Oil and Gas Resources
| Published date | 01 September 2020 |
| Citation | 85 FR 54311 |
| Record Number | 2020-18518 |
| Section | Proposed rules |
| Court | Forest Service |
Federal Register, Volume 85 Issue 170 (Tuesday, September 1, 2020)
[Federal Register Volume 85, Number 170 (Tuesday, September 1, 2020)]
[Proposed Rules]
[Pages 54311-54327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18518]
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Parts 214, 228, and 261
RIN 0596-AD33
Oil and Gas Resources
AGENCY: Forest Service, Agriculture (USDA).
ACTION: Proposed rule.
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SUMMARY: The U.S. Department of Agriculture (USDA), Forest Service
(Agency) is proposing revisions to its regulations governing Federal
oil and gas resources on National Forest System lands. The Agency
proposes these revisions to update and modernize its existing
regulations. In addition, conforming technical amendments to other
parts of the Code of Federal Regulations (CFR) affected by this rule
are proposed. The proposed regulations would revise the procedures the
Forest Service will follow in the future to make lands available for
leasing. The proposed regulations would also clarify requirements for
conducting operations and revise procedures that the Agency will follow
to monitor operator compliance on leases. These requirements would
apply to operations on both existing and future leases. Public input
has informed the development of the rules, including through an advance
notice of proposed rulemaking (ANPR). The Agency is now requesting
public comments on the proposed revisions to the rule. The Agency will
carefully consider public comments in preparing the final rule. The
Agency is also requesting comments on the information collection
associated with the Subpart E revision and the Environmental Assessment
(EA).
DATES: Comments concerning this proposed rule, the associated
information collection, and/or the EA must be received by November 2,
2020.
ADDRESSES: Please submit comments via one of the following methods:
1. Electronically: Via the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter 0596-AD33, which is the
RIN for this proposed rulemaking. Then, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rule link to locate this document. You may submit a comment by
clicking on ``Comment Now!''
2. Mail: Send written comments to USDA-Forest Service. Attn:
Director-MGM Staff, 1617 Cole Boulevard, Building 17, Lakewood, CO
80401.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us, as it is part of the public record.
FOR FURTHER INFORMATION CONTACT: Sherri Thompson at 303-275-5147 or by
mail at 1617 Cole Boulevard, Building 17, Lakewood, CO 80401.
Individuals who use telecommunication devices for the deaf (TDD) may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339
between 10 a.m. and 7 p.m., Eastern Daylight Time, Monday through
Thursday.
SUPPLEMENTARY INFORMATION:
Background of 36 CFR Part 228, Subpart E
The USDA, Forest Service is proposing revisions to its Oil and Gas
Resources (36 CFR part 228, subpart E) regulations. Acting under
established legal authorities, the Forest Service manages the surface-
disturbing aspects of oil and gas leasing and operations on national
forests and grasslands. Revisions to existing USDA regulations
governing Federal oil and gas resource management are being pursued at
this time for several reasons. The existing regulations were first
promulgated in 1990 with a minor modification in 2007 to reflect
revisions to the Forest Service and U.S. Department of Interior, Bureau
of Land Management (Bureau of Land Management) joint rule, the Onshore
Oil and Gas Order No. 1 (see 43 CFR 3164.1). Updating the regulations
will afford an opportunity to address statutory and other requirements
enacted since 1990 and modernize existing procedures to streamline
processes and promote efficiency.
This rulemaking only affects Federal oil and gas resources on
National Forest System lands, it does not affect nonfederal (i.e.
reserved and outstanding private) oil and gas resources. Some lands
that the Forest Service acquires are subject to previously reserved or
outstanding rights (See Forest Service Manual Chapters 5470, 2830 and
2710). Reserved rights are legal rights in property that the seller
retains at the time the property is conveyed to the United States.
Reserved rights may be made subject in the deed of conveyance to the
Secretary of Agriculture's rules
[[Page 54312]]
and regulations. When reserved rights are made subject to the
Secretary's rules and regulations, the exercise of reserved rights
generally requires a special use authorization, a plan of operation, or
some other appropriate legal authorization. Outstanding rights,
sometimes called valid existing rights (VERs), are legal rights in
property owned by third parties other than the United States' grantor.
Outstanding rights are those rights which have been severed and
purchased by third parties before the United States' acquisition. The
United States has limited control over outstanding rights except to
prevent undue degradation or nuisance to adjacent surrounding National
Forest System land.
The proposed rule would contribute to increasing efficiencies in
managing Federal oil and gas activities and would help the Agency
achieve its strategic goal to deliver benefits to the public. The
Agency is proposing the revision of its existing regulations to clarify
internal processes related to oil and gas leasing and approving
operations, clarify oil and gas operators' responsibility to protect
natural resources and the environment, clarify the Agency's procedures
regarding inspections and compliance, and update material noncompliance
procedures to reflect existing agency practices and better reflect
requirements of law. The changes to 36 CFR part 228 require minor
conforming changes to regulations at 36 CFR parts 214 and 261.
The proposed changes would not materially alter the basic
responsibility of either the Agency or of oil and gas operators on NFS
lands. The proposed changes aim to clarify procedures, reduce
redundancy and promote consistency with other existing rules such as
Onshore Order 1. For example, one notable proposed change aims to
simplify the administrative process the Agency follows to determine
which lands are open to leasing, reducing the amount of time it takes
the Agency to make these decisions while at the same time maintaining
all environmental and human health and safety protections of the
current rule. Another proposed change would simplify the compliance
process in Agency inspections, which is projected to result in better
management and protection of surface resources.
The intent of these proposed changes is to streamline and reduce
redundancies to improve agency efficiency and better align Forest
Service regulations with those used by the Bureau of Land Management.
The Bureau of Land Management is the federal agency primarily
responsible for managing federally-owned minerals, including those
underlying National Forest System lands. The Forest Service and the
Bureau of Land Management jointly manage leasing and operations when
oil and gas activities involve National Forest System lands, and
oftentimes project proponents operate on lands managed by each agency.
Subject to specific provisions as further noted herein, the Secretary
of the Interior has the final decision whether to issue oil and gas
leases on Federal lands, including National Forest System lands. Better
alignment is most practically achieved by the Forest Service aligning
its single subpart regulation with the multiple components of the
Bureau of Land Management's more extensive oil and gas regulations in
43 CFR, subchapter C, parts 3000 through 3190.
Congress has long recognized the importance of the mineral
resources located on lands within the National Forest System and has
repeatedly made special provisions for the administration and
development of these minerals. The Forest Service manages the surface-
disturbing aspects of oil and gas leasing and operations on national
forests and grasslands. The Agency seeks to ensure that development of
subsurface resources is carried out in a manner that will minimize the
impact on these surface resources.
Congress passed the Mineral Leasing Act of 1920 (30 U.S.C. 181, et
seq.) directing that disposal of Federal oil and gas resources would be
subject to a leasing system. Initially, under the Mineral Leasing Act,
the Department of the Interior did not have to obtain the consent of
the Forest Service to offer oil and gas leases on National Forest
System lands. That was changed with the Federal Onshore Oil and Gas
Leasing Reform Act of 1987 (Pub. L. 100-203, the Reform Act), which
amended the Mineral Leasing Act of 1920, and established that the
Department of the Interior may not issue any lease on National Forest
System Lands reserved from the public domain `over the objection of'
the USDA, Forest Service. The Reform Act also revised leasing
procedures, and gave the Department of Agriculture specific authority
to approve surface uses related to oil and gas exploration and
development on National Forest System lands.
In 1947, Congress enacted legislation governing leasing on acquired
National Forest System lands (Mineral Leasing Act for Acquired Lands of
1947, 30 U.S.C. 351-359). This Act applies to acquired National Forest
System lands (e.g. those lands added to the National Forest System by
the Weeks Act of 1911 or the Bankhead Jones Farm Tenant Act of 1937).
The Mineral Leasing Act for Acquired Lands authorized the Secretary of
the Interior to lease oil and gas deposits on acquired National Forest
System lands ``under the same conditions as contained in the leasing
provisions of the mineral leasing laws'' upon obtaining the consent of
the Secretary of Agriculture, 30 U.S.C. 352. The Act also required the
Secretary of the Interior to include in such leases any conditions
prescribed by the Secretary of Agriculture to ``insure the adequate
utilization of the lands for the primary purposes for which they have
been acquired or are being administered . . .''.
In 2005, Congress directed Federal agencies to streamline and
reduce timeframes for processing proposals to lease and conduct oil and
gas operations on Federal lands. See Energy Policy Act of 2005 (Pub. L.
109-58), Subtitle F, sections 361, 362, and 390.
It is in the national interest to promote clean and safe
development of our Nation's vast energy resources while preserving the
surface resources of national forests and grasslands. To that end, the
Forest Service seeks to facilitate orderly development of Federal oil
and gas resources in an environmentally sound manner. The proposed
regulatory revisions are consistent with those goals.
The Mineral Leasing Act directs that no permit to drill may be
granted without the analysis and approval by the Secretary of
Agriculture of a Surface Use Plan of Operations (SUPO) covering
proposed surface-disturbing activities within a lease area on National
Forest System lands. In 2007, the Forest Service and the Bureau of Land
Management jointly established coordination procedures for review and
analysis of permits to drill, including the SUPO portion, in Onshore
Order 1.
The Mineral Leasing Act also specifies requirements for inspections
and compliance, and consequences of noncompliance, for approvals to
operate on National Forest System lands. The proposed rule would
streamline these requirements and would clarify consequences for an
operator found to be noncompliant on National Forest System lands.
The proposed rule would also clarify the procedures that the Forest
Service follows to require an operator to take corrective actions if
operations are found to be out of compliance with approved SUPOs,
including establishing a formal option to refer instances of continued
noncompliance to the Bureau of Land Management. The proposed rule would
retain operator requirements for
[[Page 54313]]
emergency abatement when the Agency acts to remedy emergency situations
such as fires or spills to which the operator cannot or will not
respond. The proposed rule would also revise the Agency's material
noncompliance proceedings by streamlining the process and reflecting
consequences defined in the Mineral Leasing Act.
Executive Order 13783 on March 28, 2017, Promoting Energy
Independence and Economic Growth (E.O. 13783), declared that it is in
the national interest to promote clean and safe development of the
Nation's energy resources while avoiding regulatory burdens that
unnecessarily encumber energy production. E.O. 13783 indicates that
development of these energy resources is essential to ensuring the
Nation's geopolitical security. Section 2 of E.O. 13783 directs
agencies to review existing regulations that potentially burden the
development or use of domestically produced energy resources and
appropriately suspend, revise, or rescind those that unduly burden the
development of domestic energy resources beyond the degree necessary to
protect the public interest or otherwise comply with the law. As
directed, agencies submitted reports to the Office of Management and
Budget recommending specific actions that, to the extent permitted by
law, could alleviate or eliminate aspects of agency policy that burden
domestic energy production. In its report, the USDA identified
revisions to the 36 CFR part 228, subpart E, regulation as appropriate
to meet the intent of the E.O.
There are currently 5,490 Federal oil and gas leases covering about
4.2 million acres (about 2%) of National Forest System lands.
Approximately 2,700 of these leases, covering 1.6 million acres across
39 national forests and grasslands, have producing Federal oil or gas
operations, and the footprint of actual operations comprises a small
percentage (less than 10% percent) of that. There are 3,165 wells
producing oil or natural gas operating on these leases. In 2018,
production from these wells was over 25 million barrels of oil and gas
products (0.6% of the nation's total), and over 117 million cubic feet
of natural gas (0.3% of the nation's total). The production was valued
at over $1.7 billion and returned approximately $207 million in
royalties to the U.S. Treasury.
The Agency also anticipates that new and updated interpretive
guidance for implementing the proposed regulations will be developed
and set out in the Agency's directive system in 2021. For example, the
Agency intends to update guidance related to proposed revisions for the
Agency's leasing consent decision, Guidance may also include
clarification of terms not explicitly defined but nonetheless important
to execution of these regulations. The Agency also expects that public
comment on this proposed rulemaking could help inform necessary updates
and additions to the manual or handbook directive system.
Advance Notice of Proposed Rulemaking
The Agency published an advance notice of proposed rulemaking in
the Federal Register on September 13, 2018 (83 FR 46458), inviting
public input on key issues regarding implementation of existing
regulations and other areas of concern. The public comment period
occurred from September 13 to October 15, 2018, and served as the
scoping period for the environmental analysis. The Forest Service
received 91 responses.
Fifty-seven public comments included statements of general
opposition, and twenty-three included statements of general support for
the proposed rule. The remainder expressed neither opposition nor
support.
Stated reasons for general opposition include the destruction of
national forests and natural resources for financial or political
interests; inadequate protection of human and environmental health;
adverse impacts to recreation opportunities and tourism; and
unsustainable reliance on fossil fuels.
Stated reasons for general support include the generation of
revenue; large existing demands for oil and gas; decreases in
regulatory burden on the oil and gas industry; promotion of domestic
energy production; and creation of a simplified process leading to
quicker leasing decisions and elimination of duplication with the
Bureau of Land Management.
Comments expressed both support and opposition to streamlining and
process reform. Supporters noted a need to address a Forest Service
backlog in leasing decisions and provide an efficient National
Environmental Policy Act (NEPA) process, while opponents believe that
the existing process provides efficient analysis and decision-making.
Some commenters stated that the Forest Service should retain authority
of leasing decisions and abide by stewardship responsibilities when
managing oil and gas resources.
Commenters noted and gave opinions on other areas where they
believed that the Forest Service could make improvements. Their
comments included the following: The Forest Service should not rely
upon old documents (such as the 1989 Bureau of Land Management Uniform
Format for Oil and Gas Lease Stipulations, and Onshore Order 1) to
review oil and gas leasing activities; the Forest Service should seek
to reduce timelines for Endangered Species Act Section 7 consultation;
and the Forest Service should complete leasing analyses in conjunction
with land management planning.
Some respondents noted streamlining the process for coordination
between the Bureau of Land Management and Forest Service, or
consolidating decisions under one agency, would improve efficiency.
Commenters continued to express concerns surrounding Forest Service
organizational capacity to implement efficient decisions, including
apparent disconnects between Forest Service staff titles and day-to-day
responsibilities. This leads to proponents being confused about whom to
contact for a particular issue. Respondents also expressed concern that
the Forest Service staff lacks understanding of processes and
requirements related to the oil and gas regulations; that there are
insufficient staff to efficiently complete tasks, leading to outdated
leasing analyses; and that there is a need for the Forest Service to
create strategies to solve staffing challenges prior to updating
regulations. Respondents recommended that the Agency expand use of
third-party consultants to prepare NEPA documents.
Regarding the intent to update the process for considering requests
for waivers, exceptions, or modifications to lease stipulations, some
commenters expressed opposition to waivers, exceptions, and
modifications to permits, or stated that any revisions must continue to
ensure environmental protection, monitoring, reporting, inspections,
and compliance. Other commenters questioned whether the process
duplicates work and decisions of the Bureau of Land Management.
On the topic of clarifying procedures for review and approval of
SUPOs, some commenters expressed support for clarification of
procedures to ensure a consistent format for review and approval.
However, some commenters stated that existing regulations already
provide a simple, clear process for review and approval of SUPOs, and
that new revisions could result in insufficient review and increase
potential for environmental impact.
Respondents noted that the Forest Service should clarify what is
required of the Forest Service and the Bureau of Land Management in
conducting
[[Page 54314]]
``analysis and approval'' of a surface-use plan. Other respondents
recommended clarifying procedures to include maintaining public
participation and objection opportunities; implementing deadlines and
expiration dates for the approval process; improving coordination
between the Forest Service and the Bureau of Land Management on SUPO
processing and encouraging applicant support during processing;
continuing to implement the surface use requirements in Sec. 228.108
and NEPA review requirements in Sec. 228.107; and using categorical
exclusions for oil and natural gas activities.
With respect to the Forest Service's intent to update regulations
addressing the operator's responsibility to protect natural resources
and the environment, several comments expressed concern that changes to
existing regulations would reduce operator obligations to protect the
environment. Respondents suggested that specific requirements and best
practices in 36 CFR 228.108 should remain in place, or be strengthened,
to protect surface resources. Commenters suggested that the Forest
Service describe environmental responsibilities of the Forest Service,
the Bureau of Land Management and the operator; that the Forest Service
add language regarding operator responsibility to comply with Secretary
of the Interior standards for cultural resource protection; and, that
the Forest Service not place restrictions on development to protect
migratory birds or their habitat. One commenter expressed the view that
the regulation changes must not impact drilling activities.
Public comments received in response to the ANPR can be found on
the http://www.regulations.gov. Search on Docket ID: FS-2018-0053.
Section-by-Section Explanation of the 36 CFR Part 228, Subpart E,
Proposed Rule
This rule proposes updates to the existing Forest Service
regulations governing Federal oil and gas resource management to
reflect requirements of legislation and Executive orders enacted since
1990. This rule proposes revisions based on Agency experience
implementing existing regulations, and seeks to better align these
regulations with established joint Forest Service and the Bureau of
Land Management Onshore Order 1 (see 43 CFR 3164.1), and the Bureau of
Land Management's independent regulations (43 CFR part 3100), where it
may be appropriate and applicable.
The proposed rule would clarify and streamline the processes for
identifying National Forest System lands open for leasing, while
emphasizing an operator's responsibilities for compliance, and would
clarify management steps that the Forest Service may take when
operators do not comply with Forest Service regulations. The proposed
rule would also aim to unify Forest Service regulations with those of
the Bureau of Land Management regarding sundry notices and instances of
bonding. The proposed rule would clarify the applicability of the
existing procedures in Onshore Order 1 by which the Bureau of Land
Management and the Forest Service jointly respond to operating
proposals.
The proposed rule would incorporate the content of Sec. 228.110,
Indemnification, in the existing regulations into Sec. 228.105,
Responsibilities of Operators, of the proposed rule, thereby reducing
the number of sections by one. The proposed rule would also, reorder,
renumber and re-title various sections that would result in the
following organization of the regulations:
Section 228.100 Scope and Applicability
Section 228.101 Definitions
Section 228.102 Issuance of Onshore Orders and Notices to Lessees and
Operators
Section 228.103 Leasing Analysis and Consent Decision
Section 228.104 Consideration of Requests to Waive, Except, or Modify
Lease Stipulations
Section 228.105 Responsibilities of Operators
Section 228.106 Operator's Submission of Surface Use Plan of Operations
Section 228.107 Review and Approval of Surface Use Plan of Operations
Section 228.108 Sundry Notices
Section 228.109 Bonds
Section 228.110 Temporary Cessation of Operations
Section 228.111 Compliance and Inspection
Section 228.112 Notice of Noncompliance
Section 228.113 Material Noncompliance
Section 228.114 Posting Requirements
Section 228.115 Information Collection Requirements
The paragraphs below provide a section-by-section description of the
proposed changes.
Section 228.100 Scope and Applicability
The proposed rule would not change the scope and applicability from
the existing rule. The changes or additions to the section are proposed
to improve readability, clarity, and provide specific reference to the
applicability of the Bureau of Land Management regulations at 43 CFR
parts 3160 and 3170 and onshore orders to Federal oil and gas leasing
and subsequent lease operations. The proposed rule would include
references to the applicable legal framework and the role of the
Secretary of Agriculture in implementing those statutes and would
revise the language in paragraph (a) for readability and include
specific language regarding lessees and operators. The proposed rule
would revise paragraph (b) to describe that the rule applies to
National Forest System lands concerning Federal oil and gas leases, and
to operations conducted thereon, and to explicitly inform the public
that the rule would not apply to oil and gas activity conducted as part
of a non-Federal mineral right. The proposed rule would revise
paragraph (c) to incorporate the applicability of the joint Forest
Service and Bureau of Land Management rule, Onshore Order 1. The
proposed rule would reference applicability of other Bureau of Land
Management requirements such as its regulations at 43 CFR part 3100,
Onshore Oil and Gas orders other than No. 1, and the Bureau of Land
Management-issued Notices to Lessees and Operators. The proposed rule
would replace the term `leasehold' with `lease' or `agreement' as
appropriate to better reflect the Bureau of Land Management terminology
regarding oil and gas leasing.
Section 228.101 Definitions
The proposed rule would add, remove, and revise some terms in the
existing regulations to provide greater clarity. The proposed changes
would benefit the regulated community, the Forest Service, and the
Bureau of Land Management with a more harmonious set of definitions
between the agencies' regulations.
The proposed rule would retain as is or with minor wording changes
to improve clarity the following definitions: Acquired lands;
authorized Forest Service officer; consent; infrastructure or
facilities; lease; lessee; material noncompliance; National Forest
System lands; Notices to Lessees and Operators; Onshore Oil and Gas
Order; Operations; Operator; substantial modification; and Surface Use
Plan of Operations.
The proposed rule would add the following terms and their
definitions to provide functionality to proposed regulation text and
improve consistency with the Bureau of Land Management terms:
Agreement; Conditions of
[[Page 54315]]
Approval; Final Abandonment Notice; lease notice; Master Development
Plan; Master Surface Use Plan of Operations; Reasonably Foreseeable
Development Scenario; stipulation; Sundry Notice; and Waiver, Exception
or Modification.
The proposed rule would remove the definitions of the following
terms, because they are redundant, lack applicability to the rule, or
do not merit a stand-alone definition due to limited use or no special
meaning beyond the plain English usage within the regulation:
Leasehold; operating right; operating rights owner; person; transfer;
and transferee.
Section 228.102 Issuance of Onshore Orders and Notices to Lessees and
Operators
The proposed rule would move the content of the existing Sec.
228.102 regarding leasing analysis and decisions to Sec. 228.103. The
proposed rule would move the requirements for Issuance of Onshore
Orders and Notices to Lessees and Operators from Sec. 228.105 in the
existing regulations to this section. The proposed rule would then
combine procedures for the Chief of the Forest Service to issue onshore
oil and gas orders into paragraph (a) and those for issuing Notices to
Lessees and Operators into paragraph (b). The proposed rule would make
editorial changes to the text for clarity and readability.
Section 228.103 Leasing Analysis and Consent Decision
The Leasing Analysis and Consent Decision section addresses
development of a nationwide schedule for leasing analyses in
coordination with the Bureau of Land Management, the components of a
leasing analysis, the components of a leasing decision, the ability of
the Forest Service to withdraw its consent prior to the Bureau of Land
Management conducting a lease sale, and notification of how
stakeholders may appeal a leasing consent decision.
The proposed rule would remove reference to the former post-
decisional appeal process (36 CFR part 217) because it has been
rendered obsolete by subsequent regulations. The proposed change
remedies the outdated reference and provides direction to 36 CFR part
219, subpart B, which is the codified sole process by which the public
may file objections seeking predecisional administrative review for
proposed projects and activities implementing land management plans and
documented with a Record of Decision (ROD) or Decision Notice (DN). (78
FR 18481)
The proposed rule would streamline the approach that the Agency
follows to identify lands open to leasing and stipulations to protect
surface resources on lands open to leasing by establishing that the
Forest Service has one decision point. That being consent to leasing
made at the completion of the leasing analysis. This approach better
aligns the Forest Service leasing availability analysis methods with
those followed by the Bureau of Land Management. The proposed rule
would also clearly state that the Forest Service may withdraw its
consent to lease prior to the Bureau of Land Management conducting a
lease sale.
The proposed rule would remove references to other laws and
regulatory requirements, particularly with respect to complying with
NEPA and the Endangered Species Act and their implementing regulations,
in favor of letting those laws and regulations speak for themselves and
to reduce likelihood that direction could be confused in the future if
other regulations change. While several citations to specific laws and
regulations have been removed, the Forest Service and lessees must
still comply with all applicable laws and regulations.
Paragraph (a) of Sec. 228.103 would modernize language regarding
scheduling leasing analyses. The existing regulation references
scheduling analyses within 6 months of April 20, 1990 and calls for an
annual update of the schedule. The proposed rule would remove reference
to a specific date, emphasize coordination between National Forests and
Grasslands and the Bureau of Land Management for scheduling, inform the
public that the agencies would consider public interest in leasing, and
would require an annual update to the schedule. The changes would help
align the efforts of Forest Service and the Bureau of Land Management
with each other and interested parties in conducting leasing analyses.
Paragraph (b) of Sec. 228.103 would define the required components
of a leasing consent analysis. The proposed rule maintains the same
components of analysis but provides additional direction on cooperation
with the Bureau of Land Management, development of alternatives, and
use of stipulations. These requirements would include clarifying how
stipulations must be designed to carry out provisions of the Energy
Policy Act of 2005 (42 U.S.C. 15922) to ensure that lease stipulations
are applied consistently, coordinated between agencies, and only as
restrictive as necessary to protect the resource for which the
stipulations are applied. This section would incorporate parts of the
existing Sec. 228.102(b) and (c). The leasing consent analysis process
proposed in the rule would direct that the Forest Service will make a
single decision identifying lands on which the Agency would consent to
the Bureau of Land Management's offering oil and gas leases for the
affected National Forest System lands. The existing regulation directs
an administrative review by the Forest Service at the time that
specific lands, which have already been subject to an area or forest-
wide leasing analysis, are being scheduled for leasing by the Bureau of
Land Management. This is not a second, more detailed analysis, but a
validation review verifying that oil and gas leasing of the specific
lands has been adequately addressed in a NEPA document and is
consistent with the applicable land management plan. The proposed rule
would remove this largely duplicative administrative procedure. The
existing regulation's flexible approach to the sequence or timing of
Forest Service consent determinations has sometimes caused confusion
among government personnel and the public. The proposed regulation
settles on a specific point in the process in which Forest Service
consent will be determined allowing uniformity of practice that should
eliminate such confusion. The proposed rule includes a provision that
would allow the Forest Service to withdraw its consent at any time
prior to a Bureau of Land Management lease sale.
Paragraph (c) of Sec. 228.103 would carry forward the components
of a leasing consent decision from the existing regulations but is
renamed ``Leasing Consent Decision.'' The paragraph would clarify that
the Forest Service has one decision point in the process and would
clearly define the required components of the Forest Service decision:
Which lands are open to leasing and under what conditions (standard
lease terms and conditions or added stipulations); and which lands are
closed through exercise of management direction, statute, regulation,
or withdrawal.
Paragraph (d) clarifies the notification to the Bureau of Land
Management of a consent decision.
The proposed rule would eliminate content in Sec. 228.102(e) of
the existing regulation that discusses leasing decisions for specific
lands as authorizing specific lands for lease. This existing language
has been subject to litigation. For example, the Forest Service's
interpretation of the existing leasing analysis and consent process set
out in Sec. 228.102(c), (d), and (e) has been disputed in litigation,
such as the trilogy of Wyoming Outdoor Council rulings (Wyoming Outdoor
Council v. U.S.
[[Page 54316]]
Forest Service, 981 F.Supp. 17 (D.D.C. 1997), aff'd, 165 F.3d 43 (D.C.
Cir 1999); Wyoming Outdoor Council v. Dombeck, 148 F.Supp.2d 1 (D.D.C.
2001); Wyoming Outdoor Council v. Bosworth, 284 F.Supp.2d 81 (D.D.C.
2003)). A more recent and ongoing case, Center for Biological Diversity
v. USFS, No. 2:17-cv-372, 2020 WL 1429569 (S.D. Ohio Mar. 13, 2020),
addresses the Agency's analysis and consent process, including whether
Forest Service consent can be withdrawn. The proposed rule seeks to
simplify the overall process by settling on a specific point in the
process in which Forest Service consent will be determined, allowing
uniformity of practice. The Agency anticipates that new interpretive
guidance for implementing the leasing consent decision will be
developed and set out in the Agency's manual or handbook directive
system in 2021.
Finally, paragraph (e) of the proposed rule would codify the
existing practice that the Forest Service could withdraw its consent
decision prior to a Bureau of Land Management lease sale.
Section 228.104 Consideration of Request To Waive, Except or Modify
Lease Stipulations
The proposed rule would add direct reference regarding the
applicability of procedures in Onshore Order 1 for requesting waivers
or exceptions from or modifications to a lease stipulation (see
proposed regulation text in Sec. 228.104). The proposed rule would
direct the Forest Service to provide notice to the Bureau of Land
Management on its determination as to whether to grant or deny a
request for a waiver, exception, or modification. The existing
regulation directs notification to both the Bureau of Land Management
and operator. As the administrator of Federal leases, the appropriate
notification to the operator is from the Bureau of Land Management. The
proposed rule would remove obsolete references to administrative appeal
regulations that are no longer in use, in deference to the Agency's
existing administrative appeal regulations at 36 CFR part 214 and the
Agency's objection procedures at 36 CFR part 219.
The existing regulation requires the Forest Service to consult with
other agencies when considering a waiver, exception or modification to
a lease stipulation included at the other agency's request. Examples of
instances when this might occur would be if the Forest Service include
a stipulation that restricted occupancy in the vicinity of an
electrical transmission line operated by a Federal power authority, or
a stipulation to protect a special status wildlife species required by
the U.S. Fish and Wildlife Service.
Section 228.105 Responsibilities of Operators
The proposed rule would move the content of the existing Sec.
228.105 to Sec. 228.102. The proposed rule would move the content of
the existing Sec. 228.108 to Sec. 228.105 and re-title it
Responsibilities of Operators. To improve efficient implementation of
the regulations, the proposed rule would generally revise the content
to not duplicate requirements in Onshore Order 1; readers will be
referred to Onshore Order 1 as applicable.
The proposed rule would retain requirements from the existing
regulations in paragraphs (g), (i), and (j)(2), place them in paragraph
(a), and reorder them for readability. Paragraph (a) of the proposed
rule would reinforce existing practices for operators to maximize use
of existing roads and utility corridors in planning and constructing
new infrastructure and report to the Forest Service any spills,
blowouts, fires, or personal injuries that are reported to the Bureau
of Land Management under its requirements.
Paragraph (b) of the proposed rule would require the operator to
comply with all other applicable state and Federal statutes and
regulations. Paragraph (c) of the proposed rule would require the
operator to allow the Forest Service access to its operations for
compliance inspection purposes. Paragraph (d) of the proposed rule
would inform the operator of existing requirements that it would be
responsible for obtaining Forest Service permits for uses of National
Forest System lands and resources not otherwise included in a Surface
Use Plan of Operation, most notably for uses outside an operator's
lease area. Paragraph (e) of the proposed rule would maintain the
requirement that the operator shall conduct its activities in a manner
that avoids the cause or minimizes the spread of fire.
The proposed rule would move Sec. 228.110 in the existing
regulation to paragraph (f) of this section and retitle it Liability.
The proposed rule would maintain the same conditions of liability to
the United States for injury, loss, or damage, including fire
suppression costs incurred by the government resulting from the
operator and all lessees' activities.
Section 228.106 Operator's Submission of Surface Use Plan of Operations
The proposed rule would revise language clarifying the
applicability of the requirements in Onshore Order 1 when an operator
submits a Surface Use Plan of Operation and would address use of Master
Development Plans and Master Surface Use Plans of Operation. The Bureau
of Land Management is principally responsible to track applications for
operations on Federal oil and gas leases and does so through a database
called the Automated Fluid Minerals Support System (AFMSS). The Forest
Service has access to AFMSS to track Surface Use Plans of Operation and
Master Surface Use Plans of Operation. The proposed rule revises
paragraph (c) to emphasize the need for operators to include in their
applications a description of infrastructure or facilities to the
extent known that would be used to support their operations such as
pipelines or roads, and whether it would be within the boundaries of a
lease or agreement, or outside lease or agreement boundaries. The
proposed rule would remove paragraph (d), which uses terminology that
is inconsistent with the Bureau of Land Management regulations and
would instead clarify Sundry Notices in Sec. 228.108.
Section 228.107 Review and Approval of Surface Use Plan of Operations
The proposed rule would rename and reduce the number of paragraphs
in this section. The proposed rule would improve references to Onshore
Order 1, including the timeframes established in the Order for agency
response. The proposed rule would remove obsolete references to Agency
administrative appeal procedures since they are no longer in use, in
deference to the Agency's existing administrative appeal regulations at
36 CFR part 214 and the Agency's objection procedures at 36 CFR part
219. The proposed rule would remove Sec. 228.107(e), which uses
terminology that is inconsistent with the Bureau of Land Management's
regulations and would instead clarify Sundry Notices in Sec. 228.108.
Section 228.108 Sundry Notices
The proposed rule would move the content of the existing Sec.
228.108 to Sec. 228.105, Responsibility of Operator. The proposed rule
would rename this section Sundry Notices replacing references to
supplemental plans in Sec. Sec. 228.106 and 228.107 of the existing
regulations. This would remove language inconsistent with the Bureau
[[Page 54317]]
of Land Management regulations and align the proposed rule with the
Bureau of Land Management procedures. New content regarding sundry
notices would include that the operator must follow the Bureau of Land
Management procedures for submitting a sundry notice and that Forest
Service approval of a sundry notice would be required if the notice
proposed surface-disturbing activities. The proposed rule would clarify
that surface-disturbing activities may be subject to environmental
analysis. The new content is informative of compliance with existing
requirements.
Section 228.109 Bonds
The proposed rule maintains the same bond requirement as the
existing rule but provides additional instruction to Forest Service
managers and operators with regard to clarity and consistency with
Onshore Order 1. The proposed rule would make general clarifications
and editorial corrections for readability. The proposed rule clarifies
how the Forest Service would coordinate with the Bureau of Land
Management if an operator chooses to increase its Bureau of Land
Management bond to cover additional bonding required by the Forest
Service for surface reclamation purposes. The Forest Service's
experience in managing Federal oil and gas resources since the existing
regulations were promulgated in 1990 indicates that in many cases the
Bureau of Land Management lease bonds are insufficient to support
surface reclamation needs if a lessee or operator defaults. The
proposed rule retains language for the Forest Service to exercise its
authority under the Mineral Leasing Act to ensure adequate financial
assurance is in place to reclaim surface disturbance. The proposed rule
would add language that describes what factors authorized Forest
Service officers would consider when determining if Bureau of Land
Management lease bonds are adequate. The proposed rule would retain
language to the effect that the operator may increase the Bureau of
Land Management performance bond or post a separate surface reclamation
bond with Forest Service when the Forest Service determines additional
bonding is necessary. The proposed rule would add paragraph (d) to
clarify methods for posting bonds, and paragraph (e) to clarify methods
for releasing a Forest Service-held surface reclamation bond.
Section 228.110 Temporary Cessation of Operations
The proposed rule would move the content of the existing Sec.
228.110 to paragraph (f) of Sec. 228.105, Responsibilities of
Operator, and rename it Liability. The proposed rule would place the
content from the existing Sec. 228.111 in this section. The proposed
rule would make editorial clarifications.
Section 228.111 Compliance and Inspection
The proposed rule would move the content of the existing Sec.
228.111, except paragraph (c), to Sec. 228.110. The proposed rule
would move the content of the existing paragraph (c) to Sec.
228.105(b), Responsibility of Operator, and simplify it to reference
Compliance with Other Statutes. The proposed rule would place the
content of the existing Sec. 228.112 in this section. The proposed
rule would reorder and rename the paragraphs in this section and make
editorial corrections to clarify the Agency's responsibility to inspect
operations for compliance with terms of applicable approvals and the
regulations in this subpart.
Section 228.112 Notice of Noncompliance
The proposed rule would move the content of the existing section to
Sec. 228.111. The proposed rule would also move the content of the
existing Sec. 228.113 to this section. The proposed rule would
reorder, rename, and revise the paragraphs in this section. The
proposed rule would streamline the procedures that the Agency would use
to notify an operator of issues concerning noncompliance with the terms
of approvals or the regulations in this subpart. The proposed rule
would streamline these procedures by moving from a two-step process to
a one-step process. The proposed rule would clarify when the Agency
would either engage the Bureau of Land Management to take action under
43 CFR part 3163, refer a noncompliance action to law enforcement, or
refer a noncompliance issue to the Agency's material noncompliance
proceedings. The proposed rule would clarify an operator's opportunity
to correct issues of noncompliance and would clarify an operator's
appeal opportunities. The proposed rule would update the methods for
notifying operators of noncompliance issues by including electronic
means of notification.
Section 228.113 Material Noncompliance
The proposed rule would move the content of the existing section to
Sec. 228.112, and move the content of Sec. 228.114 to this section.
The proposed rule would revise, reorder, and rename the paragraphs in
this section. The proposed rule would streamline the procedures that
the Agency would follow when determining if an operator would be in
material noncompliance with reclamation or other requirements or
standards and would better reflect the requirements and consequences
established in the Mineral Leasing Act. The 1990 procedures for oil and
gas material noncompliance proceedings were designed to be consistent
with other debarment procedures that are now defunct, thus prompting
the need to revise these procedures.
Section 228.114 Posting Requirements
The proposed rule would move the content of the existing section to
Sec. 228.113; move the content of Sec. 228.115 to this section;
retitle this section; and revise it to make the timeframes consistent
with the timeframes in the Bureau of Land Management's direction and
Onshore Order 1. The proposed rule would remove internal direction
regarding posting decisions, which is addressed in the Agency's NEPA
regulations.
Section 228.115 Information Collection Requirements
The proposed rule would move the content of the existing section to
Sec. 228.114, and retitle it Information Collection Requirements. The
proposed rule would include statements regarding Office of Management
and Budget requirements from the existing Sec. 228.115.
Conforming Technical Amendments
The proposed rule identifies minor, non-substantive changes to two
other regulations for purposes of conforming with the modifications
that would be made to 36 CFR part 228, subpart E.
In 36 CFR 214.4(b)(3), which specifies the decisions that are
appealable under part 214, the phrase ``request to supplement a surface
use plan of operation'' would be changed to ``request for surface use
portion of sundry notice'' to track language in the proposed rule. The
proposed rule would add two additional appealable decisions: (1)
Requests for a waiver or exemption from, or modification to an oil and
gas lease stipulation, and (2) requests for an extension of the time
period for taking action in response to a notice of noncompliance.
In 36 CFR 261.2, which includes definitions applicable to the
Agency's law enforcement regulations, the definition of ``operating
plan'' would be changed by replacing the phrase ``supplemental surface
use plan of operation'' with ``surface use portion of a sundry
notice.''
[[Page 54318]]
Regulatory Certifications
E.O. 12866 Regulatory Planning and Impact Analysis (Analysis of Costs
and Benefits)
E.O. 12866 provides that the Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget (OMB) will review
all significant regulatory actions. The Office of Information and
Regulatory Affairs has determined that this proposed rule is
significant pursuant to section 3(f) of E.O. 12866. Therefore, a
Regulatory Impact Analysis (RIA) analyzing the costs and benefits of
the proposed regulation is needed to comply with E.O. 12866. The
potential benefits and costs, as well as distributional impacts,
associated with the proposed rule were analyzed to fulfill the RIA
requirements, consistent with E.O.12866 and OMB Circular A-4.
The RIA considers costs and benefits associated with updates,
modifications, or clarifications to different sections of 36 CFR part
228, subpart E, as they relate to key procedural steps for oil and gas
leasing and permitting on National Forest System lands. Changes in
costs and benefits are discussed in a primarily qualitative manner due
to the challenges with quantifying costs and benefits at a programmatic
level. Quantitative proxies are used when feasible to help describe the
potential frequency or magnitude of activities and corresponding costs
affected by the proposed rule.
The direct benefits of the proposed rule are reduced costs and time
spent on identifying available lease areas, approving operations, and
addressing compliance actions, including costs and time incurred by the
Agency as well as by proponents engaged in or pursuing oil and gas
operations on National Forest System lands. Indirect benefits can
result from expedited access to leasable oil and gas resources on
National Forest System lands, including time-valued oil and gas revenue
or returns to operators as well as time-valued bids, lease rentals, and
royalties paid by operators to the Federal Government and public.
The proposed rule is not expected to have a significant or
measurable impact on rates of oil and gas production on National Forest
System lands; oil and gas prices and other market factors are likely to
drive future changes in growth of development and production. Because
of minimal impacts to production, the proposed rule is equally unlikely
to have significant distributional impacts on job or income
contributions from oil and gas activities on National Forest System
lands.
The total or aggregate net benefits associated with the proposed
rule cannot be quantified but are likely to be small or slightly more
than the estimated agency cost savings of $100,000 to $200,000 per
year. The Regulatory Impact Analysis is available with the supporting
documents at http://www.regulations.gov.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs has determined that
this rule is not a major rule as defined by 5 U.S.C. 804(2). Findings
in the Regulatory Impact Analysis for the proposed rule indicate that
it is unlikely to have significant impacts on job or income
contributions from oil and gas activities on National Forest System
lands. Therefore, the revised regulation is not classified as major.
Energy Effects
The proposed rule was reviewed under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The proposed rule is not expected to have a
measurable effect (positive or negative) on oil and/or gas supply or
distribution. The Agency regulation does not make decisions about which
lands are open or closed to leasing and subsequent development, but
instead manages the process. The proposed rule should streamline the
oil and gas leasing process and should clarify processing procedures
for the Surface Use Plan of Operation portion of an Application for
Permit to Drill on National Forest System lands. The streamlining
should reduce time and costs of permitting or leasing.
The proposed rule is not expected to have a significant adverse
effect on the supply, distribution, or use of energy; on competition or
prices; or on other agency actions related to energy. The proposed rule
is not expected to raise novel issues regarding adverse effects on
energy. The proposed rule is therefore not expected to be a significant
energy action or to require a statement of energy effects, consistent
with OMB guidance for implementing E.O. 13211.
Reducing Regulation and Controlling Regulatory Costs (E.O. 13771)
The Agency has reviewed this proposed rule under U.S. Department of
Agriculture procedures and Executive Order (E.O.) 13771, Reducing
Regulation and Controlling Regulatory Costs, issued January 30, 2017.
The Office of Management and Budget has reviewed this proposed rule and
designated it as significant per E.O. 12866. E.O. 13771 requires that
agencies account for the incurred costs that a significant regulatory
action may have on the public and offset such costs with the removal of
two other significant regulatory actions.
The total or aggregate net benefits associated with the proposed
rule cannot be quantified; however, they are expected to be small or
slightly more than the estimated agency cost savings of $100,000 to
$200,000 per year for leasing analysis and processing expressions of
interest. Thus, the proposed rule is considered a deregulatory action
per E.O.13771.
National Environmental Policy Act
The Agency prepared a programmatic environmental assessment (PEA)
to determine whether this proposed rule would have a significant impact
on the quality of the human environment under the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) The
PEA describes and analyzes two alternatives: The Proposed Rule
(Proposed Action) and continuing with the existing regulations (No
Action). The PEA is available for review with the supporting documents
for this proposed regulation at http://www.regulations.gov. If the
final PEA supports a Finding of No Significant Impact for the rule, the
preparation of an environmental impact statement pursuant to the NEPA
would not be required.
Consultation and Coordination With Indian Tribal Governments (E.O.
13175)
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. Executive Order 13175 requires Federal agencies to consult
and coordinate with tribes on a government-to-government basis on
policies that have tribal implications (including regulations,
legislative comments or proposed legislation, and other policy
statements or actions) that have substantial direct effects on one or
more Indian tribes, on the relationship between the Federal Government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes. To ensure tribal
perspectives are heard and fully considered during rulemaking, the
Agency contacted all federally recognized Indian tribes and Alaska
Native Corporations in accordance with E.O. 13175, (Consultation and
Coordination with Indian Tribal Governments); USDA Departmental
[[Page 54319]]
Regulation 1350-02 (Tribal Consultation, Coordination and
Collaboration); and Forest Service Handbook 1509.13, Chapter 10
(Consultation with Indian tribes and Alaska Native Corporations). The
Agency initiated formal consultation on the rulemaking by contacting
the Indian tribes and Alaska Native Corporations by mail.
The consultation period began in September 2018 and will continue
until the close of the comment period on the proposed rule.
Consultation materials included the advance notice of proposed
rulemaking, briefing documents that outline possible revisions of the
existing regulations and the reasons why these changes are being
proposed, and a list of frequently asked questions. As consultation
continues, the Agency will also provide Indian tribes and Alaska Native
Corporations with the proposed rule.
So far, the consultation process has included two in-person
regional tribal consultation meetings in the Forest Service's Southwest
Region: One was held on October 29, 2018, in Albuquerque, New Mexico,
and the other on October 31, 2018 in Flagstaff, Arizona. During the
October 31, 2018 consultation meeting, the Hopi Tribe requested
additional face-to-face consultation with the Regional Forester. The
Agency also received written comments from the Hopi Tribe and the
Rincon Band of Luiseno Indians by letter and from the Federated Indians
of Graton Rancheria by email. Most comments stated that the tribes will
be provided additional review and comment once the Agency releases the
proposed rule, as part of the consultation process. The Agency will
continue to conduct government-to-government consultation on the rule
until the close of the public comment period on the proposed rule.
The USDA's Office of Tribal Relations (OTR) has assessed the impact
of this rule on Indian tribes and has determined that this rule has
tribal implications that require continued communication efforts to
determine if further tribal consultation under E.O. 13175 is required.
To date, as part of their regulatory review process noted above, the
Forest Service has engaged in various outreach efforts to American
Indian and Alaska Native tribes, villages, and Corporations regarding
the development of this proposed rule and the ongoing tribal
cooperation in this process. If further consultation is required or
otherwise appropriate, the Forest Service will work with the USDA's
Office of Tribal Relations to ensure that meaningful consultation is
provided.
Regulatory Flexibility Act and Small Business Analysis
The Agency considered the impacts of the proposed rule on small
entities, consistent with requirements of the Regulatory Flexibility
Act (RFA), as amended by the Small Business Regulatory Flexibility
Enforcement Fairness Act of 1996 (SBREFA), and Executive Orders 13272
and 13563 (Proper Consideration of Small Entities in Agency
Rulemaking). Under the RFA, whenever an agency is required to publish a
notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. Small entities
potentially impacted by the proposed rule include small businesses
(firms) involved in oil and gas extraction operations (North American
Industry Classification System (NAICS) 211111), drilling oil and gas
wells (NAICS 213111), and support activities for oil and gas operations
(NAICS 213112). The proposed rule does not affect the terms,
conditions, and stipulation of existing leases. The proposed rule can
impact businesses that express interest in or decide to bid on new
leases, or otherwise decide to engage in oil and gas development and
operations on National Forest System lands currently under lease or
that may come under lease in the future. The proposed rule provides
both direct and indirect benefits to small businesses depending on
whether the business holds leases or provides drilling and other
support services.
There were 328 different firms operating oil and gas producing
wells on National Forest System lands as of September 2018, of which
316 (96 percent) are estimated to be small businesses based on the
Small Business Administration (SBA) small business criterion of 1,250
employees for NAICS 211111. The proposed rule will primarily impact a
subset of operators that express interest in leasing National Forest
System land or apply for permits to drill new wells on National Forest
System lands in the future. As an estimate for the subset of affected
small businesses, the Forest Service used the average of 35 Surface
Plans of Operation for new wells that were approved annually, from
2013--2017, and assumed each new Surface Use Plan of Operations is
submitted by a different firm (which is unlikely and provides a high
side estimate). Other aspects of the proposed rule will likely go
unnoticed by operators. For example, compliant operators will likely
experience no affects from proposed procedures that the Agency will
follow to monitor for compliance. For comparison to the effect on 35
small businesses annually, the estimated number of small firms
associated with the oil and gas extraction sector (NAICS 211111) for
the nation is approximately 5,600. The percent of small businesses
affected by the proposed rule on an annual basis is projected to be
small (35 of 5,600 is less than 1 percent).
The aggregate impact of the proposed rule, compared to baseline
regulatory conditions, is expected to be positive for a majority of the
entities involved in oil and gas leasing, development and operations on
National Forest System lands, as noted in the Regulatory Impact
Analysis. Provisions of the proposed rule are expected to reduce the
times for reviewing and approving leases and permits, thereby saving
operator costs and expediting opportunities for production and revenue.
Exceptions might include cases where some operators may be faced with
increases in reclamation bond amounts or have to apply for special use
authorizations; however, these situations arise only when operators are
not in full compliance with existing regulations. Based on the evidence
summarized above, the proposed rule is expected to increase
opportunities for net benefits to small entities on average. The number
of small entities that would be impacted is not likely to be
substantial. We therefore certify that this rule will not have a
significant economic impact on a substantial number of small entities
indicating that an initial regulatory flexibility analysis is not
required
More information on the RFA and SBREFA determination is available
with the supporting documents for this proposed regulation at http://www.regulations.gov. The Agency acknowledges that the analysis took
place prior to the COVID-19 pandemic-induced recession and its impact
on oil and gas markets. Because the expected impacts on small
businesses are expected to be very small, difficult to quantify, and
beneficial, we do not expect updated data on oil and gas markets or
Forest Service production and development activity to change the
overall conclusion and certification. However, the Agency intends to
use the
[[Page 54320]]
most current data available in its analyses prior to finalizing the
rule. The Agency is seeking public comment specific to this analysis,
and public comment on what effect the COVID-19 pandemic may have on the
proposed revisions to the regulation.
Federalism
The Agency considered this proposed rule under the requirements of
Executive Order 13132, Federalism. The Agency has concluded that the
rule conforms to the federalism principles set out in this Executive
Order. It will not impose any compliance costs on the States and will
not have substantial direct effects on the States or the relationship
between the National Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, the Agency has determined that no further assessment of
federalism implications is necessary.
Taking of Private Property (E.O. 12630)
This rule has been analyzed in accordance with the principles and
criteria contained in Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights, and it
has been determined that the rule does not pose the risk of a taking of
protected private property. This rule affects management of Federal oil
and gas resources and does not apply to privately held oil and gas
rights.
Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of Executive Order 12988.
More specifically, this rule meets the criteria of section 3(a), which
requires agencies to review all regulations to eliminate errors and
ambiguity and to write all regulations to minimize litigation. This
rule also meets the criteria of section 3(b)(2), which requires
agencies to write all regulations in clear language with clear legal
standards.
Environmental Justice
The Department considered impacts of the proposed rule on civil
rights and environmental justice (pursuant to Executive Order 12898,
February 16, 1994). The Civil Rights Impact Analysis prepared according
to USDA DR 4300-4 and 5600-002 may be viewed with this proposed
regulation's supporting documents at http://www.regulations.gov. No
adverse or disproportionate impacts on civil rights or environmental
justice to underrepresented populations, or to other U.S. populations
or communities, are expected from the proposed rule.
Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act (UMRA) of
1995 (2 U.S.C. 1531-1538), the Agency has assessed the effects of the
proposed rule on State, local, and Tribal governments, and on the
private sector. This proposed rule would not compel the expenditure of
$100 million or more by State, local, or Tribal governments, in the
aggregate, or by the private sector. Therefore, this proposed rule is
not subject to the requirements of section 202 and 205 of the UMRA.
Paperwork Reduction Act
This proposed rule contains a collection of information for which
the Agency is seeking Office of Management and Budget (OMB) approval
under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.). To
accomplish the information collection approval, the Agency is currently
seeking reinstatement of OMB Control No. 0596-0101, which has
previously been approved for collection of information associated with
the existing 36 CFR part 228, subpart E. The proposed rule does not
establish any new information collection requirements not previously
approved under OMB Control No. 0596-0101.
It is important to note that the information collection
requirements of this subpart are supplemental to the Bureau of Land
Management's various OMB information collection approvals for issuing
and managing operations on Federal oil and gas leases. The following
sections of proposed subpart E contain information requirements as
defined in 5 CFR part 1320:
Section 228.104--Consideration of Requests to Waive, Except, or
Modify Lease Stipulations. Under the Bureau of Land Management
regulations at 43 CFR 3101.1-4, the Bureau of Land Management may
waive, except, or modify a lease stipulation. For leases on National
Forest System lands, the Bureau of Land Management must obtain approval
from the Forest Service before granting such a request. Section 228(c)
provides criteria for approval that the Authorized Forest Service
officer must determine are in place to grant approval. The additional
information collection burden estimate is for the extra time an
operator would take to organize and focus its request to assist the
Forest Service in its review and consideration for approval.
Section 228.106(a), (c), and (d)--Operator's Submission of Surface
Use Plan of Operations. Where a well is located on National Forest
System lands, the Forest Service must approve the Surface Use Plan of
Operations included as part of an operator's Application for Permit to
Drill (reference BLM Form 3160-3, OMB Control No. 1004-0136). The
Agency estimates that there are no additional burden hours for an
operator's submission of a Surface Use Plan of Operations on National
Forest System lands versus lands managed by the Bureau of Land
Management.
Section 228.109(e) Bond Release. This section would provide an
operator the ability to seek an incremental reduction in the
performance bond based on partial completion of the reclamation
requirements of the approved Surface Use Plan of Operations. This is an
information collection specific to subpart E regulations.
Section 228.110(a) Notice of Temporary Cessation of Operations.
This section would require an operator to provide verbal notification
followed by a written statement to the Forest Service if operations
will be temporarily paused for a period of 45 days or more. This is an
information collection specific to subpart E regulations.
Section 228.112(c) Extension of Deadline in Notice of
Noncompliance. Under this section, when issued a notice of
noncompliance an operator may request an extension of the deadline
contained within the notice. In its request, an operator would provide
the rationale for the needed delay for it to come into compliance. This
is an information collection specific to subpart E regulations.
Section 228.113(b)(2)--Response to a Referral of Material
Noncompliance. When the Agency determines that an operator has failed
to remedy a state of noncompliance and is being referred to the
Compliance Officer for a determination of material noncompliance, this
section would inform an operator that it may submit a written response
to the referral or request an oral presentation to the Compliance
Officer. This is an information collection specific to subpart E
regulations.
OMB Control Number: 0596-0101.
Title: Oil and Gas Resources, 36 CFR, Part 228, Subpart E.
Type of Review: Reinstatement without Change.
Respondents/Affected Public: Individuals and private sector
businesses who wish to engage in activities on National Forest System
lands pursuant to a Federal oil and gas lease.
Total Estimated Number of Annual Respondents: Approximately 50.
[[Page 54321]]
Total Estimated Number of Annual Responses: Approximately 70.
Estimated Completion Time per Response: Varies from 5 minutes to 2
hours, depending on activity, with weighted average of 0.2 hours per
response.
Total Estimated Number of Annual Burden Hours: 14 hours.
In accordance with the Paperwork Reduction Act of 1995, we provide
the public and other agencies with an opportunity to comment on new,
proposed, revised, and continuing collections of information. This
helps us assess the impact of our information collection requirements
and minimize the public's reporting burden. It also helps the public
understand our information collection requirements and provide the
requested data in the desired format.
We are soliciting comments on the proposed information collection
request. We are especially interested in public comment addressing the
following issues: (1) Is the collection necessary to the proper
functions of the Agency; (2) will this information be processed and
used in a timely manner; (3) is the estimate of burden accurate; (4)
how might the Agency enhance the quality, utility, and clarity of the
information to be collected; and (5) how might the Agency minimize the
burden of this collection on the respondents, including through the use
of information technology.
Request for Public Comment
Public input has informed the development of the rules, including
through an advance notice of proposed rulemaking (ANPR). The Agency
reiterates its request for public comments on any aspects of the
proposed revisions to the rule. The Agency will carefully consider
public comments in preparing the final rule.
Comments that you submit in response to this notice are a matter of
public record. We will include or summarize each comment in our request
to the Office of Management and Budget to approve this information
collection request. Before including your address, phone number, email
address, or other personal identifying information in your comment, you
should be aware that your entire comment--including your personal
identifying information--may be made publicly available at any time.
While you can ask us in your comment to withhold your personal
identifying information from public review, we cannot guarantee that we
will be able to do so.
Please see the ADDRESSES section for directions on where to submit
comments for this information collection request.
List of Subjects
36 CFR Part 214
Administrative practice and procedure, National forests.
36 CFR Part 228
Environmental protection, Mines, National forests, Oil and gas
exploration, Public lands-mineral resources, Public lands-rights-of-
way, Reporting and recordkeeping requirements, Surety bonds, Wilderness
areas.
36 CFR Part 261
Law enforcement, National forests.
Therefore, for the reasons set forth in the preamble, the Forest
Service is proposing to amend parts 214, 228, and 261 of title 36 of
the Code of Federal Regulations as follows:
PART 214--POSTDECISIONAL ADMINISTRATIVE REVIEW PROCESS FOR
OCCUPANCY OR USE OF NATIONAL FOREST SYSTEM LANDS AND RESOURCES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551.
0
2. Amend Sec. 214.4 by revising paragraph (b)(3) to read as follows:
Sec. 214.4 Decisions that are appealable.
* * * * *
(b) * * *
(3) Approval or denial of a surface use plan of operations, request
for a surface use portion of a sundry notice, request for a waiver or
exception from or modification to an oil and gas lease stipulation,
suspension of oil and gas operations, issuance of a notice of
noncompliance, or denial of a request for noncompliance notice deadline
extension pursuant to 36 CFR part 228, subpart E;
* * * * *
PART 228--MINERALS
0
3. The authority citation for part 228 continues to read as follows:
Authority: 16 U.S.C. 478, 551; 30 U.S.C. 226, 352, 601, 611; 94
Stat. 2400.
0
4. Revise subpart E to read as follows:
Subpart E--Oil and Gas Resources
Sec.
228.100 Scope and applicability.
228.101 Definitions.
228.102 Issuance of onshore orders and notices to lessees and
operators.
228.103 Leasing analysis and consent decision.
228.104 Consideration of request to waive, except, or modify lease
stipulations.
228.105 Responsibilities of operator.
228.106 Operator's submission of Surface Use Plan of Operations.
228.107 Review and approval of Surface Use Plan of Operations.
228.108 Sundry notices.
228.109 Bonds.
228.110 Temporary cessation of operations.
228.111 Compliance and inspection.
228.112 Notice of noncompliance.
228.113 Material noncompliance.
228.114 Posting requirements.
228.115 Information collection requirements.
Subpart E--Oil and Gas Resources
Authority: 16 U.S.C. 478, 551; 30 U.S.C. 226, 352, 601, 611.
Sec. 228.100 Scope and applicability.
(a) Scope. This subpart sets forth the rules and procedures by
which the Forest Service of the United States Department of Agriculture
will carry out its statutory responsibilities for the conservation of
surface resources associated with oil and natural gas leasing on
National Forest System lands, for approving surface use requirements
related to exploration and development of oil and gas on National
Forest System lands subject to a Federal oil and gas lease, for
inspecting surface-disturbing operations on such leases, for enforcing
surface use and reclamation requirements, and for the general
management of subsequent oil and gas operations on National Forest
System lands. This subpart also establishes minimum requirements for
lessees and/or operators for use and protection of National Forest
System lands and resources.
(b) Applicability. The rules of this subpart apply to National
Forest System lands subject to Federal oil and gas leases, and to
operations that are conducted within such leases. The regulations in
this subpart do not apply to the development of non-Federal oil and gas
interests pursuant to reserved and outstanding rights.
(c) Applicability of other rules. Other rules that apply are:
(1) Application requirements for proposing oil or gas wells, along
with the procedures the Federal agencies follow for approving oil and
gas wells, certain subsequent well operations, and abandonment, are
established in the Forest Service and Bureau of Land Management joint
rule, Onshore Oil and Gas Order Number 1 (see 43 CFR 3164.1), referred
to as Onshore Order 1 in this subpart.
(2) The Bureau of Land Management regulations at 43 CFR parts 3160
and 3170, Onshore Oil and Gas Orders 2 and
[[Page 54322]]
7, and Bureau of Land Management-issued Notices to Lessees and
Operators also apply to oil and gas leasing and operations on National
Forest System lands, where applicable.
(3) Surface uses associated with oil and gas activities that are
conducted on National Forest System lands outside a lease or agreement
are subject to Forest Service authorization under regulations set forth
elsewhere in 36 CFR chapter II, including but not limited to the
regulations set forth in 36 CFR part 251, subpart B, and 36 CFR part
261.
Sec. 228.101 Definitions.
For the purposes of this subpart, the terms listed in this section
have the following meaning:
Acquired lands. Lands which the United States obtained by deed
through purchase or gift, or through condemnation proceedings,
including lands previously disposed of under the public land laws
including the mining laws.
Agreement. A Bureau of Land Management-approved Oil and Gas Unit
Agreement or Communitization Agreement (see 43 CFR 3180.0-5).
Authorized Forest Service officer. The Forest Service employee
delegated the authority to perform a duty described in this subpart and
who is generally a Regional Forester, Forest, Grassland or Prairie
Supervisor, or District Ranger, depending on the scope and level of the
duty to be performed.
Compliance Officer. The Deputy Chief, or the Associate Deputy
Chief, National Forest System or the line officer designated to act in
the absence of the Deputy Chief.
Conditions of Approval. Site-specific requirements that may be
included with the approval of a Surface Use Plan of Operations that may
limit or modify the specific activities covered in the plan. Conditions
of Approval may minimize, mitigate, or prevent impacts to National
Forest System lands or resources.
Consent. For the purposes of this subpart means to authorize the
Bureau of Land Management to offer oil and gas leases on National
Forest System lands, and refers to either the Forest Service's not
objecting to such leasing on lands reserved from the public domain or
the Forest Service's consenting to such leasing on acquired National
Forest System lands.
Final Abandonment Notice (FAN). An operator submits a FAN to notify
the Bureau of Land Management and the surface management agency that
final reclamation has been completed, that the surface has been
reclaimed in accordance with previous approval(s), and that the well
site or other facility is ready for inspection and consideration for
release from liability under the bond.
Infrastructure or facilities. The basic physical components (e.g.,
buildings, roads, power supply, equipment, pipelines, storage tanks)
necessary for the development and production of oil and gas.
Lease. Any contract, profit-share arrangement, joint venture, or
other agreement issued or approved by the United States under a mineral
leasing law that authorizes exploration for, extraction of, or removal
of oil or gas on Federal lands, including National Forest System lands.
Lease Notice. A notice attached to an oil and gas lease that
provides more detailed information concerning limitations that already
exist in law, lease terms, regulations, or operational orders. A Lease
Notice also addresses special terms the lessee should consider when
planning operations but does not impose new or additional restrictions.
Lease Notices attached to leases should not be confused with NTLs--
Notices to Lessees (43 CFR 3160.0-5).
Lessee. A person or entity holding record title in a lease issued
by the United States. A lessee also may be an operating rights owner if
the operating rights in a lease or portion thereof have not been
severed from record title (43 CFR 3100.0-5).
Master Development Plan. A plan submitted by an operator(s) to the
Bureau of Land Management that contains information common to multiple
planned wells, including drilling plans, Surface Use Plans of
Operations, and plans for future production.
Master Surface Use Plan of Operations. A plan for surface use,
disturbance, and reclamation for two or more wells.
Material noncompliance. A Forest Service determination that an
operator or lessee has materially failed or refused to take necessary
corrective actions, complete reclamation, maintain required bonds, or
reimburse the Agency for the costs of abating an emergency, as further
described in Sec. 228.113, in a timely manner.
National Forest System lands. All lands, waters, or interests
therein administered by the USDA Forest Service as provided in 16
U.S.C. 1609.
Notices to Lessees and Operators. A written notice issued by the
authorized Forest Service officer or the Bureau of Land Management.
Notices to Lessees and Operators serve as requirements related to
specific item(s) of importance within a State, Forest Service Region,
National Forest, Grassland or Prairie, or Ranger District, or other
area.
Onshore Oil and Gas Order. An order issued by the Chief of the
Forest Service that implements and supplements the regulations in this
subpart. Onshore Oil and Gas Orders may also be issued by the Bureau of
Land Management and co-signed by the Chief, as with Onshore Oil and Gas
Order 1 (see 43 CFR 3164.1), referred to as Onshore Order 1 in this
subpart. The Bureau of Land Management may also issue Onshore Oil and
Gas Orders governing other oil and gas activities under their
jurisdiction that apply to National Forest System lands.
Operations. Activities conducted on a lease or agreement area on
National Forest System lands pursuant to an approved Surface Use Plan
of Operations, including but not limited to exploratory drilling,
development, and production of oil or gas resources and reclamation of
surface resources.
Operator. Any person or entity, including, but not limited to, the
lessee or operating rights owner, who has stated in writing to the
authorized officer of the Bureau of Land Management that the person or
entity is responsible under the terms and conditions of the lease for
the operations conducted on the leased lands or a portion thereof.
Reasonably Foreseeable Development Scenario (RFDS). A projection of
oil and gas exploration, development, production, and reclamation
activity. The RFDS estimates the oil and gas activity in a defined area
for a specified period of time. The RFDS projects a baseline scenario
of activity assuming all potentially productive areas are open to lease
under standard lease terms, except those areas designated as closed to
leasing by statute or regulation or areas withdrawn by the Secretary of
the Interior.
Stipulation. A provision that modifies standard lease terms and is
attached to, and made a part of, the lease by the Bureau of Land
Management. The Forest Service may include stipulations as part of its
consent to lease determination to conserve surface resources and to
minimize, mitigate, or prevent impacts to lands and resources.
Stipulations constrain where, when, or how the surface lands may be
used for exploration and development activities.
Sundry Notice. An operator's request submitted to the Bureau of
Land Management to perform work or conduct lease operations not covered
by another type of permit or authorization, or to change operations in
a previously approved permit; or a subsequent report of completed
activities; or a final abandonment notice.
[[Page 54323]]
Surface Use Plan of Operations. A plan for surface use,
disturbance, and reclamation, and is a component of an Application for
Permit to Drill or Sundry Notice. The requirements for the Surface Use
Plan of Operations are described in detail in Onshore Order 1.
Waiver, exception, or modification. Refers to a change to a lease
stipulation including:
(1) Waiver. Permanent exemption from a lease stipulation. The
stipulation no longer applies anywhere within the lease.
(2) Exception. Case-by-case exemption from a lease stipulation. The
stipulation continues to apply to all other sites within the lease to
which the restrictive criteria, as described in the lease stipulation,
apply.
(3) Modification. Fundamental change to the provisions of a lease
stipulation, either temporarily or for the term of the lease. A
modification may, therefore, include an exemption from or alteration to
a stipulated requirement. Depending on the specific modification, the
stipulation may or may not apply to all other sites on the lease to
which the restrictive criteria, as described in the lease stipulation,
apply.
Sec. 228.102 Issuance of onshore orders and notices to lessees and
operators.
(a) Onshore Oil and Gas Orders. The Chief of the Forest Service may
issue, or cosign with the Director, Bureau of Land Management, Onshore
Oil and Gas Orders necessary to implement and supplement the
regulations of this subpart. Additional Onshore Oil and Gas Orders
shall be published in the Federal Register for public comment.
(b) Notices to Lessees and Operators. The authorized Forest Service
officer may issue, or cosign with the authorized officer of the Bureau
of Land Management, Notices to Lessees and Operators necessary to
implement the regulations of this subpart. Notices to Lessees and
Operators apply to all operations conducted by Federal lessees on the
National Forest System lands or portion thereof supervised by the
authorized Forest Service officer who issued or cosigned such notice.
Sec. 228.103 Leasing analysis and consent decision.
(a) Scheduling leasing consent analysis. The Forest Service
Washington Office shall develop, in cooperation with the Bureau of Land
Management, Forest Service Regional Offices, and Forest and Grassland
units, a schedule for analyzing all National Forest System lands with
oil and gas resource potential for leasing in consideration of the
following:
(1) The schedule shall identify whether each analysis will be part
of a land management plan or will be a separate leasing analysis.
(2) Scheduling shall consider the level of leasing interest
expressed by the public.
(3) The Forest Service shall review, revise, or make additions to
the schedule at least annually.
(b) Leasing consent analysis. The authorized Forest Service officer
shall conduct a forest-wide or area-specific leasing analysis in either
a land management plan or a separate leasing analysis. The Bureau of
Land Management shall be invited to participate as a cooperating agency
in the consent analysis. In determining lands open or closed for
leasing, the authorized Forest Service officer shall:
(1) Identify and exclude from further review the lands which are
ineligible for leasing by statute, regulation, or withdrawal by the
Secretary of the Interior.
(2) Consider a Reasonably Foreseeable Development Scenario that
projects the type/amount of post-leasing activity that is reasonably
foreseeable on eligible lands within the analysis area.
(3) Develop reasonable alternatives, including a no-leasing
alternative. The alternatives should include lease stipulations that
may be applied.
(4) Project the level of post-leasing activity that would occur for
each alternative.
(5) Analyze the impacts of post-leasing activity projected under
paragraph (b)(4) of this section.
(6) Develop lease stipulations that are consistently applied and
coordinated between agencies and are only as restrictive as necessary
to protect the resource or resources for which the stipulations are
applied.
(7) Include, in the analysis, maps showing lands open to leasing,
lands closed to leasing, and applicable stipulations for each
alternative.
(c) Leasing consent decision. (1) Upon completion of the leasing
consent analysis, the authorized Forest Service officer shall issue a
leasing consent decision to the authorized officer of the Bureau of
Land Management that identifies all National Forest System lands
covered by the leasing consent analysis as:
(i) Open to leasing, subject to the terms and conditions of the
standard oil and gas lease form (including an explanation of the
typical standards and objectives to be enforced under the standard
lease terms);
(ii) Open to leasing, subject to constraints that will require the
use of lease stipulations; or
(iii) Closed to leasing, distinguishing between those areas that
are being closed through exercise of management direction and those
areas that are closed by virtue of a statute, regulation, or
withdrawal.
(2) Leasing consent decisions made pursuant to this subpart shall
be subject to a pre-decisional objection process conducted in
accordance with the procedures set forth in 36 CFR part 219, subpart B,
whether the leasing consent decision is made as part of a land
management plan or separately.
(d) Effect of leasing consent decision. An authorized Forest
Service officer's identification of lands as open to leasing does not
commit the Bureau of Land Management to future leasing actions, nor
does it constitute an irretrievable or irreversible commitment of
resources.
(e) Withdrawing leasing consent. The authorized Forest Service
officer may withdraw consent to lease prior to a Bureau of Land
Management lease sale.
Sec. 228.104 Consideration of requests to waive, except, or modify
lease stipulations.
(a) General. (1) The Bureau of Land Management's oil and gas
leasing regulations at 43 CFR 3101.1-4 and Onshore Order 1 outline
requirements for operators to request waivers, exceptions, or
modifications to lease stipulations.
(2) Where the request involves stipulations included on the lease
as prescribed by the Forest Service, the Bureau of Land Management must
obtain approval from the Forest Service before granting a request for a
waiver, exception, or modification.
(b) Requesting a waiver, exception, or modification. Requests to
waive, except, or modify a lease stipulation are subject to procedures
in Onshore Order 1. In addition to information required in Onshore
Order 1, the operator should submit any information that might assist
the authorized Forest Service officer in assessing whether or not to
approve a waiver, exception, or modification.
(c) Criteria for approval. A request for a waiver, exception, or
modification to a lease stipulation may be approved by the authorized
Forest Service officer if the officer determines the following, after
reviewing the present condition of the surface resources involved and
the nature, location, timing, and design of the proposed operations:
(1) The action would be consistent with applicable Federal laws.
(2) The action would be consistent with the current land management
plan.
(3) The management objectives which led the Forest Service to
require the inclusion of the stipulation in the lease
[[Page 54324]]
can be met if the waiver, exception, or modification is granted.
(4) The action is acceptable to the authorized Forest Service
officer based upon a review of the environmental consequences.
(d) Coordination with other agencies. If a lease stipulation was
included in a lease by the Forest Service at the request of another
agency, or if another agency has specific jurisdiction over the
specific resource, the authorized Forest Service officer shall
coordinate with that agency prior to approving a waiver, exception, or
modification. This paragraph (d) does not require the consent of such
an agency to the waiver, exception, or modification unless such consent
is independently required by statute or regulation.
(e) Notice of determination. The authorized Forest Service officer
shall notify the Bureau of Land Management in writing whether or not
the request should be granted and shall provide all information used to
make the determination.
Sec. 228.105 Responsibilities of operator.
(a) General. The lessee or operator shall conduct operations on
National Forest System lands in a manner that minimizes effects on
surface resources and prevents unnecessary or unreasonable surface
resource disturbance.
(1) At a minimum, the operator must:
(i) Control soil erosion and mitigate land instability caused by
their operations;
(ii) Control water runoff from their operations;
(iii) Remove, or control, solid wastes, toxic substances, and
hazardous substances attributable to their operations;
(iv) Reshape and revegetate areas disturbed by their operations;
(v) Remove structures, improvements, facilities, and equipment no
longer needed in the conduct of operations, unless otherwise
authorized;
(vi) Take measures to preclude introduction of nonnative invasive
species that could otherwise result from their operations;
(vii) Take measures to reclaim surface areas disturbed by their
operations, as required by the authorized Forest Service officer;
(viii) Unless otherwise approved by the authorized Forest Service
officer, initiate interim reclamation activity within 1 year of
completion of operations on the affected area. Interim reclamation
shall be conducted concurrently with other operations; and
(ix) Promptly clean up and remove from National Forest System
lands, waters, or interests therein which are administered by the
Forest Service or are designated for administration through the Forest
Service as a part of the system (16 U.S.C. 1609) any released oil,
produced water, toxic substances, or other contaminating substances
attributable to their operations in accordance with all applicable
Federal, State and local laws and regulations.
(2) Operators shall use existing roads and utility corridors
wherever possible.
(3) All spills or leakages of oil, gas, produced water, toxic
liquids, or waste materials; blowouts; fires; personal injuries; and
fatalities that are reported to the Bureau of Land Management according
to applicable orders, notices to lessee, and/or approved Surface Use
Plan of Operations shall also be reported to the authorized Forest
Service officer.
(b) Compliance with other statutes and regulations. The operator is
responsible for complying with applicable Federal and State laws and
regulations. The operator must also comply with onshore oil and gas
orders and notices to lessees issued pursuant to this subpart.
(c) Access for inspections. Operators must allow Forest Service
employees access, for inspection purposes, to drilling and production
sites and to any other locations on National Forest System lands where
operations pursuant to a lease are being conducted.
(d) Other Forest Service authorizations. To the extent required by
applicable statutes and regulations, the operator shall obtain other
Forest Service authorizations such as timber contracts, road use
permits, or special use authorizations for other uses of National
Forest System lands.
(e) Safety measures. (1) The operator must maintain structures,
facilities, improvements, and equipment located on the area of
operation in a safe and well-maintained manner and in accordance with
the applicable approval(s).
(2) The operator must take appropriate measures in accordance with
applicable Federal and State laws and regulations to protect the public
from hazardous sites or conditions resulting from the operations. Such
measures may include, but are not limited to, posting signs, building
fences, or otherwise identifying a hazardous site or condition.
(3) The operator shall conduct its activities in a manner that
avoids the cause or minimizes the spread of fire.
(f) Liability. The operator and lessee are jointly and severally
liable in accordance with Federal and State laws to the United States
for:
(1) Injury, loss, or damage, including fire suppression costs,
incurred by the United States as a result of the operations; and
(2) Payments made by the United States in satisfaction of claims,
demands, or judgments for an injury, loss, or damage, including fire
suppression costs, incurred as a result of the operations.
Sec. 228.106 Operator's submission of Surface Use Plan of Operations.
(a) General. (1) The provisions of this section apply to both
Surface Use Plans of Operations and Master Surface Use Plans of
Operations. Operators shall submit Applications for Permit to Drill or
Master Development Plans in accordance with Onshore Order 1 to the
Bureau of Land Management. The Application for Permit to Drill or
Master Development Plan shall include the Surface Use Plan of
Operations or Master Surface Use Plan of Operations.
(2) A Master Surface Use Plan of Operations can be submitted with a
Master Development Plan or with an individual Application for Permit to
Drill. If a Master Surface Use Plan of Operations has been submitted,
then subsequent Applications for Permit to Drill can reference the
Master Surface Use Plan of Operations if they are consistent with the
Master Surface Use Plan of Operations.
(b) Preparation of the Surface Use Plan of Operations. In preparing
a Surface Use Plan of Operations, the operator must ensure that it
contains the mandatory components of Onshore Order 1 and provisions of
Sec. 228.105. The operator is also encouraged to contact the local
Forest Service office to make use of such information as is available
from the Forest Service concerning surface resources and uses, standard
conditions of approval, environmental considerations, and local
reclamation procedures. The Surface Use Plan of Operations must be
consistent with lease terms and stipulations.
(c) Content of Surface Use Plan of Operations. The type, size, and
intensity of the proposed operations and the sensitivity of the
affected surface resources by the proposed operations determine the
level of detail and the amount of information which the operator
includes in a proposed Surface Use Plan of Operations. The Surface Use
Plan of Operations shall also include planned infrastructure or
facilities, to the extent known, to be used to execute the Surface Use
Plan of Operations. This submission should specify what facilities or
infrastructure are located within lease or agreement boundaries,
[[Page 54325]]
and those that are located outside lease or agreement boundaries.
Sec. 228.107 Review and approval of Surface Use Plan of Operations.
(a) General. The provisions of this section apply to both Surface
Use Plans of Operations and Master Surface Use Plans of Operations. An
operator must obtain an approved Application for Permit to Drill from
the Bureau of Land Management before conducting operations. No permit
to drill on National Forest System lands may be granted without a
Forest Service-approved Surface Use Plan of Operations covering
proposed surface-disturbing activities. Approval or denial of a Surface
Use Plan of Operations proposed to be documented in a Decision Notice
or Record of Decision is subject to the pre-decisional objection
process set forth in 36 CFR part 218 and post-decisional appeal process
as provided in 36 CFR 214.4(b)(3).
(b) Review. The authorized Forest Service officer shall review the
Surface Use Plan of Operations following the procedures in Onshore
Order 1 to ensure that:
(1) The Surface Use Plan of Operations contains the mandatory
components of Onshore Order 1 and Sec. 228.105;
(2) The Surface Use Plan of Operations is consistent with the
lease, including the lease stipulations, and applicable Federal laws;
and
(3) To the extent consistent with the rights conveyed by the lease,
the Surface Use Plan of Operations is consistent with, or can be
modified to be consistent with, the applicable land management plan.
(c) Analysis and decision. When the review of the Surface Use Plan
of Operations is completed, the authorized Forest Service officer
shall:
(1) Approve the Surface Use Plan of Operations as submitted; or
(2) Approve the Surface Use Plan of Operations subject to specified
Conditions of Approval; or,
(3) Deny the Surface Use Plan of Operations for the reasons stated.
(d) Timing of decision. If a decision on a Surface Use Plan of
Operation cannot be made within 30 days of a complete application, the
authorized Forest Service officer shall advise the appropriate Bureau
of Land Management office as soon as it becomes apparent that
additional time will be needed to process the plan. The authorized
Forest Service officer shall follow procedures described in Onshore
Order 1 to explain why additional time is needed and project the date
by which a decision on the Surface Use Plan of Operation will likely be
made. The authorized Forest Service officer shall also notify the
applicant of any action the applicant could take that would enable the
Forest Service officer to issue a final decision on the Surface Use
Plan of Operations.
(e) Notifying the Bureau of Land Management. The authorized Forest
Service officer shall promptly notify the Bureau of Land Management if
a Surface Use Plan of Operations is approved, including Conditions of
Approval, if any, or whether it has been denied. This transmittal shall
include the estimated additional surface use bond amount to be required
(Sec. 228.109), if any.
Sec. 228.108 Sundry notices.
(a) General. For activities that require a Sundry Notice under
Bureau of Land Management regulations (43 CFR 3162.3-2), the operator
must obtain approval from the Bureau of Land Management. If the
activity would cause effects on surface resources, a Surface Use Plan
of Operations that is subject to Forest Service approval is required.
The sundry notice need only address those operations that differ from
those authorized by the current approved Surface Use Plan of
Operations. If the activity would cause effects on surface resources
not authorized by the currently approved Surface Use Plan of
Operations, the sundry notice is subject to the same requirements of
Sec. Sec. 228.106 and 228.107.
(b) Review and approval. If Forest Service approval is required,
the authorized Forest Service officer shall determine whether the
activity would be subject to additional environmental review or
analysis. Following review or analysis, the authorized Forest Service
officer shall notify the Bureau of Land Management whether the Forest
Service approves the activity.
Sec. 228.109 Bonds.
(a) General. (1) As part of the review of a proposed Surface Use
Plan of Operations, the authorized Forest Service officer shall review
existing bond amount(s) to determine if they are sufficient to ensure
complete and timely reclamation of surface disturbances and restoration
of any lands or surface waters adversely affected by lease operations.
The review shall include a determination of whether the performance
bond held by the Bureau of Land Management is adequate to meet the
requirements of this paragraph (a)(1).
(2) If at any time prior to, or during the conduct of operations,
the authorized Forest Service officer determines that the performance
bond amount held by the Bureau of Land Management is not adequate to
ensure complete and timely reclamation and restoration of National
Forest System lands, the authorized Forest Service officer may review
and require a bond amount specifically for reclaiming surface
disturbance.
(b) Considerations for reviewing bond adequacy. In assessing
whether a bond is sufficient, the authorized Forest Service officer:
(1) Shall consider the scope and full extent of the operator's
proposed operations, associated surface disturbance, and
infrastructure, and performance history and risk posed by the operator.
(2) Shall consider the costs to the Forest Service to undertake
reclamation or restoration actions in case of operator default.
(c) Determining level of bond amount. If additional bonding is
determined necessary, the authorized Forest Service officer may specify
a bond amount to any level, provided that the amount does not exceed
the total estimated cost of reclamation based on surface disturbance.
(d) Posting bonds. If the authorized Forest Service officer
determines that additional bonding is necessary, the officer shall give
the operator the option of either increasing the bond held by the
Bureau of Land Management or filing a separate reclamation bond with
the Forest Service in the amount deemed adequate. The Forest Service
must notify the Bureau of Land Management if the operator chooses to
increase its Bureau of Land Management bond. If an additional surface
use bond is determined to be necessary, the bond must be posted prior
to commencing any surface disturbing-activities.
(e) Bond release. When the Forest Service holds a bond, the
operator may request that the Forest Service authorize an incremental
reduction in bond amount at any time during operations as restoration
or reclamation activities are completed. When the Bureau of Land
Management holds the bond, an operator may request the authorized
Forest Service officer to notify the Bureau of Land Management to
reduce the bond amount. The authorized Forest Service officer shall, if
appropriate, notify the Bureau of Land Management of the amount by
which the bond may be reduced.
Sec. 228.110 Temporary cessation of operations.
(a) General. As soon as it becomes apparent that there will be a
temporary cessation of operations for a period of 45 days or more, the
operator must verbally
[[Page 54326]]
notify and subsequently file a written statement with the authorized
Forest Service officer verifying the operator's intent to maintain
structures, facilities, improvements, and equipment that will remain on
the area of operation during the cessation of operations, and
specifying the expected date by which operations will be resumed.
(b) Interim measures. The authorized Forest Service officer may
require the operator to take reasonable interim reclamation or erosion
control measures to protect surface resources during temporary
cessation of operations, including during cessation of operations
resulting from adverse weather conditions.
(c) Notice of operations. The operator shall notify the authorized
Forest Service officer at least 48 hours prior to resuming operations
following a temporary cessation of 45 days or more.
Sec. 228.111 Compliance and inspection.
(a) General. Operations must be conducted in accordance with this
subpart, the applicable lease (including stipulations made part of the
lease at the direction of the Forest Service), an approved Surface Use
Plan of Operations, applicable Onshore Oil and Gas Orders (Sec.
228.102(a)), and applicable Notices to Lessees and Operators (Sec.
228.102(b)).
(b) Inspection of operations. The Forest Service shall periodically
inspect the area of operations to determine and document whether
operations are being conducted in compliance with the requirements in
paragraph (a) of this section.
(c) Inspection of reclamation. The Forest Service shall inspect
sites for reclamation compliance when a Final Abandonment Notice is
submitted. The Forest Service shall ensure that reclamation meets the
requirements of the approved Surface Use Plan of Operations and Sec.
228.105. The Forest Service shall promptly notify the Bureau of Land
Management in writing when reclamation is satisfactory.
(d) Penalties. If surface-disturbing operations are being conducted
that are not authorized by an approved Surface Use Plan of Operations,
or that violate a term or operating condition of an approved Surface
Use Plan of Operations, the entity conducting those operations is
subject to the applicable prohibitions and penalties under 36 CFR part
261. See also Sec. 228.112.
Sec. 228.112 Notice of noncompliance.
(a) General. When an authorized Forest Service officer finds that
operations are not being conducted in accordance with regulations of
this subpart, the lease (including stipulations made part of the lease
at the direction of the Forest Service), an approved Surface Use Plan
of Operations, applicable Onshore Oil and Gas Orders, and applicable
Notices to Lessees and Operators, the operator shall be notified and
given opportunity to come into compliance according to paragraph (b) of
this section. The Forest Service shall provide courtesy copies to the
local Bureau of Land Management office when a written notice of
noncompliance is sent to an operator.
(b) Notice of noncompliance. Upon finding that an operator is in
noncompliance, the authorized Forest Service officer shall send the
operator written notification by certified mail that:
(1) Describes the requirement(s) with which the operator is in
noncompliance;
(2) Describes the measure(s) that are required to correct the
noncompliance;
(3) Specifies a reasonable period of time within which the
noncompliance(s) must be corrected;
(4) Describes the possible consequences of continued noncompliance
as described in paragraph (e) of this section; and
(5) Provides notification that the authorized Forest Service
officer is willing to work cooperatively with the operator to resolve
the noncompliance.
(c) Extension of deadlines. The operator may request an extension
of a deadline specified in a notice of noncompliance if the operator is
unable to come into compliance by the deadline. The operator must
provide written rationale for delaying compliance. The authorized
Forest Service officer has sole discretion to extend compliance
deadlines, subject to provisions for appeal as noted in paragraph (d)
of this section.
(d) Appeal. An operator may appeal a Notice of Noncompliance issued
under paragraph (b) of this section or a denial of a request for
extension under paragraph (c) of this section, as provided for in 36
CFR part 214.
(e) Continued noncompliance. If an operator fails or refuses to
comply with a Notice of Noncompliance, the authorized Forest Service
officer may take action in one or more of the following ways:
(1) Refer the issue to the local Bureau of Land Management office
for action under 43 CFR part 3163.
(2) Refer the issue to a Forest Service law enforcement officer if
the noncompliance also constitutes a violation of the prohibitions in
36 CFR part 261.
(3) Refer the issue to the Compliance Officer for a determination
of material noncompliance per Sec. 228.113.
(f) Suspension of operations. When the noncompliance is likely to
result in danger to public health or safety or in irreparable resource
damage, the authorized Forest Service officer shall, in coordination
with the Bureau of Land Management, suspend the operations, in whole or
in part.
(1) Suspension of operations shall remain in effect until the
authorized Forest Service officer determines that the operations are in
compliance with the applicable requirement(s) identified in the notice
of noncompliance, or that it is no longer likely that any remaining
noncompliance is likely to result in danger to public health or safety
or in irreparable resource damage.
(2) The authorized Forest Service officer shall serve decisions
suspending operations upon the operator in person, by certified mail,
electronic mail or by telephone. If notice is initially provided in
person, by electronic mail, or by telephone, the authorized Forest
Service officer shall send the operator written confirmation of the
decision by certified mail.
(g) Abatement of emergencies. When the noncompliance is resulting
in an emergency, the authorized Forest Service officer may take action
as necessary to abate the emergency. The total cost to the Forest
Service of taking actions to abate an emergency becomes an obligation
of the operator.
(1) Emergency situations include, but are not limited to, imminent
dangers to public health or safety or irreparable resource damage.
(2) The authorized Forest Service officer shall promptly serve a
bill for such costs upon the operator by certified mail.
Sec. 228.113 Material noncompliance.
(a) General. The authorized Forest Service officer shall refer
actions to the Compliance Officer for a determination of material
noncompliance when the operator or lessee has failed or refused to:
(1) Comply with necessary corrective actions directed according to
the procedures in Sec. 228.112 in cases where the noncompliance
resulted in danger to public health or safety; caused irreparable
resource damage; or resulted in an emergency;
(2) Complete reclamation;
(3) Maintain an additional bond in the amount required by the
authorized Forest Service officer during the period of operation; and
[[Page 54327]]
(4) Reimburse the Forest Service in a timely manner for the cost of
abating an emergency.
(b) Compliance Officer determination of material noncompliance.
When determining whether an operator or lessee has failed or refused to
comply in a material respect with reclamation requirements or other
requirements or standards identified in paragraph (a) of this section,
the Compliance Officer shall:
(1) Inform the operator or lessee by certified mail of the
authorized Forest Service officer's material noncompliance referral and
the Compliance Officer's intent to proceed with a material
noncompliance review.
(2) Inform the operator or lessee of the opportunity to submit a
written response to the referral and/or to request an oral presentation
with the Compliance Officer within 30 calendar days of receipt of the
certified letter.
(3) Ensure that:
(i) Opportunities for corrective action according to Sec.
228.112(b) have been pursued;
(ii) Consideration is given to the status of any noncompliance
referrals sent to the Bureau of Land Management for action per Sec.
228.112(e); and
(iii) Consideration is given to the seriousness of the effects
caused by the operator's failure or refusal to comply.
(4) Consider any pending judicial or administrative appeals
involving the operator, including those within the purview of the
Bureau of Land Management.
(5) Notify the operator or lessee by certified mail of the outcome
of the material noncompliance referral review. If material
noncompliance was determined, the notice shall state that the Bureau of
Land Management will be advised to not issue a lease or approve the
assignment of any lease to the entity. The notification shall also
state that the decision is the final administrative determination of
the Department of Agriculture.
(c) Notifying the Bureau of Land Management. Upon completion of a
material noncompliance review, the Compliance Officer shall notify the
Bureau of Land Management in writing of the outcome of the review. When
an entity has been found to be in material noncompliance, the Forest
Service shall advise the Bureau of Land Management not to issue or
approve the assignment of any lease to the entity determined to be in
material noncompliance.
(d) Notification that material compliance has occurred. If an
entity found to be in material noncompliance subsequently comes into
material compliance with reclamation requirements or other requirements
or standards identified in paragraph (a) of this section, the
Compliance Officer shall advise the Bureau of Land Management that the
entity has come into material compliance.
Sec. 228.114 Posting requirements.
The affected National Forest or Grassland ranger district office
shall promptly post notices provided by the Bureau of Land Management
of:
(a) Competitive lease sales which the Bureau of Land Management
plans to conduct that include National Forest System lands. These must
be posted for a minimum of 45 days prior to the sale;
(b) Substantial modifications in the terms which the Bureau of Land
Management proposes to make for leases on National Forest System lands
(43 CFR 3101.1-4). These must be posted for a minimum of 30 days prior
to the sale; and,
(c) Applications for Permits to Drill which the Bureau has received
involving leases or agreements located on National Forest System lands
according to provisions of Onshore Order 1. These must be posted for a
minimum of 30 days.
Sec. 228.115 Information collection requirements.
The Office of Management and Budget reviewed and approved the
information collection requirements contained in this subpart and
assigned OMB Control No. 0596-0101. The collection of information
allows the Forest Service to approve or take other appropriate actions
on surface use plans of operations; requests to waive, except, or
modify lease stipulations; requests for reduction in reclamation
liability; noncompliance issues; and notices of cessation of
operations. The information collection requirements of this subpart are
supplemental to the Bureau of Land Management's various OMB information
collection approvals for issuing and managing Federal oil and gas
leases, but primarily to the following: OMB Control No. 1004-0134 for
43 CFR 3162.3; and OMB Control No. 1004-0136 for Form 3160-3,
Application for Permit to Drill.
PART 261--PROHIBITIONS
0
5. The authority citation for part 261 continues to read as follows:
Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l-6d, 472, 551,
620(f), 1133(c)--(d)(1), 1246(i).
0
6. Amend Sec. 261.2 by revising the definition for ``Operating plan''
to read as follows:
Sec. 261.2 Definitions.
* * * * *
Operating plan means the following documents, providing that the
document has been issued or approved by the Forest Service: A plan of
operations as provided for in 36 CFR part 228, subparts A and D, and 36
CFR part 292, subparts C and G; a supplemental plan of operations as
provided for in 36 CFR part 228, subpart A, and 36 CFR part 292,
subpart G; an operating plan as provided for in 36 CFR part 228,
subpart C, and 36 CFR part 292, subpart G; an amended operating plan
and a reclamation plan as provided for in 36 CFR part 292, subpart G; a
surface use plan of operations as provided for in 36 CFR part 228,
subpart E; a surface use portion of a sundry notice as provided for in
36 CFR part 228, subpart E; a permit as provided for in 36 CFR 251.15;
and an operating plan and a letter of authorization as provided for in
36 CFR part 292, subpart D.
* * * * *
James E. Hubbard,
Under Secretary, Natural Resources and Environment.
[FR Doc. 2020-18518 Filed 8-31-20; 8:45 am]
BILLING CODE 3411-15-P
