Non-Energy Marine Minerals Legal Framework
U.S. Capitol dome.
The Outer Continental Shelf Lands Act (OCSLA) (43 U.S.C. 1331, et. seq.) provides the authority to manage minerals on the Outer Continental Shelf (OCS). The Department of the Interior’s (DOI’s) jurisdiction for leasing and regulating the recovery of minerals extends to the subsoil and seabed of all submerged lands seaward of state boundaries to the limits of the OCS (except where this may be modified by international law or convention or affected by the Presidential Proclamation of March 10, 1983, regarding the Exclusive Economic Zone [EEZ]). The OCSLA does not authorize BOEM to issue prospecting permits or leases to private interests in the EEZ of a commonwealth or territory of the United States.
BOEM regulations governing non-energy mineral prospecting, leasing, and production are in 30 CFR Parts 580 (Prospecting), 581 (Competitive Leasing), 582 (Production), and a new part 583 (Negotiated Noncompetitive Agreements), which was published on October 3, 2017. BSEE regulations, largely related to suspension of operations, information collection and inspection, and certain other authorities, are in 30 CFR Parts 280 and 282. Public Law 103-426 (enacted into law in October 1994) authorized noncompetitive agreements for OCS sand, gravel, and shell resources for specific uses by Federal, State and local government agencies and for use in a construction project funded in whole or in part or authorized by the Federal government.
Noncompetitive Agreements for Use of OCS Sand, Gravel and Shell Resources
Public Law 103-426 (43 U.S.C. 1337(k)(2)), allows the Bureau to negotiate, on a noncompetitive basis, the right to use OCS sand, gravel, or shell resources for shore protection, beach or wetlands restoration projects by Federal, State or local agencies, or for use in construction projects funded in whole or in part by or authorized by the Federal government. Outside of the circumstances specified in (k)(2), section 8(k) of the OCSLA (43 U.S.C. 1337(k)) requires a competitive bidding process before issuing leases for OCS sand, gravel, or shell resources.
In October 2017, BOEM published a new rule that creates a new part in the Code of Federal Regulations (30 CFR Part 583) to codify existing policies for noncompetitive agreements for the use of OCS sand, gravel, and shell resources, and to provide additional clarity and certainty for its Marine Minerals Program regarding such uses. Adoption of the new part follows the publication of the proposed rule and public comment period (81 Fed. Reg. 15190, Mar. 22, 2016). The comment period for the proposed rule closed on May 23, 2016. The new rule becomes effective on December 4, 2017.
The rule describes the negotiated, noncompetitive agreement process for qualifying projects, and codifies new and existing procedures for accessing OCS sand, gravel and shell resources.
The rule describes who may qualify for a negotiated agreement, the application process for qualifying projects, and codifies new and existing procedures for using federal sand, gravel, and shell resources for shore protection, beach restoration or coastal wetland restoration projects undertaken by federal, state, and local governments. It also addresses the use of OCS resources for construction projects authorized or funded by the federal government. The rule does not materially change existing requirements for negotiated agreements to use these minerals in coastal restoration and construction projects, and should not impose additional compliance obligations or costs upon the regulated entities. The rule does not apply to competitive leasing of minerals, such as sand for private or commercial use or commodity minerals such as gold.
The rule details the requirements for requesting a negotiated agreement for qualifying projects, including technical information on the potential sand borrow site and environmental evaluations and consultations with federal agencies, such as the National Marine Fisheries Service, on potential impacts from the project. The rule also addresses BOEM’s review procedures for processing requests, the process and timelines for requesting lease modifications, and defines commonly used terms.
The proposed regulation and comments submitted during the comment period in 2016 may be viewed on www.regulations.gov by entering “Negotiated Noncompetitive Leasing for the Use of Sand, Gravel and Shell Resources on the Outer Continental Shelf” in the search field or BOEM-2010- 0041, and the Regulation Identifier Number (RIN) 1010-AD90.
Federally Funded and Authorized Projects and Shore Protection, Beach or Wetlands Restoration Projects (Negotiated Noncompetitive Lease Agreements)
In addition to the laws and regulations outlined above, the BOEM Marine Minerals Program must also comply with numerous environmental statutes, regulations and executive orders to carry out its mission. BOEM's Division of Environmental Assessment (DEA) reviews marine mineral program National Environmental Policy Act (NEPA) and OCSLA reports; provides oversight, policy guidance, and assistance for compliance with NEPA and other environmental laws and regulations affecting OCS sand, gravel, and shell activities; and participates in international conventions and treaty activities. The BOEM DEA website outlines the legal requirements and environmental policies and procedures that apply to OCS Leasing. Where available, links are provided to other websites with the full text of the laws, relevant regulations, and guidance issued by other agencies.
Prospecting, Research and Commercial Purposes (Competitive Lease Agreements)