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

PART 764 [AMENDED] 

■ 18. The authority citation for 15 CFR 

part 764 is revised to read as follows: 

Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 

1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 

2001 Comp., p. 783; Notice of August 15, 

2017, 82 FR 39005 (August 16, 2017). 

PART 766 [AMENDED] 

■ 19. The authority citation for 15 CFR 

part 766 is revised to read as follows: 

Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 

1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 

2001 Comp., p. 783; Notice of August 15, 

2017, 82 FR 39005 (August 16, 2017). 

PART 768 [AMENDED] 

■ 20. The authority citation for 15 CFR 

part 768 is revised to read as follows: 

Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 

1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 

2001 Comp., p. 783; Notice of August 15, 

2017, 82 FR 39005 (August 16, 2017). 

PART 770 [AMENDED] 

■ 21. The authority citation for 15 CFR 

part 770 is revised to read as follows: 

Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 

1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 

2001 Comp., p. 783; Notice of August 15, 

2017, 82 FR 39005 (August 16, 2017). 

PART 772 [AMENDED] 

■ 22. The authority citation for 15 CFR 

part 772 is revised to read as follows: 

Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 

1701 et seq.; E.O. 13222, 66 FR 44025, 3 CFR, 

2001 Comp., p. 783; Notice of August 15, 

2017, 82 FR 39005 (August 16, 2017). 

PART 774 [AMENDED] 

■ 23. The authority citation for 15 CFR 

part 774 is revised to read as follows: 

Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 

1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 

7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et 

seq.; 22 U.S.C. 6004; 42 U.S.C. 2139a; 15 

U.S.C. 1824a; 50 U.S.C. 4305; 22 U.S.C. 7201 

et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 

58767, 3 CFR, 1996 Comp., p. 228; E.O. 

13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 

783; Notice of August 15, 2017, 82 FR 39005 

(August 16, 2017). 

Dated: September 25, 2017. 

Richard E. Ashooh, 

Assistant Secretary for Export 

Administration. 

[FR Doc. 2017–21003 Filed 10–2–17; 8:45 am] 

BILLING CODE 3510–33–P 

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. 

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: deanna.meyer-pietruszka@boem.gov 

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 


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


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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 MagnusonStevens 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. 


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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 caseby-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 


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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 governmentto-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 


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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 nonFederal 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 


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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 subbottom 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 projectspecific 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 


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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. 


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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 


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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

Citation 30 CFR 583 Reporting and recordkeeping requirement Hour burden 

Average 

number of 

annual 

responses 

Annual burden 

hours 

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

125 .......................................... Apply for reconsideration to the BOEM Director within 15 

days of notification; include statement of reasons; 1 copy 

to program office.

2 1 2 

Subpart A—General—Corporations 

125 .......................................... Apply for reconsideration to the BOEM Director within 15 

days of notification; include statement of reasons; 1 copy 

to program office.

2 1 2 

Subpart A—General—Individuals 

125 .......................................... Apply for reconsideration to the BOEM Director within 15 

days of notification; include statement of reasons; 1 copy 

to program office.

2 1 2 

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; 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.

10 4 40 

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

315(b) ...................................... Request that the BOEM Director reconsider a disapproved 

agreement.

Burden covered under 30 CFR 

part 583, subpart A 

2 

315(c)–(e) ............................... Review and comment on draft agreement; sign and return 

copies for execution by BOEM.

8 3 24 


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BURDEN TABLE—Continued 

Citation 30 CFR 583 Reporting and recordkeeping requirement Hour burden 

Average 

number of 

annual 

responses 

Annual burden 

hours 

335(a) ...................................... Submit written notification to BOEM once resources authorized are obtained.1 1 1 

340 .......................................... Assure all contractors comply with 2 CFR part 180 & 2 CFR 

part 1400 in contract/transaction.

2 1 2 

345 .......................................... Submit written request to 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.

2 2 4 

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; 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.

10 4 40 

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

315(b) ...................................... Request that the BOEM Director reconsider a disapproved 

agreement.

Burden covered under 30 CFR 

part 583, subpart A 

2 

315(c)–(e) ............................... Review and comment on draft agreement; sign and return 

copies for execution by BOEM.

8 3 24 

335(a) ...................................... Submit written notification to BOEM once resources authorized are obtained.1 1 1 

340 .......................................... Assure all contractors comply with 2 CFR part 180 & 2 CFR 

part 1400 in contract/transaction.

2 1 2 

345 .......................................... Submit written request to 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.

2 2 4 

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; 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.

10 4 40 

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

315(b) ...................................... Request that the BOEM Director reconsider a disapproved 

agreement.

Burden covered under 30 CFR 

part 583, subpart A 

2 

315(c)–(e) ............................... Review and comment on draft agreement; sign and return 

copies for execution by BOEM.

8 3 24 

335(a) ...................................... Submit written notification to BOEM once resources authorized are obtained.1 1 1 

340 .......................................... Assure all contractors comply with 2 CFR part 180 & 2 CFR 

part 1400 in contract/transaction.

2 1 2 


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BURDEN TABLE—Continued 

Citation 30 CFR 583 Reporting and recordkeeping requirement Hour burden 

Average 

number of 

annual 

responses 

Annual burden 

hours 

345 .......................................... Submit written request to 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.

2 2 4 

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 

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 

§ 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) 


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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. 

§ 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.). 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 


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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 

§ 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 livebottom 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 georeferenced 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] 

§ 583.305 How will BOEM determine if a 

project qualifies? 

BOEM will make a determination as 

to whether the project, as described in 

§ 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. 

§ 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 


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

tribes or Alaska Native Corporations in 

the project evaluation. 

(c) BOEM will evaluate the project 

and additional information provided 

pursuant to §§ 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 MagnusonStevens 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. 

§ 583.315 What is the process for 

negotiating and executing an agreement? 

(a) Upon completion of the technical, 

environmental and other evaluations 

established in §§ 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 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 583.345; 

(2) The project is terminated, as set 

forth in § 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. 

§ 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. 

§ 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 § 583.305. BOEM may approve the 

request, disapprove it, or approve it 

with modifications subject to the 

requirements of § 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 

§ 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. 

§ 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. 


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

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket Number USCG–2017–0727] 

RIN 1625–AA08 

Special Local Regulation; Tennessee 

River, Chattanooga, TN 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a special local regulation 

for all navigable waters of the Tennessee 

River from mile marker (MM) 453.0 to 

MM 453.6. This action is necessary to 

provide for the safety of life on these 

navigable waters near Chattanooga, TN 

during the Swim the Suck marine event. 

Entry into, transiting through, or 

anchoring within this regulated area is 

prohibited unless authorized by the 

Captain of the Port Sector Ohio Valley 

(COTP) or a designated representative. 

DATES: This rule is effective from 9:15 

a.m. through 9:45 a.m. on October 14, 

2017. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to http://

www.regulations.gov, type USCG–2017– 

0727 in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rule. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this notice of 

enforcement, call Petty Officer Jonathan 

Braddy, Marine Safety Detachment 

Nashville, U.S. Coast Guard, telephone 

615–736–5421, email MSDNashville@

uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

COTP Captain of the Port Sector Ohio 

Valley 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

The Coast Guard is issuing this 

temporary rule without prior notice and 

opportunity to comment pursuant to 

authority under section 4(a) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because it is 

impracticable. 

We must establish this special local 

regulation by October 14, 2017 and lack 

sufficient time to provide a reasonable 

comment period and then consider 

those comments before issuing the rule. 

The NPRM process would delay the 

establishment of the special local 

regulation until after the scheduled date 

of the marine event and jeopardize 

public safety. 

We are issuing this rule, and under 5 

U.S.C. 553(d)(3), the Coast Guard finds 

that good cause exists for making it 

effective less than 30 days after 

publication in the Federal Register. 

Delaying this rule would be 

impracticable and contrary to the public 

interest because immediate action is 

necessary to protect persons and 

property from the dangers associated 

with the marine event. 

III. Legal Authority and Need for Rule 

The Coast Guard is issuing this rule 

under authority in 33 U.S.C. 1233. The 

Captain of the Port Sector Ohio Valley 

(COTP) has determined that potential 

hazards associated with the Swim the 

Suck marine event from 9:15 a.m. 

through 9:45 a.m. on October 14, 2017 

will present a safety concern for all 

navigable waters on the Tennessee River 

extending from mile marker (MM) 453.0 

to MM 453.6. The purpose of this 

rulemaking is to ensure the safety of life 

and vessels on the navigable waters 

before, during, and after the scheduled 

event. 

IV. Discussion of the Rule 

This rule establishes a special local 

regulation from 9:15 a.m. through 9:45 

a.m. on October 14, 2017 for all 

navigable waters on the Tennessee River 

from MM 453.0 to MM 453.6. The 

duration of the special local regulation 

is intended to ensure the safety of life 

and vessels on these navigable waters 

before, during, and after the scheduled 

event. No vessel or person will be 

permitted to enter the regulated area 

without obtaining permission from the 

COTP or a designated representative. 

V. Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

Executive Orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes and 

Executive Orders, and we discuss First 

Amendment rights of protestors. 

A. Regulatory Planning and Review 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits. 

Executive Order 13771 directs agencies 

to control regulatory costs through a 

budgeting process. This rule has not 

been designated a ‘‘significant 

regulatory action,’’ under Executive 

Order 12866. Accordingly, this rule has 

not been reviewed by the Office of 

Management and Budget (OMB), and 

pursuant to OMB guidance it is exempt 

from the requirements of Executive 

Order 13771. 

This regulatory action determination 

is based on the size, location, duration, 

and time-of-day of the regulated area. 

Vessel traffic will be able to safely 

navigate through the affected area before 


jstallworth on DSKBBY8HB2PROD with RULES