82_FR_46152 82 FR 45962 - Negotiated Noncompetitive Agreements for the Use of Sand, Gravel, and/or Shell Resources on the Outer Continental Shelf

82 FR 45962 - Negotiated Noncompetitive Agreements for the Use of Sand, Gravel, and/or Shell Resources on the Outer Continental Shelf

DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management

Federal Register Volume 82, Issue 190 (October 3, 2017)

Page Range45962-45977
FR Document2017-21233

This final rule establishes new regulations to address the use of Outer Continental Shelf (OCS) sand, gravel, and/or shell resources for shore protection, beach restoration, or coastal wetlands restoration projects by Federal, state, or local government agencies, and for use in construction projects authorized by or funded in whole or in part by the Federal Government. The final rule describes the negotiated noncompetitive agreement process for qualifying projects and codifies new and existing procedures.

Federal Register, Volume 82 Issue 190 (Tuesday, October 3, 2017)
[Federal Register Volume 82, Number 190 (Tuesday, October 3, 2017)]
[Rules and Regulations]
[Pages 45962-45977]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-21233]


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DEPARTMENT OF THE INTERIOR

Bureau of Ocean Energy Management

30 CFR Part 583

[Docket ID: BOEM-2010-0041; MMAA104000]
RIN 1010-AD90


Negotiated Noncompetitive Agreements for the Use of Sand, Gravel, 
and/or Shell Resources on the Outer Continental Shelf

AGENCY: Bureau of Ocean Energy Management, Interior.

ACTION: Final rule.

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SUMMARY: This final rule establishes new regulations to address the use 
of Outer Continental Shelf (OCS) sand, gravel, and/or shell resources 
for shore protection, beach restoration, or coastal wetlands 
restoration projects by Federal, state, or local government agencies, 
and for use in construction projects authorized by or funded in whole 
or in part by the Federal Government. The final rule describes the 
negotiated noncompetitive agreement process for qualifying projects and 
codifies new and existing procedures.

DATES: This rule is effective December 4, 2017.

FOR FURTHER INFORMATION CONTACT: Deanna Meyer-Pietruszka, Chief, Office 
of Policy, Regulations, and Analysis, Bureau of Ocean Energy 
Management, at: [email protected] or 202-208-6352.

SUPPLEMENTARY INFORMATION: On March 22, 2016, the Bureau of Ocean 
Energy Management (BOEM) published in the Federal Register (81 FR 
15190) a proposed rule entitled ``Negotiated Noncompetitive Leasing for 
the Use of Sand, Gravel, and Shell Resources on the Outer Continental 
Shelf.'' BOEM received comments from 8 individuals and organizations. 
BOEM reviewed these comments, categorized and organized them by 
subject, and has provided responses to those substantive comments in 
Section III below. These comments are available for viewing in their 
original form on www.regulations.gov by searching for the term: ``BOEM 
AD90.'' BOEM also renumbered the sections contained in the proposed 
rule to facilitate any later amendments that may be necessary. Finally, 
BOEM altered the title of the proposed rule by replacing ``Leasing'' 
with ``Agreements'' to more accurately reflect the types of instruments 
BOEM uses to convey offshore sand, gravel, and/or shell resources (i.e. 
leases or memoranda of agreement, as described below).

Table of Contents

I. Background
    A. Program Description
    B. Program History
II. Section-by-Section Analysis of the Final Rule
    A. Subpart A--General
    B. Subpart B--Reserved
    C. Subpart C--Outer Continental Shelf Sand, Gravel, and/or Shell 
Resources Negotiated Agreements
III. Summary of Comments Received on the Proposed Rule and BOEM 
Responses
IV. Legal and Regulatory Analysis

I. Background

    Congress amended the Outer Continental Shelf Lands Act, 43 U.S.C. 
1331-1356 (OCSLA), in 1994 to authorize the Secretary of the Interior 
to negotiate noncompetitive agreements with any person for the use of 
OCS sand, gravel, and/or shell resources in a program of, or project 
for, shore protection, beach restoration, or coastal wetlands 
restoration undertaken by a Federal, state, or local government agency, 
or in a construction project either authorized by, or funded in whole 
or in part by the Federal Government. See 43 U.S.C. 1337(k)(2). In 
negotiating an agreement for use of the OCS sand, gravel, and/or shell 
resources, OCSLA provides that ``the Secretary may assess a fee based 
on an assessment of the value of the resources and the public interest 
served by promoting development of the resources.'' However, the same 
provision of OCSLA also states that no fee will be assessed directly or 
indirectly against a Federal, state, or local government agency. See 43 
U.S.C. 1337(k)(2)(B).

A. Program Description

    Generally, shore protection and beach and coastal wetlands 
restoration projects are initiated to rebuild eroding shoreline 
segments, such as beaches and dunes, barrier islands, and wetlands. In 
sensitive wetland areas, these projects are intended to forestall 
further erosion, restore habitat and/or to provide protection from 
hurricanes and storms. These projects are typically accomplished by 
placing sand, gravel, or shell resources directly on the beach, in open 
water areas that are the location of an eroded beach, and/or within 
breaches in the shoreline that compromise the integrity of the beach or 
barrier island system or its capacity to form, and subsequently 
maintain, a beach. Material may also be placed updrift from the beach, 
allowing longshore processes to redistribute the

[[Page 45963]]

sand, gravel, and/or shell resources along the beach.
    OCSLA authorizes BOEM to enter into a negotiated noncompetitive 
agreement when the use of OCS sand, gravel, and/or shell resources is 
authorized for qualifying projects. This negotiated agreement may take 
the form of a lease or a Memorandum of Agreement (MOA), depending upon 
the type of applicant(s) requesting use of OCS sand, gravel, and/or 
shell resources. If a non-Federal entity requests the use of OCS sand, 
gravel, and/or shell resources, the negotiated noncompetitive agreement 
required by OCSLA would generally take the form of a lease. If a 
Federal agency requests the use of OCS sand, gravel, and/or shell 
resources, BOEM and the Federal agency, as well as their Federal, 
state, or local government agency counterparts on the project, would 
enter into an MOA. For example, when a Federal agency partially or 
wholly funds a non-Federal entity to conduct a project that is 
otherwise eligible for OCS sand, gravel, and/or shell resources, the 
negotiated noncompetitive agreement may take the form of a three-party 
MOA. As warranted, the Federal applicant(s) and BOEM would designate a 
lead agency and enter into a cooperating agency agreement for the 
environmental analysis and review of the proposed project. Likewise, if 
another Federal agency is not involved, BOEM would ensure that 
appropriate environmental analysis and review is completed. The 
negotiated noncompetitive agreement in each of these situations would 
describe the project and procedures that would be followed, and 
identify environmental and administrative requirements that must be 
met. As described in Section III below in response to a comment 
received, the requirements and processes for entering into a negotiated 
noncompetitive agreement are the same whether the agreement takes the 
form of a lease or a MOA. The only distinction is that which Congress 
provides in OCSLA that, when these projects involve Federal agencies, 
the Federal agency ``shall enter into a Memorandum of Agreement with 
the Secretary. . . .'' See 43 U.S.C. 1337(k)(2)(D).

B. Program History

    BOEM and its predecessor agencies--the Minerals Management Service 
and the Bureau of Ocean Energy Management, Regulation and Enforcement--
through the Marine Minerals Program, have been exercising statutory 
authority regarding OCS sand, gravel, and/or shell resources under 
OCSLA pursuant to written guidelines, without the benefit of 
implementing regulations. BOEM has negotiated over 50 noncompetitive 
agreements, providing for the use of more than 100 million cubic yards 
of OCS sand, gravel, and/or shell resources for shore protection, beach 
restoration, or coastal wetlands restoration projects undertaken by a 
Federal, state, or local government agency, and for federally 
authorized or funded construction projects. BOEM believes that 
promulgation of regulations at this time is advisable to provide 
additional clarity and certainty and to help ensure continuity of the 
Marine Minerals Program.

II. Section-by-Section Analysis of the Final Rule

Subpart A--General

Section 583.100 What is BOEM's authority for information collection 
(IC)?
    This section explains BOEM's authority for IC activities related to 
part 583. It explains the reasons the information is being collected 
and confirms the Office of Management and Budget (OMB) approval of the 
collection.
Section 583.105 What is the purpose of this rule and to whom does it 
apply?
    This section explains that the purpose of this rule is to refine 
and formally adopt procedures for entering into negotiated 
noncompetitive agreements for the use of OCS sand, gravel, and/or shell 
resources for shore protection; beach or coastal wetlands restoration 
by a Federal, state, or local government agency; or for construction 
projects authorized or funded, in whole or in part, by the Federal 
Government. This section explains that the rule applies exclusively to 
the negotiated noncompetitive use of sand, gravel, and/or shell 
resources on the OCS and does not apply to competitive leasing of 
minerals, including oil, gas, sulphur, geopressured-geothermal and 
associated resources, and all other minerals that are authorized by an 
Act of Congress to be produced from ``public lands'' as defined in 
section 103 of the Federal Land Policy and Management Act of 1976, as 
amended (FLPMA). (43 U.S.C. 1701 et seq.)
Section 583.110 What is BOEM's authority for this rule?
    This section explains that in adopting these regulations, BOEM is 
operating under authority granted to the Secretary of the Interior by 
OCSLA.
Section 583.115 What definitions do I need to know?
    This section defines many of the terms commonly used in the Marine 
Minerals Program and now used in this part, including ``borrow area,'' 
``placement area,'' and ``project.'' This section also defines other 
terms for purposes of this part, including ``agreement,'' 
``amendment,'' ``applicant,'' ``BOEM,'' ``Federal agency,'' ``local 
government,'' ``modification,'' ``program,'' and ``Secretary.'' This 
section also makes the definitions applicable to Part 550 of Title 30 
of the CFR applicable to this part.
Section 583.120 Who is qualified for a project?
    This section explains who is qualified to enter into an agreement 
with BOEM for the use of OCS sand, gravel, and/or shell resources, and 
explains the requirements to comply with the relevant debarment 
regulations.
Section 583.125 What are my rights to seek reconsideration of an 
unfavorable decision by BOEM?
    This section sets out the kinds of decisions that would be subject 
to reconsideration, and the process available to an unsuccessful 
applicant or adversely affected party for obtaining reconsideration.
Section 583.130 What are the minimum contents of an agreement to use 
OCS sand, gravel, and/or shell resources?
    This section explains who is allowed to use OCS sand, gravel, and/
or shell resources under these regulations, and explains that use 
authorizations are in the form of agreements that are negotiated on a 
case-by-case basis. It also explains that the agreements identify the 
location, type and volume of OCS sand, gravel, and/or shell resources 
allowed to be used under the agreement. In addition, it explains that 
an authorization to use OCS sand, gravel, and/or shell resources is not 
exclusive. BOEM has modified language in this section from the proposed 
rule by adding language stating that ``terms and conditions and 
environmental stipulations'' will be included in the list of the 
minimum contents of an agreement, and adding language to clarify the 
conditions under which more than one entity may use the same borrow 
area.

[[Page 45964]]

Subpart B--Reserved

Subpart C--Outer Continental Shelf Sand, Gravel, and/or Shell Resources 
Negotiated Agreements

Section 583.300 How do I submit a request for an agreement?
    This section explains who may submit a request to BOEM to obtain an 
agreement for the use of OCS sand, gravel, and/or shell resources. It 
lists the information that the request must include, such as a detailed 
description of the proposed project and how it qualifies as a program 
or project eligible under OCSLA to receive OCS sand, gravel, and/or 
shell resources pursuant to a negotiated noncompetitive agreement; a 
description of borrow and placement areas; certain maps and data; other 
uses of the OCS and infrastructure in the borrow area that are known to 
the applicant; a description of the environmental evaluations that have 
been completed or are being prepared that cover the project, including 
both onshore and offshore components; a target date or date range when 
the resources will be needed; a description of the person or government 
entities that are undertaking the project and points of contact; a list 
of permits, licenses and authorization required for the project; a 
description of potential inconsistencies with state coastal zone 
management plans or other applicable state and local laws; and a 
statement explaining who authorized the project and how the project 
will be funded. Since issuance of the proposed rule, BOEM replaced the 
requirement that hard copy maps be provided with the request for a 
negotiated noncompetitive agreement in section 583.300(a)(2)(i); 
instead, the final rule requires digital (pdf) maps be provided. This 
modification in the final rule recognizes changes in technology and 
that most submissions are now made electronically.
Section 583.305 How will BOEM determine if a project qualifies?
    This section lays out the factors that BOEM uses to determine 
whether a project qualifies for use of OCS sand, gravel, and/or shell 
resources under a negotiated noncompetitive agreement. The section 
enumerates the evaluation criteria, including: The project purpose; 
other uses of OCS sand, gravel, and/or shell resources that are 
currently or previously authorized from the same borrow area; the 
project funding source(s) and amounts; the proposed design and 
feasibility of the project; any potential environmental and safety 
risks associated with the project; other Federal interests located near 
or within the specified borrow area; comments received from potentially 
affected state or local governments, if any; the applicant's background 
and experience working on similar projects or activities; whether the 
project operations can be conducted in a manner that protects the 
environment and promotes orderly development of OCS mineral resources; 
whether activities can be conducted in a manner that does not pose a 
threat of serious harm or damage to, or waste of, any natural 
resources, any life, property, or the marine, coastal, or human 
environment; and whether the project is consistent with applicable 
statutes and their implementing regulations, which may include, but are 
not limited to, the Endangered Species Act (ESA) (16 U.S.C. 1531 et 
seq.), the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et 
seq.), the Marine Debris Research, Prevention, and Reduction Act 
(MDRPRA) (33 U.S.C. 1951 et seq.), the Marine Plastic Pollution 
Research and Control Act (MPPRCA) (33 U.S.C. 1901 et seq.), the Federal 
Water Pollution Control Act (FWPCA) (33 U.S.C. 1381 et seq.), and the 
International Convention for the Prevention of Pollution from Ships 
(MARPOL), MARPOL-Annex V Treaty.
Section 583.310 What process does BOEM use to technically and 
environmentally evaluate a qualified project?
    This section explains the process that BOEM follows to evaluate a 
project that qualifies for the use of OCS sand, gravel, and/or shell 
resources to decide whether to enter into a negotiated noncompetitive 
agreement. It states that BOEM coordinates with relevant Federal 
agencies, states, and local governments, and any potentially affected 
federally recognized Indian tribes or Alaska Native corporations during 
this process. It also describes how BOEM evaluates the project and 
additional information provided under sections 583.300 and 583.305 to 
determine if the information is sufficient to conduct necessary 
technical and environmental reviews to comply with the requirements of 
applicable statutes and regulations, which may include, but are but not 
limited to: OCSLA (43 U.S.C. 1331 et seq.), the National Environmental 
Policy Act (NEPA) (42 U.S.C. 4321 et seq.), the ESA (16 U.S.C. 1531 et 
seq.), the MMPA (16 U.S.C. 1361 et seq.), the Magnuson-Stevens Fishery 
Conservation and Management Act (MSFCMA) (16 U.S.C. 1801 et seq.), the 
National Historic Preservation Act (NHPA) (54 U.S.C. 300101 et seq.), 
and the Coastal Zone Management Act (CZMA) (16 U.S.C. 1451 et seq.). 
Finally, this section provides that BOEM will not enter into a 
negotiated noncompetitive agreement until the information requested for 
the evaluation has been provided and BOEM has evaluated it.
Section 583.315 What is the process for negotiating and executing an 
agreement?
    This section describes the steps BOEM takes once it has completed 
its technical, environmental and other evaluations. This section 
provides further that, once BOEM has completed its review of an 
application, BOEM will decide whether to enter into an agreement. This 
section provides that, if BOEM decides to enter into an agreement, BOEM 
will negotiate the terms of the agreement and prepare a draft agreement 
for the applicant's review and comment. The section also provides that, 
after BOEM considers the applicant's comments and suggestions, it may, 
at its discretion, finalize the agreement and send it to the applicant 
for signature. As provided in this section, once BOEM receives the 
agreement with the applicant's signature, BOEM will execute the 
agreement and distribute it to the parties to the agreement. Finally, 
this section describes the process BOEM would use when it decides not 
to approve an agreement.
Section 583.320 What kinds of information must be included in an 
agreement?
    This section describes the minimum information that an agreement is 
required to include, such as an agreement number assigned by BOEM; the 
purpose of, and authorities for, the agreement; the designated and 
delineated borrow area(s); the project description, including the 
timeframe within which the project is to be started and completed; the 
terms and conditions of the agreement, including any reporting 
requirements; all obligations of the parties; and the signatures of 
appropriate individuals authorized to bind the applicants and BOEM. In 
this final rule, in section 583.320(e), BOEM added ``environmental 
mitigations and operating parameters'' to the examples of terms and 
conditions that might be included in an agreement, to make clear that, 
if there are any environmental mitigations or operating parameters, 
that information must be included in negotiated noncompetitive 
agreements.

[[Page 45965]]

Section 583.325 What is the effective date of an agreement?
    This section describes what determines the effective date of the 
agreement.
Section 583.330 How will BOEM enforce the agreement?
    This section describes how BOEM would enforce the terms of an 
agreement and the consequences, including termination, for failure to 
comply with any applicable law or with the agreement terms. This 
section also provides that the failure to comply in a timely and 
satisfactory manner with any provision, term or condition of the 
agreement may delay or prevent BOEM's approval of future requests for 
use of OCS sand, gravel, and/or shell resources on the part of the 
parties to the agreement.
Section 583.335 What is the term of the agreement?
    This section explains when an agreement terminates: (1) By a date 
specified in the agreement; (2) pursuant to 30 CFR 583.350; or (3) when 
parties to the agreement notify BOEM in writing that sufficient 
resources, up to the amount authorized in the agreement, have been 
removed to complete the project. This section also explains that, 
absent extraordinary circumstances, no agreement will have a term that 
is longer than five years from its effective date. Examples of 
extraordinary circumstances where a term longer than five years may be 
appropriate include a program of multiple individual projects to be 
carried out over multiple seasons, or where the Congressional 
authorization for a project calls for multiple phases. It is within 
BOEM's sole discretion to determine when extraordinary circumstances 
warrant a term longer than five years. Prior to the end of the term in 
an agreement, the parties would have the option to request an extension 
or modification to the terms of the agreement, as set forth in section 
583.345.
Section 583.340 What debarment or suspension obligations apply to 
transactions and contracts related to a project?
    This section explains that the applicant has the obligation to 
ensure that all contracts and transactions related to an agreement 
issued under this part comply with the suspension and debarment 
regulations at 2 CFR part 180 and 2 CFR part 1400.
Section 583.345 What is the process for extending or modifying an 
agreement?
    This section explains how an applicant may seek to extend or modify 
an agreement and spells out the timeframes when this might be 
accomplished. It provides that BOEM is under no obligation to extend or 
modify an agreement and cannot be held liable for the consequences of 
the expiration of an agreement. If BOEM approves a modification, BOEM 
will prepare an amendment to the agreement and provide it for review by 
the parties to the agreement prior to execution of the amendment. If 
BOEM disapproves the request, BOEM will notify the parties to the 
agreement of the reasons in writing. Parties to the agreement may ask 
the BOEM Director for reconsideration in accordance with section 
583.125.
Section 583.350 When can an agreement be terminated?
    This section explains the circumstances under which the Director 
will terminate an agreement after notice and an opportunity to be 
heard. The termination factors include fraud or misrepresentation. This 
section also explains the circumstances under which the Director may 
immediately suspend and subsequently terminate an agreement, including 
when there is noncompliance with the agreement; national security or 
defense reasons; or when the Director determines that: (1) There are 
situations in which continuing with the agreement would cause serious 
harm or damage to natural resources, life, property, the marine, 
coastal, or human environment, or significant historical or 
archaeological sites, structures or objects; (2) the threat of harm or 
damage will not disappear or decrease to an acceptable extent within a 
reasonable period of time; and (3) the advantages of termination 
outweigh the advantages of continuing the agreement. This section also 
explains the process for terminations and suspensions and explains that 
none of the parties to the agreement will be entitled to compensation 
as a result of expenses or lost revenues that may result from the 
termination.

III. Summary of Comments Received on the Proposed Rule and BOEM 
Responses

General Comments on 30 CFR Part 583

    Comment: Two commenters commended BOEM for its existing program to 
utilize OCS sand, gravel, and/or shell resources to repair damaged 
coastal areas and improve shore protection, beach restoration and 
coastal wetlands protection. They commented that BOEM's activities are 
beneficial, lawful, and properly within the jurisdiction of the United 
States Department of the Interior.
    Response: BOEM and its predecessor agencies have been exercising 
statutory authority to successfully operate this popular program for 
many years. BOEM has negotiated over 50 agreements, providing for the 
use of more than 100 million cubic yards of OCS sand, gravel, and/or 
shell resources for shore protection, beach restoration, or coastal 
wetlands restoration. This final rule codifies the procedures BOEM has 
used to implement this program for many years and ensures consistency 
as the program continues to process requests for use of OCS sand, 
gravel, and/or shell resources and manage these resources into the 
future.
    Comment: Another commenter suggested that BOEM needs to more 
clearly identify the basis that staff will use to weigh the stated 
criteria for approval of a negotiated noncompetitive agreement in the 
face of competing interests. The commenter also suggested that a 
timeline for approval of an agreement be stated in the rule.
    Response: Currently, BOEM evaluates applications for the use of OCS 
sand, gravel, and/or shell resources on a case-by-case basis as they 
are submitted, taking into account relevant factors and criteria 
described in the rule and below. The criteria BOEM uses in evaluating 
an application are provided in Section 583.305. BOEM does not assign a 
weight to each criterion but considers each criterion in the context of 
the entire proposed project, as well as pending requests for other 
projects in the same or nearby borrow areas.
    The timelines for processing applications and requests vary based 
upon a number of factors, including, but not limited to, completion of 
necessary environmental analyses (e.g., through the NEPA process) and 
consultation processes (e.g., Tribal consultations or ESA 
consultations). The environmental review process can range from six 
months to a year or more. The duration of the environmental review is 
variable and can be influenced by many factors that can drive different 
timeframes, including the scope and issues of a project, type of 
environmental review needed (e.g., Environmental Assessment (EA) or 
Environmental Impact Statement (EIS) under NEPA), applicability of 
reviews or consultations previously completed, additional information 
or studies that may be necessary, emergent stakeholder concerns, and 
whether or not another Federal partner is leading, or

[[Page 45966]]

cooperating on, the environmental review and consultations. Once the 
environmental reviews and consultations are completed, it may take up 
to an additional six months to complete the process for issuing a final 
agreement, as project-specific stipulations in the agreement are 
negotiated between the applicant(s) and BOEM.
    Because every project must be evaluated using a number of factors 
and project-specific information, BOEM determined that it is not 
possible to modify the rule as requested by the commenters. Providing 
specific weighting of criteria or providing an inflexible review 
deadline would be unnecessarily restrictive given the complexities of 
evaluating individual, site specific projects while complying with 
multiple statutes governing environmental review and consultation.
    Comment: One commenter thought there should be public notice of 
every application and agreement to increase the transparency of the 
process. Another expressed that BOEM should consider a process to 
provide notice and solicit additional expressions of interest or 
proposals from the public when it receives an application for a 
particular area. Finally, one commenter stated that the procedures set 
out in the rule do not contain sufficient opportunities or avenues for 
public engagement.
    Response: BOEM is endeavoring to increase transparency of the 
negotiated noncompetitive agreement process through efforts such as 
posting formal request letters on its Web page and coordinating with 
the states in advance of anticipated requests for OCS sand, gravel, 
and/or shell resources. BOEM will be unable, however, to formally 
solicit additional expressions of interest each time it receives an 
application because the applicable statutory provision governing 
agreements issued pursuant to these regulations specifically provides 
for a noncompetitive process where agreements are negotiated on a 
qualifying program or project basis. See 43 U.S.C. 1337(k)(2). Public 
notice of projects will be provided through the BOEM Web site and, as 
appropriate, during the public participation process of NEPA; the 
permitting process for authorized U.S. Army Corps of Engineers (USACE) 
civil works projects, through the USACE Section 404 permitting process, 
where applicable; and through BOEM engagement during stakeholder 
outreach and government-to-government consultations. In addition, to 
facilitate stakeholder awareness and engagement, BOEM holds annual 
regional Sand Management Working Group meetings in close consultation 
with the states to understand future projected OCS sand, gravel, and/or 
shell resource needs. BOEM seeks to make its process a collaborative 
effort that involves all interested stakeholders, where appropriate.
    Comment: One commenter suggested that since sand resources are 
often identified by and valuable to local governments, they should be 
granted exclusive use for those OCS sand, gravel, and/or shell 
resources if they expend the resources to develop them as potential 
borrow areas. The commenter referenced local government funding of 
borrow area studies and questioned whether funding would be reimbursed 
if the area studied is authorized for use by another party. The 
commenter suggested that BOEM should decide which particular use of 
resources is in the national interest.
    Response: An executed agreement grants the right to a party to 
extract and use OCS sand, gravel, and/or shell resources from a 
designated borrow area as further described below. The provision of 
OCSLA, which this final rule implements, does not provide for 
agreements that grant the exclusive use of OCS sand, gravel, and/or 
shell resources, but rather provides for the negotiation of agreements 
on a noncompetitive basis as qualifying projects and programs are 
proposed. See 43 U.S.C. 1337(k)(2). BOEM does not reimburse parties for 
independent studies conducted on the OCS. However, BOEM does often work 
with individual states through funded cooperative agreements to 
identify potential sand resources on the OCS. BOEM operates the program 
in the national interest and in keeping with the policies under OCSLA 
for providing access to OCS sand, gravel, and/or shell resources.
    Comment: A commenter expressed concern that a proximal OCS borrow 
area specifically identified for a local project as containing 
appropriate material could be removed by another entity, thereby 
increasing the cost to the original local sponsor as they have to haul 
material from a greater distance. A commenter also suggested that BOEM 
needs a way to prioritize projects.
    Response: BOEM encourages ongoing dialogue among stakeholders so 
that it can manage the interests of multiple parties in these critical 
resources going forward. BOEM facilitates such discussions through its 
annual regional Sand Management Working Group meetings. In addition, 
BOEM will undertake additional future coordination with interested 
stakeholders to identify and manage overlapping interest by state and 
local governments in using OCS borrow areas. As BOEM evaluates an 
individual project through the environmental analyses, it will consider 
potential cumulative impacts to borrow areas from other past, present 
and proposed uses.
    Comment: A commenter suggested that the non-exclusive use of 
resources provision is not workable because the rule does not specify 
that concurrent negotiated noncompetitive agreements will be non-
conflicting, and could provide an advantage to the first applicant 
granted access to use a resource.
    Response: Nothing in OCSLA authorizes BOEM to grant an ownership 
interest in OCS borrow areas or the sand, gravel, and/or shell 
resources on the OCS, or the exclusive use of an OCS sand, gravel, or 
shell resource in a negotiated noncompetitive agreement (43 U.S.C. 
1337(k)(2)). In BOEM negotiated agreements, BOEM expressly reserves the 
right to authorize other uses in the designated borrow area that will 
not unreasonably interfere with activities authorized under the 
agreement. BOEM allows parties to an agreement to review and comment on 
any proposed authorizations for use of OCS sand resources in the 
designated borrow area while their agreement is in effect. To the 
extent there are multiple projects in the same borrow area, the 
negotiated noncompetitive agreements may encourage coordination between 
the parties to reduce the potential for space/use conflicts.
    This final rule modified language in the proposed rule at section 
583.130 to state ``BOEM may allow other entities to use OCS sand, 
gravel, and/or shell resources from the same borrow area if these uses 
are determined by BOEM to be non-conflicting and do not exceed the 
availability of the OCS resource.''
    Comment: One commenter stated that the proposed rule does not 
address borrow area sediment use, quantity, and quality.
    Response: Regarding borrow sediment use, section 583.120 (a) states 
that ``BOEM may enter into an agreement with any person proposing to 
use OCS sand, gravel, or shell resources for a program of, or project 
for, shore protection, beach restoration, or coastal wetlands 
restoration.'' Section 583.300(a) requires that the applicant detail 
how the material will be used and how the proposed project qualifies as 
an eligible project. Regarding quantity, section 583.130 calls for any 
issued agreement to identify the volume and type of OCS sand, gravel, 
and/or shell

[[Page 45967]]

resources that may be obtained from the authorized borrow site for the 
qualified project. gravel, and/or shell.
    Aside from identifying the type of resources included in an 
agreement, the regulation does not address quality. BOEM will not make 
representations as to any aspects of quality, other than the type, of 
any particular material utilized for qualified projects. It is the 
applicant's responsibility to assess the quality of the type of OCS 
sand, gravel, and/or shell resources in a borrow area as it relates to 
the suitability of these resources for the applicant's proposed use.
    Comment: A commenter suggested that BOEM prepare a programmatic 
environmental impact statement for this rule, as well as engage in 
consultation under the Endangered Species Act. The commenter felt that 
a project-by-project approach to NEPA and ESA consultations would fail 
to account for cumulative impacts from multiple projects.
    Response: These final regulations are administrative and procedural 
in nature and therefore meet the criteria set forth in 43 CFR 46.210(i) 
for a Departmental ``categorical exclusion'' in that this rule is ``. . 
. of an administrative, financial, legal, technical, or procedural 
nature. . . .'' BOEM has also determined that the rule does not involve 
any of the extraordinary circumstances listed in 43 CFR 46.215. 
Similarly, the rule does not itself result in any impacts to listed 
species under the ESA.
    BOEM has determined, in its discretion under NEPA, it will either 
individually or programmatically evaluate the environmental impacts of 
projects as they are proposed, when there is sufficient information on 
the proposal to be evaluated, including but not limited to the timing, 
location, and resources that may be implicated. Without these types of 
project specific details, impacts could not be reasonably evaluated at 
a national programmatic level. NEPA requires, even in project specific 
analyses, that cumulative impacts from past, present, and reasonably 
foreseeable activities be considered. There is a similar requirement 
during ESA consultations to ensure cumulative impacts on listed species 
are considered.

Comments Related to Specific Sections of the Rule

583.120 Who is qualified for a project?
    Comment: One commenter suggested that the rule seems to apply only 
to Federal projects and makes the application process to obtain an 
agreement easier when another Federal agency is one of the applicants. 
Another commenter noted that the proposed rule seems to apply only to 
projects funded in whole or in part by the Federal Government, and it 
questions how these regulations will affect local and state projects 
proposed without a Federal partner. A commenter asked how BOEM's 
negotiated noncompetitive agreement process addresses when non-Federal 
projects identify borrow areas that a Federal project also identifies.
    Response: OCSLA, at 43 U.S.C. 1337(k), provides that BOEM may enter 
into agreements for use of OCS sand, gravel, and/or shell resources in: 
(i) A program of, or project for, shore protection, beach restoration, 
or coastal wetlands restoration undertaken by a Federal, state, or 
local government agency; or (ii) for use in a construction project, 
other than a project described in clause (i), that is funded in whole 
or in part by or authorized by the Federal Government (emphasis added). 
These new regulations at 30 CFR part 583 codify the process for BOEM to 
enter into negotiated noncompetitive agreements for any of these types 
of projects. Therefore, a state or local government agency may qualify 
for a negotiated noncompetitive agreement to use these OCS resources 
for a project they undertake for shore protection, beach restoration, 
or coastal wetlands restoration, whether or not they have a Federal 
partner for the project. Whether a project is undertaken by or funded 
by a Federal partner or by a non-Federal applicant, the requests are 
reviewed and processed similarly by BOEM, including, but not limited 
to, analyzing multiple interests in the same borrow areas at the time a 
negotiated noncompetitive agreement is processed.
    Comment: A commenter stated that it appears the process for 
approval of a negotiated noncompetitive agreement will take more time 
and be more expensive than preparing a Memorandum of Agreement (MOA) 
for a Federal project.
    Response: The timing and expense to obtain an MOA for federally 
funded, authorized, or constructed projects is the same as for a lease 
for a non-federal project. Similar required information must be 
submitted in an application for any negotiated noncompetitive 
agreement, whether it takes the form of a lease (for projects that do 
not have a Federal partner) or an MOA (for projects including a Federal 
agency). Both will undergo the same environmental scrutiny. The 
decision to call an agreement a MOA versus a lease is strictly a matter 
of whether another Federal agency is involved, as mandated by OCSLA at 
43 U.S.C. 1337(k)(D) (``Any Federal agency which proposes to make use 
of sand, gravel, and/or shell resources subject to the provisions of 
this subchapter shall enter into a Memorandum of Agreement with the 
Secretary concerning the potential use of those resources.''). The 
application review process and all other requirements are the same.
    Comment: A commenter asked whether a project might be approved to 
extract material and create a stockpile onshore, for use as needed over 
time. The commenter also inquired whether an entity would be allowed to 
sell any excess material deemed unnecessary for the original purpose to 
defray costs.
    Response: Regarding borrow sediment use, section 583.120(a) states 
that ``BOEM may enter into an agreement with any person proposing to 
use OCS sand, gravel, or shell resources for a program of, or project 
for, shore protection, beach restoration, or coastal wetlands 
restoration . . . '' (emphasis added). Other uses are not authorized 
under this section of OCSLA. BOEM, with the support of its sister 
agency the Bureau of Safety and Environmental Enforcement (BSEE), will 
enforce the provisions of the lease and will take appropriate 
enforcement actions, if necessary. The new regulation section 
583.300(a) specifically requires that the applicant detail how the 
material will be used and how it qualifies as an eligible project. 
Staging of the OCS sand, gravel, and/or shell resources onshore for 
ultimate use in a qualified project or program may be approved so long 
as the resources are ultimately used for the qualified project 
identified in the agreement, during the agreement term. However, the 
sale of excess material not needed for the project would not be a 
qualified use of the OCS sand, gravel, and/or shell resources and would 
therefore not be an authorized use.
583.125 What are my rights to seek reconsideration of an unfavorable 
decision by BOEM?
    Comment: One commenter suggested that besides the right to request 
reconsideration of the Director provided by section 583.125, appellants 
should be allowed to appeal pursuant to 30 CFR part 590, like appeals 
from other DOI land management decisions. Another commenter thought the 
appeals process was too limited and provided too much authority to the 
BOEM Director to decide whether a project qualifies. One commenter 
requested clarification that this regulation would not affect actions 
brought under the Administrative Procedure Act.
    Response: The reconsideration process for unsuccessful applicants 
in

[[Page 45968]]

this rule is consistent with the process BOEM has provided to 
unsuccessful bidders in other leasing programs administered by the 
Bureau. See e.g., 30 CFR 556.517 and 585.118. Due to the similarities 
between this program and other mineral leasing programs administered by 
BOEM, the Bureau determined that using a similar process to allow 
applicants to request reconsideration of disapprovals of applications 
for leases or MOAs related to OCS sand, gravel, and/or shell resources 
would give applicants an appropriate review opportunity. Therefore, the 
final rule includes BOEM's standard process of allowing unsuccessful 
applicants, whose request was disapproved or disqualified by the 
Regional Director or equivalent, to seek reconsideration by the 
Director. This final rule provides for a reconsideration process for 
decisions on negotiated noncompetitive agreements under 43 U.S.C. 
1337(k). Agreements typically include a dispute resolution process as 
part of the terms negotiated with the applicants; therefore, a separate 
appeals process is not necessary once the agreement is executed.
583.130 What are the minimum contents of an agreement to use OCS sand, 
gravel, and/or shell resources?
    Comment: A commenter requested that BOEM specify that the minimum 
contents of an agreement should include terms and conditions, including 
recommended, as well as required environmental mitigation requirements. 
A commenter questioned whether more than one entity might use the same 
resource.
    Response: Text has been added to this final rule in section 
583.130, to provide that the negotiated noncompetitive agreement will 
include ``terms and conditions and environmental stipulations.'' As 
noted above, text was also added to respond to a comment on non-
exclusive use of the resources in a borrow area to state, ``BOEM may 
allow other entities to use OCS sand, gravel, and/or shell resources 
from the same borrow area if these uses are determined by BOEM to be 
non-conflicting and do not exceed the availability of the OCS 
resource.''
583.300 How do I submit a request for an agreement?
    Comment: One commenter suggested that duplicative information is 
currently submitted in association with an application under this rule 
and a Clean Water Act application. It suggested instead that submission 
of the Clean Water Act application be allowed to fulfill the 
information request for any overlapping items.
    Response: BOEM needs the information identified in the regulations 
to inform its own decision on whether to issue a negotiated 
noncompetitive agreement for OCS sand, gravel, and/or shell resources. 
There may be information requested by section 583.300 that is also 
collected under the Clean Water Act permit application. In cases where 
duplicative information is required by more than one agency, BOEM will 
allow applicants to submit that portion of the Clean Water Act permit 
application to BOEM as part of the negotiated noncompetitive agreement 
application to reduce reporting burdens.
    Comment: Another commenter urged BOEM to modify its rule to include 
a requirement to identify the location of existing and planned 
submarine cables, called proximate critical infrastructure, and then 
for applicants to coordinate and consult about OCS sand, gravel, and/or 
shell resource extraction operations with the infrastructure owners as 
a condition to qualifying for a negotiated agreement with BOEM. The 
commenter encourages the establishment of default or minimum separation 
distances to protect submarine cables.
    Response: Although submarine cables are not identified specifically 
in the rule, the careful evaluation of other uses of potential OCS 
borrow areas are considered throughout the review process. Minimum 
separation distances from known infrastructure are already incorporated 
into the language of negotiated noncompetitive agreements. In addition, 
survey requirements help ensure that activities avoid hazards or 
anthropogenic resources, including, but not limited to, potential 
shipwrecks and infrastructure. BOEM has added a reference to 
infrastructure to the final rule at section 583.300(a)(4), a term which 
would include submarine cables and other similar such hazards. BOEM, 
however, encourages submarine cable owners and operators to coordinate 
with and inform BOEM on the placement and location of such 
infrastructure to further reduce the potential for space/use conflicts. 
BOEM appreciates recent overtures from this industry about this concern 
and we look forward to ongoing coordination on these issues.
    Comment: A commenter asked that BOEM specify that all requests for 
an agreement should include ecological information, including surveys 
of wildlife and habitat characterizations. A commenter requested that 
BOEM clarify that separate Marine Mammal Protection Act and Endangered 
Species Act permit authorizations may be required for geophysical data 
acquisition activities, such as sub-bottom profiling and seismic 
surveys.
    Response: BOEM believes these issues are already addressed 
adequately under section 583.300(a)(5) and (a)(8). The minimum list of 
items that should accompany a request is provided in section 
583.300(a). This list is not meant to be exhaustive of all steps/
authorizations that may be required in order to provide the necessary 
information, such as permits for survey work that may be required to 
support the request. For example, the need for Marine Mammal Protection 
Act and Endangered Species Act authorizations is project and species 
specific and cannot be determined in advance of a request.
583.310 What process does BOEM use to technically and environmentally 
evaluate a qualified project?
    Comment: One commenter suggested that an Environmental Impact 
Statement should be prepared about the effects of resource removal and 
placement.
    Response: Once BOEM determines that a project qualifies for a 
negotiated noncompetitive agreement, a project-specific environmental 
evaluation process begins, consistent with the Bureau's obligations 
under NEPA and other applicable law. BOEM will evaluate the project and 
all relevant information provided to determine if the information is 
sufficient to conduct necessary technical and environmental reviews to 
assure the project complies with the requirements of relevant statutes 
or regulations. As required by law, BOEM complies with NEPA in 
undertaking agency action. BOEM will determine the level of 
environmental review (e.g., environmental assessment or environmental 
impact statement) appropriate to the NEPA process once it has enough 
site-specific and project information. During that NEPA process and any 
related ESA consultation, BOEM identifies and evaluates cumulative 
impacts.
583.320 What kinds of information must be included in an agreement?
    Comment: A commenter suggested that BOEM should add language to its 
rule so that it may require environmental mitigation measures and a 
reservation for BOEM to modify the agreement and/or terms and 
conditions to further mitigate detrimental environmental effects.
    Response: BOEM considers potential mitigation measures throughout 
the environmental review process for the application and during 
drafting of

[[Page 45969]]

negotiated noncompetitive agreements. BOEM develops environmental 
protection or mitigation measures for an individual project when 
reviewing the application and while drafting the agreement or as a 
result of ESA consultation. BOEM includes these measures, as 
appropriate, as terms and conditions in the agreement. BOEM has 
modified the final rule language to explicitly reference environmental 
mitigations in section 583.320(e).
583.335 What is the term of the agreement?
    Comment: One commenter objected to a term of only five years, 
especially since non-federal projects, and those with multiple phases, 
may have a planning horizon of more than thirty years. The commenter 
suggested that any negotiated noncompetitive agreement should have a 
term that coincides with the permitting timelines of the relevant 
state. Another commenter noted that by limiting the term to only five 
years, non-federal sponsors may lose the borrow area for subsequent 
project phases. In addition, the commenter concluded that only 
federally authorized projects were eligible for a negotiated 
noncompetitive agreement extension based on the example of 
``extraordinary circumstances'' contained in the ``Section-by-Section 
Analysis of the Proposed Rule'' (81 FR 15190, 15193, March 22, 2016) 
that states that extensions may be obtained ``where the Congressional 
authorization for a project called for multiple phases.''
    Response: BOEM has determined that having a maximum term for 
negotiated noncompetitive agreements (see section 583.335(b)), absent 
an extraordinary circumstance, encourages timely and efficient use of 
the OCS sand, gravel, and/or shell resources, informs the environmental 
analyses necessary for BOEM to make a decision on the agreement, and 
enables BOEM to manage competing uses and requests for use of OCS sand, 
gravel, and/or shell resources from OCS borrow areas.
    BOEM examined a number of options for maximum terms for agreements, 
absent extraordinary circumstances. A longer maximum agreement term 
could serve as an incentive for agencies or authorities to seek 
authorizations for highly speculative projects far into the future that 
may be unlikely to be funded or that would change significantly in 
scope and require additional environmental analysis in the future. 
Therefore, BOEM selected five years as the maximum term for negotiated 
noncompetitive agreements, which considers the lead times needed for a 
project applicant to obtain an agreement and enter into related 
construction contracts. There must be some reasonable time limit within 
which BOEM expects the resources to be used and the project completed 
to fulfill the Bureau's statutory obligations and manage the resources 
responsibly for multiple stakeholders.
    Congressional authorization is not the only available condition for 
demonstrating an extraordinary circumstance justifying a term longer 
than five years under section 585.335, or for obtaining a negotiated 
noncompetitive agreement extension under section 585.345. When 
referring to section 583.307, the preamble to the proposed rule reads: 
``Examples of extraordinary circumstances where an initial term longer 
than five years may be appropriate would include a program of multiple 
individual projects to be carried out over multiple seasons or where 
the Congressional authorization for a project called for multiple 
phases.'' (81 FR 15190, 15193, March 22, 2016) (emphasis added). These 
are examples of instances where an initial negotiated noncompetitive 
agreement term of greater than five years may be considered, and are 
not meant to be an exhaustive list. Extensions to agreements are 
addressed in section 583.345 concerning processes for modification and 
may be granted, in BOEM's discretion, after it re-evaluates the project 
and conducts any additional reviews that may be appropriate.
583.345 What is the process for extending or modifying an agreement?
    Comment: A commenter expressed concern that BOEM would not be able 
to modify an agreement.
    Response: Per section 583.345, an agreement may be extended or 
modified; the rule provides a process for requesting such an amendment.

IV. Legal and Regulatory Analysis

Regulatory Planning and Review (Executive Order (E.O.) 12866)

    E.O. 12866 provides that the Office of Information and Regulatory 
Affairs (OIRA), a part of the OMB, will review all significant rules. 
OIRA has determined that this rule is not significant.
    (1) A regulatory impact analysis is not required. This rule 
formalizes existing policies and procedures that govern the use of OCS 
sand, gravel, and/or shell resources. The existing policies, 
procedures, consultations and monitoring requirements for the 
noncompetitive use of OCS sand, gravel, and/or shell resources are 
longstanding and have remained relatively consistent for two decades. 
This rule does not materially change the existing requirements for 
authorizing the use of OCS sand, gravel, and/or shell resources through 
leases or MOAs for shore protection, beach or wetlands restoration by a 
Federal, state or local government agency, or for construction projects 
authorized or funded, in whole or in part, by the Federal Government. 
The regulatory baseline is essentially the same as the rule. BOEM 
believes that any changes between the current BOEM process and this 
rule are immaterial and would not impose additional compliance 
obligations or costs upon the regulated entities.
    Formalizing the existing conveyance process will provide certainty 
to the public entities requesting noncompetitive leases or MOAs for OCS 
sand, gravel, and/or shell resources. BOEM believes there is a benefit 
to the regulated entities in the form of regulatory certainty when 
Federal, state and local government agencies desire to use OCS sand, 
gravel, and/or shell resources for qualifying projects. Entities 
affected by this rulemaking had the opportunity to comment through the 
rulemaking process on the proposed provisions, which are consistent 
with current practices for the conveyance of sand, gravel, and/or shell 
resources.
    (2) This rule does not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. It 
reflects the existing process developed over the life of the program in 
cooperation with other Federal agencies, including the U.S. Fish and 
Wildlife Service (FWS), National Marine Fisheries Service (NMFS) and 
U.S. Army Corps of Engineers, and state and local governments.
    (3) This rule does not have an annual effect on the economy of $100 
million or more and does not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local or tribal governments or communities. 
This rule simply codifies BOEM's longstanding existing practice.
    (4) This rule does not alter the budgetary effects of existing 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients.
    (5) This rule does not raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in E.O. 12866.

[[Page 45970]]

Improving Regulation and Regulatory Review (E.O. 13563)

    E.O. 13563 reaffirms the principles of E.O. 12866, while calling 
for improvements in the nation's regulatory system to promote 
predictability; reduce uncertainty; and use the best, most innovative, 
and least burdensome tools for achieving regulatory ends. The executive 
order directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility and freedom of choice for the public 
where these approaches are relevant, feasible, and consistent with 
regulatory objectives. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. BOEM has developed this rule in a manner consistent with these 
requirements.

Reducing Regulation and Controlling Regulatory Costs (E.O. 13771)

    This rule is not an E.O. 13771 regulatory action because it is not 
significant under E.O. 12866.

Regulatory Flexibility Act (RFA)

    BOEM certifies this rule would not have a significant economic 
effect on a substantial number of small entities under the RFA (5 
U.S.C. 601 et seq.). A Regulatory Flexibility Analysis is not required. 
Small public entities affected by this rulemaking may be cities, 
counties, towns, townships, villages or special districts, with a 
population of less than 50,000. Small entities are occasionally parties 
to an agreement for the use of OCS sand, gravel, and/or shell 
resources. Over the last two decades, BOEM has issued nearly 50 leases 
or MOAs with 22 parties, of which five were small public entities. Four 
out of the five small public entities received significant Federal 
cost-shares to conduct beach replenishment projects. The application 
and monitoring requirements are necessary to comply with Federal law 
and provide BOEM and the public with the best information on the 
topographic changes in the OCS borrow areas due to dredging. Since BOEM 
is not proposing any material changes to the longstanding requirements 
for the use of OCS sand, gravel, and/or shell resources, this 
rulemaking does not have a substantial effect on small entities.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    The Small Business and Agriculture Regulatory Enforcement Ombudsman 
and 10 Regional Fairness Boards were established to receive comments 
from small businesses about Federal agency enforcement actions. The 
Ombudsman will annually evaluate the enforcement activities and rate 
each agency's responsiveness to small business. If you wish to comment 
on the actions of BOEM enforcement activities, you may call 1-888-734-
3247. You may comment to the Small Business Administration without fear 
of retaliation. Allegations of discrimination/retaliation filed with 
the Small Business Administration will be investigated for appropriate 
action.
    This rule is not a major rule under the SBREFA (5 U.S.C. 804 (2)). 
This rule:
    (a) Will not have an annual effect on the economy of $100 million 
or more;
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions; and,
    (c) Will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

Unfunded Mandates Reform Act

    This rule would not impose an unfunded mandate on State, local, or 
tribal governments, or the private sector of more than $100 million per 
year. A statement containing the information required by the Unfunded 
Mandates Reform Act (2 U.S.C. 1501 et seq.) is not required.

Takings Implication Assessment (E.O. 12630)

    Under the criteria in E.O. 12630, this rule will not have 
significant takings implications. The rule is not a governmental action 
capable of interference with constitutionally protected property 
rights. A Takings Implication Assessment is not required.

Federalism (E.O. 13132)

    Under the criteria in E.O. 13132, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. This rule does not substantially and directly 
affect the relationship between the Federal and state and local 
governments. To the extent that State and local governments have a role 
in OCS activities, this rule would not affect that role. A Federalism 
Assessment is not required.

Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of E.O. 12988. 
Specifically, this rule:
    (a) 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,
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (E.O. 13175)

    The U.S. Department of the Interior (DOI) strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self-governance and tribal sovereignty. BOEM's Tribal Liaison 
Officer has certified that this regulation does not have tribal 
implications as defined in section 1(a) of E.O. 13175 and has 
determined that the regulation does not have substantial and direct 
effects on federally recognized tribes or any Alaska Native Corporation 
established pursuant to the Alaska Native Claims Settlement Act (ANCSA) 
(43 U.S.C. 1601 et seq.)
    As it relates to any federally recognized Indian tribe, this rule 
merely formalizes existing policies and procedures that govern the use 
of OCS sand, gravel, and/or shell resources. The existing policies, 
procedures, consultations and monitoring requirements for the 
noncompetitive use of OCS sand, gravel, and/or shell resources are 
longstanding and have remained relatively consistent for two decades. 
If BOEM determines an individual project authorized under this part may 
have effects on federally recognized tribes or any Alaska Native 
Corporation, BOEM will initiate consultation as soon as possible 
consistent with E.O. 13175 and DOI tribal consultation policies. A 
tribe or Alaska Native Corporation may also request BOEM to initiate 
consultation pursuant to E.O. 13175.

Paperwork Reduction Act (PRA) of 1995

    This rule contains a collection of information request that was 
submitted to OMB for review and approval under 44 U.S.C. 3501 et seq. 
The Paperwork Reduction Act (44 U.S.C. 3501-3521) provides that an 
agency may not conduct or sponsor, and a person is not required to 
respond to, a ``collection of information,'' unless it has a currently 
valid OMB control number. Collections of information include requests 
and requirements that an individual, partnership, or corporation obtain 
information, and report it to a Federal Agency (44 U.S.C. 3502; 5 CFR 
1320.2(c) and (k)).
    BOEM included a request for approval of a collection of information 
in the

[[Page 45971]]

proposed rule. OMB approved the collection for the final rule under 
control number 1010-0191 for a total of 243 burden hours. The final 
rule adds a new part 583 to address the use of OCS sand, gravel, and/or 
shell resources for shore protection or replenishment, wetland 
restoration, or qualified construction projects. This part describes 
the negotiated noncompetitive agreement process for qualifying projects 
and codifies procedures.
    The title of the IC request is ``30 CFR 583, Negotiated 
Noncompetitive Agreements for the Use of Sand, Gravel, and Shell 
Resources on the OCS.'' Respondents are other Federal, state, and local 
government agencies; corporations; and individual entities. Responses 
will primarily be required to obtain or retain a benefit. The frequency 
of response will vary depending on the requirement. BOEM will protect 
proprietary information according to 30 CFR 550.197, ``Data and 
information to be made available to the public or for limited 
inspection,'' the Freedom of Information Act (5 U.S.C. 552) and its 
implementing regulations at 43 CFR part 2. BOEM will collect the 
information under this part to evaluate applications for leases/
agreements to access sand, gravel, or shell resources on the OCS; to 
balance multiple uses of the OCS; and to monitor activities for 
environmental protection and safety.
    In response to the proposed rule, BOEM received two comments that 
addressed aspects of the information collection for this rulemaking and 
are summarized below. One commenter suggested that the required 
information submitted with their permit application is duplicative of 
the information submitted in a Clean Water Act application. In cases 
where the information is duplicative in nature, BOEM will allow 
submission of the information in the Clean Water Act permit application 
to BOEM to comply with the filing requirements of this rule. However, 
BOEM did not change the burden hours for this requirement, because we 
do not have sufficient data to estimate how many parties seeking 
agreements will be able to use this means of reducing the burdens of 
the application process. This comment is addressed in more detail in 
the preamble of this final rule.
    Another commenter focused on consultation with the fishing industry 
regarding renewable energy projects, which is outside the scope of this 
rulemaking. This commenter stated that the information request does not 
include any provision requiring consultation with the fishing industry 
or reporting requirements that would ensure a project is compatible 
with consideration of fishing rights. However, such outreach and 
coordination does occur through the NEPA, MSFCMA and other consultation 
processes.
    The information collection burdens were not changed from the 
proposed rule. The following table provides a breakdown of the IC 
requirements and burdens in this part.

                                                  Burden Table
----------------------------------------------------------------------------------------------------------------
                                                                                      Average
                                     Reporting and recordkeeping                     number of     Annual burden
        Citation 30 CFR 583                  requirement            Hour burden       annual           hours
                                                                                     responses
----------------------------------------------------------------------------------------------------------------
                             Subpart A--General--Federal, State, & local governments
----------------------------------------------------------------------------------------------------------------
125................................  Apply for reconsideration                 2               1               2
                                      to the BOEM Director
                                      within 15 days of
                                      notification; include
                                      statement of reasons; 1
                                      copy to program office.
----------------------------------------------------------------------------------------------------------------
                                        Subpart A--General--Corporations
----------------------------------------------------------------------------------------------------------------
125................................  Apply for reconsideration                 2               1               2
                                      to the BOEM Director
                                      within 15 days of
                                      notification; include
                                      statement of reasons; 1
                                      copy to program office.
----------------------------------------------------------------------------------------------------------------
                                         Subpart A--General--Individuals
----------------------------------------------------------------------------------------------------------------
125................................  Apply for reconsideration                 2               1               2
                                      to the BOEM Director
                                      within 15 days of
                                      notification; include
                                      statement of reasons; 1
                                      copy to program office.
----------------------------------------------------------------------------------------------------------------
    Total Subpart A.............................................  ..............               3               6
----------------------------------------------------------------------------------------------------------------
         Subpart C--OCS Sand, Gravel, & Shell Resources Negotiated Agreements--State & local governments
----------------------------------------------------------------------------------------------------------------
300................................  Submit to BOEM a written                 10               4              40
                                      request to obtain
                                      agreement; including, but
                                      not limited to: Detailed
                                      description of project;
                                      maps (geographic
                                      coordinates); G&G data;
                                      description/documentation
                                      of environmental
                                      evaluations; target dates;
                                      description of parties
                                      involved; required permits
                                      (status of/potential
                                      conflicts); points of
                                      contact info. for all
                                      parties involved;
                                      statement of funding.
----------------------------------------------------------------------------------------------------------------
305; 310(d)........................  Submit additional                         5               1               5
                                      information as requested
                                      by BOEM.
----------------------------------------------------------------------------------------------------------------
315(b).............................  Request that the BOEM          Burden covered under 30 CFR                2
                                      Director reconsider a             part 583, subpart A
                                      disapproved agreement.
----------------------------------------------------------------------------------------------------------------
315(c)-(e).........................  Review and comment on draft               8               3              24
                                      agreement; sign and return
                                      copies for execution by
                                      BOEM.
----------------------------------------------------------------------------------------------------------------

[[Page 45972]]

 
335(a).............................  Submit written notification               1               1               1
                                      to BOEM once resources
                                      authorized are obtained.
----------------------------------------------------------------------------------------------------------------
340................................  Assure all contractors                    2               1               2
                                      comply with 2 CFR part 180
                                      & 2 CFR part 1400 in
                                      contract/transaction.
----------------------------------------------------------------------------------------------------------------
345................................  Submit written request to                 2               2               4
                                      extend or modify agreement
                                      to BOEM within 180 days
                                      before expiration; submit
                                      any other documentation
                                      requested by BOEM; sign
                                      and return amendment;
                                      request that the BOEM
                                      Director reconsider a
                                      disapproved request to
                                      extend or modify.
----------------------------------------------------------------------------------------------------------------
345(b).............................  Submit written request for                1               1               1
                                      letter amendment.
----------------------------------------------------------------------------------------------------------------
               Subpart C--OCS Sand, Gravel, & Shell Resources Negotiated Agreements--Corporations
----------------------------------------------------------------------------------------------------------------
300................................  Submit to BOEM a written                 10               4              40
                                      request to obtain
                                      agreement; including, but
                                      not limited to: Detailed
                                      description of project;
                                      maps (geographic
                                      coordinates); G&G data;
                                      description/documentation
                                      of environmental
                                      evaluations; target dates;
                                      description of parties
                                      involved; required permits
                                      (status of/potential
                                      conflicts); points of
                                      contact info. for all
                                      parties involved;
                                      statement of funding.
----------------------------------------------------------------------------------------------------------------
305; 310(d)........................  Submit additional                         5               1               5
                                      information as requested
                                      by BOEM.
----------------------------------------------------------------------------------------------------------------
315(b).............................  Request that the BOEM          Burden covered under 30 CFR                2
                                      Director reconsider a             part 583, subpart A
                                      disapproved agreement.
----------------------------------------------------------------------------------------------------------------
315(c)-(e).........................  Review and comment on draft               8               3              24
                                      agreement; sign and return
                                      copies for execution by
                                      BOEM.
----------------------------------------------------------------------------------------------------------------
335(a).............................  Submit written notification               1               1               1
                                      to BOEM once resources
                                      authorized are obtained.
----------------------------------------------------------------------------------------------------------------
340................................  Assure all contractors                    2               1               2
                                      comply with 2 CFR part 180
                                      & 2 CFR part 1400 in
                                      contract/transaction.
----------------------------------------------------------------------------------------------------------------
345................................  Submit written request to                 2               2               4
                                      extend or modify agreement
                                      to BOEM within 180 days
                                      before expiration; submit
                                      any other documentation
                                      requested by BOEM; sign
                                      and return amendment;
                                      request that the BOEM
                                      Director reconsider a
                                      disapproved request to
                                      extend or modify.
----------------------------------------------------------------------------------------------------------------
345(b).............................  Submit written request for                1               1               1
                                      letter amendment.
----------------------------------------------------------------------------------------------------------------
                Subpart C--OCS Sand, Gravel, & Shell Resources Negotiated Agreements--Individuals
----------------------------------------------------------------------------------------------------------------
300................................  Submit to BOEM a written                 10               4              40
                                      request to obtain
                                      agreement; including, but
                                      not limited to: Detailed
                                      description of project;
                                      maps (geographic
                                      coordinates); G&G data;
                                      description/documentation
                                      of environmental
                                      evaluations; target dates;
                                      description of parties
                                      involved; required permits
                                      (status of/potential
                                      conflicts); points of
                                      contact info. for all
                                      parties involved;
                                      statement of funding.
----------------------------------------------------------------------------------------------------------------
305; 310(d)........................  Submit additional                         5               1               5
                                      information as requested
                                      by BOEM.
----------------------------------------------------------------------------------------------------------------
315(b).............................  Request that the BOEM          Burden covered under 30 CFR                2
                                      Director reconsider a             part 583, subpart A
                                      disapproved agreement.
----------------------------------------------------------------------------------------------------------------
315(c)-(e).........................  Review and comment on draft               8               3              24
                                      agreement; sign and return
                                      copies for execution by
                                      BOEM.
----------------------------------------------------------------------------------------------------------------
335(a).............................  Submit written notification               1               1               1
                                      to BOEM once resources
                                      authorized are obtained.
----------------------------------------------------------------------------------------------------------------
340................................  Assure all contractors                    2               1               2
                                      comply with 2 CFR part 180
                                      & 2 CFR part 1400 in
                                      contract/transaction.
----------------------------------------------------------------------------------------------------------------

[[Page 45973]]

 
345................................  Submit written request to                 2               2               4
                                      extend or modify agreement
                                      to BOEM within 180 days
                                      before expiration; submit
                                      any other documentation
                                      requested by BOEM; sign
                                      and return amendment;
                                      request that the BOEM
                                      Director reconsider a
                                      disapproved request to
                                      extend, modify, or change.
----------------------------------------------------------------------------------------------------------------
345(b).............................  Submit written request for                1               1               1
                                      letter amendment.
----------------------------------------------------------------------------------------------------------------
    Total Subpart C.............................................  ..............              39             237
----------------------------------------------------------------------------------------------------------------
        Grand Total.............................................  ..............              42             243
----------------------------------------------------------------------------------------------------------------

    An agency may not conduct or sponsor, and you are not required to 
respond to, a collection of information unless it has a currently valid 
OMB control number. The public may comment, at any time, on the 
accuracy of the IC burden estimate in this rule and may submit any 
comments to the Information Collection Clearance Officer, Office of 
Policy, Regulation and Analysis; Bureau of Ocean Energy Management; 
VAM-BOEM DIR; 45600 Woodland Road, Sterling, Virginia 20166.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. BOEM has analyzed this 
rule under the criteria of the NEPA and DOI's NEPA implementing 
regulations at 43 CFR part 46. This rule meets the criteria set forth 
in 43 CFR 46.210(i) for a Departmental ``categorical exclusion'' in 
that this rule is ``. . . of an administrative, financial, legal, 
technical, or procedural nature . . . .'' BOEM has also determined that 
the rule does not involve any of the extraordinary circumstances listed 
in 43 CFR 46.215.

Information Quality Act (IQA)

    In accordance with the IQA, DOI has issued guidance regarding the 
quality of information that it relies upon for regulatory decisions. 
This guidance is available at DOI's Web site at http://www.doi.gov.
    Send your comments to the U.S. Department of the Interior, Bureau 
of Ocean Energy Management, Office of Policy, Regulation and Analysis, 
Attn: IQA Comments, 45600 Woodland Road, VAM-BOEM DIR, Sterling, 
Virginia 20166.

Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211. A Statement of Energy Effects is not required.

Clarity of This Regulation

    We are required by E.O. 12866, E.O. 12988, and the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever helpful.

List of Subjects in 30 CFR Part 583

    Administrative practice and procedure, Beach restoration, Coastal 
wetlands restoration, Continental shelf, Federal lands, Gravel, 
Government contracts, Intergovernmental relations, Marine minerals, 
Marine minerals program, Noncompetitive agreements, Negotiated 
agreements, Outer Continental Shelf, Reporting and recordkeeping, Sand, 
Shell resources, and Shore protection.

    Dated: September 27, 2017.
Katharine S. MacGregor,
Acting Assistant Secretary--Land and Minerals Management.

    For the reasons stated in the preamble, BOEM amends 30 CFR chapter 
V by adding 30 CFR part 583 to subchapter B to read as follows:

PART 583--NEGOTIATED NONCOMPETITIVE AGREEMENTS FOR THE USE OF OUTER 
CONTINENTAL SHELF SAND, GRAVEL, AND/OR SHELL RESOURCES

Subpart A--General
Sec.
583.100 What is BOEM's authority for information collection (IC)?
583.105 What is the purpose of this part and to whom does it apply?
583.110 What is BOEM's authority for this part?
583.115 What definitions do I need to know?
583.120 Who is qualified for a project?
583.125 What are my rights to seek reconsideration of an unfavorable 
decision by BOEM?
583.130 What are the minimum contents of an agreement to use OCS 
sand, gravel, and/or shell resources?
Subpart B--[Reserved]
Subpart C--Outer Continental Shelf Sand, Gravel, and/or Shell Resources 
Negotiated Agreements
Sec.
583.300 How do I submit a request for an agreement?
583.305 How will BOEM determine if a project qualifies?
583.310 What process does BOEM use to technically and 
environmentally evaluate a qualified project?
583.315 What is the process for negotiating and executing an 
agreement?
583.320 What kinds of information must be included in an agreement?
583.325 What is the effective date of an agreement?
583.330 How will BOEM enforce the agreement?
583.335 What is the term of the agreement?
583.340 What debarment or suspension obligations apply to 
transactions and contracts related to a project?
583.345 What is the process for extending or modifying an agreement?
583.350 When can an agreement be terminated?

    Authority:  43 U.S.C. 1334.

Subpart A--General


Sec.  583.100  What is BOEM's authority for information collection 
(IC)?

    The IC requirements contained in part 583 have been approved by OMB 
under 44 U.S.C. 3501 and assigned control number 1010-0191. The 
information is being collected to determine if the applicant for a 
negotiated noncompetitive agreement (agreement)

[[Page 45974]]

for the use of sand, gravel, and/or shell resources on the Outer 
Continental Shelf (OCS) is qualified to enter into such an agreement 
and to determine if the requested action is warranted. Applicants and 
parties to an agreement are required to respond to requests related to 
IC activities.


Sec.  583.105  What is the purpose of this part and to whom does it 
apply?

    The regulations in this part provide procedures for entering into 
negotiated noncompetitive agreements for the use of OCS sand, gravel, 
and/or shell resources. The rules of this part apply exclusively to 
negotiated noncompetitive use of OCS sand, gravel, and/or shell 
resources and do not apply to competitive leasing of minerals, 
including oil, gas, sulphur, geopressured-geothermal and associated 
resources, and all other minerals that are authorized by an Act of 
Congress to be produced from ``public lands'' as defined in section 103 
of the Federal Land Policy and Management Act of 1976, as amended (43 
U.S.C. 1701 et seq.).


Sec.  583.110  What is BOEM's authority for this part?

    (a) Pursuant to authority granted by section 8(k) of the Outer 
Continental Shelf Lands Act (OSCLA), as amended (43 U.S.C. 1337(k)), 
the Secretary has authority to negotiate a noncompetitive agreement for 
the use of OCS sand, gravel, and/or shell resources:
    (1) In a program of, or project for, shore protection, beach 
restoration, or coastal wetlands restoration undertaken by a Federal, 
State, or local government agency; or
    (2) In a construction project, other than a project described in 
paragraph (a)(1) of this section, that is funded in whole or in part by 
or authorized by the Federal Government.
    (b) The Secretary has delegated authority to BOEM to administer the 
negotiated noncompetitive agreement provisions of OCSLA and prescribe 
the rules and regulations necessary to carry out those provisions.


Sec.  583.115  What definitions do I need to know?

    The definitions at 30 CFR 550.105 apply to this part. In addition, 
when used in this part, the following terms will have the meaning given 
below:
    Agreement means a negotiated noncompetitive agreement that 
authorizes a person to use OCS sand, gravel, and/or shell resources in 
a program of, or project for, shore protection, beach restoration or 
coastal wetlands restoration undertaken by one or more Federal, state 
or local government agencies, or in a construction project authorized 
by, or funded in whole or in part by, the Federal government. The form 
of the agreement will be a Memorandum of Agreement (if one or more of 
the parties to the agreement, other than BOEM, is a Federal agency) or 
a lease (if all of the parties to the agreement other than BOEM are 
non-Federal agencies or persons).
    Amendment means a modification to the agreement between BOEM and 
the parties to the agreement that extends or modifies the terms of the 
agreement.
    Applicant means any person proposing to use OCS sand, gravel, and/
or shell resources for a shore protection, beach restoration or coastal 
wetlands restoration project undertaken by a Federal, state or local 
government agency, or a construction project authorized by, or funded 
in whole or in part by, the Federal Government. If multiple persons or 
Federal, state, or local governments, other than BOEM, partner on a 
project they will be considered joint applicants.
    BOEM means the Bureau of Ocean Energy Management of the U.S. 
Department of the Interior (DOI).
    Borrow area means the offshore geographic area(s) or region(s) 
where OCS sand, gravel, and/or shell resources have been identified for 
potential use in a specific project.
    Federal agency means any department, agency, or instrumentality of 
the United States.
    Local government means the governing authority at the county or 
city level with jurisdiction to administer a particular project(s).
    Modification means the process whereby parties to an agreement and 
BOEM mutually agree to change, alter or amend an existing agreement.
    Placement area means the geographic area in which OCS sand, gravel, 
and/or shell resources, used by agreement, will be placed pursuant to 
that agreement.
    Program means a group of related projects that may be the subject 
of a negotiated noncompetitive agreement for the use of OCS sand, 
gravel, and/or shell resources.
    Project means an undertaking that may be the subject of a 
negotiated noncompetitive agreement for the use of OCS sand, gravel, 
and/or shell resources.
    Secretary means the Secretary of the Interior.


Sec.  583.120  Who is qualified for a project?

    (a) BOEM may enter into an agreement with any person proposing to 
use OCS sand, gravel, and/or shell resources for a program of, or 
project for, shore protection, beach restoration, or coastal wetlands 
restoration undertaken by a Federal, state, or local government agency 
or in a construction project that is funded in whole or in part by or 
authorized by the Federal Government.
    (b) To request an agreement under this part, the applicant must be:
    (1) A Federal, state, or local government agency;
    (2) A citizen or national of the United States;
    (3) An alien lawfully admitted for permanent residence in the 
United States, as defined in the Immigration and Nationality Act, as 
amended (8 U.S.C. 1101(a)(20));
    (4) A private or public corporation organized under the laws of the 
United States, or of any State or territory thereof; or
    (5) An association of such citizens, nationals, resident aliens, or 
private or public corporations.
    (c) When entering into an agreement under this part, all applicants 
are subject to the requirements of 2 CFR part 180 and 2 CFR part 1400.


Sec.  583.125  What are my rights to seek reconsideration of an 
unfavorable decision by BOEM?

    (a) After being notified of disqualification or disapproval of an 
agreement or modification, an unsuccessful applicant, or adversely 
affected party to an agreement, may apply for reconsideration by the 
Director.
    (1) All applications for reconsideration must be submitted to the 
Director within 15 days of being notified of disqualification or 
disapproval of an agreement or modification, and must be accompanied by 
a statement of reasons for the requested reconsideration, with one copy 
also submitted to the program office whose decision is the subject of 
the request for reconsideration.
    (2) The Director will respond in writing within 30 days.
    (b) No appeal rights are available under 30 CFR part 590 and 43 CFR 
part 4, subpart E.


Sec.  583.130  What are the minimum contents of an agreement to use OCS 
sand, gravel, and/or shell resources?

    Any use of OCS sand, gravel, and/or shell resources in an agreement 
will be negotiated on a case-by-case basis. The agreement will specify, 
at a minimum, who may use the OCS sand, gravel, and/or shell resources; 
the nature of the rights granted, including any terms and conditions 
and environmental stipulations; and the location, type, and

[[Page 45975]]

volume of OCS sand, gravel, and/or shell resources. An authorization to 
use OCS sand, gravel, and/or shell resources identified in an agreement 
is not exclusive; BOEM may allow other entities to use OCS sand, 
gravel, and/or shell resources from the same borrow area if these uses 
are determined by BOEM to be non-conflicting and do not exceed the 
availability of the OCS resource.

Subpart B--[Reserved]

Subpart C--Outer Continental Shelf Sand, Gravel, and/or Shell 
Resources Negotiated Agreements


Sec.  583.300  How do I submit a request for an agreement?

    Any person may submit a written request to BOEM to obtain an 
agreement for the use of OCS sand, gravel, and/or shell resources for 
use in a program of, or project for, shore protection, beach 
restoration, or coastal wetlands restoration undertaken by a Federal, 
state, or local government agency, or in a construction project that is 
funded in whole or in part by or authorized by the Federal Government.
    (a) The written request must include:
    (1) A detailed description of the proposed project for which the 
OCS sand, gravel, and/or shell resources will be used and how it 
qualifies as a program or project eligible under OCSLA to use OCS sand, 
gravel, or shell resources;
    (2) A description of the proposed borrow area(s) and placement 
area(s), along with maps with geographic coordinates depicting the 
location of the desired borrow area(s), the OCS block number(s), OCS 
Planning Area(s), OCS Protraction Diagram Designation(s), and the 
placement area(s). These should include:
    (i) A detailed set of digital (e.g., portable document format or 
pdf) maps with coordinates and navigation features of the desired OCS 
project area (including borrow area and other project features); and
    (ii) Digital geo-referenced spatial and tabular data depicting the 
borrow area with features, such as geological sampling locations and 
any hard or live-bottom benthic habitat present;
    (3) Any available geological and geophysical data used to select, 
design, and delineate the borrow area(s) and potential borrow areas 
considered but not selected for final design in digital format, geo-
referenced where relevant. These may include:
    (i) Sediment sampling (sediment cores and grab samples) data such 
as physical description sheets, photographs, core locations, and grain 
size analysis; and
    (ii) Geophysical data such as subbottom profiler, marine 
magnetometer, and side-scan sonar data, and bathymetry including geo-
referenced navigation survey tracklines, shotpoints, and/or timestamps;
    (4) Any other uses of the OCS or infrastructure in the borrow area 
that are known to the applicant at the time of application submittal;
    (5) A description of the environmental evaluations and 
corresponding documents that have been completed or are being prepared 
that cover all offshore and onshore components of the project, as 
applicable;
    (6) A target date or date range when the OCS sand, gravel, and/or 
shell resources will be needed;
    (7) A description of the person or government entities undertaking 
the project;
    (8) A list of any permits, licenses or authorizations required for 
the project and their current status;
    (9) A description of any potential inconsistencies with state 
coastal zone management plans and/or any other applicable state and 
local statutes, regulations or ordinances;
    (10) The name, title, telephone number, mailing address and email 
address of any points of contact for any Federal agencies, state, or 
local governments, and contractor(s) with whom the applicant has 
contracted or intends to contract;
    (11) A statement explaining who authorized the project and how the 
project is to be funded, indicating whether the project is federally 
funded, in whole or in part, and whether the project is authorized by 
the Federal Government; and
    (12) For any other Federal, state, or local government agency 
identified in the application, the name, title, mailing address, 
telephone number, and email address of both a primary and a secondary 
point of contact for the agency.
    (b) [Reserved]


Sec.  583.305  How will BOEM determine if a project qualifies?

    BOEM will make a determination as to whether the project, as 
described in Sec.  583.300, qualifies for a negotiated noncompetitive 
agreement for the use of OCS sand, gravel, and/or shell resources. 
Within 15 business days of receipt of the application, BOEM will 
determine if the application is complete or will request additional 
information. After it has determined the application is complete, BOEM 
will review the application and notify the applicant in writing whether 
the project qualifies for an agreement. In determining whether a 
project qualifies for an agreement, BOEM will consider, among other 
criteria, the following:
    (a) The project purpose;
    (b) Other uses of OCS sand, gravel, and/or shell resources from the 
same borrow area that are currently or were previously authorized by 
BOEM for other projects or programs, including the location, type and 
volume of such resources;
    (c) The project funding source(s) and amounts;
    (d) The proposed design and feasibility of the project;
    (e) Any potential environmental and safety risks associated with 
the project;
    (f) Other federal interests located near or within the specified 
borrow area;
    (g) Comments received from potentially affected state or local 
governments, if any;
    (h) The applicant's background and experience working on similar 
projects or activities;
    (i) Whether the project operations can be conducted in a manner 
that protects the environment and promotes orderly development of OCS 
mineral resources;
    (j) Whether activities can be conducted in a manner that does not 
pose a threat of serious harm or damage to, or waste of, any natural 
resource, any life (including fish and other aquatic life), property, 
or the marine, coastal, or human environment; and
    (k) Whether the project is consistent with the requirements of 
applicable statutes and their implementing regulations, which may 
include, but are not limited to, the Endangered Species Act (ESA) (16 
U.S.C. 1531 et seq.), the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1361 et seq.), the Marine Debris Research, Prevention, and 
Reduction Act (MDRPRA) (33 U.S.C. 1951 et seq.), the Marine Plastic 
Pollution Research and Control Act (MPPRCA) (33 U.S.C. 1901 et seq.), 
the Federal Water Pollution Control Act (FWPCA) (33 U.S.C. 1381 et 
seq.), and the International Convention for the Prevention of Pollution 
from Ships (MARPOL), MARPOL-Annex V Treaty.


Sec.  583.310  What process does BOEM use to technically and 
environmentally evaluate a qualified project?

    (a) Once BOEM has determined a project qualifies for an agreement, 
BOEM will begin the project evaluation process to decide whether to 
enter into a negotiated noncompetitive agreement.
    (b) BOEM will coordinate with relevant Federal agencies, State, and 
local governments and any potentially affected federally recognized 
Indian

[[Page 45976]]

tribes or Alaska Native Corporations in the project evaluation.
    (c) BOEM will evaluate the project and additional information 
provided pursuant to Sec. Sec.  583.300 and 583.305, to determine if 
the information is sufficient to conduct necessary technical and 
environmental reviews to comply with the requirements of applicable 
statutes and regulations, which may include, but are not limited to: 
OCSLA (43 U.S.C. 1331 et seq.), the National Environmental Policy Act 
(NEPA) (42 U.S.C. 4321 et seq.), the ESA (16 U.S.C. 1531 et seq.), the 
MMPA (16 U.S.C. 1361 et seq.), the Magnuson-Stevens Fishery 
Conservation and Management Act (MSFCMA) (16 U.S.C. 1801 et seq.), the 
National Historic Preservation Act (NHPA) (54 U.S.C. 300101 et seq.), 
and the Coastal Zone Management Act (CZMA) (16 U.S.C. 1451 et seq.).
    (d) BOEM will not enter into a negotiated noncompetitive agreement 
with the applicant until the information requested for the evaluation 
has been provided and BOEM has evaluated it.


Sec.  583.315  What is the process for negotiating and executing an 
agreement?

    (a) Upon completion of the technical, environmental and other 
evaluations established in Sec. Sec.  583.305 and 583.310, BOEM will 
decide whether to enter into a negotiated noncompetitive agreement with 
the applicant for use of OCS sand, gravel, or shell resources for its 
proposed project.
    (b) If BOEM decides not to enter into such an agreement, BOEM will 
inform the applicant of its reasons for not doing so. An applicant may 
ask the BOEM Director for reconsideration of this decision, in 
accordance with Sec.  583.125(a).
    (c) If BOEM has decided to enter into a negotiated noncompetitive 
agreement with the applicant, BOEM will negotiate the terms and 
conditions of the agreement with the applicant and prepare a draft 
agreement for the applicant's review.
    (d) After considering comments and suggestions from the applicant, 
BOEM, at its discretion, may finalize the agreement and distribute it 
to the applicant for signature.
    (e) Upon receipt of the agreement with the applicant's signature, 
BOEM will execute the agreement. A copy of the executed agreement will 
be mailed to the parties.


Sec.  583.320  What kinds of information must be included in an 
agreement?

    Every agreement is negotiated on a case-by-case basis, but at a 
minimum, must include:
    (a) An agreement number, as assigned by BOEM;
    (b) The purpose of, and authorities for, the agreement;
    (c) Designated and delineated borrow area(s);
    (d) A project description, including the timeframe within which the 
project is to be started and completed;
    (e) The terms and conditions of the agreement, including any 
reporting requirements, environmental mitigations, and operating 
parameters;
    (f) All obligations of the parties; and
    (g) The signatures of appropriate individuals authorized to bind 
the applicant and BOEM.


Sec.  583.325  What is the effective date of an agreement?

    The agreement will become effective on the date when all parties to 
the agreement have signed it.


Sec.  583.330  How will BOEM enforce the agreement?

    (a) Failure to comply with any applicable law or any provision, 
term, or condition of the agreement may result in the termination of 
the agreement, a referral to an appropriate Federal or State agency for 
enforcement, or both. Termination of the agreement for noncompliance 
will be in the sole discretion of the Director.
    (b) The failure to comply in a timely and satisfactory manner with 
any provision, term or condition of the agreement may delay or prevent 
BOEM's approval of future requests for use of OCS sand, gravel, and/or 
shell resources on the part of the parties to the agreement.


Sec.  583.335  What is the term of the agreement?

    (a) An agreement will terminate upon one of the following, 
whichever occurs first:
    (1) The agreement expires by its own terms, unless the term is 
extended prior to expiration under Sec.  583.345;
    (2) The project is terminated, as set forth in Sec.  583.350; or
    (3) A party to the agreement notifies BOEM, in writing, that 
sufficient OCS sand, gravel, and/or shell resources, up to the amount 
authorized in the agreement, have been obtained to complete the 
project.
    (b) Absent extraordinary circumstances, no agreement will be for a 
term longer than five years from its effective date.


Sec.  583.340  What debarment or suspension obligations apply to 
transactions and contracts related to a project?

    The parties to an agreement must ensure that all contracts and 
transactions related to an agreement issued under this part comply with 
the suspension and debarment regulations in 2 CFR part 180 and 2 CFR 
part 1400.


Sec.  583.345  What is the process for extending or modifying an 
agreement?

    (a) Unless otherwise provided for in the agreement, the parties to 
the agreement may submit to BOEM a written request to extend or modify 
an agreement. BOEM is under no obligation to extend or modify an 
agreement and cannot be held liable for the consequences of the 
expiration of an agreement. With the exception of paragraph (b) of this 
section, any such requests must be made at least 180 days before the 
term of the agreement expires. BOEM will respond to the request for 
modification within 30 days of receipt and request any necessary 
information and evaluations to comply with Sec.  583.305. BOEM may 
approve the request, disapprove it, or approve it with modifications 
subject to the requirements of Sec.  583.305.
    (1) If BOEM approves a request to extend or modify an agreement, 
BOEM will draft an agreement modification for review by the parties to 
the agreement in the form of an amendment to the original agreement. 
The amendment will include:
    (i) The agreement number, as assigned by BOEM;
    (ii) The modification(s) agreed to;
    (iii) Any additional mitigation required; and
    (iv) The signatures of the parties to the agreement and BOEM.
    (2) If BOEM disapproves a request to extend or modify an agreement, 
BOEM will inform the parties to the agreement of the reasons in 
writing. Parties to the agreement may ask the BOEM Director for 
reconsideration in accordance with Sec.  583.125.
    (b) By written request, for strictly minor modifications that do 
not change the substance of the project or the analyzed environmental 
effects of the project, including but not limited to, the change of a 
business address, the substitution of a different Federal, State or 
local government agency contact, or an extension of less than 30 days, 
parties to the agreement may memorialize the minor modification in a 
letter from BOEM to the parties indicating the request has been 
granted.


Sec.  583.350  When can an agreement be terminated?

    (a) The Director will terminate any agreement issued under this 
part upon proof that it was obtained by fraud or misrepresentation, 
after notice and an opportunity to be heard has been afforded to the 
parties of the agreement.

[[Page 45977]]

    (b) The Director may immediately suspend and subsequently terminate 
any agreement issued under this part when:
    (1) There is noncompliance with the agreement, pursuant to Sec.  
583.330 (a); or
    (2) It is necessary for reasons of national security or defense; or
    (3) The Director determines that:
    (i) Continued activity under the agreement would cause serious harm 
or damage to natural resources; life (including human and wildlife); 
property; the marine, coastal, or human environment; or sites, 
structures, or objects of historical or archaeological significance;
    (ii) The threat of harm or damage will not disappear or decrease to 
an acceptable extent within a reasonable period of time; and
    (iii) The advantages of termination outweigh the advantages of 
continuing the agreement.
    (c) The Director will immediately notify the parties to the 
agreement of the suspension or termination. The Director will also mail 
a letter to the parties to the agreement at their record post office 
address with notice of any suspension or termination and the cause for 
such action.
    (d) In the event that BOEM terminates an agreement under this 
section, none of the parties to the agreement will be entitled to 
compensation as a result of expenses or lost revenues that may result 
from the termination.

[FR Doc. 2017-21233 Filed 10-2-17; 8:45 am]
 BILLING CODE -P



                                                45962             Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations

                                                PART 764 [AMENDED]                                      DEPARTMENT OF THE INTERIOR                            memoranda of agreement, as described
                                                                                                                                                              below).
                                                ■ 18. The authority citation for 15 CFR                 Bureau of Ocean Energy Management
                                                                                                                                                              Table of Contents
                                                part 764 is revised to read as follows:
                                                                                                        30 CFR Part 583                                       I. Background
                                                  Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C.                                                                   A. Program Description
                                                1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR,           [Docket ID: BOEM–2010–0041;                              B. Program History
                                                2001 Comp., p. 783; Notice of August 15,                MMAA104000]                                           II. Section-by-Section Analysis of the Final
                                                2017, 82 FR 39005 (August 16, 2017).                                                                                Rule
                                                                                                        RIN 1010–AD90                                            A. Subpart A—General
                                                PART 766 [AMENDED]                                                                                               B. Subpart B—Reserved
                                                                                                        Negotiated Noncompetitive                                C. Subpart C—Outer Continental Shelf
                                                                                                        Agreements for the Use of Sand,                             Sand, Gravel, and/or Shell Resources
                                                ■ 19. The authority citation for 15 CFR
                                                                                                        Gravel, and/or Shell Resources on the                       Negotiated Agreements
                                                part 766 is revised to read as follows:                 Outer Continental Shelf                               III. Summary of Comments Received on the
                                                  Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C.                                                                      Proposed Rule and BOEM Responses
                                                1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR,           AGENCY:  Bureau of Ocean Energy                       IV. Legal and Regulatory Analysis
                                                2001 Comp., p. 783; Notice of August 15,                Management, Interior.
                                                                                                                                                              I. Background
                                                2017, 82 FR 39005 (August 16, 2017).                    ACTION: Final rule.
                                                                                                                                                                 Congress amended the Outer
                                                PART 768 [AMENDED]                                      SUMMARY:    This final rule establishes               Continental Shelf Lands Act, 43 U.S.C.
                                                                                                        new regulations to address the use of                 1331–1356 (OCSLA), in 1994 to
                                                ■ 20. The authority citation for 15 CFR                 Outer Continental Shelf (OCS) sand,                   authorize the Secretary of the Interior to
                                                part 768 is revised to read as follows:                 gravel, and/or shell resources for shore              negotiate noncompetitive agreements
                                                                                                        protection, beach restoration, or coastal             with any person for the use of OCS
                                                  Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C.          wetlands restoration projects by Federal,
                                                1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR,                                                                 sand, gravel, and/or shell resources in a
                                                                                                        state, or local government agencies, and              program of, or project for, shore
                                                2001 Comp., p. 783; Notice of August 15,                for use in construction projects
                                                2017, 82 FR 39005 (August 16, 2017).                                                                          protection, beach restoration, or coastal
                                                                                                        authorized by or funded in whole or in                wetlands restoration undertaken by a
                                                                                                        part by the Federal Government. The                   Federal, state, or local government
                                                PART 770 [AMENDED]                                      final rule describes the negotiated                   agency, or in a construction project
                                                                                                        noncompetitive agreement process for                  either authorized by, or funded in whole
                                                ■ 21. The authority citation for 15 CFR                 qualifying projects and codifies new and
                                                part 770 is revised to read as follows:                                                                       or in part by the Federal Government.
                                                                                                        existing procedures.                                  See 43 U.S.C. 1337(k)(2). In negotiating
                                                  Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C.          DATES: This rule is effective December 4,             an agreement for use of the OCS sand,
                                                1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR,           2017.                                                 gravel, and/or shell resources, OCSLA
                                                2001 Comp., p. 783; Notice of August 15,                FOR FURTHER INFORMATION CONTACT:                      provides that ‘‘the Secretary may assess
                                                2017, 82 FR 39005 (August 16, 2017).                    Deanna Meyer-Pietruszka, Chief, Office                a fee based on an assessment of the
                                                                                                        of Policy, Regulations, and Analysis,                 value of the resources and the public
                                                PART 772 [AMENDED]                                                                                            interest served by promoting
                                                                                                        Bureau of Ocean Energy Management,
                                                                                                        at: deanna.meyer-pietruszka@boem.gov                  development of the resources.’’
                                                ■ 22. The authority citation for 15 CFR                 or 202–208–6352.                                      However, the same provision of OCSLA
                                                part 772 is revised to read as follows:                                                                       also states that no fee will be assessed
                                                                                                        SUPPLEMENTARY INFORMATION: On March
                                                  Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C.          22, 2016, the Bureau of Ocean Energy                  directly or indirectly against a Federal,
                                                1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR,           Management (BOEM) published in the                    state, or local government agency. See
                                                2001 Comp., p. 783; Notice of August 15,                Federal Register (81 FR 15190) a                      43 U.S.C. 1337(k)(2)(B).
                                                2017, 82 FR 39005 (August 16, 2017).                    proposed rule entitled ‘‘Negotiated                   A. Program Description
                                                                                                        Noncompetitive Leasing for the Use of
                                                PART 774 [AMENDED]                                      Sand, Gravel, and Shell Resources on                    Generally, shore protection and beach
                                                                                                        the Outer Continental Shelf.’’ BOEM                   and coastal wetlands restoration
                                                ■ 23. The authority citation for 15 CFR                 received comments from 8 individuals                  projects are initiated to rebuild eroding
                                                part 774 is revised to read as follows:                 and organizations. BOEM reviewed                      shoreline segments, such as beaches and
                                                   Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C.         these comments, categorized and                       dunes, barrier islands, and wetlands. In
                                                1701 et seq.; 10 U.S.C. 7420; 10 U.S.C.                 organized them by subject, and has                    sensitive wetland areas, these projects
                                                7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et              provided responses to those substantive               are intended to forestall further erosion,
                                                seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15               comments in Section III below. These                  restore habitat and/or to provide
                                                U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201            comments are available for viewing in                 protection from hurricanes and storms.
                                                et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR              their original form on                                These projects are typically
                                                58767, 3 CFR, 1996 Comp., p. 228; E.O.                  www.regulations.gov by searching for                  accomplished by placing sand, gravel,
                                                13222, 66 FR 44025, 3 CFR, 2001 Comp., p.               the term: ‘‘BOEM AD90.’’ BOEM also                    or shell resources directly on the beach,
                                                783; Notice of August 15, 2017, 82 FR 39005             renumbered the sections contained in                  in open water areas that are the location
                                                (August 16, 2017).                                      the proposed rule to facilitate any later             of an eroded beach, and/or within
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                                                  Dated: September 25, 2017.
                                                                                                        amendments that may be necessary.                     breaches in the shoreline that
                                                                                                        Finally, BOEM altered the title of the                compromise the integrity of the beach or
                                                Richard E. Ashooh,                                      proposed rule by replacing ‘‘Leasing’’                barrier island system or its capacity to
                                                Assistant Secretary for Export                          with ‘‘Agreements’’ to more accurately                form, and subsequently maintain, a
                                                Administration.                                         reflect the types of instruments BOEM                 beach. Material may also be placed
                                                [FR Doc. 2017–21003 Filed 10–2–17; 8:45 am]             uses to convey offshore sand, gravel,                 updrift from the beach, allowing
                                                BILLING CODE 3510–33–P                                  and/or shell resources (i.e. leases or                longshore processes to redistribute the


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                                                                  Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations                                         45963

                                                sand, gravel, and/or shell resources                    regulations. BOEM has negotiated over                 Section 583.115    What definitions do I
                                                along the beach.                                        50 noncompetitive agreements,                         need to know?
                                                   OCSLA authorizes BOEM to enter into                  providing for the use of more than 100
                                                a negotiated noncompetitive agreement                   million cubic yards of OCS sand, gravel,                 This section defines many of the
                                                when the use of OCS sand, gravel,                       and/or shell resources for shore                      terms commonly used in the Marine
                                                and/or shell resources is authorized for                protection, beach restoration, or coastal             Minerals Program and now used in this
                                                qualifying projects. This negotiated                    wetlands restoration projects                         part, including ‘‘borrow area,’’
                                                agreement may take the form of a lease                  undertaken by a Federal, state, or local              ‘‘placement area,’’ and ‘‘project.’’ This
                                                or a Memorandum of Agreement (MOA),                     government agency, and for federally                  section also defines other terms for
                                                depending upon the type of applicant(s)                 authorized or funded construction                     purposes of this part, including
                                                requesting use of OCS sand, gravel,                     projects. BOEM believes that                          ‘‘agreement,’’ ‘‘amendment,’’
                                                and/or shell resources. If a non-Federal                                                                      ‘‘applicant,’’ ‘‘BOEM,’’ ‘‘Federal
                                                                                                        promulgation of regulations at this time
                                                entity requests the use of OCS sand,                                                                          agency,’’ ‘‘local government,’’
                                                                                                        is advisable to provide additional clarity
                                                gravel, and/or shell resources, the                                                                           ‘‘modification,’’ ‘‘program,’’ and
                                                                                                        and certainty and to help ensure
                                                negotiated noncompetitive agreement                                                                           ‘‘Secretary.’’ This section also makes the
                                                required by OCSLA would generally                       continuity of the Marine Minerals
                                                                                                        Program.                                              definitions applicable to Part 550 of
                                                take the form of a lease. If a Federal
                                                                                                                                                              Title 30 of the CFR applicable to this
                                                agency requests the use of OCS sand,                    II. Section-by-Section Analysis of the
                                                gravel, and/or shell resources, BOEM                                                                          part.
                                                                                                        Final Rule
                                                and the Federal agency, as well as their                                                                      Section 583.120    Who is qualified for a
                                                Federal, state, or local government                     Subpart A—General                                     project?
                                                agency counterparts on the project,                     Section 583.100 What is BOEM’s
                                                would enter into an MOA. For example,                                                                           This section explains who is qualified
                                                                                                        authority for information collection
                                                when a Federal agency partially or                                                                            to enter into an agreement with BOEM
                                                                                                        (IC)?
                                                wholly funds a non-Federal entity to                                                                          for the use of OCS sand, gravel, and/or
                                                conduct a project that is otherwise                       This section explains BOEM’s                        shell resources, and explains the
                                                eligible for OCS sand, gravel, and/or                   authority for IC activities related to part           requirements to comply with the
                                                shell resources, the negotiated                         583. It explains the reasons the                      relevant debarment regulations.
                                                noncompetitive agreement may take the                   information is being collected and
                                                form of a three-party MOA. As                                                                                 Section 583.125 What are my rights to
                                                                                                        confirms the Office of Management and
                                                warranted, the Federal applicant(s) and                                                                       seek reconsideration of an unfavorable
                                                                                                        Budget (OMB) approval of the
                                                BOEM would designate a lead agency                                                                            decision by BOEM?
                                                                                                        collection.
                                                and enter into a cooperating agency
                                                agreement for the environmental                         Section 583.105 What is the purpose                     This section sets out the kinds of
                                                analysis and review of the proposed                     of this rule and to whom does it apply?               decisions that would be subject to
                                                project. Likewise, if another Federal                                                                         reconsideration, and the process
                                                agency is not involved, BOEM would                        This section explains that the purpose              available to an unsuccessful applicant
                                                ensure that appropriate environmental                   of this rule is to refine and formally                or adversely affected party for obtaining
                                                analysis and review is completed. The                   adopt procedures for entering into                    reconsideration.
                                                negotiated noncompetitive agreement in                  negotiated noncompetitive agreements
                                                                                                        for the use of OCS sand, gravel, and/or               Section 583.130 What are the
                                                each of these situations would describe
                                                                                                        shell resources for shore protection;                 minimum contents of an agreement to
                                                the project and procedures that would
                                                be followed, and identify environmental                 beach or coastal wetlands restoration by              use OCS sand, gravel, and/or shell
                                                and administrative requirements that                    a Federal, state, or local government                 resources?
                                                must be met. As described in Section III                agency; or for construction projects                     This section explains who is allowed
                                                below in response to a comment                          authorized or funded, in whole or in                  to use OCS sand, gravel, and/or shell
                                                received, the requirements and                          part, by the Federal Government. This                 resources under these regulations, and
                                                processes for entering into a negotiated                section explains that the rule applies                explains that use authorizations are in
                                                noncompetitive agreement are the same                   exclusively to the negotiated
                                                whether the agreement takes the form of                                                                       the form of agreements that are
                                                                                                        noncompetitive use of sand, gravel,
                                                a lease or a MOA. The only distinction                                                                        negotiated on a case-by-case basis. It
                                                                                                        and/or shell resources on the OCS and
                                                is that which Congress provides in                                                                            also explains that the agreements
                                                                                                        does not apply to competitive leasing of
                                                OCSLA that, when these projects                                                                               identify the location, type and volume
                                                                                                        minerals, including oil, gas, sulphur,
                                                involve Federal agencies, the Federal                                                                         of OCS sand, gravel, and/or shell
                                                                                                        geopressured-geothermal and associated
                                                agency ‘‘shall enter into a Memorandum                                                                        resources allowed to be used under the
                                                                                                        resources, and all other minerals that
                                                of Agreement with the Secretary. . . .’’                are authorized by an Act of Congress to               agreement. In addition, it explains that
                                                See 43 U.S.C. 1337(k)(2)(D).                            be produced from ‘‘public lands’’ as                  an authorization to use OCS sand,
                                                                                                        defined in section 103 of the Federal                 gravel, and/or shell resources is not
                                                B. Program History
                                                                                                        Land Policy and Management Act of                     exclusive. BOEM has modified language
                                                  BOEM and its predecessor agencies—                                                                          in this section from the proposed rule
                                                the Minerals Management Service and                     1976, as amended (FLPMA). (43 U.S.C.
                                                                                                        1701 et seq.)                                         by adding language stating that ‘‘terms
                                                the Bureau of Ocean Energy                                                                                    and conditions and environmental
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                                                Management, Regulation and                              Section 583.110 What is BOEM’s                        stipulations’’ will be included in the list
                                                Enforcement—through the Marine                          authority for this rule?                              of the minimum contents of an
                                                Minerals Program, have been exercising                                                                        agreement, and adding language to
                                                statutory authority regarding OCS sand,                   This section explains that in adopting
                                                                                                                                                              clarify the conditions under which more
                                                gravel, and/or shell resources under                    these regulations, BOEM is operating
                                                                                                                                                              than one entity may use the same
                                                OCSLA pursuant to written guidelines,                   under authority granted to the Secretary
                                                                                                        of the Interior by OCSLA.                             borrow area.
                                                without the benefit of implementing


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                                                45964             Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations

                                                Subpart B—Reserved                                      the specified borrow area; comments                   1451 et seq.). Finally, this section
                                                Subpart C—Outer Continental Shelf                       received from potentially affected state              provides that BOEM will not enter into
                                                Sand, Gravel, and/or Shell Resources                    or local governments, if any; the                     a negotiated noncompetitive agreement
                                                Negotiated Agreements                                   applicant’s background and experience                 until the information requested for the
                                                                                                        working on similar projects or activities;            evaluation has been provided and
                                                Section 583.300 How do I submit a                       whether the project operations can be                 BOEM has evaluated it.
                                                request for an agreement?                               conducted in a manner that protects the
                                                                                                        environment and promotes orderly                      Section 583.315 What is the process
                                                   This section explains who may
                                                                                                        development of OCS mineral resources;                 for negotiating and executing an
                                                submit a request to BOEM to obtain an
                                                agreement for the use of OCS sand,                      whether activities can be conducted in                agreement?
                                                gravel, and/or shell resources. It lists the            a manner that does not pose a threat of
                                                                                                        serious harm or damage to, or waste of,                  This section describes the steps
                                                information that the request must                                                                             BOEM takes once it has completed its
                                                include, such as a detailed description                 any natural resources, any life, property,
                                                                                                        or the marine, coastal, or human                      technical, environmental and other
                                                of the proposed project and how it                                                                            evaluations. This section provides
                                                qualifies as a program or project eligible              environment; and whether the project is
                                                                                                        consistent with applicable statutes and               further that, once BOEM has completed
                                                under OCSLA to receive OCS sand,
                                                                                                        their implementing regulations, which                 its review of an application, BOEM will
                                                gravel, and/or shell resources pursuant
                                                                                                        may include, but are not limited to, the              decide whether to enter into an
                                                to a negotiated noncompetitive
                                                                                                        Endangered Species Act (ESA) (16                      agreement. This section provides that, if
                                                agreement; a description of borrow and
                                                                                                        U.S.C. 1531 et seq.), the Marine                      BOEM decides to enter into an
                                                placement areas; certain maps and data;
                                                                                                        Mammal Protection Act (MMPA) (16                      agreement, BOEM will negotiate the
                                                other uses of the OCS and infrastructure
                                                                                                        U.S.C. 1361 et seq.), the Marine Debris               terms of the agreement and prepare a
                                                in the borrow area that are known to the
                                                                                                        Research, Prevention, and Reduction                   draft agreement for the applicant’s
                                                applicant; a description of the
                                                                                                        Act (MDRPRA) (33 U.S.C. 1951 et seq.),                review and comment. The section also
                                                environmental evaluations that have
                                                                                                        the Marine Plastic Pollution Research                 provides that, after BOEM considers the
                                                been completed or are being prepared                    and Control Act (MPPRCA) (33 U.S.C.
                                                that cover the project, including both                                                                        applicant’s comments and suggestions,
                                                                                                        1901 et seq.), the Federal Water                      it may, at its discretion, finalize the
                                                onshore and offshore components; a                      Pollution Control Act (FWPCA) (33
                                                target date or date range when the                                                                            agreement and send it to the applicant
                                                                                                        U.S.C. 1381 et seq.), and the
                                                resources will be needed; a description                                                                       for signature. As provided in this
                                                                                                        International Convention for the
                                                of the person or government entities that               Prevention of Pollution from Ships                    section, once BOEM receives the
                                                are undertaking the project and points                  (MARPOL), MARPOL-Annex V Treaty.                      agreement with the applicant’s
                                                of contact; a list of permits, licenses and                                                                   signature, BOEM will execute the
                                                authorization required for the project; a               Section 583.310 What process does                     agreement and distribute it to the parties
                                                description of potential inconsistencies                BOEM use to technically and                           to the agreement. Finally, this section
                                                with state coastal zone management                      environmentally evaluate a qualified                  describes the process BOEM would use
                                                plans or other applicable state and local               project?                                              when it decides not to approve an
                                                laws; and a statement explaining who                       This section explains the process that             agreement.
                                                authorized the project and how the                      BOEM follows to evaluate a project that
                                                project will be funded. Since issuance of               qualifies for the use of OCS sand, gravel,            Section 583.320 What kinds of
                                                the proposed rule, BOEM replaced the                    and/or shell resources to decide                      information must be included in an
                                                requirement that hard copy maps be                      whether to enter into a negotiated                    agreement?
                                                provided with the request for a                         noncompetitive agreement. It states that
                                                negotiated noncompetitive agreement in                  BOEM coordinates with relevant                           This section describes the minimum
                                                section 583.300(a)(2)(i); instead, the                  Federal agencies, states, and local                   information that an agreement is
                                                final rule requires digital (pdf) maps be               governments, and any potentially                      required to include, such as an
                                                provided. This modification in the final                affected federally recognized Indian                  agreement number assigned by BOEM;
                                                rule recognizes changes in technology                   tribes or Alaska Native corporations                  the purpose of, and authorities for, the
                                                and that most submissions are now                       during this process. It also describes                agreement; the designated and
                                                made electronically.                                    how BOEM evaluates the project and                    delineated borrow area(s); the project
                                                                                                        additional information provided under                 description, including the timeframe
                                                Section 583.305 How will BOEM
                                                                                                        sections 583.300 and 583.305 to                       within which the project is to be started
                                                determine if a project qualifies?
                                                                                                        determine if the information is                       and completed; the terms and
                                                  This section lays out the factors that                sufficient to conduct necessary                       conditions of the agreement, including
                                                BOEM uses to determine whether a                        technical and environmental reviews to                any reporting requirements; all
                                                project qualifies for use of OCS sand,                  comply with the requirements of                       obligations of the parties; and the
                                                gravel, and/or shell resources under a                  applicable statutes and regulations,                  signatures of appropriate individuals
                                                negotiated noncompetitive agreement.                    which may include, but are but not                    authorized to bind the applicants and
                                                The section enumerates the evaluation                   limited to: OCSLA (43 U.S.C. 1331 et                  BOEM. In this final rule, in section
                                                criteria, including: The project purpose;               seq.), the National Environmental Policy              583.320(e), BOEM added
                                                other uses of OCS sand, gravel, and/or                  Act (NEPA) (42 U.S.C. 4321 et seq.), the              ‘‘environmental mitigations and
                                                shell resources that are currently or                   ESA (16 U.S.C. 1531 et seq.), the MMPA
                                                                                                                                                              operating parameters’’ to the examples
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                                                previously authorized from the same                     (16 U.S.C. 1361 et seq.), the Magnuson-
                                                                                                                                                              of terms and conditions that might be
                                                borrow area; the project funding                        Stevens Fishery Conservation and
                                                source(s) and amounts; the proposed                     Management Act (MSFCMA) (16 U.S.C.                    included in an agreement, to make clear
                                                design and feasibility of the project; any              1801 et seq.), the National Historic                  that, if there are any environmental
                                                potential environmental and safety risks                Preservation Act (NHPA) (54 U.S.C.                    mitigations or operating parameters, that
                                                associated with the project; other                      300101 et seq.), and the Coastal Zone                 information must be included in
                                                Federal interests located near or within                Management Act (CZMA) (16 U.S.C.                      negotiated noncompetitive agreements.


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                                                                  Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations                                        45965

                                                Section 583.325 What is the effective                   Section 583.345 What is the process                   coastal wetlands protection. They
                                                date of an agreement?                                   for extending or modifying an                         commented that BOEM’s activities are
                                                                                                        agreement?                                            beneficial, lawful, and properly within
                                                  This section describes what                                                                                 the jurisdiction of the United States
                                                                                                          This section explains how an
                                                determines the effective date of the                                                                          Department of the Interior.
                                                                                                        applicant may seek to extend or modify
                                                agreement.                                                                                                      Response: BOEM and its predecessor
                                                                                                        an agreement and spells out the
                                                                                                        timeframes when this might be                         agencies have been exercising statutory
                                                Section 583.330 How will BOEM                                                                                 authority to successfully operate this
                                                enforce the agreement?                                  accomplished. It provides that BOEM is
                                                                                                        under no obligation to extend or modify               popular program for many years. BOEM
                                                  This section describes how BOEM                       an agreement and cannot be held liable                has negotiated over 50 agreements,
                                                would enforce the terms of an                           for the consequences of the expiration of             providing for the use of more than 100
                                                agreement and the consequences,                         an agreement. If BOEM approves a                      million cubic yards of OCS sand, gravel,
                                                including termination, for failure to                   modification, BOEM will prepare an                    and/or shell resources for shore
                                                                                                        amendment to the agreement and                        protection, beach restoration, or coastal
                                                comply with any applicable law or with
                                                                                                        provide it for review by the parties to               wetlands restoration. This final rule
                                                the agreement terms. This section also
                                                                                                        the agreement prior to execution of the               codifies the procedures BOEM has used
                                                provides that the failure to comply in a                                                                      to implement this program for many
                                                timely and satisfactory manner with any                 amendment. If BOEM disapproves the
                                                                                                        request, BOEM will notify the parties to              years and ensures consistency as the
                                                provision, term or condition of the                                                                           program continues to process requests
                                                agreement may delay or prevent                          the agreement of the reasons in writing.
                                                                                                        Parties to the agreement may ask the                  for use of OCS sand, gravel, and/or shell
                                                BOEM’s approval of future requests for                                                                        resources and manage these resources
                                                use of OCS sand, gravel, and/or shell                   BOEM Director for reconsideration in
                                                                                                        accordance with section 583.125.                      into the future.
                                                resources on the part of the parties to                                                                         Comment: Another commenter
                                                the agreement.                                          Section 583.350 When can an                           suggested that BOEM needs to more
                                                                                                        agreement be terminated?                              clearly identify the basis that staff will
                                                Section 583.335        What is the term of
                                                                                                           This section explains the                          use to weigh the stated criteria for
                                                the agreement?                                                                                                approval of a negotiated noncompetitive
                                                                                                        circumstances under which the Director
                                                   This section explains when an                        will terminate an agreement after notice              agreement in the face of competing
                                                agreement terminates: (1) By a date                     and an opportunity to be heard. The                   interests. The commenter also suggested
                                                specified in the agreement; (2) pursuant                termination factors include fraud or                  that a timeline for approval of an
                                                to 30 CFR 583.350; or (3) when parties                  misrepresentation. This section also                  agreement be stated in the rule.
                                                                                                        explains the circumstances under which                  Response: Currently, BOEM evaluates
                                                to the agreement notify BOEM in
                                                                                                                                                              applications for the use of OCS sand,
                                                writing that sufficient resources, up to                the Director may immediately suspend
                                                                                                                                                              gravel, and/or shell resources on a case-
                                                the amount authorized in the agreement,                 and subsequently terminate an
                                                                                                                                                              by-case basis as they are submitted,
                                                have been removed to complete the                       agreement, including when there is
                                                                                                                                                              taking into account relevant factors and
                                                project. This section also explains that,               noncompliance with the agreement;
                                                                                                                                                              criteria described in the rule and below.
                                                absent extraordinary circumstances, no                  national security or defense reasons; or
                                                                                                                                                              The criteria BOEM uses in evaluating an
                                                agreement will have a term that is                      when the Director determines that: (1)
                                                                                                                                                              application are provided in Section
                                                longer than five years from its effective               There are situations in which
                                                                                                                                                              583.305. BOEM does not assign a weight
                                                date. Examples of extraordinary                         continuing with the agreement would
                                                                                                                                                              to each criterion but considers each
                                                circumstances where a term longer than                  cause serious harm or damage to natural
                                                                                                                                                              criterion in the context of the entire
                                                five years may be appropriate include a                 resources, life, property, the marine,                proposed project, as well as pending
                                                program of multiple individual projects                 coastal, or human environment, or                     requests for other projects in the same
                                                to be carried out over multiple seasons,                significant historical or archaeological              or nearby borrow areas.
                                                                                                        sites, structures or objects; (2) the threat            The timelines for processing
                                                or where the Congressional
                                                                                                        of harm or damage will not disappear or               applications and requests vary based
                                                authorization for a project calls for
                                                                                                        decrease to an acceptable extent within               upon a number of factors, including, but
                                                multiple phases. It is within BOEM’s
                                                                                                        a reasonable period of time; and (3) the              not limited to, completion of necessary
                                                sole discretion to determine when
                                                                                                        advantages of termination outweigh the                environmental analyses (e.g., through
                                                extraordinary circumstances warrant a                   advantages of continuing the agreement.
                                                term longer than five years. Prior to the                                                                     the NEPA process) and consultation
                                                                                                        This section also explains the process                processes (e.g., Tribal consultations or
                                                end of the term in an agreement, the                    for terminations and suspensions and
                                                parties would have the option to request                                                                      ESA consultations). The environmental
                                                                                                        explains that none of the parties to the              review process can range from six
                                                an extension or modification to the                     agreement will be entitled to
                                                terms of the agreement, as set forth in                                                                       months to a year or more. The duration
                                                                                                        compensation as a result of expenses or               of the environmental review is variable
                                                section 583.345.                                        lost revenues that may result from the                and can be influenced by many factors
                                                Section 583.340 What debarment or                       termination.                                          that can drive different timeframes,
                                                suspension obligations apply to                         III. Summary of Comments Received on                  including the scope and issues of a
                                                transactions and contracts related to a                 the Proposed Rule and BOEM                            project, type of environmental review
                                                project?                                                Responses                                             needed (e.g., Environmental Assessment
                                                                                                                                                              (EA) or Environmental Impact
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                                                  This section explains that the                        General Comments on 30 CFR Part 583                   Statement (EIS) under NEPA),
                                                applicant has the obligation to ensure                    Comment: Two commenters                             applicability of reviews or consultations
                                                that all contracts and transactions                     commended BOEM for its existing                       previously completed, additional
                                                related to an agreement issued under                    program to utilize OCS sand, gravel,                  information or studies that may be
                                                this part comply with the suspension                    and/or shell resources to repair                      necessary, emergent stakeholder
                                                and debarment regulations at 2 CFR part                 damaged coastal areas and improve                     concerns, and whether or not another
                                                180 and 2 CFR part 1400.                                shore protection, beach restoration and               Federal partner is leading, or


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                                                45966             Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations

                                                cooperating on, the environmental                       Management Working Group meetings                     stakeholders to identify and manage
                                                review and consultations. Once the                      in close consultation with the states to              overlapping interest by state and local
                                                environmental reviews and                               understand future projected OCS sand,                 governments in using OCS borrow areas.
                                                consultations are completed, it may take                gravel, and/or shell resource needs.                  As BOEM evaluates an individual
                                                up to an additional six months to                       BOEM seeks to make its process a                      project through the environmental
                                                complete the process for issuing a final                collaborative effort that involves all                analyses, it will consider potential
                                                agreement, as project-specific                          interested stakeholders, where                        cumulative impacts to borrow areas
                                                stipulations in the agreement are                       appropriate.                                          from other past, present and proposed
                                                negotiated between the applicant(s) and                   Comment: One commenter suggested                    uses.
                                                BOEM.                                                   that since sand resources are often                      Comment: A commenter suggested
                                                   Because every project must be                        identified by and valuable to local                   that the non-exclusive use of resources
                                                evaluated using a number of factors and                 governments, they should be granted                   provision is not workable because the
                                                project-specific information, BOEM                      exclusive use for those OCS sand,                     rule does not specify that concurrent
                                                determined that it is not possible to                   gravel, and/or shell resources if they                negotiated noncompetitive agreements
                                                modify the rule as requested by the                     expend the resources to develop them as               will be non-conflicting, and could
                                                commenters. Providing specific                          potential borrow areas. The commenter                 provide an advantage to the first
                                                weighting of criteria or providing an                   referenced local government funding of                applicant granted access to use a
                                                inflexible review deadline would be                     borrow area studies and questioned                    resource.
                                                unnecessarily restrictive given the                     whether funding would be reimbursed if                   Response: Nothing in OCSLA
                                                complexities of evaluating individual,                  the area studied is authorized for use by             authorizes BOEM to grant an ownership
                                                site specific projects while complying                  another party. The commenter suggested                interest in OCS borrow areas or the
                                                with multiple statutes governing                        that BOEM should decide which                         sand, gravel, and/or shell resources on
                                                environmental review and consultation.                  particular use of resources is in the                 the OCS, or the exclusive use of an OCS
                                                   Comment: One commenter thought                       national interest.                                    sand, gravel, or shell resource in a
                                                there should be public notice of every                    Response: An executed agreement                     negotiated noncompetitive agreement
                                                application and agreement to increase                   grants the right to a party to extract and            (43 U.S.C. 1337(k)(2)). In BOEM
                                                the transparency of the process. Another                use OCS sand, gravel, and/or shell                    negotiated agreements, BOEM expressly
                                                expressed that BOEM should consider a                   resources from a designated borrow area               reserves the right to authorize other uses
                                                process to provide notice and solicit                   as further described below. The                       in the designated borrow area that will
                                                additional expressions of interest or                   provision of OCSLA, which this final                  not unreasonably interfere with
                                                proposals from the public when it                       rule implements, does not provide for                 activities authorized under the
                                                receives an application for a particular                agreements that grant the exclusive use               agreement. BOEM allows parties to an
                                                area. Finally, one commenter stated that                of OCS sand, gravel, and/or shell                     agreement to review and comment on
                                                the procedures set out in the rule do not               resources, but rather provides for the                any proposed authorizations for use of
                                                contain sufficient opportunities or                     negotiation of agreements on a                        OCS sand resources in the designated
                                                avenues for public engagement.                          noncompetitive basis as qualifying                    borrow area while their agreement is in
                                                   Response: BOEM is endeavoring to                     projects and programs are proposed. See               effect. To the extent there are multiple
                                                increase transparency of the negotiated                 43 U.S.C. 1337(k)(2). BOEM does not                   projects in the same borrow area, the
                                                noncompetitive agreement process                        reimburse parties for independent                     negotiated noncompetitive agreements
                                                through efforts such as posting formal                  studies conducted on the OCS.                         may encourage coordination between
                                                request letters on its Web page and                     However, BOEM does often work with                    the parties to reduce the potential for
                                                coordinating with the states in advance                 individual states through funded                      space/use conflicts.
                                                of anticipated requests for OCS sand,                   cooperative agreements to identify                       This final rule modified language in
                                                gravel, and/or shell resources. BOEM                    potential sand resources on the OCS.                  the proposed rule at section 583.130 to
                                                will be unable, however, to formally                    BOEM operates the program in the                      state ‘‘BOEM may allow other entities to
                                                solicit additional expressions of interest              national interest and in keeping with                 use OCS sand, gravel, and/or shell
                                                each time it receives an application                    the policies under OCSLA for providing                resources from the same borrow area if
                                                because the applicable statutory                        access to OCS sand, gravel, and/or shell              these uses are determined by BOEM to
                                                provision governing agreements issued                   resources.                                            be non-conflicting and do not exceed
                                                pursuant to these regulations                             Comment: A commenter expressed                      the availability of the OCS resource.’’
                                                specifically provides for a                             concern that a proximal OCS borrow                       Comment: One commenter stated that
                                                noncompetitive process where                            area specifically identified for a local              the proposed rule does not address
                                                agreements are negotiated on a                          project as containing appropriate                     borrow area sediment use, quantity, and
                                                qualifying program or project basis. See                material could be removed by another                  quality.
                                                43 U.S.C. 1337(k)(2). Public notice of                  entity, thereby increasing the cost to the               Response: Regarding borrow sediment
                                                projects will be provided through the                   original local sponsor as they have to                use, section 583.120 (a) states that
                                                BOEM Web site and, as appropriate,                      haul material from a greater distance. A              ‘‘BOEM may enter into an agreement
                                                during the public participation process                 commenter also suggested that BOEM                    with any person proposing to use OCS
                                                of NEPA; the permitting process for                     needs a way to prioritize projects.                   sand, gravel, or shell resources for a
                                                authorized U.S. Army Corps of                             Response: BOEM encourages ongoing                   program of, or project for, shore
                                                Engineers (USACE) civil works projects,                 dialogue among stakeholders so that it                protection, beach restoration, or coastal
                                                through the USACE Section 404                           can manage the interests of multiple                  wetlands restoration.’’ Section
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                                                permitting process, where applicable;                   parties in these critical resources going             583.300(a) requires that the applicant
                                                and through BOEM engagement during                      forward. BOEM facilitates such                        detail how the material will be used and
                                                stakeholder outreach and government-                    discussions through its annual regional               how the proposed project qualifies as an
                                                to-government consultations. In                         Sand Management Working Group                         eligible project. Regarding quantity,
                                                addition, to facilitate stakeholder                     meetings. In addition, BOEM will                      section 583.130 calls for any issued
                                                awareness and engagement, BOEM                          undertake additional future                           agreement to identify the volume and
                                                holds annual regional Sand                              coordination with interested                          type of OCS sand, gravel, and/or shell


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                                                                  Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations                                         45967

                                                resources that may be obtained from the                 agency is one of the applicants. Another              (‘‘Any Federal agency which proposes
                                                authorized borrow site for the qualified                commenter noted that the proposed rule                to make use of sand, gravel, and/or shell
                                                project. gravel, and/or shell.                          seems to apply only to projects funded                resources subject to the provisions of
                                                   Aside from identifying the type of                   in whole or in part by the Federal                    this subchapter shall enter into a
                                                resources included in an agreement, the                 Government, and it questions how these                Memorandum of Agreement with the
                                                regulation does not address quality.                    regulations will affect local and state               Secretary concerning the potential use
                                                BOEM will not make representations as                   projects proposed without a Federal                   of those resources.’’). The application
                                                to any aspects of quality, other than the               partner. A commenter asked how                        review process and all other
                                                type, of any particular material utilized               BOEM’s negotiated noncompetitive                      requirements are the same.
                                                for qualified projects. It is the                       agreement process addresses when non-                    Comment: A commenter asked
                                                applicant’s responsibility to assess the                Federal projects identify borrow areas                whether a project might be approved to
                                                quality of the type of OCS sand, gravel,                that a Federal project also identifies.               extract material and create a stockpile
                                                and/or shell resources in a borrow area                    Response: OCSLA, at 43 U.S.C.                      onshore, for use as needed over time.
                                                as it relates to the suitability of these               1337(k), provides that BOEM may enter                 The commenter also inquired whether
                                                resources for the applicant’s proposed                  into agreements for use of OCS sand,                  an entity would be allowed to sell any
                                                use.                                                    gravel, and/or shell resources in: (i) A              excess material deemed unnecessary for
                                                   Comment: A commenter suggested                       program of, or project for, shore                     the original purpose to defray costs.
                                                that BOEM prepare a programmatic                        protection, beach restoration, or coastal                Response: Regarding borrow sediment
                                                environmental impact statement for this                 wetlands restoration undertaken by a                  use, section 583.120(a) states that
                                                rule, as well as engage in consultation                 Federal, state, or local government                   ‘‘BOEM may enter into an agreement
                                                under the Endangered Species Act. The                   agency; or (ii) for use in a construction             with any person proposing to use OCS
                                                commenter felt that a project-by-project                project, other than a project described in            sand, gravel, or shell resources for a
                                                approach to NEPA and ESA                                clause (i), that is funded in whole or in             program of, or project for, shore
                                                consultations would fail to account for                 part by or authorized by the Federal                  protection, beach restoration, or coastal
                                                cumulative impacts from multiple                        Government (emphasis added). These                    wetlands restoration . . . ’’ (emphasis
                                                projects.                                               new regulations at 30 CFR part 583                    added). Other uses are not authorized
                                                   Response: These final regulations are                codify the process for BOEM to enter                  under this section of OCSLA. BOEM,
                                                administrative and procedural in nature                 into negotiated noncompetitive                        with the support of its sister agency the
                                                and therefore meet the criteria set forth               agreements for any of these types of                  Bureau of Safety and Environmental
                                                in 43 CFR 46.210(i) for a Departmental                  projects. Therefore, a state or local                 Enforcement (BSEE), will enforce the
                                                ‘‘categorical exclusion’’ in that this rule             government agency may qualify for a                   provisions of the lease and will take
                                                is ‘‘. . . of an administrative, financial,             negotiated noncompetitive agreement to                appropriate enforcement actions, if
                                                legal, technical, or procedural nature.                 use these OCS resources for a project                 necessary. The new regulation section
                                                . . .’’ BOEM has also determined that                   they undertake for shore protection,                  583.300(a) specifically requires that the
                                                the rule does not involve any of the                    beach restoration, or coastal wetlands                applicant detail how the material will
                                                extraordinary circumstances listed in 43                restoration, whether or not they have a               be used and how it qualifies as an
                                                CFR 46.215. Similarly, the rule does not                Federal partner for the project. Whether              eligible project. Staging of the OCS
                                                itself result in any impacts to listed                  a project is undertaken by or funded by               sand, gravel, and/or shell resources
                                                species under the ESA.                                  a Federal partner or by a non-Federal                 onshore for ultimate use in a qualified
                                                   BOEM has determined, in its                          applicant, the requests are reviewed and              project or program may be approved so
                                                discretion under NEPA, it will either                   processed similarly by BOEM,                          long as the resources are ultimately used
                                                individually or programmatically                        including, but not limited to, analyzing              for the qualified project identified in the
                                                evaluate the environmental impacts of                   multiple interests in the same borrow                 agreement, during the agreement term.
                                                projects as they are proposed, when                     areas at the time a negotiated                        However, the sale of excess material not
                                                there is sufficient information on the                  noncompetitive agreement is processed.                needed for the project would not be a
                                                proposal to be evaluated, including but                    Comment: A commenter stated that it                qualified use of the OCS sand, gravel,
                                                not limited to the timing, location, and                appears the process for approval of a                 and/or shell resources and would
                                                                                                        negotiated noncompetitive agreement                   therefore not be an authorized use.
                                                resources that may be implicated.
                                                                                                        will take more time and be more
                                                Without these types of project specific                                                                       583.125 What are my rights to seek
                                                                                                        expensive than preparing a
                                                details, impacts could not be reasonably                                                                      reconsideration of an unfavorable
                                                                                                        Memorandum of Agreement (MOA) for
                                                evaluated at a national programmatic                                                                          decision by BOEM?
                                                                                                        a Federal project.
                                                level. NEPA requires, even in project                      Response: The timing and expense to                   Comment: One commenter suggested
                                                specific analyses, that cumulative                      obtain an MOA for federally funded,                   that besides the right to request
                                                impacts from past, present, and                         authorized, or constructed projects is                reconsideration of the Director provided
                                                reasonably foreseeable activities be                    the same as for a lease for a non-federal             by section 583.125, appellants should be
                                                considered. There is a similar                          project. Similar required information                 allowed to appeal pursuant to 30 CFR
                                                requirement during ESA consultations                    must be submitted in an application for               part 590, like appeals from other DOI
                                                to ensure cumulative impacts on listed                  any negotiated noncompetitive                         land management decisions. Another
                                                species are considered.                                 agreement, whether it takes the form of               commenter thought the appeals process
                                                Comments Related to Specific Sections                   a lease (for projects that do not have a              was too limited and provided too much
                                                of the Rule                                             Federal partner) or an MOA (for projects              authority to the BOEM Director to
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                                                                                                        including a Federal agency). Both will                decide whether a project qualifies. One
                                                583.120     Who is qualified for a project?             undergo the same environmental                        commenter requested clarification that
                                                  Comment: One commenter suggested                      scrutiny. The decision to call an                     this regulation would not affect actions
                                                that the rule seems to apply only to                    agreement a MOA versus a lease is                     brought under the Administrative
                                                Federal projects and makes the                          strictly a matter of whether another                  Procedure Act.
                                                application process to obtain an                        Federal agency is involved, as mandated                  Response: The reconsideration
                                                agreement easier when another Federal                   by OCSLA at 43 U.S.C. 1337(k)(D)                      process for unsuccessful applicants in


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                                                45968             Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations

                                                this rule is consistent with the process                fulfill the information request for any               Act permit authorizations may be
                                                BOEM has provided to unsuccessful                       overlapping items.                                    required for geophysical data
                                                bidders in other leasing programs                         Response: BOEM needs the                            acquisition activities, such as sub-
                                                administered by the Bureau. See e.g., 30                information identified in the regulations             bottom profiling and seismic surveys.
                                                CFR 556.517 and 585.118. Due to the                     to inform its own decision on whether                    Response: BOEM believes these issues
                                                similarities between this program and                   to issue a negotiated noncompetitive                  are already addressed adequately under
                                                other mineral leasing programs                          agreement for OCS sand, gravel, and/or                section 583.300(a)(5) and (a)(8). The
                                                administered by BOEM, the Bureau                        shell resources. There may be                         minimum list of items that should
                                                determined that using a similar process                 information requested by section                      accompany a request is provided in
                                                to allow applicants to request                          583.300 that is also collected under the              section 583.300(a). This list is not meant
                                                reconsideration of disapprovals of                      Clean Water Act permit application. In                to be exhaustive of all steps/
                                                applications for leases or MOAs related                 cases where duplicative information is                authorizations that may be required in
                                                to OCS sand, gravel, and/or shell                       required by more than one agency,                     order to provide the necessary
                                                resources would give applicants an                      BOEM will allow applicants to submit                  information, such as permits for survey
                                                appropriate review opportunity.                         that portion of the Clean Water Act                   work that may be required to support
                                                Therefore, the final rule includes                      permit application to BOEM as part of                 the request. For example, the need for
                                                BOEM’s standard process of allowing                     the negotiated noncompetitive                         Marine Mammal Protection Act and
                                                unsuccessful applicants, whose request                  agreement application to reduce                       Endangered Species Act authorizations
                                                was disapproved or disqualified by the                  reporting burdens.                                    is project and species specific and
                                                Regional Director or equivalent, to seek                  Comment: Another commenter urged                    cannot be determined in advance of a
                                                reconsideration by the Director. This                   BOEM to modify its rule to include a                  request.
                                                final rule provides for a reconsideration               requirement to identify the location of
                                                                                                        existing and planned submarine cables,                583.310 What process does BOEM use
                                                process for decisions on negotiated                                                                           to technically and environmentally
                                                noncompetitive agreements under 43                      called proximate critical infrastructure,
                                                                                                        and then for applicants to coordinate                 evaluate a qualified project?
                                                U.S.C. 1337(k). Agreements typically
                                                include a dispute resolution process as                 and consult about OCS sand, gravel,                     Comment: One commenter suggested
                                                part of the terms negotiated with the                   and/or shell resource extraction                      that an Environmental Impact Statement
                                                applicants; therefore, a separate appeals               operations with the infrastructure                    should be prepared about the effects of
                                                process is not necessary once the                       owners as a condition to qualifying for               resource removal and placement.
                                                                                                        a negotiated agreement with BOEM. The                   Response: Once BOEM determines
                                                agreement is executed.
                                                                                                        commenter encourages the                              that a project qualifies for a negotiated
                                                583.130 What are the minimum                            establishment of default or minimum                   noncompetitive agreement, a project-
                                                contents of an agreement to use OCS                     separation distances to protect                       specific environmental evaluation
                                                sand, gravel, and/or shell resources?                   submarine cables.                                     process begins, consistent with the
                                                                                                          Response: Although submarine cables                 Bureau’s obligations under NEPA and
                                                   Comment: A commenter requested                       are not identified specifically in the                other applicable law. BOEM will
                                                that BOEM specify that the minimum                      rule, the careful evaluation of other uses            evaluate the project and all relevant
                                                contents of an agreement should include                 of potential OCS borrow areas are                     information provided to determine if the
                                                terms and conditions, including                         considered throughout the review                      information is sufficient to conduct
                                                recommended, as well as required                        process. Minimum separation distances                 necessary technical and environmental
                                                environmental mitigation requirements.                  from known infrastructure are already                 reviews to assure the project complies
                                                A commenter questioned whether more                     incorporated into the language of                     with the requirements of relevant
                                                than one entity might use the same                      negotiated noncompetitive agreements.                 statutes or regulations. As required by
                                                resource.                                               In addition, survey requirements help                 law, BOEM complies with NEPA in
                                                   Response: Text has been added to this                ensure that activities avoid hazards or               undertaking agency action. BOEM will
                                                final rule in section 583.130, to provide               anthropogenic resources, including, but               determine the level of environmental
                                                that the negotiated noncompetitive                      not limited to, potential shipwrecks and              review (e.g., environmental assessment
                                                agreement will include ‘‘terms and                      infrastructure. BOEM has added a                      or environmental impact statement)
                                                conditions and environmental                            reference to infrastructure to the final              appropriate to the NEPA process once it
                                                stipulations.’’ As noted above, text was                rule at section 583.300(a)(4), a term                 has enough site-specific and project
                                                also added to respond to a comment on                   which would include submarine cables                  information. During that NEPA process
                                                non-exclusive use of the resources in a                 and other similar such hazards. BOEM,                 and any related ESA consultation,
                                                borrow area to state, ‘‘BOEM may allow                  however, encourages submarine cable                   BOEM identifies and evaluates
                                                other entities to use OCS sand, gravel,                 owners and operators to coordinate with               cumulative impacts.
                                                and/or shell resources from the same                    and inform BOEM on the placement and
                                                borrow area if these uses are determined                location of such infrastructure to further            583.320 What kinds of information
                                                by BOEM to be non-conflicting and do                    reduce the potential for space/use                    must be included in an agreement?
                                                not exceed the availability of the OCS                  conflicts. BOEM appreciates recent                       Comment: A commenter suggested
                                                resource.’’                                             overtures from this industry about this               that BOEM should add language to its
                                                583.300 How do I submit a request for                   concern and we look forward to ongoing                rule so that it may require
                                                an agreement?                                           coordination on these issues.                         environmental mitigation measures and
                                                                                                          Comment: A commenter asked that                     a reservation for BOEM to modify the
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                                                  Comment: One commenter suggested                      BOEM specify that all requests for an                 agreement and/or terms and conditions
                                                that duplicative information is currently               agreement should include ecological                   to further mitigate detrimental
                                                submitted in association with an                        information, including surveys of                     environmental effects.
                                                application under this rule and a Clean                 wildlife and habitat characterizations. A                Response: BOEM considers potential
                                                Water Act application. It suggested                     commenter requested that BOEM clarify                 mitigation measures throughout the
                                                instead that submission of the Clean                    that separate Marine Mammal                           environmental review process for the
                                                Water Act application be allowed to                     Protection Act and Endangered Species                 application and during drafting of


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                                                                  Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations                                         45969

                                                negotiated noncompetitive agreements.                   project applicant to obtain an agreement              and have remained relatively consistent
                                                BOEM develops environmental                             and enter into related construction                   for two decades. This rule does not
                                                protection or mitigation measures for an                contracts. There must be some                         materially change the existing
                                                individual project when reviewing the                   reasonable time limit within which                    requirements for authorizing the use of
                                                application and while drafting the                      BOEM expects the resources to be used                 OCS sand, gravel, and/or shell resources
                                                agreement or as a result of ESA                         and the project completed to fulfill the              through leases or MOAs for shore
                                                consultation. BOEM includes these                       Bureau’s statutory obligations and                    protection, beach or wetlands
                                                measures, as appropriate, as terms and                  manage the resources responsibly for                  restoration by a Federal, state or local
                                                conditions in the agreement. BOEM has                   multiple stakeholders.                                government agency, or for construction
                                                modified the final rule language to                       Congressional authorization is not the              projects authorized or funded, in whole
                                                explicitly reference environmental                      only available condition for                          or in part, by the Federal Government.
                                                mitigations in section 583.320(e).                      demonstrating an extraordinary                        The regulatory baseline is essentially
                                                583.335 What is the term of the                         circumstance justifying a term longer                 the same as the rule. BOEM believes
                                                agreement?                                              than five years under section 585.335, or             that any changes between the current
                                                                                                        for obtaining a negotiated                            BOEM process and this rule are
                                                   Comment: One commenter objected to                   noncompetitive agreement extension
                                                a term of only five years, especially                                                                         immaterial and would not impose
                                                                                                        under section 585.345. When referring
                                                since non-federal projects, and those                                                                         additional compliance obligations or
                                                                                                        to section 583.307, the preamble to the
                                                with multiple phases, may have a                                                                              costs upon the regulated entities.
                                                                                                        proposed rule reads: ‘‘Examples of
                                                planning horizon of more than thirty                    extraordinary circumstances where an                     Formalizing the existing conveyance
                                                years. The commenter suggested that                     initial term longer than five years may               process will provide certainty to the
                                                any negotiated noncompetitive                           be appropriate would include a program                public entities requesting
                                                agreement should have a term that                       of multiple individual projects to be                 noncompetitive leases or MOAs for OCS
                                                coincides with the permitting timelines                 carried out over multiple seasons or                  sand, gravel, and/or shell resources.
                                                of the relevant state. Another                          where the Congressional authorization                 BOEM believes there is a benefit to the
                                                commenter noted that by limiting the                    for a project called for multiple phases.’’           regulated entities in the form of
                                                term to only five years, non-federal                    (81 FR 15190, 15193, March 22, 2016)                  regulatory certainty when Federal, state
                                                sponsors may lose the borrow area for                   (emphasis added). These are examples                  and local government agencies desire to
                                                subsequent project phases. In addition,                 of instances where an initial negotiated              use OCS sand, gravel, and/or shell
                                                the commenter concluded that only                       noncompetitive agreement term of
                                                federally authorized projects were                                                                            resources for qualifying projects.
                                                                                                        greater than five years may be                        Entities affected by this rulemaking had
                                                eligible for a negotiated noncompetitive
                                                                                                        considered, and are not meant to be an                the opportunity to comment through the
                                                agreement extension based on the
                                                                                                        exhaustive list. Extensions to                        rulemaking process on the proposed
                                                example of ‘‘extraordinary
                                                                                                        agreements are addressed in section                   provisions, which are consistent with
                                                circumstances’’ contained in the
                                                                                                        583.345 concerning processes for                      current practices for the conveyance of
                                                ‘‘Section-by-Section Analysis of the
                                                                                                        modification and may be granted, in                   sand, gravel, and/or shell resources.
                                                Proposed Rule’’ (81 FR 15190, 15193,
                                                                                                        BOEM’s discretion, after it re-evaluates
                                                March 22, 2016) that states that                                                                                 (2) This rule does not create a serious
                                                                                                        the project and conducts any additional
                                                extensions may be obtained ‘‘where the                                                                        inconsistency or otherwise interfere
                                                                                                        reviews that may be appropriate.
                                                Congressional authorization for a project                                                                     with an action taken or planned by
                                                called for multiple phases.’’                           583.345 What is the process for                       another agency. It reflects the existing
                                                   Response: BOEM has determined that                   extending or modifying an agreement?                  process developed over the life of the
                                                having a maximum term for negotiated                                                                          program in cooperation with other
                                                                                                          Comment: A commenter expressed
                                                noncompetitive agreements (see section
                                                                                                        concern that BOEM would not be able                   Federal agencies, including the U.S.
                                                583.335(b)), absent an extraordinary
                                                                                                        to modify an agreement.                               Fish and Wildlife Service (FWS),
                                                circumstance, encourages timely and
                                                                                                          Response: Per section 583.345, an                   National Marine Fisheries Service
                                                efficient use of the OCS sand, gravel,
                                                                                                        agreement may be extended or                          (NMFS) and U.S. Army Corps of
                                                and/or shell resources, informs the
                                                environmental analyses necessary for                    modified; the rule provides a process for             Engineers, and state and local
                                                BOEM to make a decision on the                          requesting such an amendment.                         governments.
                                                agreement, and enables BOEM to                          IV. Legal and Regulatory Analysis                        (3) This rule does not have an annual
                                                manage competing uses and requests for                                                                        effect on the economy of $100 million
                                                use of OCS sand, gravel, and/or shell                   Regulatory Planning and Review                        or more and does not adversely affect in
                                                resources from OCS borrow areas.                        (Executive Order (E.O.) 12866)
                                                                                                                                                              a material way the economy,
                                                   BOEM examined a number of options                       E.O. 12866 provides that the Office of             productivity, competition, jobs, the
                                                for maximum terms for agreements,                       Information and Regulatory Affairs                    environment, public health or safety, or
                                                absent extraordinary circumstances. A                   (OIRA), a part of the OMB, will review                state, local or tribal governments or
                                                longer maximum agreement term could                     all significant rules. OIRA has                       communities. This rule simply codifies
                                                serve as an incentive for agencies or                   determined that this rule is not                      BOEM’s longstanding existing practice.
                                                authorities to seek authorizations for                  significant.
                                                                                                                                                                 (4) This rule does not alter the
                                                highly speculative projects far into the                   (1) A regulatory impact analysis is not
                                                                                                                                                              budgetary effects of existing
                                                future that may be unlikely to be funded                required. This rule formalizes existing
                                                                                                                                                              entitlements, grants, user fees, or loan
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                                                or that would change significantly in                   policies and procedures that govern the
                                                scope and require additional                            use of OCS sand, gravel, and/or shell                 programs or the rights or obligations of
                                                environmental analysis in the future.                   resources. The existing policies,                     their recipients.
                                                Therefore, BOEM selected five years as                  procedures, consultations and                            (5) This rule does not raise novel legal
                                                the maximum term for negotiated                         monitoring requirements for the                       or policy issues arising out of legal
                                                noncompetitive agreements, which                        noncompetitive use of OCS sand, gravel,               mandates, the President’s priorities, or
                                                considers the lead times needed for a                   and/or shell resources are longstanding               the principles set forth in E.O. 12866.


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                                                45970             Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations

                                                Improving Regulation and Regulatory                     small businesses about Federal agency                 ambiguity and be written to minimize
                                                Review (E.O. 13563)                                     enforcement actions. The Ombudsman                    litigation; and,
                                                  E.O. 13563 reaffirms the principles of                will annually evaluate the enforcement                   (b) Meets the criteria of section 3(b)(2)
                                                E.O. 12866, while calling for                           activities and rate each agency’s                     requiring that all regulations be written
                                                improvements in the nation’s regulatory                 responsiveness to small business. If you              in clear language and contain clear legal
                                                system to promote predictability; reduce                wish to comment on the actions of                     standards.
                                                uncertainty; and use the best, most                     BOEM enforcement activities, you may                  Consultation With Indian Tribes (E.O.
                                                innovative, and least burdensome tools                  call 1–888–734–3247. You may                          13175)
                                                for achieving regulatory ends. The                      comment to the Small Business
                                                                                                        Administration without fear of                           The U.S. Department of the Interior
                                                executive order directs agencies to                                                                           (DOI) strives to strengthen its
                                                consider regulatory approaches that                     retaliation. Allegations of
                                                                                                        discrimination/retaliation filed with the             government-to-government relationship
                                                reduce burdens and maintain flexibility                                                                       with Indian tribes through a
                                                and freedom of choice for the public                    Small Business Administration will be
                                                                                                        investigated for appropriate action.                  commitment to consultation with Indian
                                                where these approaches are relevant,                                                                          tribes and recognition of their right to
                                                feasible, and consistent with regulatory                   This rule is not a major rule under the
                                                                                                        SBREFA (5 U.S.C. 804 (2)). This rule:                 self-governance and tribal sovereignty.
                                                objectives. E.O. 13563 emphasizes                                                                             BOEM’s Tribal Liaison Officer has
                                                further that regulations must be based                     (a) Will not have an annual effect on
                                                                                                        the economy of $100 million or more;                  certified that this regulation does not
                                                on the best available science and that                                                                        have tribal implications as defined in
                                                the rulemaking process must allow for                      (b) Will not cause a major increase in
                                                                                                        costs or prices for consumers,                        section 1(a) of E.O. 13175 and has
                                                public participation and an open                                                                              determined that the regulation does not
                                                exchange of ideas. BOEM has developed                   individual industries, Federal, State, or
                                                                                                        local government agencies, or                         have substantial and direct effects on
                                                this rule in a manner consistent with                                                                         federally recognized tribes or any
                                                these requirements.                                     geographic regions; and,
                                                                                                           (c) Will not have significant adverse              Alaska Native Corporation established
                                                Reducing Regulation and Controlling                     effects on competition, employment,                   pursuant to the Alaska Native Claims
                                                Regulatory Costs (E.O. 13771)                           investment, productivity, innovation, or              Settlement Act (ANCSA) (43 U.S.C.
                                                  This rule is not an E.O. 13771                        the ability of U.S.-based enterprises to              1601 et seq.)
                                                regulatory action because it is not                     compete with foreign-based enterprises.                  As it relates to any federally
                                                significant under E.O. 12866.                                                                                 recognized Indian tribe, this rule merely
                                                                                                        Unfunded Mandates Reform Act                          formalizes existing policies and
                                                Regulatory Flexibility Act (RFA)                           This rule would not impose an                      procedures that govern the use of OCS
                                                   BOEM certifies this rule would not                   unfunded mandate on State, local, or                  sand, gravel, and/or shell resources. The
                                                have a significant economic effect on a                 tribal governments, or the private sector             existing policies, procedures,
                                                substantial number of small entities                    of more than $100 million per year. A                 consultations and monitoring
                                                under the RFA (5 U.S.C. 601 et seq.). A                 statement containing the information                  requirements for the noncompetitive use
                                                Regulatory Flexibility Analysis is not                  required by the Unfunded Mandates                     of OCS sand, gravel, and/or shell
                                                required. Small public entities affected                Reform Act (2 U.S.C. 1501 et seq.) is not             resources are longstanding and have
                                                by this rulemaking may be cities,                       required.                                             remained relatively consistent for two
                                                counties, towns, townships, villages or                                                                       decades. If BOEM determines an
                                                special districts, with a population of                 Takings Implication Assessment (E.O.                  individual project authorized under this
                                                less than 50,000. Small entities are                    12630)                                                part may have effects on federally
                                                occasionally parties to an agreement for                  Under the criteria in E.O. 12630, this              recognized tribes or any Alaska Native
                                                the use of OCS sand, gravel, and/or shell               rule will not have significant takings                Corporation, BOEM will initiate
                                                resources. Over the last two decades,                   implications. The rule is not a                       consultation as soon as possible
                                                BOEM has issued nearly 50 leases or                     governmental action capable of                        consistent with E.O. 13175 and DOI
                                                MOAs with 22 parties, of which five                     interference with constitutionally                    tribal consultation policies. A tribe or
                                                were small public entities. Four out of                 protected property rights. A Takings                  Alaska Native Corporation may also
                                                the five small public entities received                 Implication Assessment is not required.               request BOEM to initiate consultation
                                                significant Federal cost-shares to                                                                            pursuant to E.O. 13175.
                                                                                                        Federalism (E.O. 13132)
                                                conduct beach replenishment projects.
                                                                                                          Under the criteria in E.O. 13132, this              Paperwork Reduction Act (PRA) of 1995
                                                The application and monitoring
                                                requirements are necessary to comply                    rule does not have sufficient federalism                This rule contains a collection of
                                                with Federal law and provide BOEM                       implications to warrant the preparation               information request that was submitted
                                                and the public with the best information                of a Federalism Assessment. This rule                 to OMB for review and approval under
                                                on the topographic changes in the OCS                   does not substantially and directly affect            44 U.S.C. 3501 et seq. The Paperwork
                                                borrow areas due to dredging. Since                     the relationship between the Federal                  Reduction Act (44 U.S.C. 3501–3521)
                                                BOEM is not proposing any material                      and state and local governments. To the               provides that an agency may not
                                                changes to the longstanding                             extent that State and local governments               conduct or sponsor, and a person is not
                                                requirements for the use of OCS sand,                   have a role in OCS activities, this rule              required to respond to, a ‘‘collection of
                                                gravel, and/or shell resources, this                    would not affect that role. A Federalism              information,’’ unless it has a currently
                                                rulemaking does not have a substantial                  Assessment is not required.                           valid OMB control number. Collections
                                                effect on small entities.                                                                                     of information include requests and
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                                                                                                        Civil Justice Reform (E.O. 12988)                     requirements that an individual,
                                                Small Business Regulatory Enforcement                     This rule complies with the                         partnership, or corporation obtain
                                                Fairness Act (SBREFA)                                   requirements of E.O. 12988.                           information, and report it to a Federal
                                                  The Small Business and Agriculture                    Specifically, this rule:                              Agency (44 U.S.C. 3502; 5 CFR 1320.2(c)
                                                Regulatory Enforcement Ombudsman                          (a) Meets the criteria of section 3(a)              and (k)).
                                                and 10 Regional Fairness Boards were                    requiring that all regulations be                       BOEM included a request for approval
                                                established to receive comments from                    reviewed to eliminate errors and                      of a collection of information in the


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                                                                        Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations                                                                               45971

                                                proposed rule. OMB approved the                                         Information Act (5 U.S.C. 552) and its                                   to estimate how many parties seeking
                                                collection for the final rule under                                     implementing regulations at 43 CFR part                                  agreements will be able to use this
                                                control number 1010–0191 for a total of                                 2. BOEM will collect the information                                     means of reducing the burdens of the
                                                243 burden hours. The final rule adds                                   under this part to evaluate applications                                 application process. This comment is
                                                a new part 583 to address the use of                                    for leases/agreements to access sand,                                    addressed in more detail in the
                                                OCS sand, gravel, and/or shell resources                                gravel, or shell resources on the OCS; to                                preamble of this final rule.
                                                for shore protection or replenishment,                                  balance multiple uses of the OCS; and                                      Another commenter focused on
                                                wetland restoration, or qualified                                       to monitor activities for environmental                                  consultation with the fishing industry
                                                construction projects. This part                                        protection and safety.
                                                                                                                                                                                                 regarding renewable energy projects,
                                                describes the negotiated noncompetitive                                    In response to the proposed rule,
                                                                                                                                                                                                 which is outside the scope of this
                                                agreement process for qualifying                                        BOEM received two comments that
                                                                                                                        addressed aspects of the information                                     rulemaking. This commenter stated that
                                                projects and codifies procedures.
                                                  The title of the IC request is ‘‘30 CFR                               collection for this rulemaking and are                                   the information request does not
                                                583, Negotiated Noncompetitive                                          summarized below. One commenter                                          include any provision requiring
                                                Agreements for the Use of Sand, Gravel,                                 suggested that the required information                                  consultation with the fishing industry or
                                                and Shell Resources on the OCS.’’                                       submitted with their permit application                                  reporting requirements that would
                                                Respondents are other Federal, state,                                   is duplicative of the information                                        ensure a project is compatible with
                                                and local government agencies;                                          submitted in a Clean Water Act                                           consideration of fishing rights.
                                                corporations; and individual entities.                                  application. In cases where the                                          However, such outreach and
                                                Responses will primarily be required to                                 information is duplicative in nature,                                    coordination does occur through the
                                                obtain or retain a benefit. The frequency                               BOEM will allow submission of the                                        NEPA, MSFCMA and other consultation
                                                of response will vary depending on the                                  information in the Clean Water Act                                       processes.
                                                requirement. BOEM will protect                                          permit application to BOEM to comply                                       The information collection burdens
                                                proprietary information according to 30                                 with the filing requirements of this rule.                               were not changed from the proposed
                                                CFR 550.197, ‘‘Data and information to                                  However, BOEM did not change the                                         rule. The following table provides a
                                                be made available to the public or for                                  burden hours for this requirement,                                       breakdown of the IC requirements and
                                                limited inspection,’’ the Freedom of                                    because we do not have sufficient data                                   burdens in this part.

                                                                                                                                             BURDEN TABLE
                                                                                                                                                                                                                         Average
                                                                                                                                                                                                                        number of       Annual burden
                                                       Citation 30 CFR 583                                    Reporting and recordkeeping requirement                                         Hour burden                 annual           hours
                                                                                                                                                                                                                        responses

                                                                                                              Subpart A—General—Federal, State, & local governments

                                                125 ..........................................   Apply for reconsideration to the BOEM Director within 15                                                          2                1               2
                                                                                                   days of notification; include statement of reasons; 1 copy
                                                                                                   to program office.

                                                                                                                               Subpart A—General—Corporations

                                                125 ..........................................   Apply for reconsideration to the BOEM Director within 15                                                          2                1               2
                                                                                                   days of notification; include statement of reasons; 1 copy
                                                                                                   to program office.

                                                                                                                                 Subpart A—General—Individuals

                                                125 ..........................................   Apply for reconsideration to the BOEM Director within 15                                                          2                1               2
                                                                                                   days of notification; include statement of reasons; 1 copy
                                                                                                   to program office.

                                                      Total Subpart A ....................................................................................................................   ........................               3               6

                                                                          Subpart C—OCS Sand, Gravel, & Shell Resources Negotiated Agreements—State & local governments

                                                300 ..........................................   Submit to BOEM a written request to obtain agreement; in-                                                       10                 4             40
                                                                                                   cluding, but not limited to: Detailed description of project;
                                                                                                   maps (geographic coordinates); G&G data; description/
                                                                                                   documentation of environmental evaluations; target dates;
                                                                                                   description of parties involved; required permits (status of/
                                                                                                   potential conflicts); points of contact info. for all parties in-
                                                                                                   volved; statement of funding.
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                                                305; 310(d) .............................        Submit additional information as requested by BOEM ..........                                                     5                1               5

                                                315(b) ......................................    Request that the BOEM Director reconsider a disapproved                                     Burden covered under 30 CFR                            2
                                                                                                   agreement.                                                                                     part 583, subpart A

                                                315(c)–(e) ...............................       Review and comment on draft agreement; sign and return                                                           8                 3             24
                                                                                                   copies for execution by BOEM.




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                                                45972                   Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations

                                                                                                                           BURDEN TABLE—Continued
                                                                                                                                                                                            Average
                                                                                                                                                                                           number of       Annual burden
                                                       Citation 30 CFR 583                                    Reporting and recordkeeping requirement                    Hour burden         annual           hours
                                                                                                                                                                                           responses

                                                335(a) ......................................    Submit written notification to BOEM once resources author-                            1               1               1
                                                                                                   ized are obtained.

                                                340 ..........................................   Assure all contractors comply with 2 CFR part 180 & 2 CFR                             2               1               2
                                                                                                   part 1400 in contract/transaction.

                                                345 ..........................................   Submit written request to extend or modify agreement to                               2               2               4
                                                                                                   BOEM within 180 days before expiration; submit any
                                                                                                   other documentation requested by BOEM; sign and return
                                                                                                   amendment; request that the BOEM Director reconsider a
                                                                                                   disapproved request to extend or modify.

                                                345(b) ......................................    Submit written request for letter amendment .........................                 1               1               1

                                                                                     Subpart C—OCS Sand, Gravel, & Shell Resources Negotiated Agreements—Corporations

                                                300 ..........................................   Submit to BOEM a written request to obtain agreement; in-                         10                  4             40
                                                                                                   cluding, but not limited to: Detailed description of project;
                                                                                                   maps (geographic coordinates); G&G data; description/
                                                                                                   documentation of environmental evaluations; target dates;
                                                                                                   description of parties involved; required permits (status of/
                                                                                                   potential conflicts); points of contact info. for all parties in-
                                                                                                   volved; statement of funding.

                                                305; 310(d) .............................        Submit additional information as requested by BOEM ..........                         5               1               5

                                                315(b) ......................................    Request that the BOEM Director reconsider a disapproved                 Burden covered under 30 CFR                   2
                                                                                                   agreement.                                                                 part 583, subpart A

                                                315(c)–(e) ...............................       Review and comment on draft agreement; sign and return                                8               3             24
                                                                                                   copies for execution by BOEM.

                                                335(a) ......................................    Submit written notification to BOEM once resources author-                            1               1               1
                                                                                                   ized are obtained.

                                                340 ..........................................   Assure all contractors comply with 2 CFR part 180 & 2 CFR                             2               1               2
                                                                                                   part 1400 in contract/transaction.

                                                345 ..........................................   Submit written request to extend or modify agreement to                               2               2               4
                                                                                                   BOEM within 180 days before expiration; submit any
                                                                                                   other documentation requested by BOEM; sign and return
                                                                                                   amendment; request that the BOEM Director reconsider a
                                                                                                   disapproved request to extend or modify.

                                                345(b) ......................................    Submit written request for letter amendment .........................                 1               1               1

                                                                                      Subpart C—OCS Sand, Gravel, & Shell Resources Negotiated Agreements—Individuals

                                                300 ..........................................   Submit to BOEM a written request to obtain agreement; in-                         10                  4             40
                                                                                                   cluding, but not limited to: Detailed description of project;
                                                                                                   maps (geographic coordinates); G&G data; description/
                                                                                                   documentation of environmental evaluations; target dates;
                                                                                                   description of parties involved; required permits (status of/
                                                                                                   potential conflicts); points of contact info. for all parties in-
                                                                                                   volved; statement of funding.

                                                305; 310(d) .............................        Submit additional information as requested by BOEM ..........                         5               1               5

                                                315(b) ......................................    Request that the BOEM Director reconsider a disapproved                 Burden covered under 30 CFR                   2
                                                                                                   agreement.                                                                 part 583, subpart A

                                                315(c)–(e) ...............................       Review and comment on draft agreement; sign and return                                8               3             24
jstallworth on DSKBBY8HB2PROD with RULES




                                                                                                   copies for execution by BOEM.

                                                335(a) ......................................    Submit written notification to BOEM once resources author-                            1               1               1
                                                                                                   ized are obtained.

                                                340 ..........................................   Assure all contractors comply with 2 CFR part 180 & 2 CFR                             2               1               2
                                                                                                   part 1400 in contract/transaction.




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                                                                        Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations                                                                                 45973

                                                                                                                                   BURDEN TABLE—Continued
                                                                                                                                                                                                                           Average
                                                                                                                                                                                                                          number of       Annual burden
                                                       Citation 30 CFR 583                                     Reporting and recordkeeping requirement                                          Hour burden                 annual           hours
                                                                                                                                                                                                                          responses

                                                345 ..........................................   Submit written request to extend or modify agreement to                                                            2                 2               4
                                                                                                   BOEM within 180 days before expiration; submit any
                                                                                                   other documentation requested by BOEM; sign and return
                                                                                                   amendment; request that the BOEM Director reconsider a
                                                                                                   disapproved request to extend, modify, or change.

                                                345(b) ......................................    Submit written request for letter amendment .........................                                               1                1               1

                                                      Total Subpart C ....................................................................................................................     ........................           39               237

                                                             Grand Total ...................................................................................................................   ........................           42               243



                                                  An agency may not conduct or                                           13211. A Statement of Energy Effects is                                   583.105 What is the purpose of this part
                                                sponsor, and you are not required to                                     not required.                                                                 and to whom does it apply?
                                                respond to, a collection of information                                                                                                            583.110 What is BOEM’s authority for this
                                                                                                                         Clarity of This Regulation                                                    part?
                                                unless it has a currently valid OMB
                                                                                                                            We are required by E.O. 12866, E.O.                                    583.115 What definitions do I need to
                                                control number. The public may                                                                                                                         know?
                                                comment, at any time, on the accuracy                                    12988, and the Presidential                                               583.120 Who is qualified for a project?
                                                of the IC burden estimate in this rule                                   Memorandum of June 1, 1998, to write                                      583.125 What are my rights to seek
                                                and may submit any comments to the                                       all rules in plain language. This means                                       reconsideration of an unfavorable
                                                Information Collection Clearance                                         that each rule we publish must:                                               decision by BOEM?
                                                Officer, Office of Policy, Regulation and                                   (a) Be logically organized;                                            583.130 What are the minimum contents of
                                                Analysis; Bureau of Ocean Energy                                            (b) Use the active voice to address                                        an agreement to use OCS sand, gravel,
                                                                                                                         readers directly;                                                             and/or shell resources?
                                                Management; VAM–BOEM DIR; 45600
                                                Woodland Road, Sterling, Virginia                                           (c) Use clear language rather than                                     Subpart B—[Reserved]
                                                20166.                                                                   jargon;
                                                                                                                            (d) Be divided into short sections and                                 Subpart C—Outer Continental Shelf Sand,
                                                National Environmental Policy Act                                        sentences; and                                                            Gravel, and/or Shell Resources Negotiated
                                                                                                                                                                                                   Agreements
                                                   This rule does not constitute a major                                    (e) Use lists and tables wherever
                                                                                                                         helpful.                                                                  Sec.
                                                Federal action significantly affecting the                                                                                                         583.300 How do I submit a request for an
                                                quality of the human environment.                                        List of Subjects in 30 CFR Part 583                                            agreement?
                                                BOEM has analyzed this rule under the                                                                                                              583.305 How will BOEM determine if a
                                                criteria of the NEPA and DOI’s NEPA                                        Administrative practice and
                                                                                                                                                                                                        project qualifies?
                                                implementing regulations at 43 CFR part                                  procedure, Beach restoration, Coastal                                     583.310 What process does BOEM use to
                                                46. This rule meets the criteria set forth                               wetlands restoration, Continental shelf,                                       technically and environmentally
                                                in 43 CFR 46.210(i) for a Departmental                                   Federal lands, Gravel, Government                                              evaluate a qualified project?
                                                ‘‘categorical exclusion’’ in that this rule                              contracts, Intergovernmental relations,                                   583.315 What is the process for negotiating
                                                is ‘‘. . . of an administrative, financial,                              Marine minerals, Marine minerals                                               and executing an agreement?
                                                                                                                         program, Noncompetitive agreements,                                       583.320 What kinds of information must be
                                                legal, technical, or procedural nature                                                                                                                  included in an agreement?
                                                . . . .’’ BOEM has also determined that                                  Negotiated agreements, Outer
                                                                                                                         Continental Shelf, Reporting and                                          583.325 What is the effective date of an
                                                the rule does not involve any of the                                                                                                                    agreement?
                                                extraordinary circumstances listed in 43                                 recordkeeping, Sand, Shell resources,                                     583.330 How will BOEM enforce the
                                                CFR 46.215.                                                              and Shore protection.                                                          agreement?
                                                                                                                           Dated: September 27, 2017.                                              583.335 What is the term of the agreement?
                                                Information Quality Act (IQA)                                            Katharine S. MacGregor,                                                   583.340 What debarment or suspension
                                                   In accordance with the IQA, DOI has                                                                                                                  obligations apply to transactions and
                                                                                                                         Acting Assistant Secretary—Land and                                            contracts related to a project?
                                                issued guidance regarding the quality of                                 Minerals Management.                                                      583.345 What is the process for extending
                                                information that it relies upon for                                        For the reasons stated in the                                                or modifying an agreement?
                                                regulatory decisions. This guidance is                                   preamble, BOEM amends 30 CFR                                              583.350 When can an agreement be
                                                available at DOI’s Web site at http://                                   chapter V by adding 30 CFR part 583 to                                         terminated?
                                                www.doi.gov.                                                             subchapter B to read as follows:                                             Authority: 43 U.S.C. 1334.
                                                   Send your comments to the U.S.
                                                Department of the Interior, Bureau of                                    PART 583—NEGOTIATED                                                       Subpart A—General
                                                Ocean Energy Management, Office of                                       NONCOMPETITIVE AGREEMENTS
                                                Policy, Regulation and Analysis, Attn:                                                                                                             § 583.100 What is BOEM’s authority for
                                                                                                                         FOR THE USE OF OUTER                                                      information collection (IC)?
                                                IQA Comments, 45600 Woodland Road,                                       CONTINENTAL SHELF SAND,
jstallworth on DSKBBY8HB2PROD with RULES




                                                VAM–BOEM DIR, Sterling, Virginia                                         GRAVEL, AND/OR SHELL                                                        The IC requirements contained in part
                                                20166.                                                                   RESOURCES                                                                 583 have been approved by OMB under
                                                                                                                                                                                                   44 U.S.C. 3501 and assigned control
                                                Effects on the Energy Supply (E.O.                                       Subpart A—General                                                         number 1010–0191. The information is
                                                13211)                                                                                                                                             being collected to determine if the
                                                                                                                         Sec.
                                                  This rule is not a significant energy                                  583.100 What is BOEM’s authority for                                      applicant for a negotiated
                                                action under the definition in E.O.                                           information collection (IC)?                                         noncompetitive agreement (agreement)


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                                                45974             Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations

                                                for the use of sand, gravel, and/or shell               government agencies, or in a                          for, shore protection, beach restoration,
                                                resources on the Outer Continental                      construction project authorized by, or                or coastal wetlands restoration
                                                Shelf (OCS) is qualified to enter into                  funded in whole or in part by, the                    undertaken by a Federal, state, or local
                                                such an agreement and to determine if                   Federal government. The form of the                   government agency or in a construction
                                                the requested action is warranted.                      agreement will be a Memorandum of                     project that is funded in whole or in
                                                Applicants and parties to an agreement                  Agreement (if one or more of the parties              part by or authorized by the Federal
                                                are required to respond to requests                     to the agreement, other than BOEM, is                 Government.
                                                related to IC activities.                               a Federal agency) or a lease (if all of the             (b) To request an agreement under
                                                                                                        parties to the agreement other than                   this part, the applicant must be:
                                                § 583.105 What is the purpose of this part
                                                and to whom does it apply?
                                                                                                        BOEM are non-Federal agencies or                        (1) A Federal, state, or local
                                                                                                        persons).                                             government agency;
                                                  The regulations in this part provide                     Amendment means a modification to                    (2) A citizen or national of the United
                                                procedures for entering into negotiated                 the agreement between BOEM and the                    States;
                                                noncompetitive agreements for the use                   parties to the agreement that extends or                (3) An alien lawfully admitted for
                                                of OCS sand, gravel, and/or shell
                                                                                                        modifies the terms of the agreement.                  permanent residence in the United
                                                resources. The rules of this part apply                    Applicant means any person                         States, as defined in the Immigration
                                                exclusively to negotiated                               proposing to use OCS sand, gravel, and/               and Nationality Act, as amended (8
                                                noncompetitive use of OCS sand, gravel,                 or shell resources for a shore protection,            U.S.C. 1101(a)(20));
                                                and/or shell resources and do not apply                 beach restoration or coastal wetlands
                                                to competitive leasing of minerals,                                                                             (4) A private or public corporation
                                                                                                        restoration project undertaken by a                   organized under the laws of the United
                                                including oil, gas, sulphur,
                                                                                                        Federal, state or local government                    States, or of any State or territory
                                                geopressured-geothermal and associated
                                                                                                        agency, or a construction project                     thereof; or
                                                resources, and all other minerals that
                                                                                                        authorized by, or funded in whole or in                 (5) An association of such citizens,
                                                are authorized by an Act of Congress to
                                                                                                        part by, the Federal Government. If                   nationals, resident aliens, or private or
                                                be produced from ‘‘public lands’’ as
                                                                                                        multiple persons or Federal, state, or                public corporations.
                                                defined in section 103 of the Federal
                                                                                                        local governments, other than BOEM,                     (c) When entering into an agreement
                                                Land Policy and Management Act of
                                                                                                        partner on a project they will be                     under this part, all applicants are
                                                1976, as amended (43 U.S.C. 1701 et
                                                                                                        considered joint applicants.                          subject to the requirements of 2 CFR
                                                seq.).
                                                                                                           BOEM means the Bureau of Ocean                     part 180 and 2 CFR part 1400.
                                                § 583.110 What is BOEM’s authority for                  Energy Management of the U.S.
                                                this part?                                              Department of the Interior (DOI).                     § 583.125 What are my rights to seek
                                                                                                           Borrow area means the offshore                     reconsideration of an unfavorable decision
                                                   (a) Pursuant to authority granted by
                                                                                                        geographic area(s) or region(s) where                 by BOEM?
                                                section 8(k) of the Outer Continental
                                                Shelf Lands Act (OSCLA), as amended                     OCS sand, gravel, and/or shell resources                 (a) After being notified of
                                                (43 U.S.C. 1337(k)), the Secretary has                  have been identified for potential use in             disqualification or disapproval of an
                                                authority to negotiate a noncompetitive                 a specific project.                                   agreement or modification, an
                                                agreement for the use of OCS sand,                         Federal agency means any                           unsuccessful applicant, or adversely
                                                gravel, and/or shell resources:                         department, agency, or instrumentality                affected party to an agreement, may
                                                   (1) In a program of, or project for,                 of the United States.                                 apply for reconsideration by the
                                                shore protection, beach restoration, or                    Local government means the                         Director.
                                                coastal wetlands restoration undertaken                 governing authority at the county or city                (1) All applications for
                                                by a Federal, State, or local government                level with jurisdiction to administer a               reconsideration must be submitted to
                                                agency; or                                              particular project(s).                                the Director within 15 days of being
                                                   (2) In a construction project, other                    Modification means the process                     notified of disqualification or
                                                than a project described in paragraph                   whereby parties to an agreement and                   disapproval of an agreement or
                                                (a)(1) of this section, that is funded in               BOEM mutually agree to change, alter or               modification, and must be accompanied
                                                whole or in part by or authorized by the                amend an existing agreement.                          by a statement of reasons for the
                                                Federal Government.                                        Placement area means the geographic                requested reconsideration, with one
                                                   (b) The Secretary has delegated                      area in which OCS sand, gravel, and/or                copy also submitted to the program
                                                authority to BOEM to administer the                     shell resources, used by agreement, will              office whose decision is the subject of
                                                negotiated noncompetitive agreement                     be placed pursuant to that agreement.                 the request for reconsideration.
                                                provisions of OCSLA and prescribe the                      Program means a group of related                      (2) The Director will respond in
                                                rules and regulations necessary to carry                projects that may be the subject of a                 writing within 30 days.
                                                out those provisions.                                   negotiated noncompetitive agreement                      (b) No appeal rights are available
                                                                                                        for the use of OCS sand, gravel, and/or               under 30 CFR part 590 and 43 CFR part
                                                § 583.115   What definitions do I need to               shell resources.                                      4, subpart E.
                                                know?                                                      Project means an undertaking that
                                                  The definitions at 30 CFR 550.105                     may be the subject of a negotiated                    § 583.130 What are the minimum contents
                                                apply to this part. In addition, when                   noncompetitive agreement for the use of               of an agreement to use OCS sand, gravel,
                                                used in this part, the following terms                                                                        and/or shell resources?
                                                                                                        OCS sand, gravel, and/or shell
                                                will have the meaning given below:                      resources.                                               Any use of OCS sand, gravel, and/or
                                                  Agreement means a negotiated                             Secretary means the Secretary of the               shell resources in an agreement will be
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                                                noncompetitive agreement that                           Interior.                                             negotiated on a case-by-case basis. The
                                                authorizes a person to use OCS sand,                                                                          agreement will specify, at a minimum,
                                                gravel, and/or shell resources in a                     § 583.120    Who is qualified for a project?          who may use the OCS sand, gravel, and/
                                                program of, or project for, shore                         (a) BOEM may enter into an                          or shell resources; the nature of the
                                                protection, beach restoration or coastal                agreement with any person proposing to                rights granted, including any terms and
                                                wetlands restoration undertaken by one                  use OCS sand, gravel, and/or shell                    conditions and environmental
                                                or more Federal, state or local                         resources for a program of, or project                stipulations; and the location, type, and


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                                                                  Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations                                         45975

                                                volume of OCS sand, gravel, and/or                      description sheets, photographs, core                 writing whether the project qualifies for
                                                shell resources. An authorization to use                locations, and grain size analysis; and               an agreement. In determining whether a
                                                OCS sand, gravel, and/or shell resources                  (ii) Geophysical data such as                       project qualifies for an agreement,
                                                identified in an agreement is not                       subbottom profiler, marine                            BOEM will consider, among other
                                                exclusive; BOEM may allow other                         magnetometer, and side-scan sonar data,               criteria, the following:
                                                entities to use OCS sand, gravel, and/or                and bathymetry including geo-                            (a) The project purpose;
                                                shell resources from the same borrow                    referenced navigation survey tracklines,                 (b) Other uses of OCS sand, gravel,
                                                area if these uses are determined by                    shotpoints, and/or timestamps;                        and/or shell resources from the same
                                                BOEM to be non-conflicting and do not                     (4) Any other uses of the OCS or                    borrow area that are currently or were
                                                exceed the availability of the OCS                      infrastructure in the borrow area that are            previously authorized by BOEM for
                                                resource.                                               known to the applicant at the time of                 other projects or programs, including
                                                                                                        application submittal;                                the location, type and volume of such
                                                Subpart B—[Reserved]                                      (5) A description of the environmental              resources;
                                                                                                        evaluations and corresponding                            (c) The project funding source(s) and
                                                Subpart C—Outer Continental Shelf                       documents that have been completed or                 amounts;
                                                Sand, Gravel, and/or Shell Resources                    are being prepared that cover all                        (d) The proposed design and
                                                Negotiated Agreements                                   offshore and onshore components of the                feasibility of the project;
                                                                                                        project, as applicable;                                  (e) Any potential environmental and
                                                § 583.300 How do I submit a request for an
                                                                                                          (6) A target date or date range when                safety risks associated with the project;
                                                agreement?
                                                                                                        the OCS sand, gravel, and/or shell                       (f) Other federal interests located near
                                                   Any person may submit a written                      resources will be needed;                             or within the specified borrow area;
                                                request to BOEM to obtain an agreement                    (7) A description of the person or                     (g) Comments received from
                                                for the use of OCS sand, gravel, and/or                 government entities undertaking the                   potentially affected state or local
                                                shell resources for use in a program of,                project;                                              governments, if any;
                                                or project for, shore protection, beach                   (8) A list of any permits, licenses or                 (h) The applicant’s background and
                                                restoration, or coastal wetlands                        authorizations required for the project               experience working on similar projects
                                                restoration undertaken by a Federal,                    and their current status;                             or activities;
                                                state, or local government agency, or in                  (9) A description of any potential                     (i) Whether the project operations can
                                                a construction project that is funded in                inconsistencies with state coastal zone               be conducted in a manner that protects
                                                whole or in part by or authorized by the                management plans and/or any other                     the environment and promotes orderly
                                                Federal Government.                                     applicable state and local statutes,                  development of OCS mineral resources;
                                                   (a) The written request must include:                regulations or ordinances;                               (j) Whether activities can be
                                                   (1) A detailed description of the                      (10) The name, title, telephone                     conducted in a manner that does not
                                                proposed project for which the OCS                      number, mailing address and email                     pose a threat of serious harm or damage
                                                sand, gravel, and/or shell resources will               address of any points of contact for any              to, or waste of, any natural resource, any
                                                be used and how it qualifies as a                       Federal agencies, state, or local                     life (including fish and other aquatic
                                                program or project eligible under                       governments, and contractor(s) with                   life), property, or the marine, coastal, or
                                                OCSLA to use OCS sand, gravel, or shell                 whom the applicant has contracted or                  human environment; and
                                                resources;                                              intends to contract;                                     (k) Whether the project is consistent
                                                   (2) A description of the proposed                      (11) A statement explaining who                     with the requirements of applicable
                                                borrow area(s) and placement area(s),                   authorized the project and how the                    statutes and their implementing
                                                along with maps with geographic                         project is to be funded, indicating                   regulations, which may include, but are
                                                coordinates depicting the location of the               whether the project is federally funded,              not limited to, the Endangered Species
                                                desired borrow area(s), the OCS block                   in whole or in part, and whether the                  Act (ESA) (16 U.S.C. 1531 et seq.), the
                                                number(s), OCS Planning Area(s), OCS                    project is authorized by the Federal                  Marine Mammal Protection Act
                                                Protraction Diagram Designation(s), and                 Government; and                                       (MMPA) (16 U.S.C. 1361 et seq.), the
                                                the placement area(s). These should                       (12) For any other Federal, state, or               Marine Debris Research, Prevention,
                                                include:                                                local government agency identified in                 and Reduction Act (MDRPRA) (33
                                                   (i) A detailed set of digital (e.g.,                 the application, the name, title, mailing             U.S.C. 1951 et seq.), the Marine Plastic
                                                portable document format or pdf) maps                   address, telephone number, and email                  Pollution Research and Control Act
                                                with coordinates and navigation                         address of both a primary and a                       (MPPRCA) (33 U.S.C. 1901 et seq.), the
                                                features of the desired OCS project area                secondary point of contact for the                    Federal Water Pollution Control Act
                                                (including borrow area and other project                agency.                                               (FWPCA) (33 U.S.C. 1381 et seq.), and
                                                features); and                                            (b) [Reserved]                                      the International Convention for the
                                                   (ii) Digital geo-referenced spatial and                                                                    Prevention of Pollution from Ships
                                                                                                        § 583.305 How will BOEM determine if a
                                                tabular data depicting the borrow area                  project qualifies?                                    (MARPOL), MARPOL-Annex V Treaty.
                                                with features, such as geological                          BOEM will make a determination as                  § 583.310 What process does BOEM use to
                                                sampling locations and any hard or live-                to whether the project, as described in               technically and environmentally evaluate a
                                                bottom benthic habitat present;                         § 583.300, qualifies for a negotiated                 qualified project?
                                                   (3) Any available geological and                     noncompetitive agreement for the use of                  (a) Once BOEM has determined a
                                                geophysical data used to select, design,                OCS sand, gravel, and/or shell                        project qualifies for an agreement,
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                                                and delineate the borrow area(s) and                    resources. Within 15 business days of                 BOEM will begin the project evaluation
                                                potential borrow areas considered but                   receipt of the application, BOEM will                 process to decide whether to enter into
                                                not selected for final design in digital                determine if the application is complete              a negotiated noncompetitive agreement.
                                                format, geo-referenced where relevant.                  or will request additional information.                  (b) BOEM will coordinate with
                                                These may include:                                      After it has determined the application               relevant Federal agencies, State, and
                                                   (i) Sediment sampling (sediment cores                is complete, BOEM will review the                     local governments and any potentially
                                                and grab samples) data such as physical                 application and notify the applicant in               affected federally recognized Indian


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                                                45976             Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations

                                                tribes or Alaska Native Corporations in                    (a) An agreement number, as assigned               transactions related to an agreement
                                                the project evaluation.                                 by BOEM;                                              issued under this part comply with the
                                                   (c) BOEM will evaluate the project                      (b) The purpose of, and authorities                suspension and debarment regulations
                                                and additional information provided                     for, the agreement;                                   in 2 CFR part 180 and 2 CFR part 1400.
                                                pursuant to §§ 583.300 and 583.305, to                     (c) Designated and delineated borrow
                                                                                                        area(s);                                              § 583.345 What is the process for
                                                determine if the information is
                                                                                                                                                              extending or modifying an agreement?
                                                sufficient to conduct necessary                            (d) A project description, including
                                                technical and environmental reviews to                  the timeframe within which the project                   (a) Unless otherwise provided for in
                                                comply with the requirements of                         is to be started and completed;                       the agreement, the parties to the
                                                applicable statutes and regulations,                       (e) The terms and conditions of the                agreement may submit to BOEM a
                                                which may include, but are not limited                  agreement, including any reporting                    written request to extend or modify an
                                                to: OCSLA (43 U.S.C. 1331 et seq.), the                 requirements, environmental                           agreement. BOEM is under no obligation
                                                                                                        mitigations, and operating parameters;                to extend or modify an agreement and
                                                National Environmental Policy Act
                                                                                                           (f) All obligations of the parties; and            cannot be held liable for the
                                                (NEPA) (42 U.S.C. 4321 et seq.), the ESA
                                                                                                           (g) The signatures of appropriate                  consequences of the expiration of an
                                                (16 U.S.C. 1531 et seq.), the MMPA (16
                                                                                                        individuals authorized to bind the                    agreement. With the exception of
                                                U.S.C. 1361 et seq.), the Magnuson-
                                                                                                        applicant and BOEM.                                   paragraph (b) of this section, any such
                                                Stevens Fishery Conservation and
                                                                                                                                                              requests must be made at least 180 days
                                                Management Act (MSFCMA) (16 U.S.C.                      § 583.325 What is the effective date of an            before the term of the agreement
                                                1801 et seq.), the National Historic                    agreement?                                            expires. BOEM will respond to the
                                                Preservation Act (NHPA) (54 U.S.C.
                                                                                                          The agreement will become effective                 request for modification within 30 days
                                                300101 et seq.), and the Coastal Zone
                                                                                                        on the date when all parties to the                   of receipt and request any necessary
                                                Management Act (CZMA) (16 U.S.C.                                                                              information and evaluations to comply
                                                                                                        agreement have signed it.
                                                1451 et seq.).                                                                                                with § 583.305. BOEM may approve the
                                                   (d) BOEM will not enter into a                       § 583.330 How will BOEM enforce the                   request, disapprove it, or approve it
                                                negotiated noncompetitive agreement                     agreement?
                                                                                                                                                              with modifications subject to the
                                                with the applicant until the information                  (a) Failure to comply with any                      requirements of § 583.305.
                                                requested for the evaluation has been                   applicable law or any provision, term,                   (1) If BOEM approves a request to
                                                provided and BOEM has evaluated it.                     or condition of the agreement may result              extend or modify an agreement, BOEM
                                                § 583.315 What is the process for
                                                                                                        in the termination of the agreement, a                will draft an agreement modification for
                                                negotiating and executing an agreement?                 referral to an appropriate Federal or                 review by the parties to the agreement
                                                                                                        State agency for enforcement, or both.                in the form of an amendment to the
                                                   (a) Upon completion of the technical,
                                                                                                        Termination of the agreement for                      original agreement. The amendment
                                                environmental and other evaluations
                                                                                                        noncompliance will be in the sole                     will include:
                                                established in §§ 583.305 and 583.310,
                                                                                                        discretion of the Director.                              (i) The agreement number, as assigned
                                                BOEM will decide whether to enter into
                                                                                                          (b) The failure to comply in a timely               by BOEM;
                                                a negotiated noncompetitive agreement                                                                            (ii) The modification(s) agreed to;
                                                                                                        and satisfactory manner with any
                                                with the applicant for use of OCS sand,                                                                          (iii) Any additional mitigation
                                                                                                        provision, term or condition of the
                                                gravel, or shell resources for its                                                                            required; and
                                                                                                        agreement may delay or prevent
                                                proposed project.                                                                                                (iv) The signatures of the parties to
                                                                                                        BOEM’s approval of future requests for
                                                   (b) If BOEM decides not to enter into                                                                      the agreement and BOEM.
                                                                                                        use of OCS sand, gravel, and/or shell
                                                such an agreement, BOEM will inform                                                                              (2) If BOEM disapproves a request to
                                                                                                        resources on the part of the parties to
                                                the applicant of its reasons for not doing                                                                    extend or modify an agreement, BOEM
                                                                                                        the agreement.
                                                so. An applicant may ask the BOEM                                                                             will inform the parties to the agreement
                                                Director for reconsideration of this                    § 583.335 What is the term of the                     of the reasons in writing. Parties to the
                                                decision, in accordance with                            agreement?                                            agreement may ask the BOEM Director
                                                § 583.125(a).                                              (a) An agreement will terminate upon               for reconsideration in accordance with
                                                   (c) If BOEM has decided to enter into                one of the following, whichever occurs                § 583.125.
                                                a negotiated noncompetitive agreement                   first:                                                   (b) By written request, for strictly
                                                with the applicant, BOEM will negotiate                    (1) The agreement expires by its own               minor modifications that do not change
                                                the terms and conditions of the                         terms, unless the term is extended prior              the substance of the project or the
                                                agreement with the applicant and                        to expiration under § 583.345;                        analyzed environmental effects of the
                                                prepare a draft agreement for the                          (2) The project is terminated, as set              project, including but not limited to, the
                                                applicant’s review.                                     forth in § 583.350; or                                change of a business address, the
                                                   (d) After considering comments and                      (3) A party to the agreement notifies              substitution of a different Federal, State
                                                suggestions from the applicant, BOEM,                   BOEM, in writing, that sufficient OCS                 or local government agency contact, or
                                                at its discretion, may finalize the                     sand, gravel, and/or shell resources, up              an extension of less than 30 days,
                                                agreement and distribute it to the                      to the amount authorized in the                       parties to the agreement may
                                                applicant for signature.                                agreement, have been obtained to                      memorialize the minor modification in
                                                   (e) Upon receipt of the agreement                    complete the project.                                 a letter from BOEM to the parties
                                                with the applicant’s signature, BOEM                       (b) Absent extraordinary                           indicating the request has been granted.
                                                will execute the agreement. A copy of                   circumstances, no agreement will be for
                                                the executed agreement will be mailed                                                                         § 583.350 When can an agreement be
                                                                                                        a term longer than five years from its
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                                                                                                                                                              terminated?
                                                to the parties.                                         effective date.
                                                                                                                                                                 (a) The Director will terminate any
                                                § 583.320 What kinds of information must                § 583.340 What debarment or suspension                agreement issued under this part upon
                                                be included in an agreement?                            obligations apply to transactions and                 proof that it was obtained by fraud or
                                                  Every agreement is negotiated on a                    contracts related to a project?                       misrepresentation, after notice and an
                                                case-by-case basis, but at a minimum,                     The parties to an agreement must                    opportunity to be heard has been
                                                must include:                                           ensure that all contracts and                         afforded to the parties of the agreement.


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                                                                   Federal Register / Vol. 82, No. 190 / Tuesday, October 3, 2017 / Rules and Regulations                                        45977

                                                   (b) The Director may immediately                      Captain of the Port Sector Ohio Valley                interest because immediate action is
                                                suspend and subsequently terminate                       (COTP) or a designated representative.                necessary to protect persons and
                                                any agreement issued under this part                     DATES: This rule is effective from 9:15               property from the dangers associated
                                                when:                                                    a.m. through 9:45 a.m. on October 14,                 with the marine event.
                                                   (1) There is noncompliance with the                   2017.                                                 III. Legal Authority and Need for Rule
                                                agreement, pursuant to § 583.330 (a); or
                                                   (2) It is necessary for reasons of                    ADDRESSES:   To view documents                           The Coast Guard is issuing this rule
                                                national security or defense; or                         mentioned in this preamble as being                   under authority in 33 U.S.C. 1233. The
                                                   (3) The Director determines that:                     available in the docket, go to http://                Captain of the Port Sector Ohio Valley
                                                   (i) Continued activity under the                      www.regulations.gov, type USCG–2017–                  (COTP) has determined that potential
                                                agreement would cause serious harm or                    0727 in the ‘‘SEARCH’’ box and click                  hazards associated with the Swim the
                                                damage to natural resources; life                        ‘‘SEARCH.’’ Click on Open Docket                      Suck marine event from 9:15 a.m.
                                                (including human and wildlife);                          Folder on the line associated with this               through 9:45 a.m. on October 14, 2017
                                                property; the marine, coastal, or human                  rule.                                                 will present a safety concern for all
                                                environment; or sites, structures, or                    FOR FURTHER INFORMATION CONTACT: If                   navigable waters on the Tennessee River
                                                objects of historical or archaeological                  you have questions on this notice of                  extending from mile marker (MM) 453.0
                                                significance;                                            enforcement, call Petty Officer Jonathan              to MM 453.6. The purpose of this
                                                   (ii) The threat of harm or damage will                Braddy, Marine Safety Detachment                      rulemaking is to ensure the safety of life
                                                not disappear or decrease to an                          Nashville, U.S. Coast Guard, telephone                and vessels on the navigable waters
                                                acceptable extent within a reasonable                    615–736–5421, email MSDNashville@                     before, during, and after the scheduled
                                                period of time; and                                      uscg.mil.                                             event.
                                                   (iii) The advantages of termination                   SUPPLEMENTARY INFORMATION:                            IV. Discussion of the Rule
                                                outweigh the advantages of continuing
                                                the agreement.                                           I. Table of Abbreviations                                This rule establishes a special local
                                                   (c) The Director will immediately                     CFR Code of Federal Regulations                       regulation from 9:15 a.m. through 9:45
                                                notify the parties to the agreement of the               COTP Captain of the Port Sector Ohio                  a.m. on October 14, 2017 for all
                                                suspension or termination. The Director                    Valley                                              navigable waters on the Tennessee River
                                                will also mail a letter to the parties to                DHS Department of Homeland Security                   from MM 453.0 to MM 453.6. The
                                                the agreement at their record post office                FR Federal Register                                   duration of the special local regulation
                                                address with notice of any suspension                    NPRM Notice of proposed rulemaking                    is intended to ensure the safety of life
                                                                                                         § Section                                             and vessels on these navigable waters
                                                or termination and the cause for such
                                                                                                         U.S.C. United States Code                             before, during, and after the scheduled
                                                action.
                                                   (d) In the event that BOEM terminates                 II. Background Information and                        event. No vessel or person will be
                                                an agreement under this section, none of                 Regulatory History                                    permitted to enter the regulated area
                                                the parties to the agreement will be                                                                           without obtaining permission from the
                                                                                                            The Coast Guard is issuing this                    COTP or a designated representative.
                                                entitled to compensation as a result of                  temporary rule without prior notice and
                                                expenses or lost revenues that may                       opportunity to comment pursuant to                    V. Regulatory Analyses
                                                result from the termination.                             authority under section 4(a) of the                     We developed this rule after
                                                [FR Doc. 2017–21233 Filed 10–2–17; 8:45 am]              Administrative Procedure Act (APA) (5                 considering numerous statutes and
                                                BILLING CODE –P                                          U.S.C. 553(b)). This provision                        Executive Orders related to rulemaking.
                                                                                                         authorizes an agency to issue a rule                  Below we summarize our analyses
                                                                                                         without prior notice and opportunity to               based on a number of these statutes and
                                                DEPARTMENT OF HOMELAND                                   comment when the agency for good                      Executive Orders, and we discuss First
                                                SECURITY                                                 cause finds that those procedures are                 Amendment rights of protestors.
                                                                                                         ‘‘impracticable, unnecessary, or contrary
                                                Coast Guard                                              to the public interest.’’ Under 5 U.S.C.              A. Regulatory Planning and Review
                                                                                                         553(b)(B), the Coast Guard finds that                    Executive Orders 12866 and 13563
                                                33 CFR Part 100                                          good cause exists for not publishing a                direct agencies to assess the costs and
                                                [Docket Number USCG–2017–0727]                           notice of proposed rulemaking (NPRM)                  benefits of available regulatory
                                                                                                         with respect to this rule because it is               alternatives and, if regulation is
                                                RIN 1625–AA08                                            impracticable.                                        necessary, to select regulatory
                                                                                                            We must establish this special local               approaches that maximize net benefits.
                                                Special Local Regulation; Tennessee
                                                                                                         regulation by October 14, 2017 and lack               Executive Order 13771 directs agencies
                                                River, Chattanooga, TN
                                                                                                         sufficient time to provide a reasonable               to control regulatory costs through a
                                                AGENCY:    Coast Guard, DHS.                             comment period and then consider                      budgeting process. This rule has not
                                                ACTION:   Temporary final rule.                          those comments before issuing the rule.               been designated a ‘‘significant
                                                                                                         The NPRM process would delay the                      regulatory action,’’ under Executive
                                                SUMMARY:   The Coast Guard is                            establishment of the special local                    Order 12866. Accordingly, this rule has
                                                establishing a special local regulation                  regulation until after the scheduled date             not been reviewed by the Office of
                                                for all navigable waters of the Tennessee                of the marine event and jeopardize                    Management and Budget (OMB), and
                                                River from mile marker (MM) 453.0 to                     public safety.                                        pursuant to OMB guidance it is exempt
jstallworth on DSKBBY8HB2PROD with RULES




                                                MM 453.6. This action is necessary to                       We are issuing this rule, and under 5              from the requirements of Executive
                                                provide for the safety of life on these                  U.S.C. 553(d)(3), the Coast Guard finds               Order 13771.
                                                navigable waters near Chattanooga, TN                    that good cause exists for making it                     This regulatory action determination
                                                during the Swim the Suck marine event.                   effective less than 30 days after                     is based on the size, location, duration,
                                                Entry into, transiting through, or                       publication in the Federal Register.                  and time-of-day of the regulated area.
                                                anchoring within this regulated area is                  Delaying this rule would be                           Vessel traffic will be able to safely
                                                prohibited unless authorized by the                      impracticable and contrary to the public              navigate through the affected area before


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Document Created: 2017-10-03 01:01:17
Document Modified: 2017-10-03 01:01:17
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule is effective December 4, 2017.
ContactDeanna Meyer-Pietruszka, Chief, Office of Policy, Regulations, and Analysis, Bureau of Ocean Energy Management, at: [email protected] or 202-208-6352.
FR Citation82 FR 45962 
RIN Number1010-AD90
CFR AssociatedAdministrative Practice and Procedure; Beach Restoration; Coastal Wetlands Restoration; Continental Shelf; Federal Lands; Gravel; Government Contracts; Intergovernmental Relations; Marine Minerals; Marine Minerals Program; Noncompetitive Agreements; Negotiated Agreements; Outer Continental Shelf; Reporting and Recordkeeping; Sand; Shell Resources and Shore Protection

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