.

* * * * *

(b) * * * For an oil and gas lease sale Call Area, the Director may

request comments concerning geological conditions, including bottom

hazards; archaeological sites on the seabed or nearshore; multiple uses

of the proposed leasing area, including navigation, recreation, and

fisheries; and other socioeconomic, biological, and environmental

information.

PART 280--PROSPECTING FOR MINERALS OTHER THAN OIL, GAS, AND SULPHUR

IN THE OUTER CONTINENTAL SHELF

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

follows:

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

11. Section 280.2 is amended by revising the definition of

``archaeological resource'' and adding the following definitions in

alphabetical order, to read as follows:

Sec. 280.2 Definitions.

* * * * *

Archaeological resource means any material remains of human life or

activities that are at least 50 years of age and that are of

archaeological interest.

* * * * *

Material remains means physical evidence of human habitation,

occupation, use, or activity, including the site, location, or context

in which such evidence is situated.

* * * * *

Of archaeological interest means capable of providing scientific or

humanistic understanding of past human behavior, cultural adaptation,

and related topics through the application of scientific or scholarly

techniques, such as controlled observation, contextual measurements,

controlled collection, analysis, interpretation, and explanation.

* * * * *

Significant archaeological resource means those archaeological

resources that meet the criteria of significance for eligibility to the

National Register of Historic Places as defined in 36 CFR 60.4.

* * * * *

PART 281--LEASING OF MINERALS OTHER THAN OIL, GAS, AND SULPHUR IN

THE OUTER CONTINENTAL SHELF

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

follows:

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

Sec. 281.12 [Amended]

13. In Sec. 281.12, paragraph (c) is amended by removing the word

``archeological'' and adding in its place the word ``archaeological''.

[FR Doc. 94-26002 Filed 10-20-94; 8:45 am]

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