Vol. 78 Friday, 

No. 101 May 24, 2013 

Part II 

Department of the Interior 

Bureau of Land Management 

43 CFR Part 3160 

Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands; Proposed 

Rule 


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31636 Federal Register / Vol. 78, No. 101 / Friday, May 24, 2013 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

43 CFR Part 3160 

[WO–300–L13100000.FJ0000] 

RIN 1004–AE26 

Oil and Gas; Hydraulic Fracturing on 

Federal and Indian Lands 

AGENCY: Bureau of Land Management, 

Interior. 

ACTION: Supplemental notice of 

proposed rulemaking and request for 

comment. 

SUMMARY: On May 11, 2012, the Bureau 

of Land Management (BLM) published 

in the Federal Register a proposed rule 

entitled Oil and Gas; Well Stimulation, 

Including Hydraulic Fracturing, on 

Federal and Indian Lands. The BLM has 

used the comments on that draft to 

make improvements and is now seeking 

additional comment on a revised 

proposed rule. Key issues in this 

updated draft include: the use of an 

expanded set of cement evaluation tools 

to help ensure that usable water zones 

have been isolated and protected from 

contamination; and more detailed 

guidance on how trade secrets claims 

will be handled, modeled on the 

procedures promulgated by the State of 

Colorado. The revised proposed rule 

would also provide opportunities for the 

BLM to coordinate standards and 

processes with individual States and 

tribes to reduce administrative costs and 

to improve efficiency. 

DATES: Send your comments on this 

supplemental notice of proposed 

rulemaking (SNPR) to the BLM on or 

before June 24, 2013. The BLM need not 

consider, or include in the 

administrative record for the final rule, 

comments that the BLM receives after 

the close of the comment period or 

comments delivered to an address other 

than those listed below (see ADDRESSES). 

If you wish to comment on the 

information collection requirements in 

this SNPR, please note that the Office of 

Management and Budget (OMB) is 

required to make a decision concerning 

the collection of information contained 

in this SNPR between 30 to 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of being 

considered if OMB receives it by June 

24, 2013. 

ADDRESSES: Mail: U.S. Department of 

the Interior, Director (630), Bureau of 

Land Management, Mail Stop 2134 LM, 

1849 C St. NW., Washington, DC 20240, 

Attention: 1004–AE26. Personal or 

messenger delivery: Bureau of Land 

Management, 20 M Street SE., Room 

2134 LM, Attention: Regulatory Affairs, 

Washington, DC 20003. Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions at this Web site. 

Comments on the information 

collection requirement: Fax: Office of 

Management and Budget (OMB), Office 

of Information and Regulatory Affairs, 

Desk Officer for the Department of the 

Interior, fax 202–395–5806. Electronic 

mail: oira_submission@omb.eop.gov. 

Please indicate ‘‘Attention: OMB 

Control Number 1004–0203,’’ regardless 

of the method used to submit comments 

on the information collection burdens. If 

you submit comments on the 

information collection burdens, please 

provide the BLM with a copy of your 

comments, at one of the addresses 

shown above. 

FOR FURTHER INFORMATION CONTACT: 

Steven Wells, Division Chief, Fluid 

Minerals Division, 202–912–7143 for 

information regarding the substance of 

the rule or information about the BLM’s 

Fluid Minerals Program. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 1– 

800–877–8339 to contact the above 

individual during normal business 

hours. FIRS is available 24 hours a day, 

7 days a week to leave a message or 

question with the above individual. You 

will receive a reply during normal 

business hours. 

SUPPLEMENTARY INFORMATION:

Executive Summary 

‘‘Hydraulic fracturing,’’ a process 

used to stimulate production from oil 

and gas wells, has been a growing 

practice in recent years. Public 

awareness of hydraulic fracturing has 

grown as new horizontal drilling 

technology has allowed increased access 

to shale oil and gas resources across the 

country, sometimes in areas that have 

not previously or recently experienced 

significant oil and gas development. The 

rapid expansion of this practice has 

caused public concern about whether 

fracturing can lead to or cause the 

contamination of underground water 

sources, whether the chemicals used in 

fracturing should be disclosed to the 

public, and whether there is adequate 

management of well integrity and the 

‘‘flowback’’ fluids that return to the 

surface during and after fracturing 

operations. 

The Bureau of Land Management 

(BLM) oversees approximately 700 

million subsurface acres of Federal 

mineral estate and 56 million subsurface 

acres of Indian mineral estate across the 

United States. This revised proposed 

rule and the initial proposed rule would 

modernize BLM’s management of 

hydraulic fracturing operations by 

ensuring that hydraulic fracturing 

operations conducted on the public 

mineral estate (including split estate 

where the Federal Government owns the 

subsurface mineral estate) follow certain 

best practices, including: (1) The public 

disclosure of chemicals used in 

hydraulic fracturing operations on 

Federal and Indian lands; (2) 

Confirmation that wells used in 

fracturing operations meet appropriate 

construction standards; and (3) A 

requirement that operators put 

appropriate plans in place for managing 

flowback waters from fracturing 

operations. 

Like the initial proposed rule, this 

revised proposed rule would apply to 

Indian lands so that these lands and 

communities receive the same level of 

protection provided on public lands. In 

most cases, the requirements in this rule 

can be satisfied by submitting additional 

information during the existing process 

that the BLM currently applies to 

operators when reviewing and 

approving an operator’s Application for 

Permit to Drill (APD) on public or 

Indian lands. The rule would require 

that disclosure of the chemicals used in 

the fracturing process be provided to the 

BLM after the fracturing operation is 

completed. This information may be 

submitted to the BLM through an 

existing Web site known as 

FracFocus.org, already used by some 

states for reporting mandatory chemical 

disclosure of hydraulic fracturing 

chemicals. Submission of this 

information through this Web site 

allows an operator to provide the public 

and many State and tribal regulators 

with prompt access. This approach also 

has the benefit of reducing reporting 

burdens for oil and gas operators by 

avoiding duplicative reporting 

requirements and administrative duties 

for the BLM in many instances. 

The BLM developed this revised 

proposed rule and the initial proposed 

rule with the intention of improving 

public awareness and strengthening 

oversight of hydraulic fracturing 

operations without introducing 

unnecessary new procedures or delays 

in the process of developing oil and gas 

resources on public and Indian lands. 

Some states, like Colorado, Wyoming, 

Arkansas, and Texas, have issued their 

own regulations addressing disclosures 

and oversight for oil and gas drilling 

operations. Operators with leases on 

Federal lands must comply with both 

BLM’s regulations and with State 


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operating requirements, including State 

permitting and notice requirements to 

the extent they do not conflict with 

BLM regulations. State regulations 

pertaining to hydraulic fracturing 

operations are not uniform. The States 

that have regulated hydraulic fracturing 

typically require some notification to a 

state agency and some require reporting 

on FracFocus. Other States have not 

taken action in this area. This revised 

proposed rule seeks to create a 

consistent oversight and disclosure 

model that will apply across all public 

and Indian lands that are available for 

oil and gas development, and aims to 

streamline and minimize the efforts 

required to comply with any new 

requirements, while also protecting 

Federal and tribal interests and 

resources. Currently nearly 36 million 

acres of Federal land are under lease for 

potential oil and gas development. 

These leases can be found on public 

land and for public minerals in 24 states 

The BLM has revised the proposed rule 

to reduce some of the information 

requirements to avoid duplication with 

the requirements of States (on Federal 

land) and tribes (on tribal land). The 

BLM has considered various options to 

encourage streamlining, flexibility, and 

more efficient operation on both BLM 

and tribal leases. 

The BLM has for many years had a 

number of agreements with certain 

States and tribes concerning 

implementation of the various 

regulatory programs in logical and 

effective ways. The BLM will work with 

States and tribes to establish formal 

agreements that will leverage the 

strengths of partnerships, and reduce 

duplication of efforts for agencies and 

operators, particularly in implementing 

the revised proposed rule as 

consistently as possible with State or 

tribal regulations. 

Similarly, the BLM has been looking 

to State regulations governing hydraulic 

fracturing for elements that should be 

incorporated into the revised proposed 

rule. Examples include allowing 

disclosure of chemical constituents of 

fracturing fluids through FracFocus, as 

required by several states, and adoption 

of the Colorado system of having 

operators submit an affidavit that 

undisclosed information about 

chemicals is entitled to protection as 

trade secrets. 

Regarding Indian lands, the BLM fully 

embraces the statutes, Executive Orders, 

and other statements of governmental or 

departmental policy in favor of 

promoting tribal self-determination and 

control of resources. The Indian Mineral 

Leasing Act (IMLA), however, subjects 

all oil and gas operations on trust or 

restricted Indian lands to the Secretary’s 

regulations and does not authorize the 

Secretary to allow tribes to opt out of 

these regulations. Nonetheless, the BLM 

is actively addressing ways to use tribal 

rules in the implementation of the 

revised proposed rule. For example, the 

proposed rule recognizes the authority 

that may be delegated to the States and 

the tribes to implement various 

environmental programs under the Safe 

Drinking Water Act to protect 

underground sources of drinking water 

and has been revised to defer to State 

(on Federal land) or tribal (on tribal 

land) designations of aquifers as either 

requiring protection from oil and gas 

operations, or as exempt from any 

requirement to isolate water-bearing 

zones in section 3162.3–3(b). 

The revised proposed rule also adds 

a provision allowing the BLM to 

approve a variance that would apply to 

all lands within the boundaries of a 

State, a tribe, or described as field-wide 

or basin-wide, that is commensurate 

with the state or tribal regulatory 

scheme. The BLM must determine that 

the variance would meet or exceed the 

effectiveness of the revised proposed 

rule. State and tribes would be invited 

to work with the BLM to craft variances 

that would allow technologies, 

processes or standards required or 

allowed by the State or tribe to be 

accepted as compliance with the rule. 

Such variances would allow the BLM 

and the States and tribes to improve 

efficiency and reduce costs for operators 

and for the agencies. 

The proposed changes to existing 

hydraulic fracturing oversight are partly 

in response to recommendations put 

forward by the Shale Gas Production 

Subcommittee of the Secretary of 

Energy’s Advisory Board in 2011. Also, 

current BLM regulations governing 

hydraulic fracturing operations on 

public lands are more than 30 years old 

and were not written to address modern 

hydraulic fracturing technologies and 

practices. In preparing this revised 

proposed rule, the BLM received input 

from members of the public and 

stakeholders, and consulted with tribal 

representatives. 

The changes from the original 

proposed well stimulation rule are 

discussed in greater detail below, but 

some of the notable changes include the 

following. This revised proposed rule 

would require use of cement evaluation 

logs (CELs) in the place of the originally 

proposed cement bond logs (CBL). The 

use of the broader term of CEL is 

intended to allow a variety of logging 

methods to be used to show the 

adequacy of cementing, including 

technologies such as ultrasonic logs, 

variable density logs, microseismograms, standard CBLs, CBLs with 

directional receiver array, ultrasonic 

pulse echo technique, and isolation 

scanners. CBLs would be accepted 

because they are one of the technologies 

included in CELs. However, if a State 

(on Federal land) or tribe (on Indian 

land) designates some other technology 

to meet its requirements for hydraulic 

fracturing wells that is at least as 

effective in assuring adequate 

cementing, the BLM may allow use of 

that technology as a variance from the 

CEL requirement. 

The revised proposed rule would also 

change the operation of the trade secrets 

provision. The revised proposed rule 

allows operators to submit to the BLM 

an affidavit asserting exemption from 

disclosure of certain information having 

to do with the hydraulic fracturing 

fluid. The rule also gives the BLM the 

ability to demand the specific chemical 

details of any materials being proposed 

for trade secret exemption. 

Further, although the BLM is not 

proposing a material change in the 

provision that allows hydraulic 

fracturing flowback fluids to be stored 

either in tanks or in lined pits, the BLM 

seeks comments on the costs and 

benefits of requiring flowback fluids to 

be stored only in closed tanks. Other 

provisions of the initial proposed rule 

have been modified for clarity or in 

response to comments. Accordingly, the 

entire revised proposed rule is available 

for public comment. 

The BLM has analyzed the costs and 

the benefits of this proposed action in 

an accompanying Regulatory Impact 

Analysis available in the rulemaking 

docket. The estimated costs range from 

$12 million to $20 million per year. The 

range reflects uncertainty about the 

generalization of costs across all 

hydraulic fracturing operations. The 

potential benefits of the rule are more 

challenging to monetize than the costs, 

but that does not mean that the rule is 

without benefits. The rule creates a 

consistent, predictable regulatory 

framework, in accordance with the 

BLM’s stewardship responsibilities 

under the Federal Land Policy and 

Management Act and other statutes, for 

hydraulic fracturing involving BLMadministered lands. The rule is 

designed to reduce the environmental 

and health risk that can be posed by 

hydraulic fracturing operations, 

particularly in the way the rule 

addresses flowback fluids, well 

construction, and hydraulic fracture 

design. The rule would ensure that 

operators demonstrate wellbore integrity 

with pressure tests on 100 percent of the 

hydraulically fractured wells and with 


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CELs on the casing strings that protect 

usable water on each type well. A type 

well is an oil and gas well that can be 

used as a model for well completion in 

a field where geologic characteristics are 

substantially similar. The authorized 

officer would evaluate whether 

substantially similar geologic conditions 

exist during review of the APD or 

sundry notice requesting approval of a 

group of wells for a field. CELs would 

be required only of type wells, 

‘‘wildcat’’ wells that are not approved as 

part of a field development proposal, 

and whenever there is evidence of a 

problem with the cement job. The BLM 

is asking for comments on the 

effectiveness of this proposal. 

I. Public Comment Procedures 

II. Background 

III. Discussion of the Revised Proposed Rule 

and Comments on the Proposed Rule 

IV. Procedural Matters 

I. Public Comment Procedures 

If you wish to comment, you may 

submit your comments by any one of 

several methods: Mail: You may mail 

comments to U.S. Department of the 

Interior, Director (630), Bureau of Land 

Management, Mail Stop 2134LM, 1849 

C Street NW., Washington, DC 20240, 

Attention: 1004–AE26. Personal or 

messenger delivery: Bureau of Land 

Management, 20 M Street SE., Room 

2134LM, Attention: Regulatory Affairs, 

Washington, DC 20003. Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions at this Web site. 

You may submit comments on the 

information collection burdens directly 

to the Office of Management and 

Budget, Office of Information and 

Regulatory Affairs, Desk Officer for the 

Department of the Interior, fax 202–395– 

5806, or oira_submission@omb.eop.gov. 

Please include ‘‘Attention: OMB Control 

Number 1004–0203’’ in your comments. 

If you submit comments on the 

information collection burdens, please 

provide the BLM with a copy of your 

comments, at one of the addresses 

shown above. 

Please make your comments as 

specific as possible by confining them to 

issues directly related to the content of 

this revised proposed rule, and explain 

the basis for your comments. The 

comments and recommendations that 

will be most useful and likely to 

influence agency decisions are: 

1. Those supported by quantitative 

information or studies; and 

2. Those that include citations to, and 

analyses of, the applicable laws and 

regulations. 

The BLM is not obligated to consider 

or include the comments received after 

the close of the comment period (see 

DATES) or comments delivered to an 

address other than those listed above 

(see ADDRESSES) in the Administrative 

Record for the rule. 

Comments, including names and 

street addresses of respondents, will be 

available for public review at the 

address listed under ADDRESSES during 

regular hours (7:45 a.m. to 4:15 p.m.), 

Monday through Friday, except 

holidays. Before including your address, 

telephone number, email address, or 

other personal identifying information 

in your comment, be advised that your 

entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask in your comment to 

withhold from public review your 

personal identifying information, we 

cannot guarantee that we will be able to 

do so. 

II. Background 

Well stimulation techniques, such as 

hydraulic fracturing, are commonly 

used by oil and natural gas producers to 

increase the volumes of oil and natural 

gas that can be extracted from wells. 

Hydraulic fracturing techniques are 

particularly effective in enhancing oil 

and gas production from shale gas or oil 

formations. Until quite recently, shale 

formations rarely produced oil or gas in 

commercial quantities because shale 

does not generally allow flow of 

hydrocarbons to wellbores unless 

mechanical changes to the properties of 

the rock can be induced. The 

development of horizontal drilling, 

combined with hydraulic fracturing, has 

made the production of oil and gas from 

shale feasible. Hydraulic fracturing 

involves the injection of fluid under 

high pressure to create or enlarge 

fractures in the reservoir rocks. The 

fluid that is used in hydraulic fracturing 

is usually accompanied by proppants, 

such as particles of sand, which are 

carried into the newly fractured rock 

and help keep the fractures open once 

the fracturing operation is completed. 

The proppant-filled fractures become 

conduits for fluid migration from the 

reservoir rock to the wellbore and the 

fluid is subsequently brought to the 

surface. In addition to the water and 

sand (which together typically make up 

98 to 99 percent of the materials 

pumped into a well during a fracturing 

operation), chemical additives are also 

frequently used. These chemicals can 

serve many functions in hydraulic 

fracturing, including limiting the growth 

of bacteria and preventing corrosion of 

the well casing. The exact formulation 

of the chemicals used varies depending 

on the rock formations, the well, and the 

requirements of the operator. 

Hydraulic fracturing is a common and 

accepted practice, and has been, in oil 

and gas production for decades. The 

BLM estimates that about 90 percent 

(approximately 3,400 wells per year) of 

wells drilled on Federal and Indian 

lands are stimulated using hydraulic 

fracturing techniques. Although many of 

these are conventional wells, much of 

the new activity occurs on wells 

designed to produce shale oil and gas or 

to employ horizontal drilling 

techniques. Over the past 10 years, there 

have been significant technological 

advances in horizontal drilling, which is 

frequently combined with hydraulic 

fracturing. This combination, together 

with the discovery that these techniques 

can release significant quantities of oil 

and gas from large shale deposits, has 

led to production from geologic 

formations in parts of the country that 

previously did not produce significant 

amounts of oil or gas. The resulting 

expansion of oil and gas drilling into 

new parts of the country because of the 

availability of new horizontal drilling 

technologies has significantly increased 

public awareness of hydraulic fracturing 

and the potential impacts that it may 

have on water quality and water 

consumption, unless adequately 

regulated and safely implemented. 

The BLM’s existing hydraulic 

fracturing regulations are found at 43 

CFR 3162.3–2. These regulations were 

established in 1982 and last revised in 

1988, long before the latest hydraulic 

fracturing technologies became widely 

used. In response to public interest in 

hydraulic fracturing and in the BLM’s 

regulation of hydraulic fracturing, in 

particular, the Department of the 

Interior (Department) held a forum on 

hydraulic fracturing on November 30, 

2010, in Washington, DC, attended by 

the Secretary of the Interior and more 

than 130 interested parties. The BLM 

later hosted public forums (in Bismarck, 

North Dakota on April 20, 2011; Little 

Rock, Arkansas on April 22, 2011; and 

Golden, Colorado on April 25, 2011) to 

collect broad input on the issues 

surrounding hydraulic fracturing. More 

than 600 members of the public 

attended the April 2011 forums. Some 

of the comments frequently heard 

during these forums included concerns 

about water quality, water consumption, 

and a desire for improved 

environmental safeguards for surface 

operations. Commenters also strongly 

encouraged the agency to require public 

disclosure of the chemicals used in 

hydraulic fracturing operations on 

Federal and Indian lands. Commenters 

from the oil and gas industry suggested 


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changes that would make the 

implementation of the rule more 

practicable, from their perspective, and 

some opposed adoption of any such 

rules affecting hydraulic fracturing on 

the Federal mineral estate. Further, the 

BLM distributed copies of the then-draft 

rule to affected federally recognized 

tribes in January 2012 and invited 

comments from affected tribes. 

Around the time of the BLM’s forums, 

at the direction of President Barack 

Obama, the Secretary of Energy 

convened a Shale Gas Production 

Subcommittee (Subcommittee) of the 

Secretary of Energy Advisory Board to 

evaluate hydraulic fracturing issues. 

The Subcommittee met with industry, 

service providers, state and Federal 

regulators, academics, environmental 

groups, and many other stakeholders. 

On August 18, 2011, the Subcommittee 

issued initial recommendations in its 

‘‘90-day Interim Report.’’ The 

Subcommittee issued its final report, 

entitled ‘‘Shale Gas Production 

Subcommittee Second Ninety Day 

Report’’ on November 18, 2011. The 

Subcommittee recommended, among 

other things, that more information be 

provided to the public about hydraulic 

fracturing operations whether or not 

they occur on the Federal mineral 

estate, including disclosure of the 

chemicals used in fracturing fluids. The 

Subcommittee also recommended the 

adoption of stricter standards for 

wellbore construction and testing. The 

final report also recommended that 

operators engaging in hydraulic 

fracturing undertake pressure testing to 

ensure the integrity of all casings. These 

reports are available to the public from 

the Department of Energy’s Web site at 

http://www.shalegas.energy.gov. 

On May 11, 2012, the BLM published 

in the Federal Register the initial 

proposed rule entitled ‘‘Oil and Gas; 

Well Stimulation, Including Hydraulic 

Fracturing, on Federal and Indian 

Lands’’ (77 FR 27691). The comment 

period on the initial proposed rule 

closed on July 10, 2012. At the request 

of public commenters, on June 26, 2012, 

the BLM published in the Federal 

Register a notice extending the 

comment period for 60 days (77 FR 

38024). The extended comment period 

closed on September 10, 2012. The BLM 

received over 177,000 comments on the 

initial proposed rule from individuals, 

Federal and state governments and 

agencies, interest groups, and industry 

representatives. After reviewing the 

comments on the proposed rule, the 

BLM now proposes to revise the initial 

proposed rule. As did the initial 

proposed rule, this revised proposed 

rule would apply to all wells 

administered by the BLM, including 

those of Federal, tribal, and individual 

Indian trust lands. Substantive 

comments on the initial proposed rule 

that informed the BLM’s decisions on 

the revised proposed rule are discussed 

in the section-by-section discussion of 

this preamble. In the final rule, the BLM 

will provide a complete discussion of 

the comments submitted on the initial 

proposed rule (although some are 

discussed in this preamble) and those 

received as a result of this revised 

proposed rule. 

The BLM’s revised proposed rule is 

generally consistent with the American 

Petroleum Institute’s (API) guidelines 

for well construction and well integrity. 

See API Guidance Document HF 1, 

Hydraulic Fracturing Operations—Well 

Construction and Integrity Guidelines, 

First Edition, October 2009. HF1 

discusses the importance of maintaining 

wellbore integrity with casing and a 

cementing program. It recommends 

pressure tests after cementing casing 

strings, and describes some 

circumstances where CBLs are used to 

verify adequate cementing. The API also 

has published guidelines for water 

management that support the use of 

lined pits for water management. See 

API Guidance Document HF 2—Water 

Management Associated with Hydraulic 

Fracturing, First Edition, 2010. 

Based on the input provided from a 

broad array of sources, including the 

individuals who spoke at the BLM’s 

public forums and the recommendations 

of the Subcommittee, BLM proposed 

critical improvements to its regulations 

for hydraulic fracturing on May 11, 

2012. Careful consideration of the 

comments received on the proposed 

rule, however, showed that further 

improvements and clarifications were 

appropriate. As did the initial proposed 

rule, this revised proposed rule would 

apply to all wells administered by the 

BLM, including those on Federal, tribal, 

and individual Indian trust lands. 

Tribal consultation is a critical part of 

this rulemaking effort, and the 

Department is committed to making 

sure tribal leaders play a significant role 

as BLM and the tribes work together to 

develop resources on public and Indian 

lands in a safe and responsible way. 

During the proposed rule stage, the BLM 

initiated government-to-government 

consultation with tribes on the proposed 

rule and offered to hold follow-up 

consultation meetings with any tribe 

that desires to have an individual 

meeting. In January 2012, the BLM held 

four regional tribal consultation 

meetings, to which over 175 tribal 

entities were invited. To build upon 

established local relationships, the 

individual follow-up consultation 

meetings involved the local BLM 

authorized officers and management, 

including State Directors. After the 

issuance of the proposed rule, tribal 

governments, tribal members, and 

individual Native Americans were also 

invited to comment directly on the 

proposed rule. 

In June 2012, the BLM held additional 

regional consultation meetings in Salt 

Lake City, Utah; Farmington, New 

Mexico; Tulsa, Oklahoma; and Billings, 

Montana. Eighty-one tribal members 

representing 27 tribes attended the 

meetings. In these sessions, the BLM 

and tribal representatives engaged in 

substantive discussions of the proposed 

hydraulic fracturing rule. A variety of 

issues were discussed, including but not 

limited to the applicability of tribal 

laws, validating water sources, 

inspection and enforcement, wellbore 

integrity, and water management, 

among others. Additional individual 

consultations with tribal representatives 

have taken place since that time. Also 

consultation meetings were held at the 

National Congress of American Indian 

Conference in Lincoln, Nebraska, on 

June 18, 2012, and at New Town, North 

Dakota on July 13, 2012. 

Responses from tribal representatives 

informed the agency’s actions in 

defining the scope of acceptable 

hydraulic fracturing operations. One of 

the outcomes of these meetings is the 

requirement in this rule that operators 

certify that operations on Indian lands 

comply with tribal laws. 

The revised proposed rule also seeks 

to create less of an administrative 

burden than the initial proposed rule 

while providing the same benefits. This 

change was made in response to both 

tribal and industry comments. 

The BLM has been and will continue 

to be proactive about tribal consultation 

under the Department’s newly 

formalized Tribal Consultation Policy, 

which emphasizes trust, respect and 

shared responsibility in providing tribal 

governments an expanded role in 

informing Federal policy that impacts 

Indian lands. Consultation will continue 

during the comment period of this 

revised proposed rule. Tribal 

governments, tribal members, and 

individual Native Americans were also 

invited to comment directly on the 

proposed rule, as they are invited to 

comment on the revised proposed rule. 

Several tribal representatives and 

tribal organizations have commented 

that the hydraulic fracturing rule should 

not apply on Indian land, or that tribes 

should be allowed to decide not to have 

the rule apply on their land (that is, 

‘‘opt out’’ of the rule). The BLM fully 


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embraces the statutes, Executive Orders, 

and other statements of governmental or 

departmental policy in favor of 

promoting tribal self-determination and 

control of resources. In addition, the 

Department remains bound by specific 

statutes in which Congress has 

delegated specific authority and duties 

to the Department regarding the 

management and regulation of 

resources. The IMLA provides in 

pertinent part as follows: ‘‘All 

operations under any oil, gas, or other 

mineral lease issued pursuant to the 

terms ... of this title or any other Act 

affecting restricted Indian lands shall be 

subject to the rules and regulations 

promulgated by the Secretary of the 

Interior.’’ 25 U.S.C. 396d. The 

Department has consistently interpreted 

this statutory directive as allowing 

uniform regulations governing mineral 

resource development on Indian and 

Federal lands. Thus, an opt-out 

provision would not be consistent with 

the Department’s procedures under 

IMLA, and the revised proposed rule 

does not provide such an option. 

There has also been a suggestion that 

the Secretary should delegate her 

regulatory authority to the tribes if the 

tribe has regulations that meet or exceed 

the standards in the BLM regulation. 

The IMLA does not authorize the 

Secretary to delegate her regulatory 

responsibilities to the tribes, and 

therefore the revised proposed rule does 

not include a delegation provision. 

Nonetheless, there are opportunities for 

tribes to assert more control over oil and 

gas operations on tribal land by entering 

into Tribal Energy Resource Agreements 

under the Indian Energy Development 

and Self-Determination Act (part of the 

Energy Policy Act of 2005), and to 

pursue contracts under the Indian SelfDetermination and Education 

Assistance Act of 1975. 

Also, the proposed rule has been 

revised to defer to State (on Federal 

land) or tribal (on Indian land) 

designations of aquifers as either 

requiring protection from oil and gas 

operations, or as exempt from the 

requirement to isolate water-bearing 

zones in section 3162.3–3(b). Revised 

section 3162.3(k) provides that for lands 

within the jurisdiction of a State or a 

tribe that State or tribe could work with 

the BLM to craft a variance that would 

allow compliance with State or tribal 

requirements to be accepted as 

compliance with the rule, if the variance 

meets or exceeds this rule’s standards. 

The BLM is also seeking comments on 

whether compliance with State or tribal 

requirements to disclose chemical 

constituents of hydraulic fracturing 

fluids should be deemed as compliance 

with the proposed rule if the State or 

tribal requirements meet or exceed the 

standard in the rule at section 3162.3– 

3(i). 

As explained elsewhere in this 

preamble, the BLM intends to reach out 

to States and to tribes to review existing 

agreements, to strengthen those that 

could provide a greater role for States 

and tribes, and to reach new agreements 

where there have been none. The BLM 

will seek new and improved agreements 

to reduce regulatory burdens and to 

increase efficiency, while fulfilling the 

Secretary’s responsibilities mandated by 

statutes as steward for the public lands 

and trustee for Indian lands. 

The BLM invites the public’s 

comments on whether there are other 

opportunities in the revised proposed 

rule to incorporate or to defer to State 

or tribal standards or requirements. 

Although greater use of State or tribal 

standards or procedures could reduce 

compliance costs for operators and 

increase consistency, enforcement 

issues could arise. On Federal lands, the 

BLM enforces the Federal regulations 

and lease conditions, and the States 

enforce their regulations. On Indian 

lands, the BLM enforces the Federal 

regulations and the terms of the leases, 

and the tribes have the power to enforce 

their own law. Comments are requested 

on practical enforcement challenges that 

might arise if the BLM incorporates or 

defers to State or tribal laws or 

procedures, and on any proposed 

solutions. 

Over the past few years, in response 

to strong public interest, several 

States—including Colorado, Wyoming, 

Arkansas, and Texas—have 

substantially revised their State 

regulations related to hydraulic 

fracturing. One of the BLM’s key goals 

in updating its regulations on hydraulic 

fracturing is to complement State efforts 

by providing a consistent standard 

across all public and Indian lands 

nationwide. The BLM has revised the 

initial proposed rule to make reported 

information consistent and easily 

accessible to the public. For instance, 

the BLM is working closely with the 

Groundwater Protection Council and the 

Interstate Oil and Gas Compact 

Commission so that operators may 

report chemicals used in hydraulic 

fracturing operations to BLM through 

the existing FracFocus.org Web site, 

which is already well established and 

used by many States. This online 

database includes information from oil 

and gas wells in approximately 12 

States and includes information from 

over 500 companies. The BLM 

understands that the database is in the 

process of being improved and will in 

the near future have enhanced search 

capabilities and allow for easier 

reporting of information. If operators are 

unable to use FracFocus or elect not to, 

they may elect to report chemicals used 

on Federal or Indian lands directly to 

the BLM. The BLM intends to report 

that information to the public through 

FracFocus. 

The BLM recognizes the efforts of 

some States to regulate hydraulic 

fracturing and seeks to avoid 

duplicative regulatory requirements. 

However, it is important to recognize 

that a major impetus for a separate BLM 

rule is that States are not legally 

required to meet the stewardship 

standards applying to public lands and 

do not have trust responsibilities for 

Indian lands under Federal laws. Thus, 

the rule may expand on or set different 

standards from those of States that 

regulate hydraulic fracturing operations, 

but do not need to adhere to the same 

resource management and public 

involvement standards appropriate on 

Federal lands under Federal law. This 

revised proposed rule encourages 

efficiency in the collection of data and 

the reporting of information by 

proposing to allow operators in States 

that require disclosure on FracFocus to 

meet both the State and the BLM 

requirements through a single 

submission to FracFocus. 

III. Discussion of the Revised Proposed 

Rule and Comments on the Proposed 

Rule 

As was discussed in the proposed 

rule, the BLM is revising its hydraulic 

fracturing regulations, found at 43 CFR 

3162.3–2, and adding a new section 

3162.3–3. Existing section 3162.3–3 

would be retained and renumbered. 

The Federal Land Policy and 

Management Act (FLPMA) directs the 

BLM to manage the public lands so as 

to prevent unnecessary or undue 

degradation, and to manage those lands 

using the principles of multiple use and 

sustained yield. FLPMA defines 

multiple use to mean, among other 

things, a combination of balanced and 

diverse resource uses that takes into 

account long-term needs of future 

generations for renewable and nonrenewable resources. FLPMA also 

requires that the public lands be 

managed in a manner that will protect 

the quality of their resources, including 

ecological, environmental, and water 

resources. The Mineral Leasing Act and 

the Mineral Leasing Act for Acquired 

Lands authorize the Secretary to lease 

Federal oil and gas resources, and to 

regulate oil and gas operations on those 

leases, including surface-disturbing 

activities. The Act of March 3, 1909, the 


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Indian Mineral Leasing Act and the 

Indian Mineral Development Act assigns 

regulatory authority to the Secretary 

over Indian oil and gas leases on trust 

lands (except those excluded by statute, 

i.e., the Crow Reservation in Montana, 

the ceded lands of the Shoshone 

Reservation in Wyoming, the Osage 

Reservation in Oklahoma, and the coal 

and asphalt lands of the Choctaw and 

Chickasaw Tribes in Oklahoma). As 

stewards of the public lands and 

minerals and as the Secretary’s regulator 

for operations on oil and gas leases on 

Indian lands, the BLM has evaluated the 

increased use of hydraulic fracturing 

practices over the last decade and 

determined that the existing rules for 

hydraulic fracturing require updating. 

The Secretary delegated to the BLM his 

authority to oversee operations on 

Indian mineral leases through the 

Departmental Manual (235 DM 1.K) 

under the Indian Allotted Lands Leasing 

Act and the Tribal Lands Leasing Act. 

The Secretary also approved the 

authorities section of the regulations 

which give the BLM authority under 

additional Indian related statutes. 

As discussed in the background 

section of this preamble, the increased 

use of well stimulation activities over 

the last decade has also generated 

concerns among the public about 

hydraulic fracturing and about the 

chemicals used in hydraulic fracturing. 

The proposed rule and this revised 

proposed rule are intended to increase 

transparency for the public regarding 

the fluids used in the hydraulic 

fracturing process, in addition to 

providing assurances that wellbore 

integrity is maintained throughout the 

fracturing process and that the fluids 

that flow back to the surface from 

hydraulic fracturing operations are 

properly stored, disposed of, or treated. 

The following chart explains the major 

changes between the proposed 

regulations and the regulations in this 

revised proposed rule. 

Initial proposed 

regulation Revised proposed pegulation Substantive changes 

43 CFR 3160.0–5 Definitions ........... 43 CFR 3160.0–5 Definitions .......... This revised proposed rule would revise the proposed term ‘‘stimulation fluid’’ to ‘‘hydraulic fracturing fluid’’ to be consistent with 

other changes to the rule. It also would delete the definition of 

‘‘well stimulation’’ and add a definition of ‘‘hydraulic fracturing,’’ 

which excludes acidizing, enhanced secondary recovery and tertiary recovery. The terms used in other sections of this rule were 

also revised to make those sections consistent with the changes 

here. The rule would also include definitions of the terms ‘‘refracturing’’ and ‘‘type well.’’ ‘‘Refracturing’’ is defined as a hydraulic 

fracturing operation subsequent to an initial completion of an oil 

and gas well which used hydraulic fracturing previously. ‘‘Type 

well’’ is defined in this section to mean an oil and gas well that 

can be used as a model for other wells drilled by the same operator across the field. The revised proposed rule also clarifies the 

definition of ‘‘usable water’’ by specifying types of geologic zones 

that would be deemed to contain usable water, and other types 

that would be deemed not to contain usable water. 

43 CFR 3162.3–2(a) Subsequent 

Well Operations.

43 CFR 3162.3–2(a) Subsequent 

Well Operations.

The revised proposed rule would replace the term ‘‘commingling’’ 

with the term ‘‘combining’’ to avoid confusion with the term 

‘‘commingling’’ that is used in calculating royalties on production. 

43 CFR 3162.3–3(a) Subsequent 

Well Operations; Well Stimulation.

43 CFR 3162.3–3(a) Subsequent 

Well Operations; Hydraulic Fracturing.

The revised proposed rule would change the scope of the regulation to apply only to hydraulic fracturing operations, and not to 

other ‘‘well stimulation’’ activities. It would clarify that the regulation also applies to refracturing operations. 

(None) .............................................. 43 CFR 3162.3–3(b) Isolation of 

Usable Water to Prevent Contamination.

This new paragraph would require that all fracturing and refracturing operations meet the performance standard in section 

3162.5–2(d), which requires that operators must isolate all usable 

water and other mineral-bearing formations and protect them 

from contamination. 

43 CFR 3162.3–3(c) What the Notice of Intent Sundry Must Include.43 CFR 3162.3–3(d) What the Notice of Intent Sundry Must Include.The revised proposed rule would add a new provision that allows 

the Notice of Intent (NOI) Sundry to be submitted for a single 

well or a group of wells with the same geological characteristics. 

If it is for a group of wells, the information should be for a ‘‘type 

well.’’ 

43 CFR 3162.3–3(c)(2) .................... 43 CFR 3162.3–3(d)(2) ................... The revised proposed rule would delete the requirement to submit 

a CBL for approval prior to commencing fracturing operations. 

Section 3162.3–3(i)(8), would require that a CEL be submitted 

after fracturing operations, unless there are problems with the cement job. The revised proposed rule would also add a requirement that the depths of usable water aquifers be based on a drill 

log of the subject well or of another well in the field. 

43 CFR 3162.3–3(c)(4) .................... Deleted ............................................ The revised proposed rule would delete the requirement that the 

operator submit a pre-hydraulic fracturing certification that it will 

comply with all applicable permitting and notice requirements. 

43 CFR 3162.3–3(c)(3) .................... 43 CFR 3162.3–3(d)(3) ................... The revised proposed rule would add to the list of the source and 

location of water supply ‘‘reused or recycled water.’’ 

43 CFR 3162.3–3(c)(5) .................... 43 CFR 3162.3–3(d)(4) ................... The revised proposed rule would add to the requirements for a hydraulic fracturing design that the operator must include the estimated fracture direction and propagation plotted on the well 

schematics and on a topographical map of the same scale as the 

map used in the APD. It would also add a requirement to supply 

the estimated vertical distance to the nearest usable water aquifer above the fracture zone. 


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Initial proposed 

regulation Revised proposed pegulation Substantive changes 

43 CFR 3162.3–3(c)(6) .................... 43 CFR 3162.3–3(d)(5) ................... The revised proposed rule would remove ‘‘chemical composition’’ 

from the information that is required to be submitted regarding 

the handling of recovered fluids. 

43 CFR 3162.3(d) Mechanical Integrity Testing Prior to Well Stimulation.43 CFR 3162.3–3(f) Mechanical Integrity Testing Prior to Hydraulic 

Fracturing.

The revised proposed rule would add clarification that a mechanical 

integrity test (MIT) would be required for a re-fracturing operation. 

(None) .............................................. 43 CFR 3162.3–3(e)(1) Monitoring 

of Cementing Operations and Cement Evaluation Log Prior to Hydraulic Fracturing.

The revised proposed rule would add a new paragraph requiring 

that during cementing operations the operator must monitor and 

record the flow rate, density, and treating pressure, and then 

submit the monitoring report to the BLM within 30 days of completion of the hydraulic fracturing. 

43 CFR 3162.3–3(c)(2) .................... 43 CFR 3162.3–3(e)(2) ................... The revised proposed rule would add a new paragraph stating a 

general rule that an operator must run a CEL on each casing that 

protects usable water. A CEL may be ultrasonic logs, variable 

density logs, micro-seismograms, standard CBLs, CBLs with directional receiver array, ultrasonic pulse echo technique, an isolation scanner or other tool of equal effectiveness. 

(None) .............................................. 43 CFR 3162.3–3(e)(3) ................... The revised proposed rule would add a new paragraph that provides an exception to the CEL requirement where an operator’s 

‘‘type well’’ has been shown to have successful cement bonding 

and subsequent wells have the same specifications and geologic 

parameters as the ‘‘type well,’’ and the cementing operations 

monitoring data parallels those of the type well. 

(None) .............................................. 43 CFR 3162.3–3(e)(4) ................... The revised proposed rule would add a new paragraph that if there 

is any indication of inadequate cementing, the operator must report it to the BLM within 24 hours, with written confirmation within 

48 hours. The operator would be required to run a CEL showing 

that it has corrected the cementing job, and that usable water 

has been isolated to protect it from contamination. At least 72 

hours prior to starting fracturing operations, the operator must 

submit to the BLM a certification indicating that it corrected the 

inadequate cement job and documentation showing that there is 

adequate cement bonding. 

(None) .............................................. 43 CFR 3162.3–3(e)(5) ................... The revised proposed rule would add a new provision stating that 

the operator must submit the information required by (e)(1) and 

(2) to the BLM in a Subsequent Report Sundry Notice. 

43 CFR 3162.3–3(e)(1) .................... 43 CFR 3162.3–3(g)(1) ................... This paragraph would be revised to apply to refracturing operations 

as well as fracturing operations. It also would be revised to make 

it clear that that the pressure in the annulus between any intermediate casings and the production casing must be continuously 

monitored and recorded. 

43 CFR 3162.3–3(e)(2) Monitoring 

and Recording During Well Stimulation.

43 CFR 3162.3–3(g)(2) Monitoring 

and Recording During Hydraulic 

Fracturing.

This paragraph would be revised to apply to refracturing operations 

as well as fracturing operations. For any incident of the annulus 

pressure increasing by more than 500 psi, the revised proposed 

rule would change the due date for a Subsequent Report Sundry 

Notice from 15 days after the occurrence to 30 days after completion of fracturing operations. 

43 CFR 3162.3–3(g) Information 

that Must be Provided to the Authorized Officer After Completed 

Operations.

43 CFR 3162.3–3(i) Information that 

Must be Provided to the Authorized Officer After Completed Operations.

Changes to this section would add a clarification that the information is required for each well fractured or refractured, even if the 

BLM approved a Notice of Intent Sundry for a group of wells. The 

new provision would allow reporting of chemical information to 

the BLM either directly or through FracFocus or other database 

that the BLM specifies. The revised proposed rule would add a 

new provision that the operator submitting chemical information 

through FracFocus must specify that the information is for a Federal or Indian well, certify that the information is correct, and certify that the operator complied with applicable laws governing notice and permits. The revised proposed rule would also add a 

new provision clarifying that the operator is responsible for information submitted by its hydraulic fracturing contractor. 

43 CFR 3162.3–3(g)(1) .................... 43 CFR 3162.3–3(i)(2) .................... This revised section would delete the requirement that the operator 

report the actual access route and transportation method for all 

water used in stimulating the well, since this information is provided before the operation is approved. 


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Initial proposed 

regulation Revised proposed pegulation Substantive changes 

43 CFR 3162.3–3(g)(2), (4) and (5) 43 CFR 3162.3–3(i)(1) .................... The proposed regulation required two separate reports or tables 

(one for all additives of the actual stimulation fluid by trade name 

and purpose, and another for the complete chemical makeup (including the Chemical Abstracts Service Registry Number [CAS 

number]) of all materials used in the actual stimulation fluid). The 

revised proposed rule would require the information required in 

the FracFocus form: True vertical depth of the well, total water 

volume used, and for each chemical used (including the base 

fluid) the trade name, supplier, purpose, ingredients, CAS number, maximum ingredient concentration in the additive, and maximum ingredient concentration in the fracturing fluid. 

43 CFR 3162.3–3(g)(6) .................... 43 CFR 3162.3–3(i)(4) .................... A new requirement would be added by this rule to report the actual, 

estimated, or calculated direction of the fractures. 

43 CFR 3162.3–3(g)(7) .................... Deleted ............................................ This revised proposed rule would delete the provision that would 

have expressly allowed the Subsequent Report Sundry Notice to 

be completed in part by attaching the hydraulic fracturing contractor’s job log so long as the required information was included 

and readily apparent. 

43 CFR 3162.3–3(g)(8) and (9) ....... 43 CFR 3162.3–3(i)(7) .................... The revised proposed rule would revise the requirement for certification of wellbore integrity to include the monitoring of cementing 

operations and the CEL. It would also clarify that the certification 

of compliance with applicable law is different for Indian lands 

than for Federal lands. 

(None) .............................................. 43 CFR 3162.3–3(i)(8) .................... This rule would add a new paragraph requiring operators to submit 

the actual cement operations monitoring report, any CEL, and 

the MIT results. 

(None) .............................................. 43 CFR 3162.3–3(i)(9) .................... This rule would add a new paragraph allowing the BLM to require 

the operator to provide further information about any representation submitted under paragraph (i). 

43 CFR 3162.3–3(h) and (i) ............. 43 CFR 3162.3–3(j)(1) through (4) In this revised proposed rule these sections have been significantly 

revised. The regulations would no longer require operators to 

submit all information about chemicals to the BLM, to segregate 

trade secrets, and to justify the assertion of trade secret protection. Instead, the regulations would instruct operators not to disclose trade secret information to the BLM or on FracFocus. Operators would submit an affidavit stating that the withheld information is entitled to withholding from the public under Federal statute or regulation. The BLM would retain authority to require operators to submit the claimed trade secret information. 

(None) .............................................. 43 CFR 3162.3–3(j)(4) .................... This rule would add a new paragraph requiring operators to keep 

the information claimed to be trade secrets for 6 years, by reference to existing 43 CFR 3162.4–1, which applies to all lease 

operations. 

* * * ................................................. 43 CFR 3162.3–3(k) ........................ This rule would add a new provision allowing States and tribes to 

work with the BLM to create variances applicable to all lands 

within a field, a basin, a State, or Indian lands. Such a variance 

would have to meet or exceed the effectiveness of the rule provision it replaces. 

Section-by-Section Discussion of the 

Revised Proposed Rule and Discussion 

of Comments 

Comments Addressed in This Revised 

Proposed Rule 

In this revised proposed rule, the 

BLM discusses many of the comments 

received on the proposed rule. The BLM 

will fully discuss comments on the 

initial proposed and revised proposed 

rules in the eventual announcement of 

the final rule. Commenters provided 

detailed and helpful information. The 

BLM desires to demonstrate how public 

comment assisted in framing the issues 

and to ultimately produce this revised 

proposed rule. The Department does not 

address every comment in this revised 

rule, because the changes in this revised 

proposed rule have mooted some 

comments on the initial proposed rule. 

Other comments were not central to the 

re-evaluation the BLM has undertaken, 

and thus discussion of those few 

comments would not contribute to the 

public’s understanding of the reasons 

the BLM is publishing the revised 

proposed rule. 

Additionally, not every change in the 

revised proposed rule responds to a 

specific comment. Some revisions 

clarify the proposed rule, and still other 

revisions allow this revised rule to be 

more effective with reduced costs and 

delays to operators and to the BLM. 

This revised proposed rule identifies 

some issues on which the BLM 

specifically seeks comments. The 

public, however, may submit comments 

on any provision of the revised 

proposed rule. All comments received 

in response to the initial proposed rule 

will be in the record of any final rule; 

accordingly, the public does not need to 

resubmit comments to the initial 

proposed rule in response to this 

revised proposed rule. 

General Comments on the Initial 

Proposed Rule 

The BLM received comments both 

supporting and questioning the need for 

a rule regulating hydraulic fracturing. 

Supporters stated, among other things, 

that the rule protects groundwater and 

ensures that operators properly handle 

flowback water. In general, the 

opposition stated that BLM regulation of 

hydraulic fracturing is unnecessary and 


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argued that no scientific basis exists that 

hydraulic fracturing causes groundwater 

contamination and that it is a low-risk 

operation. The opposition further 

argued that States should regulate 

hydraulic fracturing and that many 

States already have current rules. The 

BLM acknowledges that many States do 

have regulations in place; however, not 

all of the States that contain Federal 

lands under the BLM’s jurisdiction have 

hydraulic fracturing regulations. 

Further, FLPMA and other Federal law 

provide for public involvement that is 

not always required in State law. In 

addition, the BLM has responsibilities 

for Indian resources and State 

regulations do not apply to Indian 

lands. Furthermore, States do not 

uniformly require measures that would 

uphold the BLM’s responsibilities for 

federally managed public resources, to 

protect the environment and human 

health and safety on Federal and Indian 

lands, and to prevent unnecessary or 

undue degradation of the public lands. 

By taking additional steps to ensure 

wellbore integrity and to control the 

handling of flowback water, potential 

impacts of hydraulic fracturing can be 

mitigated. 

Some commenters questioned 

whether the BLM’s proposed regulations 

are premature, because the 

Environmental Protection Agency (EPA) 

is currently conducting a multi-year 

study on the potential impact of 

hydraulic fracturing on drinking water 

resources, with a final report due in 

2014. The BLM is aware of the ongoing 

EPA study relating to the impacts of 

hydraulic fracturing. While the EPA 

study may offer additional information 

regarding the potential impacts of 

hydraulic fracturing, nothing in the 

revised proposed regulations would 

contradict or conflict with the EPA 

study, which does not focus on the 

management of public lands and 

resources subject to Federal public 

lands law. Notwithstanding the findings 

that will be included in the EPA’s 

anticipated study, this revised 

regulation prevents undue or 

unnecessary degradation of public lands 

and furthers the Secretary’s trust 

responsibilities on Indian lands. 

Some commenters disputed the 

authority of the BLM to regulate well 

construction and regulate water 

supplies used for, or potentially 

impacted by, hydraulic fracturing. Other 

commenters asserted that the proposed 

rule infringes upon State and tribal 

water rights authority. FLPMA directs 

the BLM to manage the public lands so 

as to prevent unnecessary or undue 

degradation. FLPMA also requires that 

the public lands be managed in a 

manner that will protect the quality of 

resources, i.e. ecological, 

environmental, and water resources. 

Regulating wellbore construction meets 

these mandates. The Indian lands 

leasing statutes direct the Secretary to 

regulate oil and gas operations on 

Indian lands. The Secretary has 

delegated his authority for regulating 

downhole activities on Indian mineral 

leases to the BLM. The BLM has 

historically regulated the construction 

of wellbores through approvals of APDs 

(applying the Onshore Oil and Gas 

Order Numbers 1 and 2). This rule 

would supplement existing regulations 

regarding wellbore construction 

(Onshore Oil and Gas Order Number 2, 

Drilling (53 FR 46790)). 

The revised proposed regulations at 

sections 3162.3–3(d)(3) and 3162.3– 

3(i)(2) would require submission of 

information on water sources to assist 

the BLM in assessing the environmental 

effects of individual drilling operations. 

The National Environmental Policy Act 

and the implementing regulations by the 

Council on Environmental Quality 

require that Federal agencies assess the 

environmental impacts of their 

proposed actions and inform their 

decision-making. The information on 

water sources will be part of an 

environmental assessment regarding 

how water is being supplied for the 

hydraulic fracturing operation. The 

BLM does not intend to regulate water 

use, but instead to acquire information 

on the water used incidental to oil and 

gas operations on Federal and Indian 

lands. Acquisition of this information is 

similar to requirements in Onshore Oil 

and Gas Order No. 1, Approval of 

Operations (72 FR 10308) for drilling a 

well. Onshore Order No. 1 requires the 

operator to identify the source, access 

route, and transportation method for all 

water anticipated for use in drilling the 

proposed well. Based on information 

received at this time, the requirement in 

Onshore Order No. 1 has not caused 

conflicts with State or tribal water rights 

authorities. Likewise, based on BLM’s 

previous experience with the 

information requirements of its existing 

onshore orders, BLM does not anticipate 

that the requirements proposed here 

will cause any conflicts. The revised 

proposed regulation does not regulate 

Indian, State, and private water rights. 

Accordingly, the Department made no 

revisions to the initial proposed rule as 

a result of these comments. 

The BLM received some comments 

stating that the rule should clarify the 

jurisdiction or scope of this rule. The 

revised proposed rule falls under 43 

CFR part 3160. The jurisdiction (scope) 

of all sections under part 3160, which 

would include this revised proposed 

rule, is defined in existing regulations at 

43 CFR 3161(a), which states: ‘‘[a]ll 

operations conducted on a Federal or 

Indian oil and gas lease by the operator 

are subject to the regulations in this 

part.’’ Therefore, this revised proposed 

rule would not apply to hydraulic 

fracturing operations on private or State 

leases, even leases included in a Federal 

or Indian agreement. The BLM’s only 

jurisdiction on private and State leases 

is for site security, measurement, and 

reporting of production when the 

private or State lease is committed to a 

Federal or Indian agreement. Existing 

regulations already define the 

jurisdiction or scope of the revised 

proposed rule, so the Department made 

no revisions to the initial proposed rule 

as a result of these comments. 

Some commenters requested that the 

BLM coordinate permitting and 

reporting with States to avoid 

duplication. Some commenters faulted 

the BLM for undermining the efforts of 

State oil and gas commissions to 

regulate hydraulic fracturing. The BLM 

has revised the initial proposed rule to 

avoid duplication with State 

requirements. Nonetheless, the BLM 

needs to have accurate information 

about the construction and completion 

of oil and gas wells on Federal and 

Indian land. The BLM acknowledges the 

efforts necessary to comply with State or 

tribal and BLM regulations, but modern 

information technology significantly 

reduces the time and expense of 

reporting the same information to both 

a State or tribal agency and to the BLM. 

Federal law is clear that the Federal 

Government has extensive authority 

over Federal lands and Indian lands, 

and that State governments may 

exercise certain powers on non-Indian 

lands, except in instances where Federal 

law preempts State law. The notice, 

approval, testing, operational, and 

reporting requirements of the revised 

proposed regulation would in no way 

undermine the efforts of State agencies 

to regulate hydraulic fracturing. The 

BLM recognizes the advantages to 

building upon existing relationships 

established with the different States and 

tribes as a prudent approach to 

maintaining efficiency and flexibility 

while reducing duplication. It makes 

sense for both the BLM and the States 

or tribes with oil and gas activity to 

explore ways to coordinate 

implementation of this revised proposed 

rule. For States or tribes that maintain 

hydraulic fracturing rules that meet or 

exceed the standards that would be 

imposed by this revised proposed rule, 

the BLM will pursue amending or 


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updating the existing agreement with 

each State or tribe to reflect the 

expectation and responsibilities for each 

agency. An example of an existing 

agreement is the State of Colorado 

which has a Memorandum of 

Agreement with the BLM (and the 

United States Forest Service) for 

Permitting and Oil and Gas Operations 

on BLM and National Forest Service 

Lands in Colorado. 

The BLM is committed to working 

with tribes to coordinate 

implementation of this revised proposed 

rule with the tribes’ laws, rules, and 

permitting and inspection programs. 

The contents of such agreements or 

understandings might be different for 

each tribe, but such agreements actively 

seeking opportunities to share 

standards, information, and processes 

should yield more consistency for 

operators and better efficiency for the 

BLM and tribal agencies. 

Some commenters said that the 

proposed rule is inconsistent with 

existing laws or regulations such as the 

Energy Policy Act of 2005 and EPA’s 

New Source Performance Standards. For 

instance, some commenters believed 

that the proposed permitting 

requirements would cause delays in 

permitting that would violate the 

timeframes mandated by the Energy 

Policy Act. The BLM disagrees with 

these comments. Changes from the 

initial proposal in this revised proposed 

rule would reduce possible permitting 

delays and BLM projected workload. 

The BLM would meet the requirements 

of the Energy Policy Act by informing 

the operator what steps remain to be 

completed and the schedule for 

completion of these requirements for 

processing of their drilling permits. 

Often delays occur from submittal of 

incomplete information or surveys as 

part of the drilling permit proposal, or 

due to turnover in industry permitting 

specialists. The BLM has increased the 

number of drilling permits approved 

over the past 3 years, and does not 

believe such productivity gains will be 

negatively impacted by this revised 

proposed rule. The BLM received some 

comments that certain definitions and 

requirements in the proposed rule were 

vague. The commenters stated that 

without clarification, this purported 

vagueness could lead to 

misinterpretation by operators and 

inconsistent application by BLM 

engineers and inspectors. Because the 

revised proposed rule uses different 

approaches to regulation than the initial 

proposed rule, some definitions have 

been revised. The BLM worked to 

ensure the revisions also increased 

clarity. The BLM believes that the 

definitions are sufficiently clear to the 

industry, the BLM, and the public. To 

the extent that some definitions might 

be construed as open-ended, it is 

because the rule must allow for some 

degree of flexibility to accommodate the 

wide range of geologic and 

environmental conditions encountered 

on Federal and Indian leases. 

Some commenters stated that the 

BLM does not have the staffing, budget, 

or the number of experts needed to 

implement the rule, which will cause 

delays in approvals. The BLM does not 

agree with the assertion regarding the 

lack of BLM staff expertise. Also the 

revisions proposed in this revised 

proposed rule would reduce the amount 

of staff time required to implement the 

rule and limit any permitting delays. 

The changes include the option of 

including multiple wells with 

substantially similar geology in the 

permit application (type wells), 

narrowing the scope of the rule to 

include only hydraulic fracturing, and 

the elimination of the proposed 

requirement for the BLM to review and 

approve CBLs prior to hydraulic 

fracturing. These changes are discussed 

further in other sections of this rule. 

Some BLM offices, especially those 

that process a large volume of drilling 

applications, may experience delays in 

implementing the revised proposed 

rule. The BLM is mindful of this issue 

and already provides remote assistance 

from other offices. As with the 

implementation of any new rule, some 

delays may be inevitable. This rule, 

however, will help prevent unnecessary 

or undue degradation of public lands 

and to provide protection to Indian trust 

resources. 

Some commenters recommended that 

the BLM, State, or tribes should inspect 

all hydraulic fracturing operations on 

Federal and Indian land. The BLM did 

not revise the rule as a result of these 

comments. As part of the BLM’s annual 

inspection strategy, the BLM inspects all 

workover operations, including 

hydraulic fracturing, on Federal and 

Indian lands that are rated as a high 

priority. This rating depends on 

measuring many factors, including the 

type of operation, the location, and the 

potential impacts of the operation. 

The BLM received some comments 

objecting to the application of the rule 

to ‘‘well stimulation’’ operations which, 

as defined in the May 2012, proposed 

rule, includes any operation designed to 

increase the permeability of the 

reservoir rock. The definition 

specifically included acidization, but 

could also be interpreted to mean other 

operations such as thermal stimulation 

and maintenance fracturing, designed to 

open up fractures near the wellbore. 

Some of the commenters stated that the 

requirements in the proposed rule were 

too onerous for what they considered to 

be routine maintenance operations. The 

commenters requested that the rule 

apply only to hydraulic fracturing 

operations. 

The BLM agrees with these comments 

and made several revisions to the 

revised proposed rule as a result. 

Section 3162.3–3(a) has been revised to 

apply only to hydraulic fracturing and 

refracturing, rather than to well 

stimulation as stated in the proposed 

rule. 

In addition, definitions of ‘‘hydraulic 

fracturing’’ and ‘‘refracturing’’ have 

been added to the revised proposed rule 

(section 3160.0–5) instead of the 

previous definition of well stimulation. 

In this revised proposed rule, the term 

‘‘hydraulic fracturing’’ specifically 

excludes enhanced secondary recovery, 

such as water flooding, tertiary 

recovery, recovery through steam 

injection, and other types of well 

stimulation such as acidizing. 

Some commenters requested 

clarification of the requirements for 

operators who conduct hydraulic 

fracturing operations on or near land 

managed by other Federal agencies such 

as the National Park Service (NPS) and 

the United States Forest Service (USFS). 

One commenter wanted to ensure that a 

comprehensive NEPA document was 

prepared and that the BLM include the 

NPS as a cooperating agency when 

hydraulic fracturing operations are near 

National Parks. Another commenter 

wanted the rule to specify that it 

applied to USFS managed land. When 

warranted, the BLM invites other 

agencies, including the USFS and the 

NPS, to participate in the preparation of 

the NEPA analysis. 

The involvement of other agencies 

reflects the site-specific issues and 

potential impacts to resources. On USFS 

lands, the USFS typically has the lead 

responsibility for compliance with 

NEPA as part of its review of the surface 

use plan of operation, and the BLM 

serves as a cooperating or joint lead 

agency. The revised proposed rule, as 

with all of the other regulations in 43 

CFR part 3160 (see 43 CFR 3161.1— 

Jurisdiction), would apply to USFS 

lands. No revisions were made to the 

rule as a result of these comments. 

The BLM received some comments 

requesting that the rule include a ban on 

the use of diesel fuel in hydraulic 

fracturing operations. Jurisdiction over 

the use of diesel fuel in hydraulic 

fracturing operations lies with the EPA 

through its administration of the 

Underground Injection Control (UIC) 


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program. (SDWA, Section 1421(d)(1)(B), 

42 U.S.C. 300h(d)(1)(B)(ii,40 CFR 

144.11). Owners or operators who inject 

diesel fuels during hydraulic fracturing 

related to oil and gas operations must 

obtain a UIC permit before injection 

begins. The EPA published draft 

permitting guidance for oil and gas 

hydraulic fracturing operations using 

diesel fuels in May 2012. Thus the BLM 

did not revise the rule as a result of 

these comments. 

The BLM received some comments 

that certain provisions of the proposed 

rule were open ended, which would 

give BLM too much discretion and 

would result in uncertainty, delays, and 

increased costs for operators. For 

example, some comments suggested that 

the ability of the BLM to request 

additional information in the Sundry 

Notice requesting approval for hydraulic 

fracturing (section 3162.3–3(d)(7)) was 

open ended. The BLM believes that the 

provisions in the revised proposed rule 

are necessary to provide the flexibility 

essential to regulating operations over a 

broad range of geologic and 

environmental conditions. Requests for 

information from the Authorized Officer 

are administratively appealable if an 

operator believes the directive lacks a 

proper basis. The BLM did not revise 

the rule as a result of these comments. 

The BLM received some comments 

suggesting that all wells permitted prior 

to the effective date of the rule should 

be exempt from the provisions of the 

rule, that the rule be phased in over a 

period of 180 days, and that older wells 

should be reviewed for information 

only. The BLM understands the 

commenters’ concerns. Nonetheless, the 

primary goal of this rule is to ensure 

that hydraulic fracturing does not cause 

negative impacts to Federal or Indian 

resources, including groundwater and 

surface water. This is achieved by 

ensuring wellbore integrity is 

maintained throughout the hydraulic 

fracturing process and placing 

restrictions on the handling of flowback 

water. Achieving these goals is critical 

regardless of when the BLM approved 

the APD or if the proposed operation 

will take place immediately after the 

effective date of the rule or 180 days 

after the effective date of this rule. The 

BLM did not revise the rule as a result 

of these comments. 

Section Discussion 

As an administrative matter, this rule 

would amend the authorities section for 

the BLM’s oil and gas operations 

regulations at 43 CFR 3160.0–3 to 

include FLPMA. Section 310 of FLPMA 

authorizes the Secretary of the Interior 

to promulgate regulations to carry out 

the purposes of FLPMA and other laws 

applicable to the public lands. See 43 

U.S.C. 1740. This amendment would 

not be a major change and would have 

no effect on lessees, operators, or the 

public. 

This rule would remove the terms 

‘‘nonroutine fracturing jobs,’’ and 

‘‘routine fracturing jobs,’’ from 43 CFR 

3162.3–2(a) and 43 CFR 3162.3–2(b). It 

would add a new section, 43 CFR 

3162.3–3, for hydraulic fracturing 

operations. In this rule, there would be 

no distinction drawn between 

‘‘nonroutine’’ or ‘‘routine’’ hydraulic 

fracturing operations. Prior approval 

would be required for hydraulic 

fracturing operations, but would be 

available concurrently with the prior 

approval process that is already in place 

for general well drilling activities 

through the APD process. The running 

of CELs on surface or intermediate 

casing strings, which is currently an 

optional practice, would be required for 

new wells where the casing protects 

usable water, except for wells 

substantially similar to an operator’s 

‘‘type well’’ for which the operator has 

demonstrated the efficacy of the cement 

bonding of casing under similar 

geological conditions within the same 

field. All wells would require 

mechanical integrity testing prior to 

hydraulic fracturing. 

The revised proposed rule includes 

eight new definitions for technical terms 

used in the rule. These definitions will 

improve readability and clarity of the 

regulations. 

Published in this rule are the 

following definitions: 

• Annulus means the space around a 

pipe in a wellbore, the outer wall of 

which may be the wall of either the 

borehole or the casing; sometimes also 

called the annular space. 

• Bradenhead means a heavy, flanged 

steel fitting connected to the first string 

of casing that allows suspension of 

intermediate and production strings of 

casing, and supplies the means for the 

annulus to be sealed off. 

• Hydraulic fracturing means those 

operations conducted in an individual 

wellbore designed to increase the flow 

of hydrocarbons from the rock formation 

to the wellbore through modifying the 

permeability of reservoir rock by 

breaking it. Hydraulic fracturing does 

not include enhanced secondary 

recovery such as water flooding, tertiary 

recovery, recovery through steam 

injection, or other types of well 

stimulation operations such as 

acidizing. The BLM changed the 

proposed rule’s term ‘‘stimulation fluid’’ 

to ‘‘hydraulic fracturing fluid’’ 

throughout these regulations. 

• Hydraulic fracturing fluid means 

the liquid or gas, and any associated 

solids used in hydraulic fracturing, 

including constituents such as water, 

chemicals, and proppants. 

• Proppant means a granular 

substance (most commonly sand, 

sintered bauxite, or ceramic) that is 

carried in suspension by the fracturing 

fluid and that serves to keep the cracks 

open when fracturing fluid is 

withdrawn after a hydraulic fracture 

treatment. 

• Refracturing means a hydraulic 

fracturing operation subsequent to the 

completion of a prior hydraulic 

fracturing operation in the same well. 

For purposes of this definition, a 

hydraulic fracturing operation is 

completed when a well begins 

producing oil or gas, or when 

equipment necessary to inject the 

hydraulic fracturing fluid at sufficient 

pressure to fracture the stratum is 

removed from the well pad, whichever 

occurs earlier. 

• Type well means an oil and gas well 

that can be used as a model for well 

completion in a field where geologic 

characteristics are substantially similar 

within the same field, and where 

operations such as drilling, cementing, 

and completions using hydraulic 

fracturing are likely to be successfully 

replicated using the same design. 

Usable water means generally those 

waters containing up to 10,000 ppm of 

total dissolved solids. 

The proposed rule used the term 

‘‘well stimulation’’ to describe the 

activities being regulated by this rule. In 

this revised proposed rule, that term is 

replaced with the term ‘‘hydraulic 

fracturing.’’ The reason for the change is 

because, after reviewing all of the 

comments and considering the available 

information, the BLM has determined 

that only hydraulic fracturing 

operations require the additional 

measures in this rulemaking. This 

definition also has language that 

explains the types of secondary recovery 

activities to which this rule does not 

apply. 

This rule also includes the following 

three terms that were not in the 

proposal: Hydraulic fracturing fluid; 

refracturing; and type well. These terms 

are defined so that there is a common 

understanding of the regulatory 

provisions that follow. 

This rule would delete the definition 

of ‘‘fresh water,’’ and is consistent with 

how the BLM has been protecting all 

usable waters in its onshore orders. 

Usable water includes fresh water (often 

defined as water containing less than 

5,000 parts per million (ppm) of total 

dissolved solids (TDS)) and water that is 


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of lower quality than fresh water. The 

BLM has been more protective when it 

seeks to protect all usable water during 

drilling operations, not just fresh water. 

This policy was established upon the 

effective date of Onshore Order No. 2, 

December 19, 1988. Water with up to 

10,000 ppm TDS may be used for some 

agricultural or industrial purposes, often 

with some treatment, and thus would 

continue to be protected under this 

revised proposed rule. Not all waters of 

up to 10,000 ppm TDS need to be 

isolated or protected from hydraulic 

fracturing operations; clarifying edits 

have been added to help the public 

understand how the rule will affect 

operations. 

The rule would revise section 3162.3– 

2(a) by removing the phrase ‘‘perform 

nonroutine fracturing jobs’’ from the 

current 43 CFR 3162.3–2(a). The phrase 

‘‘routine fracturing jobs, or’’ would also 

be removed from existing section 

3162.3–2(b). This rule does not affect 

requirements for acidizing jobs, and this 

rule would not remove the reference to 

acidizing jobs from section 3162.3–2(b). 

Hydraulic fracturing operations are 

addressed under section 3162.3–3. 

In paragraph (a) of this section, the 

term ‘‘commingling’’ in the initial 

proposed rule would be replaced with 

the term ‘‘combining’’ to clarify the 

intent of this requirement and to avoid 

confusion with the meaning of 

‘‘commingling’’ as that term is used in 

a production accounting context and in 

sections 3162.7–2 and 3162.7–3 of this 

title. The term ‘‘commingling’’ in a 

production accounting context refers 

only to the combining of production 

from different leases, communitized 

areas (CA), participating areas (PA), or 

State or private mineral estates prior to 

royalty measurement. Commingling, 

whether it is downhole commingling or 

surface commingling, requires BLM 

approval to ensure that the allocation 

method is consistent with Onshore Oil 

and Gas Order Number 3, Site Security 

(54 FR 8056), Onshore Oil and Gas 

Order Number 4, Measurement of Oil 

(54 FR 8086), and Onshore Oil and Gas 

Order Number 5, Measurement of Gas 

(54 FR 8100), for royalty measurement 

purposes. The combining of production 

from different intervals or zones within 

a wellbore also requires BLM approval 

to ensure that the zones proposed for 

combining are compatible from a 

reservoir standpoint, regardless of the 

royalty implications. The intent of the 

requirement in this section would be to 

address reservoir concerns from 

combining zones or intervals; therefore, 

the word ‘‘commingling’’ was changed 

to ‘‘combining.’’ The royalty 

implications of commingling production 

from different leases, CAs, PAs, or State 

and private properties are handled 

under a separate approval process in 43 

CFR 3162.7–2 and 3162.7–3. 

Refracturing operations within 5 years 

from the approval of a Notice of Intent 

Sundry would be considered a 

‘‘recompletion’’ under section 3162.3– 

2(b). The subsequent report on those 

operations would require the 

information and certifications 

prescribed in section 3162.3–3(i) of this 

rule. Under section 3162.3–3(c)(3)(i), a 

refracturing operation more than 5 years 

after the approval of the Notice of Intent 

Sundry would require BLM’s approval 

of a new Notice of Intent Sundry. 

The revised proposed rule would 

change the scope of the regulation to 

apply only to hydraulic fracturing 

operations and not to other well 

stimulation activities. Section 3162.3– 

3(a) would make it clear that this 

section applies only to hydraulic 

fracturing operations and that all other 

injection activities must comply with 

section 3162.3–2. This language is 

necessary to make the distinction 

between hydraulic fracturing and other 

well injection activities, such as 

secondary and tertiary recovery 

operations. Secondary and tertiary 

recovery operations do not involve the 

injection of chemicals at pressures high 

enough to fracture strata, and thus do 

not raise the same concerns of breaching 

the well bore and migrating into usable 

water. 

New paragraph 3162.3–3(b) would 

require that all fracturing and 

refracturing operations meet the 

performance standard in section 

3162.5–2(d) of this title. Among other 

things, that section requires operators to 

isolate all usable water and other 

mineral-bearing formations and protect 

them from contamination. 

Some commenters requested more 

clarity on how the definition of usable 

water would apply to the requirement to 

isolate and protect usable water from 

contamination from hydraulic fracturing 

operations. The BLM has revised the 

definition of usable water to specify 

that, for purposes of the hydraulic 

fracturing regulations, usable water 

includes underground sources of 

drinking water, zones actually used for 

water supply for industrial or 

agricultural purposes (unless the 

operator shows that the industrial or 

agricultural user would not be harmed 

by failure to protect or isolate), and 

zones designated by the State or the 

tribe as requiring isolation or protection 

from oil and gas operations. The BLM 

has also revised the section to specify 

that, for the purposes of the hydraulic 

fracturing regulations, usable water does 

not include the zone authorized for 

hydraulic fracturing, zones designated 

as ‘‘exempted aquifers’’ under the Safe 

Drinking Water Act (SDWA), and zones 

that the State or tribe have explicitly 

designated as exempt from any 

requirement for oil and gas operators to 

isolate or protect. Any other zones 

containing water that does not exceed 

10,000 ppm TDS would be considered 

usable water. The BLM recognizes that 

including aquifers not otherwise 

exempted would be consistent with its 

Oil and Gas Onshore Orders, but may 

make the rule more stringent than other 

Federal, State, and tribal laws. The BLM 

invites comments specifically on the 

incremental costs associated with 

protecting zones that contain up to 

10,000 ppm of total dissolved solids, 

that are not already protected under 

SDWA or equivalent State or tribal law, 

and not excluded in the proposed 

definition (i.e., those aquifers protected 

by part (4) in the proposed definition of 

usable water). BLM may consider 

excluding such zones in the final rule. 

The BLM believes that the revised 

language makes explicit the appropriate 

deference to the expertise and 

professional judgment of the State or 

tribal agencies entrusted to manage the 

groundwater resources under their 

respective jurisdictions. 

Section 3162.3–3(c) would require the 

BLM’s approval of all proposals for 

hydraulic fracturing or refracturing 

activity. The operator has the option of 

applying for the BLM’s approval in its 

APD, including the information 

required by paragraph (d) of this 

section. 

The operator may submit a Sundry 

Notice and Report on Wells (Form 

3160–5) as a Notice of Intent Sundry for 

the hydraulic fracturing proposal for the 

BLM’s approval before the operator 

begins the fracturing activity. This 

section would supersede and replace 

existing section 3162.3–2(b) that states 

that no prior approval is required for 

routine fracturing. That reference in the 

existing section would be deleted. Also, 

an operator must submit a new Sundry 

Notice prior to hydraulic fracturing 

activity: 

• If the BLM’s previous approval for 

hydraulic fracturing is more than 5 

years old, 

• If the operator becomes aware of 

significant new information about the 

relevant geology, the fracturing 

operation or technology, or the 

anticipated impacts to any resource, or 

• If the operator proposes refracturing 

of the well. 

The 5-year period is consistent with 

practices in some States, including 

Montana, Wyoming, and Colorado, 


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which require that operators reconfirm 

well integrity for fracturing operations 

through a pressure test every 5 years. 

The requirement to submit a new NOI 

for refracturing is new to this revised 

proposed rule and is added to clarify 

that approval of a single hydraulic 

fracturing operation in a well does not 

allow for multiple refracturing 

procedures without compliance with 

the notice, monitoring, and reporting 

requirements. 

The BLM understands the timesensitive nature of oil and gas drilling 

and well completion activities and does 

not anticipate that the submittal of 

additional hydraulic fracturing-related 

information with APD applications will 

significantly impact the timing of the 

approval of drilling permits. The BLM 

believes that the additional information 

that would be required by this rule 

would be reviewed in conjunction with 

the APD and within the normal APD 

processing time frame. Also, the BLM 

anticipates that requests to conduct 

hydraulic fracturing operations on 

existing wells that have been in service 

more than 5 years will be reviewed 

promptly. The BLM understands that 

delays in approvals of operations can be 

costly to operators and the BLM intends 

to avoid delays whenever possible. 

Furthermore, if an operator believes that 

approval of hydraulic fracturing would 

be swifter if it is not part of the APD, 

the operator has the option of 

submitting the Notice of Intent Sundry 

at a later date. However, the operator 

does not obtain an exemption from any 

requirement of this regulation by 

submitting a Notice of Intent Sundry 

after drilling and cementing operations 

have commenced. 

Section 3162.3–3(d) has been revised 

from what was originally proposed to 

allow the Sundry Notice required by 

this section to be submitted for a single 

well or a group of wells. If the 

submission is for a group of wells that 

share substantially similar geological 

characteristics, the information should 

describe the ‘‘type well.’’ ‘‘Type well’’ is 

a term commonly used in the oil and gas 

industry and the BLM added it as a new 

definition in section 3160.0–5 of this 

rule. By constructing and monitoring a 

type well, including running a CEL on 

casing that encounters usable water, the 

operator demonstrates that its 

engineering design and execution 

effectively isolate aquifers with usable 

water in the field. The same operator 

may then replicate the type well for 

each of the wells in the approved group 

for the same field. The operator would 

not need to run a CEL on those wells 

unless the monitoring data indicated a 

problem with the cementing. 

Section 3162.3–3(d)(1) would require 

a report that includes the geological 

names, a geological description, and the 

proposed measured depth of the top and 

the bottom of the formation into which 

hydraulic fracturing fluids would be 

injected. The report is needed so that 

the BLM may determine the properties 

of the rock layers and the thickness of 

the producing formation and identify 

the confining rocks above and below the 

zone that would be stimulated. 

Under this revised proposed rule, 

section 3162.3–3(d)(2) would be revised 

by removing the reference to the CBL, 

because under this rule prior approval 

of a CBL or other CEL would no longer 

be routinely required. The change in 

this section is as a result of changes to 

paragraph (e) and is necessary to make 

this section consistent with those 

changes. Section 3162.3–3(d)(2) would 

be revised to require the operator to 

submit the measured or estimated 

depths of all occurrences of usable 

water using a drill log from the subject 

well or any other well sharing the same 

geological characteristics within the 

same geologic formation, which will 

help the BLM in its efforts to make sure 

that water resources are protected. As it 

pertains to the depths of all occurrences 

of usable water, the word ‘‘estimated’’ 

has been added because at the planning 

stages of the operation, the actual 

measured depths would not generally be 

available. 

Although prior approval of a CEL 

would no longer be routinely required, 

operators would be required to submit 

to the BLM the results of a CEL with the 

post-completion sundry notice. The 

BLM will be reviewing the well drilling 

and completion records and logs 

including the CEL, to help verify that 

operators have complied with their duty 

to assure that the casings are properly 

cemented. 

Section 3162.3–3(d)(3) would require 

reporting of the measured depth to the 

perforations in the casing and uncased 

hole intervals (open hole). This section 

would also require the operator to 

disclose specific information about the 

water source to be used in the fracturing 

operation, including the location of the 

water that would be used as the base 

fluid. The BLM needs this information 

to determine the impacts associated 

with operations. This rule would add 

‘‘reused or recycled water’’ to the 

example list of sources and location of 

the water supply to be used for 

fracturing operations. The rule makes it 

clear that reused or recycled water is a 

recognized source of water supply for 

these types of operations. The 

information required by this paragraph 

does not interfere with State or tribal 

regulation of water allocation. The 

operators would need to comply with 

all State or tribal water laws, but need 

not disclose to the BLM the documents 

evidencing their rights to use the water. 

This regulation would in no way 

discourage operators from reusing or 

recycling water for new hydraulic 

fracturing operations. 

Initial proposed section 3162.3– 

3(c)(4) would have required operators to 

certify in writing that they have 

complied with all applicable Federal, 

tribal, State, and local laws, rules, and 

regulations pertaining to fracturing 

fluids before a fracture is attempted. 

This section has been deleted from the 

revised proposed rule because the BLM 

believes that requiring this certification 

after the operator has completed 

hydraulic fracturing operations (see 

section 3162.3–3 (i)(7)) adequately 

protects Federal and Indian lands and 

resources and, therefore, the burden on 

industry of providing and on the BLM 

of reviewing that information ahead of 

operations is not justified. 

Section 3162.3–3(c)(5) has been 

renumbered in this revised proposed 

rule as section 3162.3(d)(4) and has 

been revised. Section 3162.3–3(d)(4) 

would require the operator to submit a 

plan for the hydraulic fracturing design. 

This information is needed in order for 

the BLM to be able to verify that the 

proposed hydraulic fracturing design is 

adequate for safely conducting the 

proposed well stimulation. 

Section 3162.3–3(d)(4)(i) would 

require the operator to submit the 

estimated total volume of fluids that 

will be used in the hydraulic fracturing 

operations. 

Section 3162.3–3(d)(4)(ii) would 

require submission of the anticipated 

surface treating pressure range. This 

information is needed by the BLM to 

verify that the maximum wellbore 

design burst pressure will not be 

exceeded at any stage of the hydraulic 

fracturing operation. 

Section 3162.3–3(d)(4)(iii) would 

require the maximum injection treating 

pressure information to be submitted. 

This information is needed by the BLM 

to verify that the maximum allowable 

injection pressure will not be exceeded 

at any stage of the hydraulic fracturing 

operation. 

Section 3162.3–3(d)(4)(iv) would 

require the operator to submit the 

estimated fracture direction, length, and 

height, including the fracture 

propagation plotted on a map so that the 

BLM can ensure that the fracturing 

operations do not threaten aquifers, 

other resources, or other operations. The 

rule would also require that the 

information include the estimated 


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fracture propagation plotted on the well 

schematics and on a map. The rule 

would require that the map must be of 

a scale no smaller than 1:24,000, which 

is the scale required for the map 

included in an APD. 

The rule also would add a new 

paragraph 3162.3–3(d)(4)(v) that 

requires submission of the estimated 

vertical distance to the base of the 

nearest usable water aquifer above the 

fracture zone. The rule would require 

this information to assure that usable 

water is isolated from propagated 

fissures. Fracturing operations that are 

expected to propagate fissures vertically 

to depths near those of usable water 

may require closer scrutiny by the BLM 

than those with thousands of feet 

between the fissures and aquifers. 

Section 3162.3–3(d)(5) would require 

the operator to provide for BLM’s 

approval information about the 

handling of recovered fluids. This 

information is being requested so that 

the BLM has all necessary information 

regarding chemicals being used in the 

event that the information is needed to 

help protect health and safety or to 

prevent unnecessary or undue 

degradation of the public lands. The 

BLM has deleted the requirement for 

operators to provide the estimated 

chemical composition of flowback 

fluids because it would in effect require 

operators to reveal the total chemical 

constituents of their hydraulic 

fracturing fluids prior to operations. It 

would also require speculation as to the 

chemistry of fluids in the target zone, 

and their reactions, if any, with the 

hydraulic fracturing fluids. The BLM 

has determined that operators may 

justifiably change the chemical 

composition of hydraulic fracturing 

fluids after approval of fracturing 

operations, and even during those 

operations in response to such factors as 

availability of chemicals and 

unexpected geologic conditions. Thus, 

the reliability of the pre-operational 

estimated composition of flowback 

fluids could be imperfect. The 

composition of actual flowback fluids 

could be appropriately determined from 

the post-operational disclosure of the 

chemicals used in the fracturing 

operations. It is most important at the 

approval stage, however, for the 

operator to show that it has an adequate 

plan to manage and contain the 

recovered fluids that would prevent 

them from contaminating surface water 

or groundwater without regard to their 

specific chemical composition. 

Section 3162.3–3(d)(5)(i) would 

require the operator to submit to the 

BLM an estimate of the volume of fluid 

to be recovered during flowback, 

swabbing, and recovery from production 

facility vessels. This information is 

required to ensure that the facilities 

needed to process or contain the 

estimated volume of fluid will be 

available on location. 

Section 3162.3–3(d)(5)(ii) would 

require the operator to submit to the 

BLM the proposed methods of managing 

the recovered fluids. This information is 

needed to ensure that the handling 

methods will adequately protect public 

health and safety. 

Section 3162.3–3(d)(5)(iii) would 

require the operator to submit to the 

BLM a description of the proposed 

disposal method of the recovered fluids. 

This is consistent with existing BLM 

regulations for produced waters (i.e., 

Onshore Oil and Gas Order Number 7, 

Disposal of Produced Water, (58 FR 

47354)). This information is requested 

so that the BLM has all necessary 

information regarding disposal of 

chemicals used in the event it is needed 

to protect the environment and human 

health and safety on Federal and Indian 

lands and to prevent unnecessary or 

undue degradation of the public lands. 

Section 3162.3–3(d)(6) would require 

the operator to provide, at the request of 

the BLM, additional information 

pertaining to any facet of the hydraulic 

fracturing proposal. For example, the 

BLM may require new or different tests 

or logs in cases where the original 

information submitted was inadequate, 

out of date, or incomplete. Any new 

information that the BLM may request 

will be limited to information necessary 

for the BLM to ensure that operations 

are consistent with applicable laws and 

regulation, or that the operator is taking 

into account site-specific circumstances. 

Such information may include, but is 

not limited to, tabular or graphical 

results of an MIT, the results of logs run, 

the results of tests showing the total 

dissolved solids in water proposed to be 

used as the base fluid, and the name of 

the contractor performing the hydraulic 

fracturing operation. 

Comments on What the Notice of Intent 

Sundry Must Include 

Some commenters requested baseline 

water testing prior to hydraulic 

fracturing operations; however, the BLM 

cannot authorize operators to enter nonFederal land to conduct baseline water 

testing, so the BLM did not change the 

revised proposed rule as a result. 

Whether to require baseline water 

testing on Federal land will be 

addressed, as is the current practice, as 

part of the analysis under the National 

Environmental Policy Act (NEPA) 

review, and the ‘‘downhole review’’ by 

the BLM authorized officer pursuant to 

Onshore Oil and Gas Orders Nos. 1 and 

2. For example, if local drilling or 

geologic conditions, such as downhole 

stratigraphy involving faults, fissures, 

natural fractures, karst/limestone or 

other similar conditions require extra 

vigilance for any leaks of wellbore fluids 

to the usable water, then additional 

testing for baseline water could be 

required by the BLM as a condition of 

approval (COA) of a drilling permit. 

Similarly, the site-specific NEPA 

analysis of a drilling permit might 

reveal local environmental conditions 

that indicate a need to require baseline 

testing as a COA. 

The BLM received some comments 

requesting that the BLM require up-front 

disclosure of the chemicals proposed for 

use in the hydraulic fracturing fluid. 

Commenters indicated that only through 

full up-front disclosure could the BLM 

and the public assess impacts to water, 

land, air quality, and human health and 

safety. The proposed rule was not 

revised based on these comments. 

Analysis of the impacts from hydraulic 

fracturing is done as part of the NEPA 

analysis conducted prior to the issuance 

of permits. For the purposes of NEPA 

compliance, the exact composition of 

the fluid proposed for use is not 

required because chemicals used in the 

hydraulic fracturing process are 

generally considered potentially 

hazardous for the purpose of impact 

analysis and mitigation. Operators will 

be aware that the rule requires 

disclosure of hydraulic fracturing 

chemicals after operations are complete 

and operators will also be required to 

certify that the hydraulic fracturing 

fluid used complied with all applicable 

permitting and notice requirements and 

all applicable Federal, State, and local 

laws, rules, and regulations (a separate 

but similar certification is required for 

Indian lands). The operator would also 

be required to certify that wellbore 

integrity was maintained prior to and 

throughout hydraulic fracturing 

operations. The BLM believes that the 

post-fracturing disclosures and 

certifications would provide adequate 

assurances that the hydraulic fracturing 

operations protect public health and 

safety and protect Federal and Indian 

resources. 

The BLM also received comments in 

opposition to pre-disclosure of chemical 

constituents because of trade secret 

concerns and positing that the actual 

chemicals used will change from the 

pre-drilling stage based on the results 

encountered during drilling. While the 

BLM agrees with these comments, no 

revisions to the revised proposed rule 

were made because neither the initial 

proposed rule nor the revised proposed 


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rule would require pre-disclosure of 

chemicals. 

The BLM received some comments 

expressing concern about additional 

delays that would be caused by the 

permitting process in the proposed rule. 

According to the comments, 

unnecessary delays would be caused by 

having to submit voluminous amounts 

of information for each well proposed 

for hydraulic fracturing or acidization, 

the review and approval of CBLs prior 

to hydraulic fracturing, and the lack of 

BLM staff to perform these additional 

reviews. Based on consideration of these 

comments, the initial proposed rule has 

been revised. The changes include the 

option of including multiple wells with 

similar geology in the permit 

application (‘‘type wells’’), narrowing 

the scope of the rule to include only 

hydraulic fracturing, and the 

elimination of the requirement for the 

BLM to review and approve CBLs prior 

to hydraulic fracturing. These changes 

are discussed further in other sections of 

this preamble. 

The BLM received some comments 

regarding the amount of information 

required in section 3162.3–3(c) of the 

proposed rule in order for the BLM to 

grant approval of hydraulic fracturing 

operations. The commenters stated that 

much of this information, such as 

flowback time and flowback volume, is 

speculative. Commenters indicated that 

data such as treatment volumes, 

chemical composition, and other 

specific design parameters can only be 

determined after the well has been 

drilled. Commenters also suggested that 

instead of providing site-specific design 

details which could change, the BLM 

should allow operators to submit a 

generic master design plan or type well 

proposal. 

The BLM agrees with these 

comments. The revised proposed rule 

(section 3162.3–3(d)) would provide for 

a more streamlined permitting process 

by allowing a Notice of Intent Sundry 

Notice to cover a group of wells with 

similar geologic characteristics, rather 

than just a single well. If the Sundry 

Notice is for a group of wells, the 

information required in section 3162.3– 

3(d) would be submitted for a type well 

that represents a typical completion and 

hydraulic fracturing procedure for the 

group of wells included in the Sundry 

Notice. The requirement to submit a 

CBL prior to the BLM granting approval 

for hydraulic fracturing is also being 

removed in the revised proposed rule. 

The BLM received some comments 

that suggested that more information 

should be required prior to approving a 

plan or application for a permit to 

hydraulically fracture a well. Some of 

the additional information suggested to 

be obtained included the total amounts 

of waste, recycling methods, produced 

fluid disposal plans, fluid transportation 

plans, on-site storage and chemical 

composition of flowback water, more 

geologic data, an emergency spill 

response plan, and information about 

confining zones. All of the suggestions 

are already parts of required APD 

components and other BLM regulations 

including Onshore Orders Nos. 1, 2, and 

7. The BLM did not revise the rule as 

a result of these comments. 

Some comments suggested that the 

BLM require more information both preand post-hydraulic fracturing, including 

common chemical names, composition 

of recovered fluids, sources of water 

used and storage/containment methods. 

Existing regulations require advance 

approval of plans for handling waste 

and hazardous materials and sources of 

water used in drilling and completing 

wells on Federal and Indian lands. The 

BLM did not revise the rule as a result 

of these comments. 

The BLM received some comments 

stating that the proposed rule should 

provide for ‘‘estimates’’ rather than 

actual information in the permit 

application. The reason given for 

providing estimates is that the hydraulic 

fracturing plan could change from the 

time it is approved based on conditions 

encountered during drilling and for 

other reasons. The BLM partially agrees 

with this comment and has revised the 

rule so that it would allow the operator 

to submit information for a type well 

drilled in an area of similar geology in 

lieu of submitting information specific 

to every well proposed for hydraulic 

fracturing. The BLM understands that 

some of the information such as 

formation depths, will be estimations of 

various parameters; for example, wellspecific geological strata, formation 

depth/zone of perforation and fracture, 

expected amount of fracturing fluid 

injection volumes and flowback from 

the wellbore, expected pressure and 

temperature during drilling and 

completions, etc. However, the BLM 

also requires that the operator submit a 

Sundry Notice if major changes from the 

approved permit are requested. 

The BLM received some comments 

that the proposed rule requires 

documentation that is duplicative of 

other regulatory requirements and 

documents already submitted to the 

BLM, particularly the APD and Well 

Completion reports. The BLM agrees 

that some of the data that would be 

required in this rule is similar to that 

found or contained in other reports, 

forms and approved plans. However, the 

BLM believes that the requested 

information is unique to the hydraulic 

fracturing operation and is necessary for 

the BLM to ensure that operations are 

conducted in a manner that will protect 

groundwater, surface water, and other 

resources. The BLM did not revise the 

rule as a result of this comment. The 

BLM received some comments regarding 

the timeframes for hydraulic fracturing 

permit approvals. The commenters 

suggested that the rule should specify a 

set amount of time in which the BLM 

must complete its review of hydraulic 

fracturing proposals, and if that time 

was exceeded, the proposal would be 

automatically approved. The BLM did 

not revise the rule as a result of these 

comments because the imposition of a 

timeframe or ‘‘automatic’’ approvals 

could limit the BLM’s ability to ensure 

protection of usable water and other 

resources. The BLM cannot abdicate its 

statutorily mandated responsibilities to 

prevent unnecessary or undue 

degradation of public lands and to 

protect Federal and Indian resources by 

establishing an artificial deadline. As 

discussed in other sections, however, 

the revised proposed rule would make 

several changes to the permitting 

process that would reduce the 

possibility of unreasonable delays. 

The BLM received some comments 

questioning the rationale or need for the 

information requested in both the 

permit and the subsequent report. The 

BLM has determined that the requested 

information is important to assess the 

environmental impacts of the proposed 

operation as well as to ensure that 

hydraulic fracturing operations will be 

conducted in a manner that prevents 

waste of valuable minerals, protects 

other resources, and ensures public 

health and safety. No revisions to the 

rule were made as a result of this 

comment. 

The BLM received some comments 

objecting to the requirement to estimate 

or calculate fracture lengths both in the 

application for hydraulic fracturing 

(section 3162.3–3(d)) and in the 

subsequent report (section 3162.3–3(i)). 

The primary objection expressed by the 

commenters is the difficulty, expense, 

and high degree of uncertainty in 

estimating, calculating, or measuring 

fracture lengths. According to the 

commenters, calculating fracture lengths 

requires elaborate computer models, 

which are often proprietary, and 

measuring fracture lengths requires 

seismic monitoring which adds time 

and expense. Some commenters 

questioned the need for this 

information, especially given that the 

target zone is usually thousands of feet 

below any known usable water zones. 

Other commenters stated that there is a 


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significant economic incentive to 

contain fractures to the target zone in 

order to minimize the volume of fluid 

required in the fracturing process. 

In order to evaluate the potential 

impacts of the proposed hydraulic 

fracturing application, the BLM must 

have information showing the estimated 

fracture lengths. This information is 

used to help ensure that fractures will 

not intersect known fault zones, 

communicate with older unplugged 

wells with questionable wellbore 

integrity, or communicate with usable 

water zones. The BLM is aware that the 

fracture lengths provided in the 

application and subsequent report are 

estimates. For the subsequent report, the 

reporting of actual fracture lengths can 

be used to identify potential problems. 

The BLM did revise section 3162.3–3(i) 

as a result of these comments; moreover, 

section 3162.3–3(d) was revised to 

clarify how the estimated fracture 

lengths are to be provided to the BLM 

in the application. 

Section Discussion 

Section 3162.3–3(e) is new to the rule. 

This section would require monitoring 

of cementing operations and would 

require a CEL prior to hydraulic 

fracturing operations for each casing 

that protects usable water. The 

requirements are necessary to ensure 

that the usable water aquifers 

intersected during well drilling have 

been isolated to protect them from 

contamination. Because aquifers are 

permeable, operators routinely isolate 

them from hydraulic fracturing 

operations by lining the wellbore with 

a tubular casing (typically metal casing). 

‘‘Surface casings’’ are typically run for 

the top 1,000 to 1,500 feet of a well. 

‘‘Intermediate casings’’ are used where 

necessary at greater depths. Operators 

pump cement to the outside of the 

casing to assure that the casing will 

transmit the pressures of hydraulic 

fracturing to the surrounding rock 

without failure, and to assure that 

neither fracturing fluids nor produced 

oil and gas leak through or around the 

casing and are lost. Cementing 

operations, however, do not always 

yield a perfect result. There may be 

gaps, voids, or channels between a 

casing and the rock wall of the wellbore 

that lack adequate cement, and thus 

may be vulnerable to failure or leaks. A 

CEL is a class of tools that can be run 

down a casing to assess whether there 

are any significant gaps or voids in the 

cement behind a casing. Operators 

typically run a CEL on intermediate 

casings, but not on surface casings when 

the cement flows back to the surface. 

For surface casing an operator generally 

observes the cement in the annulus, and 

uses additional cement as needed. The 

initial proposed regulations at section 

3162.3–3(c)(2) would have required a 

CBL prior to all hydraulic fracturing 

operations. However, a CBL is only one 

of a suite of technologies that are 

described as CELs. Under this revised 

proposed rule, other cement evaluation 

technologies, either existing or 

developed in the future, that are equally 

effective may be used. An ‘‘equally 

effective’’ technology in this context 

would be any methodology or tool that 

is at least as reliable as a CBL in 

detecting gaps or voids in the cement 

behind a casing and meets the 

performance objective of validating the 

wellbore integrity and isolating zones of 

usable water. 

Operators may choose from several 

well logging techniques to evaluate the 

quality of the cement behind casing. 

Various types of logs provide different 

types of information. For example, a 

CBL presents the reflected amplitude of 

an acoustic signal transmitted by a 

logging tool inside the casing. Another 

acoustic log presents the waveforms of 

the reflected signals detected by the 

logging tool receiver and provides 

qualitative insights concerning the 

casing, the cement sheath and the 

formation. Ultrasonic logging tools 

measure the resonant echoes. 

Under this rule, operators would have 

the flexibility of using suitable logs to 

confirm a good cement bond behind the 

casing to protect and isolate usable 

water. The BLM will review those logs 

after post-completion submission by the 

operator. 

New section 3162.3–3(e)(1) would 

require the operator to monitor and 

record the flowrate, density, and 

treating pressure, and to submit a 

cement operation monitoring report to 

the BLM within 30 days after 

completion of hydraulic fracturing 

operations. The required monitoring 

data would provide important 

indications of problems with the 

cementing of casings. That monitoring 

data would help to verify the results of 

a CEL and for wells where no CEL is 

required will provide the primary 

assurance that cementing operations 

conformed to those of a proven type 

well. 

New section 3162.3–3(e)(2) would 

require the operator to run a CEL for 

each casing that protects usable water, 

unless it is exempt from doing so under 

(e)(3) of this section, and to submit these 

logs to the BLM within 30 days after 

completion of the hydraulic fracturing 

operations. A CEL includes, but is not 

limited to, a CBL, ultrasonic imager, 

variable density logs, microseismograms, CBLs with directional 

receiver array, ultrasonic pulse echo 

technique, or isolation scanner. 

Comments on Cement Bond Logs 

The BLM received some comments in 

response to proposed sections 3162.3– 

3(b)(i), 3162.3–3(b)(ii), 3162.3–3(c)(2), 

that would have required operators to 

run CBLs and obtain approval from the 

BLM prior to commencing hydraulic 

fracturing operations. The commenters 

focused on seven main issues: (1) 

Allowing the use of other technology 

besides CBLs; (2) The use of other 

metrics to demonstrate zonal isolation; 

(3) Delays and costs associated with 

running and obtaining approval of CBLs 

prior to commencing hydraulic 

fracturing operations; (4) Reliability and 

interpretation of CBLs; (5) The 

incorporation of API Standard 65–2; (6) 

The ability for operators to challenge or 

appeal findings from the BLM regarding 

CBL results; and (7) The possibility of 

requiring CBLs on all casing strings, not 

just the surface casing. These comments 

are discussed in further detail below. 

Some commenters suggested that the 

BLM should allow the use of other 

technologies in lieu of a CBL. The other 

technologies that were suggested 

include ultrasonic logs, variable density 

logs, micro-seismograms, standard 

CBLs, CBLs with directional receiver 

array, ultrasonic pulse echo technique, 

and isolation scanners. The BLM agrees 

with this comment and believes that 

these technologies could be effective at 

demonstrating zonal isolation. 

Therefore, section 3162.3–3(e)(2) would 

replace the term CBL with a more 

generic term, ‘‘cement evaluation log,’’ 

(CEL) which would include the 

technologies suggested by the 

commenters. It would also permit 

operators to use logging tools which are 

the most appropriate in any given 

situation. 

Some commenters stated that a CBL 

provides only one indication of the 

quality of a cement job. The comments 

said that there are other, perhaps more 

reliable, methods of determining the 

quality of the cement job such as: 

• Monitoring cement returns to the 

surface during the cement job. If good 

cement returns are achieved, it is a 

positive indication that there were no 

unexpected or untreated voids or 

fractures in the wellbore, which helps 

ensure that cement was properly placed 

between the wellbore and the casing; 

• Placing centralizers on the lower 

joints of casing to ensure the casing is 

concentric to the wellbore, allowing a 

uniform cement sheath to form between 

the casing and the wellbore; 


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• Witnessing the amount of ‘‘fall 

back’’ of cement in the annulus; while 

it is normal for the top of the cement to 

retreat down the annulus as the cement 

sets, excessive fall-back can indicate 

that problems were encountered during 

the cement job; 

• Monitoring the pressures, flow 

rates, volumes, and densities of cement 

during the cement job. If these 

parameters are consistent with the 

values anticipated during the design of 

the cement job, it is a good indication 

that no unexpected conditions were 

encountered during the cementing and 

that a cement seal has been established; 

• Ensuring that there were no 

equipment failures during the cement 

job, such as line breaks or pump 

failures; and 

• Applying other analytic techniques 

such as temperature logs and formation 

integrity tests. 

Some commenters stated that the 

BLM should require the operator to run 

a CBL only if one or more of these 

methods indicated a problem with the 

cement job. The BLM agrees with these 

comments and proposes several 

revisions in the revised proposed rule as 

a result. The revised proposed rule 

includes a new section 3162.3–3(e)(1) 

that would establish requirements for 

monitoring cementing operations, 

including the need to monitor and 

record flow rate, density, and pumping 

pressure of the cement. In addition, 

section 3162.3–3(e)(4) would require the 

operator to run a CEL if there are 

indications of an inadequate cement job 

such as lost returns, cement channeling, 

gas cut mud, or equipment failure. If the 

monitoring information provides 

indications of an inadequate cement job, 

the operator would also be required to 

notify the BLM within 24 hours, submit 

a written report within 48 hours, and to 

certify that the inadequate cement job 

had been corrected and document that 

zonal isolation had been achieved prior 

to starting hydraulic fracturing 

operations. The BLM also agrees with 

the importance of centralizers in 

obtaining zonal isolation; however, 

because Onshore Order No. 2 (Section 

III.B.1.f) already requires centralizers on 

the bottom 3 joints of surface casing, an 

additional requirement to run 

centralizers is not needed in this rule. 

Some commenters objected to the cost 

of running a CBL on every well and, 

perhaps more importantly, the delay 

associated with the BLM review of CBLs 

prior to allowing operators to start 

hydraulic fracturing operations. Some 

comments referenced the current delays 

in permitting due to lack of staff and 

stated that this additional approval step 

would only serve to exacerbate these 

delays. Several revisions are included in 

the revised proposed rule as a result of 

these comments. For wells where there 

are no indications of an inadequate 

cement job, section 3162.3–3(e)(3) 

would provide an option to run a CEL 

only on a type well that is 

representative of local geology and 

typical drilling and completion 

techniques. If the CEL run on the type 

well demonstrated zonal isolation, CELs 

would not be required on subsequent 

wells where there were no indications 

of an inadequate cement job. However, 

Section 3162.3–3(e)(4) would require an 

operator to run a CEL on all wells where 

there are indications of an inadequate 

cement job, such as, but not limited to, 

lost returns, cement channeling, gas cut 

mud, or failure of equipment, that show 

that remedial action and evaluation are 

necessary. In addition, the revised 

proposed rule would eliminate the need 

for the BLM to review and approve the 

CEL prior to commencing hydraulic 

fracturing operations. Instead, operators 

would submit CELs run under section 

3162.3–3(e)(2) within 30 days of 

completing hydraulic fracturing 

operations. CELs for type wells would 

have to be submitted prior to exempting 

subsequent wells under 3162.3–3(e)(3) 

from the requirement to run a CEL. 

Operators would submit CELs run under 

3162.3–3(e)(4) at least 72 hours prior to 

commencing hydraulic fracturing 

operations; however no approval from 

the BLM would be necessary. The BLM 

considered a requirement for operators 

to receive BLM approval prior to 

commencing hydraulic fracturing 

operations in these cases. The BLM 

believes that the combination of the 

proposed notice and certification 

requirements would provide adequate 

assurance of wellbore integrity prior to 

hydraulic fracturing without incurring 

additional delay or workload. The 

proposed 24-hour notice would also 

allow the BLM time to prioritize 

inspections of the hydraulic fracturing 

operation to verify compliance with 

these proposed regulations, Onshore 

Order Number 2, and the approved 

APD. 

The BLM received some comments 

expressing concern about the reliability 

of CBLs and the difficulties of 

interpreting CBLs. Some commenters 

stated that CBLs are not effective until 

the cement has reached a certain 

compressive strength because CBLs 

work on the principal of acoustic 

attenuation. At low compressive 

strengths, commenters stated that the 

acoustic properties of cement and water 

are very similar and it is difficult to 

delineate between the two when 

interpreting logs. The commenters went 

on to state that the problem is more 

pronounced in surface casing because 

the lower formation temperature near 

the surface prolongs the setting process, 

requiring more time to achieve levels of 

compressive strength that are required 

for reliable log interpretation. 

Comments about the additional waiting 

times varied. One commenter suggested 

that a CBL on the surface casing and 

intermediate casing would delay 

drilling operations 24 hours for each 

test. Other commenters suggested that 

the CBL requirement would delay 

drilling operations by up to 72 hours for 

the surface casing alone. The 

commenters suggested that during this 

time, operators would be required to 

maintain idle drilling equipment on 

site, at a significant cost to the 

operators. 

After researching these concerns, the 

BLM acknowledges the potential 

difficulties of running and interpreting 

CBLs. As a result, the BLM has 

determined that requiring CBLs on 

every well may be unnecessarily 

expensive, may induce unnecessary 

delay, and will not provide increased 

protection beyond what will be 

available by requiring a CEL on type 

wells. Therefore, the revised proposed 

rule would give operators the option of 

running a CEL on a type well as 

discussed previously. A CEL would still 

be required on all wells where there are 

indications that there is an inadequate 

cement job. The BLM also believes that 

allowing the use of other technology 

such as ultrasonic logs could make the 

log interpretation less subjective. 

The BLM also received some 

comments expressing concerns about 

the ability of BLM staff to properly 

interpret CBLs. According to the 

commenters, without adequate training 

and experience, the BLM could 

misinterpret a CBL run in a wellbore 

with an adequate cement job and 

conclude that there was an inadequate 

cement job. This misinterpretation 

would result in additional time and 

expense for the operator to either 

challenge the BLM’s finding or to 

conduct expensive and unnecessary 

remedial work. The BLM does not agree 

with the assertion regarding the lack of 

staff training and experience. However, 

the BLM believes that the previously 

discussed changes, including providing 

a type well option, and eliminating the 

need for a requirement to obtain BLM 

approval of CELs prior to starting 

hydraulic fracturing operations, address 

the commenters’ concerns. 

The BLM received some comments 

which requested that the rule include an 

appeal process for operators if the BLM 


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were to deny hydraulic fracturing on a 

well because the CBL could not 

demonstrate zonal isolation. The BLM 

did not revise this rule as a result of this 

comment because a BLM decision to 

deny authorization to hydraulically 

fracture a well would be subject to the 

administrative reviews already 

established in 43 CFR 3165.3 and 

3165.4. In addition, as discussed earlier, 

the revised proposed rule would 

eliminate the requirement for operators 

to obtain BLM approval of CELs prior to 

starting hydraulic fracturing operations. 

Some commenters recommended that 

the BLM require operators to run CELs 

on all casing strings, not just the surface 

casing because the isolation of usable 

water, as required in Onshore Order No. 

2, may be accomplished by other casing 

strings. The proposed rule published in 

May 2012 required CBLs on all casing 

strings protecting usable water. The 

BLM clarified this requirement in 

3162.3–3(e)(2), with exceptions for type 

wells, in this revised proposed rule. 

Section Discussion 

New section 3162.3–3(e)(3) would 

explain that an operator is not required 

to run a cement evaluation log on the 

casings if the operator: 

(1) Had submitted a CEL for a type 

well that showed successful cement 

bonding to protect against downhole 

fluid cross-migration; and 

(2) Completes a subsequent well or 

wells with the same specifications and 

geologic characteristics as the type well, 

and approved in the same group sundry 

notice for a single field, and the 

cementing operations monitoring data 

parallels those of the type well. 

The BLM believes that where an 

operator has designed a type well to be 

replicated across a field (and often from 

the same well pad), and the cement 

monitoring data for each well and the 

CEL for the type well show no 

indications of cement problems, the 

operator should be allowed to construct 

the other wells in an approved group 

within the same field without the 

expense and potential delays of running 

a CEL for each well. The same well 

design and construction repeated within 

the same field with the same monitoring 

data should yield the same result: 

adequate cementing. After considering 

the comments, the BLM believes that 

requiring each well to have a CEL for 

the surface casing as originally proposed 

would impose costs and possibly delays 

on operators without providing 

significant additional assurance of 

adequate cementing to protect usable 

water aquifers. In view of the comments 

that insist that a CBL on surface casing 

is unnecessary when the cement returns 

to the surface, the BLM is also seeking 

comments on whether the requirements 

to run a CEL on wells where there is no 

indication of an inadequate cement job, 

as proposed in paragraphs 3162.3– 

3(e)(2) and (e)(3), is appropriate, 

including specific information about the 

costs and benefits of requiring CELs in 

such cases. Under new section 3162.3– 

3(e)(4), for any well, if there is any 

indication of an inadequate cement 

sheathing behind the casing such as, but 

not limited to, lost returns, cement 

channeling, gas cut mud, or failure of 

equipment, the operator would be 

required to notify the BLM within 24 

hours of the occurrence, followed by a 

written report within 48 hours. 

Furthermore, the operator would be 

required to remedy the situation first 

following the standard industry 

practice. When logging operations 

indicate that the cement job is defective, 

either in the form of poor cement 

bonding or communication between 

zones, a remedial cementing technique 

known as squeeze cementing may be 

performed to establish zonal isolation. 

The commonly used steps to remedy 

such problems include perforating the 

casing at the defective interval and 

forcing, or ‘‘squeezing,’’ cement slurry 

through the perforations and into the 

annulus to fill the voids. In addition, 

squeeze cementing may be an effective 

technique for repairing casing leaks 

caused by a corroded or split casing. 

The objective is to restore the barrier 

integrity of the formations that were 

disrupted by drilling. To confirm a good 

cement sheathing behind the casing, the 

operator must run a CEL showing that 

usable water has been isolated to protect 

it from contamination. If deemed 

necessary, the BLM could require the 

operator to submit the CEL for BLM 

approval prior to continued operations. 

At least 72 hours prior to commencing 

hydraulic fracturing operations, the 

operator would be required to submit to 

the BLM a signed certification 

indicating that the operator corrected 

the inadequate cement job and 

documentation showing that there is 

adequate cement bonding. These 

requirements were added because the 

revised proposed rule has eliminated 

the requirement to submit a CBL for 

each well for approval by the BLM prior 

to continuing operations. Accordingly, 

where there are indications of a problem 

with cementing, the BLM needs to have 

timely and complete information 

showing correction of the problem. If an 

operator failed to report a cementing 

problem, the BLM would utilize one or 

more of its existing enforcement 

options. This could include: shutting 

down operations on the well until the 

operator takes the appropriate corrective 

actions; issuing an order of the 

authorized officer requiring remedial 

action; or monetary assessments for 

failure to comply. The BLM would 

enforce the appropriate action 

regardless of whether the original 

requirements for the well included the 

running of a CEL. Also, the BLM would 

put a high priority on witnessing that 

operator’s operations on this and future 

wells to ensure compliance with these 

proposed regulations, Onshore Order 

Number 2, and the approved APD. 

New section 3162.3–3(e)(5) would 

require operators to include in the 

Subsequent Report Sundry Notice under 

section 3162.3–3(i) the records and logs 

produced under sections 3162.3–3(e)(1) 

and (e)(2). 

Section 3162.3–3(f) would require the 

operator to perform a successful MIT 

before beginning hydraulic fracturing or 

refracturing operations. This 

requirement is necessary to help ensure 

the integrity of the wellbore under 

anticipated maximum pressures during 

hydraulic fracturing operations. 

Wellbore integrity may be degraded over 

time, and thus it is necessary to perform 

a MIT prior to each refracturing 

operation. 

Section 3162.3–3(f)(1) would require 

the MIT to emulate the pressure 

conditions that would be seen in the 

proposed hydraulic fracturing. This test 

would show that the casing is strong 

enough to protect usable water and 

other subsurface resources during 

hydraulic fracturing operations. 

Section 3162.3–3(f)(2) would establish 

the minimum engineering criteria for 

using a fracturing string as a technique 

during hydraulic fracturing. The 

requirement to be 100 feet below the 

cement top would be imposed to ensure 

that the production or intermediate 

casing is surrounded by a competent 

cement sheath as required by Onshore 

Order No. 2. The 100 foot requirement 

is required by some State statutes (e.g., 

Montana Board of Oil and Gas 

Conservation, section 36.22.1106, 

Hydraulic Fracturing) and is a generally 

accepted standard in the industry. 

Testing would emulate the pressure 

conditions that would be seen in the 

proposed hydraulic fracturing in order 

to ensure that the casing used in the 

well would be robust enough to handle 

the pressures. 

Section 3162.3–3(f)(3) would require 

the well to hold the pressure for 30 

minutes with no more than 10 percent 

pressure loss. This requirement is the 

same standard applied in Onshore 

Order No. 2, Section III.B.h., to confirm 

the mechanical integrity of the casing. 


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This language does not set a new 

standard in the BLM’s regulations. This 

test, together with the other 

requirements, would demonstrate if the 

casing is strong enough to protect water 

and other subsurface resources during 

hydraulic fracturing operations. The 

BLM believes that all of these tests are 

important to show that reasonable 

precautions have been taken to ensure 

the protection of other resources during 

hydraulic fracturing operations. 

Comments on Mechanical Integrity 

Testing 

Some commenters objected to the cost 

of the requirement for an MIT prior to 

hydraulic fracturing due primarily to 

the delay and the cost of rig time. The 

BLM disagrees with this comment. A 

casing pressure test is already required 

by Onshore Order No. 2. Section 

III.B.1.h. of Onshore Order No. 2 

requires that operators test all casing 

strings below the conductor to 0.22 psi 

per foot of casing string length or 1,500 

psi, whichever is greater, but not to 

exceed 70 percent of the minimum 

internal yield. While the test pressure 

for the MIT may differ from what is 

required by Onshore Order No. 2, there 

is no significant increase in rig time 

required to run the MIT as proposed. 

Mechanical integrity testing is a 

common hydraulic testing method; 

operators typically conduct such tests 

after every surface- or intermediatecasing cement job. Operators first 

perform a casing pressure test to verify 

the mechanical integrity of the tubular 

string and then drill out the casing shoe. 

Next, they perform a pressure integrity 

test by increasing the internal casing 

pressure until it exceeds the pressure 

that will be applied during the next 

drilling phase. If no leakage is detected, 

the cement seal is deemed successful. 

The BLM believes that performing a 

successful MIT prior to starting 

hydraulic fracturing is essential to 

ensuring the casing and fracture string 

(if used) are capable of withstanding the 

pressure used and serves as an early 

indicator whether the applied pressures 

can be successfully supported. No 

revisions to the initial proposed rule 

were made as a result of this comment. 

The BLM received some comments 

stating that an MIT is not needed on 

every well and should only be required 

on wells that are more than 5 years old 

or if pressure exceeds 80% of casing 

yield. The BLM believes that the 

requirements in section 3162.3–3(f)(1) of 

the revised proposed rule are standard 

industry practice and are required to 

ensure the casing is capable of 

withstanding the pressures applied 

during hydraulic fracturing operations. 

No revisions to the revised proposed 

rule were made as a result of this 

comment. 

Some comments suggested that the 

BLM require the operator to perform an 

MIT before and after hydraulic 

fracturing to ensure that there were no 

casing failures during the hydraulic 

fracturing process. No revisions to the 

revised proposed rule were made as a 

result of this comment. Sections 3162.3– 

3(f)(1) and (f)(2) of this rule would 

require the operator to test the casing 

and fracture string (if used) to the 

maximum anticipated treating pressure. 

If the MIT is successful prior to 

hydraulic fracturing and the treatment 

pressure does not exceed the MIT test 

pressure, there is no reason to run 

another MIT after treatment. The BLM 

believes that the tests required under 

this rule are sufficient to show that the 

casing is strong enough to protect water 

and other subsurface resources during 

hydraulic fracturing operations. 

Some comments suggested changing 

the term ‘‘MIT’’ to ‘‘pressure testing.’’ 

No revisions to the initial proposed rule 

were made as a result of this comment. 

The BLM believes that the term 

‘‘Mechanical Integrity Test’’ is widely 

understood by industry, is used by 

many State regulatory agencies, and 

accurately describes the intent of the 

test. Nonetheless, we invite comments 

as to whether there are other tests that 

would be equally effective as an MIT for 

confirming that well casings will 

withstand the pressures of hydraulic 

fracturing operations. 

One comment recommended that the 

BLM should require reporting the 

results of the MIT with the subsequent 

report rather than prior to hydraulic 

fracturing. The BLM did not revise the 

rule as a result of this comment because 

there is no specific provision in the 

revised proposed rule that would 

require the operator to submit the MIT 

results to the BLM prior to fracturing. A 

related comment suggested that the 

BLM should be notified of any failures 

or anomalies in the MIT prior to 

hydraulic fracturing. The BLM does not 

believe that a requirement to notify the 

BLM of a failed MIT is necessary to 

ensure wellbore integrity prior to 

fracturing. The revised proposed rule 

(section 3162.3–3(f)) would require a 

successful MIT prior to hydraulic 

fracturing; therefore, if the MIT failed 

and the operator proceeded with 

hydraulic fracturing operations, the 

operator would be in violation of the 

rule and would be subject to 

enforcement actions. No revisions to the 

initial proposed rule were made as a 

result of this comment. 

The BLM received some comments 

suggesting that the proposed 10 percent 

allowable loss in pressure during the 

MIT is excessive. No revisions to the 

revised proposed rule were made as a 

result of this comment. The proposed 10 

percent allowable pressure drop for the 

MIT is the same as the allowable 

pressure drop during the testing of 

casing and blowout prevention 

equipment in Onshore Order No. 2. The 

allowable pressure drop is included to 

set objective and enforceable standards 

of what the BLM considers to be a 

successful test. 

Section Discussion 

Section 3162.3–3(g)(1) would require 

the operator to continuously monitor 

and record the annulus pressure at the 

bradenhead and has been revised to 

apply to refracturing as well as 

fracturing operations. The pressure in 

the annulus between any intermediate 

casing and the production casing must 

also be continuously monitored and 

recorded. The pressure during the 

fracturing should be contained in the 

string through which the fracturing fluid 

is being pumped. Unexpected changes 

in the monitored and recorded 

pressure(s) provide an early indication 

of the possibility that well integrity has 

been compromised and that immediate 

action should be taken to prevent well 

failure. This information is needed by 

the BLM to ensure that hydraulic 

fracturing operations are conducted as 

designed. This information also shows 

that fracturing fluids are going to the 

intended formation and not into other 

geologic horizons such as aquifers. This 

section is different from the proposal in 

that it would require monitoring and 

recording of pressure between the 

annulus and any intermediate casing. 

This revised proposed rule makes this 

distinction because monitoring and 

recording of pressure in the annuli 

between all intermediate casings and 

the production casing more accurately 

shows downhole conditions, whereas 

the initial proposed rule required only 

monitoring and recording pressure in 

the annulus between the production 

casing and the intermediate string 

adjacent to the production string. 

Failure in other casing strings would not 

have been identified. The revision is 

proposed in order to detect potential 

failures of any casing string that may 

contribute to cross zonal flow. 

Section 3162.3–3(g)(2) has been 

revised to apply to fracturing and 

refracturing operations and would 

require the operator to orally notify the 

BLM as soon as possible, but no later 

than 24 hours following the incident, if 

during the fracturing operation the 


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annulus pressure increases by more 

than 500 pounds per square inch over 

the annulus pressure immediately 

preceding the fracturing. Within 30 days 

after the occurrence, the operator must 

submit a Subsequent Report Sundry 

Notice (Form 3160–5, Sundry Notices 

and Report on Wells) to the BLM 

containing all details pertaining to the 

incident, including corrective actions 

taken. This information is needed by the 

BLM to ensure that fracturing fluids are 

going into the formation for which they 

were designed. The BLM also needs to 

obtain reasonable assurance that other 

resources are adequately protected. An 

increase of pressure in the annulus of 

this amount could indicate that the 

casing had been breached during 

hydraulic fracturing. Consistent with 

the BLM’s Onshore Order No. 2, the 

operator must repair the casing should 

a breach occur. This section is different 

from the initial proposed rule. The 

initial proposed rule required the 

submission of the Subsequent Report 

Sundry Notice within 15 days after the 

occurrence. The revised proposed rule 

would require submission within 30 

days after the occurrence. This revision 

was made to this rule to reduce the 

number of reports required from 

operators. The report can be part of the 

same Subsequent Report Sundry Notice 

required in revised proposed section 

3162.3–3(i). 

Section 3162.3–3(h) would require the 

operator to store recovered fluids in 

tanks or lined pits. This provision grants 

flexibility for the operator to choose 

using either a lined pit or a storage tank. 

This provision is necessary because 

flowback fluids could contain 

hydrocarbons from the formation and 

could also contain additives and other 

components that might degrade surface 

and groundwater if they were to be 

released without treatment. This section 

is consistent with existing industry 

practice and American Petroleum 

Institute (API) recommendations for 

handling completion fluids, including 

hydraulic fracturing fluids (see Section 

6.1.6 of API Recommended Practice 

51R, Environmental Protection for 

Onshore Oil and Gas Production 

Operations and Leases, First Edition, 

July 2009). Because the use of lined pits 

or tanks for the storage of recovered 

fluids reasonably protects land and 

water from spills or leaks of recovered 

fluids, the BLM believes that this 

provision is consistent with FLPMA’s 

mandate to prevent unnecessary or 

undue degradation of the public lands 

and the BLM’s obligations to protect 

environmental quality and Indian trust 

resources. 

Typically, most of the hydraulic 

fracturing fluid that will be recovered 

from a well is recovered before the well 

begins producing significant quantities 

of oil or gas. Traces of the fracturing 

fluids, however, may be produced for 

long periods of time thereafter, usually 

with water from the formation. It is not 

the BLM’s intent for the proposed rule 

to displace Onshore Order No. 7 for 

disposal of produced water. The BLM 

invites comments on the potential 

benefits of distinguishing flowback fluid 

from produced water and suggested 

ways to distinguish the two. 

Commenters should consider that 

Onshore Order No. 7 allows for 

temporary storage in reserve pits for up 

to 90 days, with the possibility of an 

extension. Onshore Order No. 1 requires 

all pits to be reclaimed within six 

months of well completion or well 

plugging, with the possibility of a 

variance. 

Additional conditions of approval for 

the handling of flowback water may be 

placed on the operation by the BLM if 

needed to ensure protection of the 

environment and other resources. The 

BLM recognizes the ongoing efforts of 

States to regulate hydraulic fracturing 

operations. This regulation would not 

preempt any State or tribal law that 

might require use of such technologies 

as double-lined pits or tanks as part of 

a reuse or recycling requirement. 

Comments on the Handling of 

Recovered Fluids 

Commenters expressed a variety of 

views on proposed section 3162.3–3(f). 

That section would require storage of 

flowback fluids in lined pits or tanks. 

Some commenters were critical of 

allowing storage of flowback fluids in 

lined pits, stating that pits increase the 

likelihood of accidental discharges, that 

pit liners may react with flowback fluids 

and cause failures and seepage, that pits 

must be fenced to exclude wildlife, and 

that the fluids stored in pits would 

cause air pollution. Those commenters 

recommended that pits be double-lined, 

that they be equipped with leak 

detection systems, or that storage in pits 

be prohibited and that the rule should 

require flowback fluid to be stored in 

tanks, or in a closed-loop containment 

and reuse system. Some commenters 

were in favor of BLM’s proposal to 

require a plan for handling flowback 

fluids, as in proposed section 3162.3– 

3(c)(6), but sought additional 

encouragement in the rule for injection 

and recycling of those fluids. 

Other commenters believed that 

requiring lined pits or tanks for 

flowback fluids was appropriate. Some, 

though, argued that those requirements 

were duplicative of the requirements of 

some State regulations. Some 

commenters recommended that the rule 

simply adopt the requirements of 

Onshore Order No. 7 for flowback pits. 

The BLM shares commenters’ 

concerns about contributions of pits to 

air quality problems, and the possibility 

of failures, leaks, and overflow events. 

The BLM is also concerned about 

excluding wildlife, including migratory 

birds, from pits on well sites, but a 

separate Instruction Memorandum has 

been issued and describes appropriate 

fencing, netting, and other actions to 

help prevent wildlife and livestock 

injury or mortality from various aspects 

of oil and gas operations, including 

open pits. See the BLM’s Instruction 

Memorandum WO–IM–2013–033 of 

December 13, 2012. The BLM is also 

interested in evaluating the costs of 

requiring flowback fluids to be stored in 

closed tanks. 

In a sampling of State regulations, it 

was found that most States require 

flowback fluids to be stored in lined pits 

or tanks. One State, California, requires 

storage in tanks, and another, New 

Mexico, allows lined pits to be 

approved as a variance from requiring 

storage in tanks. It also appears that 

some States, such as Texas and 

Oklahoma, are encouraging the use of 

mobile recycling systems. 

Onshore Order No. 7 allows disposal 

of produced water in unlined pits in 

certain circumstances. The BLM does 

not believe that storage of hydraulic 

fracturing flowback fluids in unlined 

pits is appropriate because of the far 

greater volume of flowback fluids 

compared with typical volumes of 

produced water, and because of the 

chemical constituents of flowback fluids 

may pose different or increased risks if 

they come into contact with surface 

water or groundwater. 

The revised proposed rule at 3162.3– 

3(h) has not been materially changed in 

response to the comments on the 

proposed rule. The revised proposed 

rule would not preempt State laws that 

require the use of tanks, or efforts to 

expand use of mobile recycling systems. 

Some comments were also received 

requesting that the final rule state that 

all flowback water be captured in tanks 

and removed from the site without the 

use of pits. This would require that the 

BLM distinguish flowback water from 

produced water and also require 

additional tankage since flowback water 

is generally returned to the surface 

mixed with water produced from the 

formation. The BLM seeks comments on 

whether the following is an appropriate 

distinction: fluids recovered from a 

hydraulically fractured well before it 


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begins production of oil or gas will be 

considered flowback and subject to 

revised proposed rule section 3162.3– 

3(h); fluids recovered from a 

hydraulically fractured well after it 

begins production of oil or gas will be 

considered produced water and subject 

to Onshore Order No. 7. The BLM is 

also interested in the public’s views on 

whether such a distinction should be in 

the regulation, or be issued as nonbinding guidance. 

In view of comments raising concerns 

that flowback fluids present hazards to 

the environment beyond those that can 

be controlled in lined pits, the BLM is 

specifically requesting comments on 

whether the rule should require 

flowback fluids to be stored only in 

closed tanks, and not allow them to be 

stored in lined pits. Is the exclusive use 

of tanks preferable for the handling of 

flow-flowback water from either an 

environmental or economic perspective? 

Are there additional environmental or 

economic concerns that should be 

considered as the BLM considers a 

requirement for the use of tanks for the 

disposal of flow-flowback waters? 

Another alternative would be for the 

rule to specify that a lined pit must be 

equipped with a leak detection system, 

as is required for lined pits for produced 

water under Onshore Order No. 7. Some 

commenters advocated for requiring 

double-lined pits. The BLM asks for 

comments on the costs and benefits of 

the foregoing alternatives for storage of 

flowback fluids. Specific information 

about the environmental and economic 

costs and benefits of those alternatives 

would be most useful. Information on 

the prevalence of tank use versus lined 

pits would also be helpful. 

A number of comments were received 

on the proposed rule that raised issues 

that are already addressed in other 

places in the BLM’s Oil and Gas 

operations regulations and the Onshore 

Orders. The Onshore Orders may be 

viewed at: http://www.blm.gov/mt/st/

en/prog/energy/oil_and_gas/operations/

orders.print.html. 

Section Discussion 

Section 3162.3–3(i) has been 

reorganized from what was in the 

proposed rule and would require the 

operator to submit to the BLM certain 

information within 30 days after 

fracturing or refracturing operations are 

complete. The information required by 

paragraph (i)(1) of this section on the 

depth of the well, water volume used, 

and information about the chemicals 

used in the fracturing fluid may be 

submitted through FracFocus or another 

BLM-designated database, or in the 

Subsequent Report Sundry Notice. If the 

information is submitted through 

FracFocus, or another BLM-designated 

database, the operator must specify 

whether the information is for a Federal 

or Indian well, certify that the 

information is correct, and certify 

compliance with applicable law. All 

other information required under 

paragraph (i) would be submitted in the 

Subsequent Report Sundry Notice. If, for 

some reason, the operator is unable to 

submit the information about the 

chemicals through FracFocus or another 

BLM-designated database, the operator 

must timely submit the required 

information directly to the BLM. The 

BLM would determine if the hydraulic 

fracturing operation was conducted as 

approved and would retain this 

information as part of the individual 

well record and it would be available for 

use when the well has been depleted 

and the plugging of the well is being 

designed. This section would also make 

it clear that any information submitted 

by a contractor or agent of the operator 

is considered to have been submitted 

directly from the operator to the BLM. 

In other words, the operator is 

responsible for information submitted 

by contractors or agents. This section 

also would require the operator to 

submit information to the BLM within 

30 days after the hydraulic fracturing 

operations are completed for each well, 

even if the BLM approved hydraulic 

fracturing of a group of wells (see 

section 3162.3–3(c)). 

Section 3162.3–3(i)(1) is new to the 

rule and would require that the operator 

submit to the BLM the true vertical 

depth of the well, total water volume 

used, and for each chemical used 

(including base fluid) the trade name, 

supplier, purpose, ingredients, 

Chemical Abstract Service Number 

(CAS #), maximum ingredient 

concentration in additive (% by mass), 

and maximum ingredient concentration 

in hydraulic fracturing fluid (% by 

mass). Total water volume includes 

‘‘new’’ water and any produced water or 

water reused or recycled from prior 

hydraulic fracturing operations. The 

percent mass value is the mass value for 

each component (Mc) divided by the 

value of the entire fluid mass (Mt) times 

100. (Mc/Mt)*100 = percent value. The 

information should be based on the 

maximum potential for concentration, 

and thus the total may exceed 100 

percent by a reasonable, but minimal, 

amount. The percent mass values 

should be for the entire stimulation 

operation, not for the individual stages. 

Table 1 presents an example of the kind 

of information that may be submitted. 

TABLE 1—SAMPLE HYDRAULIC FRACTURING FLUID PRODUCT COMPONENT INFORMATION DISCLOSURE

Well Identification/Location and Other Fracturing Information 

Value Remarks 

Fracture Date ........................................................................ Start mm/dd/yyyy ................................................................. Finish mm/dd/yyyy 

State ...................................................................................... Wyoming.

County ................................................................................... Sublette.

API Number .......................................................................... XX–XXX–XXXX.

Operator Name: .................................................................... XYZ COMPANY.

Well Name and Number ....................................................... Name and Number.

Longitude .............................................................................. ¥109.123456.

Latitude ................................................................................. 42.54321.

Production Type .................................................................... Gas, wet gas, oil.

True Vertical Depth (TVD) in feet ......................................... 14,193.

Total Fluid Volume Injected (gal) .................................. X,XXX,XXX.


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HYDRAULIC FRACTURING FLUID COMPOSITION

Trade name Supplier Purpose Ingredients 

Chemical abstract service 

number 

(CAS #) 

Max. ingredient 

concentration in 

additive 

(% by mass) 

Max. ingredient 

concentration in 

HF Fluid 

(% by mass)** 

Comments 

SAND .......... XYZ Corp. ... Proppant ........... Crystalline silica, 

quartz.

14808–60–7 ..... 100.00 7.48357 

LGC–39 UC XYZ Corp. ... Liquid Gel Concentrate.Polysaccharide Confidential 

Business Information.

60.00 0.16265 

** A long list of other materials may follow 

The information required in 

paragraph 3162.3–3(i)(1) may be 

submitted directly to the BLM or 

through FracFocus or another BLMdesignated database service. 

Substantially similar information 

required to be submitted by this section 

was proposed in sections 3162.3–3(g)(4) 

and (g)(5). The required information has 

been restated to conform to the fields for 

disclosure provided by FracFocus. 

Disclosure through FracFocus, though 

voluntary, would save operators from 

submitting data both to FracFocus and 

to the BLM in the States that require 

posting to FracFocus. It would also 

provide to the public timely information 

from a single Web site on fracturing 

operations on Federal, Indian (under 

these regulations), and non-Federal/ 

non-Indian wells (through State law or 

voluntary submission). If the operator 

experiences any problem with 

submitting required information 

through FracFocus, it should notify the 

BLM promptly. The operator would be 

required to submit the information to 

the BLM within 30 days after 

completing the hydraulic fracturing 

operation, whether or not it is able to 

submit it through FracFocus. 

Some commenters on the proposed 

rule were critical of FracFocus because 

of limitations in its ability to search and 

aggregate data across individual wells. 

The BLM has been in discussions with 

persons responsible for FracFocus and 

expects that recent and foreseeable 

improvements to the system will 

address many of these concerns. 

Section 3162.3–3(i)(2) would require 

the operator to submit information on 

the actual measured depth of 

perforations or the open-hole interval 

(i.e., non-cased wellbore), the source 

and location(s) of the water used in the 

hydraulic fracturing fluid, and actual 

pump pressures. This information 

identifies the producing interval of the 

well and would be available for use 

when the well has been depleted and 

plugging of the well is being designed. 

The level of detail of the required 

information about the sources of the 

water used has been reduced from that 

in initial proposed section 3162.3– 

3(g)(1), because the deleted information 

(access route and transportation 

method) would not be useful to the BLM 

after the conclusion of operations. 

Requiring a subsequent report on the 

actual sources of water used, however, 

would allow the BLM to check the 

accuracy of the pre-fracturing notice and 

to remain informed of important trends 

in sourcing of water for hydraulic 

fracturing operations. 

Section 3162.3–3(i)(3) would require 

submission of information on the actual 

surface pressure and rate at the end of 

each fluid stage, and the actual flush 

volume, rate, and final pump pressure. 

This information is needed by the BLM 

for it to ensure that the maximum 

allowable pressure was not exceeded at 

any stage of the hydraulic fracturing 

operation. 

Section 3162.3–3(i)(4) would require 

submission of information pertaining to 

the actual, estimated, or calculated 

fracture length, height, and direction. 

This information is required so that the 

BLM can verify that the intended effects 

of the hydraulic fracturing operations 

remain confined to the petroleumbearing rock layers and will not have 

unintended consequences on other rock 

layers or aquifers. The revised rule 

requires an operator to indicate the 

direction of hydraulic fracture. This was 

not in the initial proposed rule, and is 

necessary for the BLM to have accurate 

information pertaining to the extent and 

direction of the fracturing operations. 

Section 3162.3–3(i)(5) would require 

submission of the following information 

concerning the handling of recovered 

fluids: 

(1) The volume of fluid recovered 

during flowback, swabbing, or recovery 

from production facility vessels; 

(2) The methods of handling the 

recovered fluids, including, but not 

limited to, transfer pipes and tankers, 

holding pond use, re-use for other 

stimulation activities, or injection; and 

(3) The disposal method of the 

recovered fluids, including, but not 

limited to, injection, hauling by truck, 

or transporting by pipeline. The 

disposal of fluids produced during the 

flowback from the hydraulic fracturing 

process must follow the requirements 

set out in Onshore Order No. 7, Disposal 

of Produced Water, Section III. B. 

The information is necessary to assure 

that the lands and waters have not been 

contaminated by flowback fluids. The 

proposed regulation at 3162.3–3(g)(10) 

included a requirement for information 

on pipeline requirements. Pipeline 

systems are not ordinarily used for 

transfer of flowback fluids. This revised 

proposed rule at section 3162.3– 

3(h)(5)(ii), instead would require 

information on transfer pipes and 

tankers. 

Section 3162.3–3(i)(6) would state 

that if the actual operations deviate from 

the approved plan, the deviation(s) must 

be documented and explained. 

Understanding the complexities of 

hydraulic fracturing, the BLM expects 

there often to be slight differences 

between the proposed plan and the 

actual operation. The explanation 

would provide the BLM with a better 

understanding not only of the particular 

well, but also of the technologies used 

in various geologic areas. 

Section 3162.3–3(i)(7) is a 

renumbered section that would require 

the operator to submit to the BLM a 

certification signed by the operator that: 

(1) Wellbore integrity was maintained 

prior to and throughout the hydraulic 

fracturing operation, as required by 

paragraph (b) of this section. This 

requirement was originally proposed in 

section 3162.3–3(h)(9). It would also 

require the operator to certify that it 

complied with the requirements of 

paragraphs (e), (f), (g) and (h) of this 

section; and 

(2) For Federal lands, the hydraulic 

fracturing fluid used complied with all 

applicable permitting and notice 

requirements as well as all applicable 

Federal, State, and local laws, rules, and 

regulations; or 

(3) For Indian lands, the hydraulic 

fracturing fluid used complied with all 

applicable permitting and notice 

requirements as well as all applicable 


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Federal and tribal laws, rules, and 

regulations. 

Operators must certify that they have 

complied with the requirements for 

monitoring cementing operations, 

mechanical integrity testing, and 

monitoring during fracturing operations; 

the accuracy of these certifications will 

be checked through the submission of 

the monitoring and testing data as 

required in section 3162.3–3(i)(8). 

Assurances of wellbore integrity are 

critical for knowing whether further 

inquiries are needed to assess any 

environmental contamination. The 

certification of compliance with 

applicable permitting and notice 

requirements was in the proposed 

regulation both for the notice of intent 

and for the subsequent operations. This 

rule would require only that the 

certification be included with the 

Subsequent Operations Sundry Notice. 

In response to comments provided in 

meetings with tribal representatives, in 

this revised proposed rule, the 

certification required for Indian lands is 

detailed separately from the certification 

required for Federal lands. Consistent 

with the overall approach of this rule, 

the revision is to clarify that this part 

does not apply State or local law to 

Indian lands. This section does not 

specify which laws apply on Indian or 

on Federal lands, but only the necessary 

certification. 

Section 3162.3–3(i)(8) is also new to 

the revised proposed rule and it would 

require the operator to submit evidence 

supporting the information required in 

paragraphs (e)(1), (e)(2), and (f) of this 

section, including the cement 

operations monitoring report, any CEL, 

and the result of any MIT. The initial 

proposed rule would have required 

submission to the BLM of cement bond 

logs prior to completing operations, but 

that requirement has been revised in 

response to comments that the costs of 

delays for CBLs would be excessive. As 

mentioned above, requiring the 

monitoring and testing data, including 

any CELs after operations, will be 

sufficient to check the accuracy of 

operators’ certification that the 

operations were in compliance with the 

rule. 

New section 3162.3–3(i)(9) would 

provide that the BLM may require 

submission of data substantiating the 

information required in paragraph (i) of 

this section. The required information 

would provide a more complete record 

of the well. If there is an indication that 

a closer examination is necessary, the 

operator would provide the authorized 

officer with the data relevant to the 

information reported with the 

Subsequent Operations Sundry Notice. 

Comments on Information That Must Be 

Provided to the BLM After Completed 

Operations 

The BLM received some comments 

regarding the disclosure through the 

FracFocus Web site of chemical 

constituents used by operators during 

hydraulic fracturing operations. This 

online database includes information 

from oil and gas wells in roughly 12 

States and includes information from 

over 500 companies. The commenters 

were divided between those supporting 

disclosure using FracFocus and those 

opposed to its use. Supporters of 

FracFocus indicated it was a common 

database which many State agencies 

already use, that the BLM does not have 

the necessary manpower to process and 

post information on their own, and that 

FracFocus allows for transparency of 

data to the public. 

The BLM agrees with these comments 

and has proposed revisions to the 

proposed rule at section 3162.3–3(i) that 

would recognize FracFocus as an 

approved method of disclosing 

chemicals. However, the BLM would 

also accept other methods of disclosure, 

including the submittal of a Sundry 

Notice, or the posting of the information 

in another BLM-designated database. 

The revised proposed rule makes it clear 

that an operator should not disclose any 

information on the Subsequent Report 

Sundry Notice or on FracFocus that it 

believes to be exempt from disclosure 

under the Trade Secrets Act or other 

Federal law. However, under the revised 

proposed rule, the BLM would have the 

authority to require the submittal Trade 

Secret information on a case-by-case 

basis. A more detailed discussion of the 

Trade Secrets Act is provided under that 

section of the preamble. 

Commenters objecting to the use of 

FracFocus were concerned that the 

database lacks search capability or 

filtering and sorting of information, 

provides incomplete disclosure, and 

that copyright protection prohibits data 

from being copied. Commenters also 

expressed concerns that FracFocus is 

not updated in a timely manner, needs 

a dedicated funding source independent 

from the oil and gas industry, and that 

FracFocus is not a government run Web 

site and not subject to Federal laws or 

oversight. Some comments proposed 

that the BLM develop an independent 

government-run database for chemical 

disclosure. 

While the BLM did not revise this 

rule in response to these comments, it 

understands that FracFocus is in the 

process of improving the database with 

enhanced search capabilities to allow 

for easier reporting of information. In 

addition, information submitted to the 

BLM through FracFocus will still be 

required to comply with this rule. The 

BLM believes that working with the 

Groundwater Protection Council and the 

Interstate Oil and Gas Compact 

Commission to improve FracFocus will 

be more cost-effective and beneficial 

than creating a separate database for 

Federal and Indian wells. 

The BLM received some comments 

that suggested that the rule should 

require the reporting of the maximum 

concentration of each constituent in the 

hydraulic fracturing fluid instead of the 

actual concentration, as was stated in 

the proposed rule. Commenters also 

suggested that the concentration in 

percent of total fluids should be 

reported. The BLM agrees with these 

suggestions because by using maximum 

concentration, the information is 

consistent with the data fields in 

FracFocus and the requirements of this 

rule. Most hydraulic fracturing 

operations are conducted on one section 

or segment at a time along the length of 

the horizontal well bore within the 

target zone. Operators may adjust or 

vary the actual concentrations of 

chemicals in later fracturing segments 

based on results in the earlier segments. 

In such a situation, there may be no one 

concentration of certain chemicals, but 

the maximum concentration could be 

readily reported. In addition, the 

maximum concentration expressed in 

percent of total fluid would be helpful 

in determining the toxicity of the fluid 

in case of accidental spill or exposure. 

For these reasons, the revised proposed 

rule (section 3162.3–3(i)(1)) would 

require the maximum concentration of 

each chemical used in both the additive 

and in the hydraulic fracturing fluid. 

The BLM received some comments 

objecting to the amount of information 

required in the subsequent report 

required in section 3162.3–3(g). Some 

commenters suggested that the reporting 

of chemical constituents should include 

only those constituents that were added 

and not chemicals that could be native 

to the target zone. One comment 

objected to the requirement that the 

subsequent report must be submitted to 

the BLM and suggested that the operator 

maintain the information and submit it 

only upon request. Some comments 

stated that not all chemicals have a 

Chemical Abstracts Service Registry 

Number (CAS#) assigned to them and, 

therefore, should not be required. The 

BLM did not change the revised 

proposed rule as a result of these 

comments because the information 

required is important to its overall goal 

of ensuring public safety and 

environmental protection. 


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The BLM received some comments 

that more information should be 

required in the subsequent report, 

including the volume of the base fluid 

and each chemical used and proppants. 

The BLM did not revise the revised 

proposed rule as a result of these 

comments because the information 

already required is sufficient to ensure 

public safety and environmental 

protection. 

The BLM also requests comments on 

whether, if the State (for Federal lands) 

or the tribe (for Indian lands) requires 

submission of the same or more 

information about the chemical 

constituents of hydraulic fracturing 

fluids, and provides that the 

information would be publicly available 

(except for trade secrets protected under 

State or tribal law), the BLM should 

deem compliance with those disclosure 

requirements within 30 days from 

completion of hydraulic fracturing 

operations to be compliance with 

proposed section 3162.3–3(i)(1). Such 

an amendment would reduce the 

compliance burden on operators in 

some areas, compared with the revised 

proposed section 3162.3–3(i)(1). 

However, if the State or the tribe does 

not require posting of the data on 

FracFocus, it could be less convenient 

for the public or the BLM to obtain the 

data, or to compare data across 

jurisdictions. 

The BLM received some comments 

that stated an operator cannot certify 

actions of a third party or a contractor. 

The BLM disagrees with this comment. 

Existing regulations (43 CFR 3162.3(b)) 

specify that an operator is responsible 

for the conduct of every contract service 

provider on the operator’s well site and 

lease, including the on-site activities 

and regulatory compliance of any 

hydraulic fracturing contractor. This 

requirement in the revised proposed 

rule is consistent with existing Federal 

regulations; therefore the BLM did not 

revise this rule as a result of this 

comment. 

Some comments stated that the rule 

needs clarification on how to certify that 

wellbore integrity has been maintained 

throughout the hydraulic fracturing 

process. Certification of wellbore 

integrity would include certification of 

the monitoring requirements proposed 

in section 3162.3–3(f)(2). No revisions to 

the initial proposed rule were made as 

a result of this comment. 

The BLM received some comments 

that said the rule should require 

operators to certify that they have 

complied with all Federal, State, and 

local laws. The BLM did not revise the 

rule as a result of these comments. The 

BLM believes, since all lease 

exploration, development, construction, 

production, operations, and reclamation 

activity is required to be conducted in 

a manner which conforms to all 

applicable Federal, State, and local laws 

and regulations, that requiring 

additional certifications, as suggested, 

would be redundant and cause 

unnecessary delays in approval and 

processing of APDs and sundry notices. 

All lease operations are already subject 

to the terms of the lease and its 

stipulations, the regulations of 43 CFR 

part 3100, Onshore Oil and Gas Orders, 

NTLs, the approved APD, and any 

written instructions or orders of the 

BLM authorized officer. In addition, the 

initial proposed rule and the revised 

proposed rule at section 3162.3–3(i)(7) 

would require the operator to certify 

that the hydraulic fracturing fluid used 

complied with all applicable permitting 

and notice requirements as well as all 

applicable tribal or Federal, State, and 

local laws, rules, and regulations. The 

BLM did not revise the rule as a result 

of this comment. However, we note that 

BLM would not normally take 

enforcement action based on an 

operator’s innocent use of chemicals 

inadvertently mis-labeled by the 

manufacturer. BLM does not want to 

create an incentive in the rule that 

would make mis-labeled chemicals 

more valuable than properly labeled 

chemicals. 

Section 3162.3–3(j) is substantially 

different from the proposed rule. This 

section would notify the operator of 

procedures it needs to follow to identify 

information otherwise required to be 

submitted under this section that the 

operator believes to be exempt, by law, 

from public disclosure. The operator 

should not disclose any particular 

information on the Subsequent Report 

Sundry Notice or through FracFocus 

that it believes to be exempted from 

public disclosure by the Trade Secrets 

Act or other Federal law. Instead, the 

operator should identify that particular 

information as a trade secret. For any 

information submitted under section 

3162.3–3(j)(1), the operator would be 

deemed to have waived any right to 

protect that information from public 

disclosure. For the claimed exemption 

of any information required under 

paragraph (i)(1) of this section, the 

operator would be required to submit to 

the BLM an affidavit that: 

(1) Identifies the Federal statute or 

regulation that prohibits the public 

disclosure; 

(2) Affirms that the information is not 

publicly available; 

(3) Affirms that the information is not 

required to be publicly available under 

any applicable law; 

(4) Affirms that the release of the 

information would likely harm the 

operator’s competitive position; and 

(5) Affirms that the information is not 

readily apparent through reverse 

engineering. 

For information which the operator 

does not believe to be exempt from 

public disclosure, this regulation is 

similar to the proposed regulations. 

Under section 3162.3–3(j)(2), any 

information provided in a Subsequent 

Report Sundry Notice or through 

FracFocus or other designated database 

would not be protected by the Trade 

Secrets Act or other Federal law. 

For information claimed to be exempt 

from public disclosure, this rule is 

different from the proposed rule’s 

exemption requirements. The proposed 

regulation would have required 

operators to submit the identities of all 

the chemicals used in the fracturing 

operations, to segregate the information 

the operator considered to be exempt 

from disclosure, and to justify the 

exemption. This rule does not require 

submission to the BLM information 

exempt by law from public disclosure. 

Instead, under section 3162.3–3(j)(1), 

the operator would submit an affidavit 

similar to the one required by 

regulations in the State of Colorado. If 

the affidavit is complete, it is possible 

that the operator may not be asked to 

submit any additional information 

regarding the claimed trade secrets. The 

BLM would have the discretion to 

require the operator to submit the 

undisclosed information for the BLM’s 

review. Also, the BLM retains the 

discretion to adjudicate whether the 

undisclosed chemicals are exempt from 

public disclosure. If the BLM requested 

the information and determined that the 

information is exempt from disclosure, 

it would be kept confidential to the 

extent allowed by law. 

Comments On Information Claimed To 

Be Exempt From Public Disclosure 

Some commenters addressed the 

BLM’s management of information 

about chemicals used in hydraulic 

fracturing operations. The proposed 

regulation would have required 

operators to provide information 

identifying all of the chemicals used in 

hydraulic fracturing fluids. For 

information that operators believed to 

be exempt from public disclosure under 

Federal law (referred to here as ‘‘trade 

secrets’’), the proposed regulation 

would have required operators to 

submit that information to the BLM, 

mark that information as a trade secret 

and provide a justification for not 

releasing that information to the public. 

A commenter noted that not all States 


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with oil and gas operations require 

public disclosure of the chemicals used 

in hydraulic fracturing fluids and that 

those that do require public disclosure 

are not uniform in their requirements. 

Some commenters wanted the BLM to 

provide for disclosure of trade secrets to 

the public, either upon demand of 

health officials or first responders or at 

the request of any member of the public. 

Other commenters wanted additional 

assurances that trade secrets would be 

kept confidential, or objected to 

providing trade secret information to the 

BLM, and some stated that uncertainty 

in protection of trade secrets could stifle 

innovation. 

The Federal Trade Secrets Act makes 

it a crime for any Federal employee to 

make an unauthorized disclosure of a 

trade secret. See 18 U.S.C. 1905. The 

BLM lacks statutory authority to 

exclude hydraulic fracturing chemicals 

by regulation from the scope of the 

Trade Secrets Act. A commenter argued 

that the general rulemaking authority of 

the Secretary found in FLPMA, the 

Mineral Leasing Act, and the Indian 

mineral leasing statutes is sufficient for 

the BLM to require public disclosure of 

all chemicals without regard to the 

Federal Trade Secrets Act. The judicial 

opinions cited by that commenter, 

though, are distinguishable because the 

statutes at issue in those cases clearly 

contemplated public disclosure, and 

thus provided the necessary legal 

authorization for disclosure. The 

commenter’s assertion that more 

information provided to the public 

would assist the BLM in its statutory 

duties does not render disclosure of 

operators’ trade secrets ‘‘authorized by 

law.’’ 

Some States that require submission 

of trade secret information about 

hydraulic fracturing chemicals have 

laws which allow disclosure under 

certain circumstances to medical 

providers, public health officials, land 

owners, or first responders. The Federal 

Trade Secrets Act, however, does not 

provide for such exceptions. 

The BLM believes that the initial 

proposed rule requiring operators to 

disclose trade secret information with 

justification for protecting each piece of 

information and requiring the BLM to 

maintain the confidentiality of all trade 

secret chemicals would not be the best 

solution. It would increase paperwork 

burdens on operators, and custodial 

requirements for the BLM. Because the 

BLM could not reveal trade secret 

information, the benefits of requiring 

operators to submit all such information 

would be limited. Revised section 

3162.3–3(j) would instead instruct 

operators not to submit trade secret 

information with their disclosure of 

non-trade secret chemical information. 

Rather, operators claiming that some 

chemical information is a trade secret 

would withhold the information and 

submit an affidavit, modeled on the one 

used by the State of Colorado, to affirm 

that the undisclosed information is 

entitled to protection from public 

disclosure. The original affidavit may be 

submitted to the BLM with the 

subsequent report sundry notice within 

30 days of completion of hydraulic 

fracturing operations, or an electronic 

version acceptable to the BLM field 

office may be submitted within that 

time. The electronic version would have 

the same legal effect as an original 

affidavit. 

The operators would keep the 

undisclosed information for 6 years, 

under existing 43 CFR 3162.4–1(d). The 

BLM would have the discretion to 

require any operator to provide the 

withheld information. The BLM might 

demand withheld chemical information 

for reasons that could include the need 

to assist in tracing the origin of 

chemicals in a possible contamination 

event or to assure that operators are not 

claiming trade secret protection without 

justification. 

Some commenters asserted that 

various engineering and construction 

features of oil and gas wells may be 

deserving of trade secret protection. For 

information, other than that required in 

revised proposed section 3162.3–3(i)(1), 

believed to be protected from public 

disclosure, the submitter must comply 

with the existing regulations at 43 CFR 

3100.4. The procedure in revised 

proposed section 3162.3–3(j) applies 

only to the information required in 

revised proposed section 3162.3–3(i)(1). 

Some commenters directed the BLM’s 

attention to statutes such as the 

Occupational Safety and Health Act and 

the Emergency Response and 

Community Right to Know Act, and to 

regulations promulgated by other 

Federal agencies under the authority of 

such Acts. Those statutes, though, do 

not authorize the BLM to regulate the 

information required under those 

programs or to authorize disclosure of 

trade secrets. The revised proposed rule, 

however, would not interfere with other 

Federal agencies administering their 

programs, and would not preempt 

applicable State, local, or tribal laws 

that might require operators or other 

agencies to make chemical information 

available. 

Other commenters asserted that 

operators should not be responsible for 

asserting and justifying trade secret 

protection for chemicals selected by 

service contractors. On the contrary, 

operators are responsible for all 

operations on their well sites and for 

compliance with all of the BLM’s 

operating and reporting regulations. 

Some commenters believed that 10 days 

notice of a decision by the BLM before 

information would be released to the 

public was not sufficient to obtain 

temporary relief from a court. However, 

ten days is the notice for such decisions 

under the Department’s FOIA 

regulations at 43 CFR 4.23(g). Some 

commenters suggested that trade secret 

issues should be centrally coordinated 

within the agency rather than be subject 

to field office case-by-case 

determinations. Trade secret issues are 

inherently specific to technologies, well 

locations, fracture zones, and times. The 

BLM will address trade secret issues at 

the most appropriate level of its 

organization, but that does not need to 

be specified in regulation. 

Section Discussion 

Under new section 3162.3–3(j)(4), 

information that the operator claimed to 

be exempt from disclosure would be 

required to be maintained in the 

operator’s records for 6 years after the 

completion of the hydraulic fracturing 

operations, by referring to existing 

regulations at 43 CFR 3162.4–1(d). That 

time period will assure that records are 

available, but should not be unduly 

burdensome for operators. Section 

3162.3–3(j)(4) has been added because 

the revised proposed rule has 

eliminated the requirement that 

operators routinely report information 

on trade secret chemicals to the BLM. In 

order for the BLM to have access to the 

withheld information, the rule needs a 

mandatory retention requirement. 

Existing section 3162.4–1(a) requires 

retention of ‘‘accurate and complete 

records with respect to all lease 

operations,’’ and subsection (d) of that 

section requires those records be 

retained for 6 years from the date they 

were generated. The reference to section 

3162.4–1(d) is to provide consistency 

for operators. The BLM, however, is 

interested in comments with 

environmental and economic 

information that would show that 

another time period would be more 

appropriate. 

Section 3162.3–3(k) would provide 

the operator with a process for 

requesting a variance from the 

minimum standards of this regulation. 

Variances apply only to operational 

activities, including monitoring and 

testing technologies, and do not apply to 

the actual approval process. The revised 

proposed rule adds a provision allowing 

the BLM to designate a variance 

applicable to all wells in a field, a basin, 


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a State, or within Indian lands. Such a 

variance would be based on the BLM’s 

determination that the variance will 

meet or exceed the effectiveness of the 

regulation and would allow the BLM to 

adapt the regulatory requirements to the 

unique geology of an area. It would also 

be another way that the BLM could 

defer to a standard, technology, or 

process required or allowed by State or 

tribal law that meets or exceeds the 

effectiveness of the revised proposed 

rule. Under section 3162.3–3(k)(1) a 

request for a variance would be required 

to specifically identify the regulatory 

provision of this section for which the 

variance is being requested, explain the 

reason the variance is needed, and 

demonstrate how the operator will 

satisfy the objectives of the regulation 

for which the variance is being 

requested. 

Section 3162.3–3(k)(2) states that the 

BLM must make a determination that 

the variance request meets or exceeds 

the objectives of the regulation. For 

example, an operator could request a 

variance from the requirement to 

monitor pressure in the annulus 

between any intermediate casing string 

and the production string because the 

last intermediate string was run as a 

liner and did not extend to the surface. 

The BLM could grant a variance in this 

situation because monitoring the 

annulus between the production casing 

and an intermediate string that did 

extend to the surface meets the objective 

of ensuring mechanical integrity is 

maintained during the hydraulic 

fracturing operation. This variance 

provision is consistent with existing 

BLM regulations such as Onshore Order 

Number 1 (see Section X. of Onshore 

Order No. 1). 

Section 3162.3–3(k)(3) would state 

that a variance under this section does 

not constitute a variance to provisions 

of other regulations, laws, or orders. 

Section 3162.3–3(k)(4) makes clear 

that the BLM has the right to rescind a 

variance or modify any condition of 

approval due to changes in Federal law, 

technology, regulation, field operations, 

noncompliance, or other reasons. The 

BLM would intend for an operator to 

rely on a variance, and thus would not 

expect to rescind it. When BLM finds 

that rescinding a variance is necessary, 

ordinarily, the BLM’s rescission of a 

variance would be effective only 

prospectively. Conceivably, an operator 

might obtain a variance through such 

misrepresentations that it must not 

continue to benefit from the variance, or 

a variance is issued in violation of a 

statute or causes such significant harm 

that it must be rescinded retroactively, 

but such situations should rarely occur. 

Section 3162.5–2(d) would remove 

the references to fresh water and 

removes the phrase ‘‘containing 5,000 

ppm or less of dissolved solids.’’ This 

rule would require the operator to 

isolate all usable water and other 

mineral bearing formations and protect 

them from contamination. This language 

does not set a new standard in the 

BLM’s regulations and does not create 

new compliance requirements for those 

operating on public and Indian lands. 

Since 1988, Onshore Order No. 2, 

Section II.Y., has defined usable water 

and at Section III.B. has required the 

operator to ‘‘protect and/or isolate all 

usable water zones.’’ Revised proposed 

section 3162.5–2(d) brings these 

regulations into conformity with 

Onshore Order No. 2, and provides the 

appropriate standard for control of 

wells, including hydraulic fracturing 

operations. Properly constructed and 

cemented production casing, and where 

appropriate, intermediate casing, will in 

most cases provide effective isolation of 

usable water and other mineral-bearing 

formations below the surface casing. 

IV. Procedural Matters 

Federal and Indian Oil and Gas Leasing 

Activity 

To understand the context of the costs 

and benefits of this rule, BLM includes 

background information concerning the 

BLM’s leasing of Federal oil and gas, 

and management of Federal and Indian 

leases. This analysis explains the basis 

for the conclusions related to the 

procedural matters sections that follow. 

The BLM Oil and Gas Management 

program is one of the largest mineral 

leasing programs in the Federal 

Government. At the end of fiscal year 

(FY) 2012, there were 48,699 Federal oil 

and gas leases covering 37,792,212 

acres. For FY 2012, there were 92,583 

producible and service drill holes and 

99,015 producible and service 

completions on Federal leases. In FY 

2012, onshore Federal oil and gas leases 

produced about 118 million barrels 

(Bbl) of oil, 2.81 billion Mcf (thousand 

cubic feet) of natural gas, and 2.84 

billion gallons (Gal) of natural gas 

liquids, with a production value of 

almost $23 billion and generating 

royalties of almost $2.6 billion. Oil and 

gas production from Indian leases was 

almost 29 million barrels of oil, 256 

million Mcf of natural gas, and 155 

million gallons of natural gas liquids, 

with a production value of $3.4 billion 

and generating royalties of $561 million. 

TABLE 2—FEDERAL AND INDIAN OIL AND GAS PRODUCTION AND ROYALTIES, FISCAL YEAR 2012 

Sales volume Sales value 

($ million) 

Royalty 

($ million) 

Federal Leases: 

Oil (Bbl) ............................................................................................................... 118,142,826 $10,442 $1,275 

Gas (Mcf) ............................................................................................................ 2,806,572,692 9,258 976 

NGL (Gal) ........................................................................................................... 2,839,924,280 2,947 298 

Subtotal ....................................................................................................... .............................. 22,648 2,550 

Indian Leases: 

Oil (Bbl) ............................................................................................................... 28,989,309 2,441 424 

Gas (Mcf) ............................................................................................................ 256,176,345 762 116 

NGL (Gal) ........................................................................................................... 155,313,421 183 21 

Subtotal ....................................................................................................... .............................. 3,386 561 

Source: Office of Natural Resource Revenue, Federal Onshore Reported Royalty Revenue, Fiscal Year 2012 and American Indian Reported 

Royalty Revenue, Fiscal Year 2012. 


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Estimating Benefits and Costs 

This analysis estimates the potential 

costs and benefits that would occur as 

a result of the rule. Therefore, this 

analysis measures the impacts in 

relation to the current operating 

environment (or the baseline). 

In analyzing the costs and benefits of 

the rule, it is important to differentiate 

between the activities that operators 

currently conduct and those additional 

activities that the rule would compel. 

This change in behavior provides the 

basis of the cost and benefit estimates. 

OMB Circular A–4 recognizes that not 

all benefits and costs can be described 

in monetary or even in quantitative 

terms. In such cases, the circular directs 

agencies to present any relevant 

quantitative information along with a 

description of the unquantifiable effects. 

Measuring the Incremental Change 

Many of the provisions in the rule are 

conducted voluntarily by operators as a 

matter of company practice or standard 

industry practice. Operators have a 

vested interest in ensuring that wells are 

constructed properly to avoid problems 

that might jeopardize their investment. 

As a matter of industry practice, 

operators typically perform the 

following tasks: 

• Develop a plan for the hydraulic 

fracturing operation; 

• Monitor the cementing processes; 

• Cement the casing to protect water 

zones; 

• Conduct pressure tests on casing 

strings during the drilling process or 

before hydraulic fracturing operations; 

• Maintain drill logs identifying 

usable water zones; 

• Run CBLs and/or other evaluation 

logs on the production casing and 

sometimes on the intermediate casing, if 

formations of interest that are above the 

producing zone or to maintain 

compliance with State regulations, State 

permit requirements, or Federal permit 

requirements; 

• Monitor annulus pressures during 

the hydraulic fracturing operation; and 

• Manage the flowback of fluids. 

Some practices required in the rule 

are already conducted by operators in 

order to comply with existing applicable 

State regulations or requirements. Such 

State regulations often dictate how an 

operator cements a well, what tests or 

logs it conducts, how it handles 

flowback, or whether it must disclose 

the chemical contents of the hydraulic 

fracturing fluid. In addition to 

regulations, states may place 

requirements in the drilling permits as 

conditions of approval. 

Some of the provisions in the rule 

repeat existing Federal requirements. 

Operators on Federal and Indian lands 

are already in compliance with those 

provisions, and therefore the rule does 

not pose an additional burden. For 

example, the BLM has casing and 

cementing requirements to protect and/ 

or isolate usable water zones, found in 

Onshore Order No. 2, that are consistent 

with the final rule. Operators on Federal 

and Indian leases who are drilling in 

compliance with Onshore Order No. 2 

would also be in compliance with this 

rule; accordingly the rule poses no 

additional burden for drilling and 

cementing operations, but does require 

testing and reporting to assure that 

usable water zones are isolated. Like 

State regulatory authorities, the BLM or 

a tribe may also place requirements on 

operators as a condition of approval for 

the drilling permit. Where appropriate 

and possible, the analysis does not 

consider impacts in areas where 

operators already adhere to the rule’s 

provisions as a matter of voluntary 

practice or regulatory compliance with 

existing Federal, tribal or State 

regulations or requirements in 

conditions of approval. 

Costs Framework 

To examine the costs of the rule, the 

analysis considers the number of 

hydraulic fracturing operations that 

would be subject to the various 

requirements and the costs of the 

various requirements. While the rule 

would apply to all hydraulic fracturing 

operations on Federal and Indian lands, 

specific provisions in the rule may 

apply only to a subset of those 

operations. For example, the rule 

requires Subsequent Report (SR) Sundry 

submissions for all hydraulic fracturing 

operations. However, the number of 

required NOI Sundry requests and the 

CELs conducted would be fewer. 

The three key components to the cost 

formulation are the estimated number of 

hydraulic fracturing operations, the 

applicability of provisions to those 

operations, and the compliance costs to 

satisfy the provisions. Lower estimates 

in either of these areas would lead to 

lower estimates of the total costs of the 

rule. Likewise, higher estimates would 

lead to higher estimated total costs. 

Protecting usable water: The BLM 

already requires casing and cementing 

to protect usable water zones that are 

consistent with the final rule. Therefore, 

the rule does not pose an additional 

burden to operators. 

Pressure Testing Requirement: The 

pressure testing requirement is 

consistent with standard industry 

practice, State regulations, and BLM 

regulations. The requirement does not 

pose an additional burden to operators. 

Pit liner or storage tank requirement: 

The requirement to manage flowback in 

lined pits or storage tanks is consistent 

with almost all existing State 

regulations in States where new oil and 

gas activity is occurring on BLMmanaged lands. The requirement would 

pose an additional burden to operators 

only on Federal and Indian leaseholds 

in States or on Indian lands without 

existing requirements and for those 

operators that do not voluntarily 

comply. 

Disposal of flowback: The revised 

proposed rule would require that 

operators comply with applicable laws 

and is consistent with Onshore Order 

No. 7 disposal requirements for 

produced water. We do not expect that 

these provisions will pose additional 

burdens to operators. 

Cement evaluation logs on casing 

strings that protect usable water: The 

rule has a provision to conduct CELs on 

the casing strings that protect usable 

water. The applicable casing strings 

include the surface casing and 

sometimes the intermediate casing. 

Operators do not typically run CELs to 

evaluate the cement behind the surface 

casing, so the rule would require an 

additional step and cost in the drilling 

process. Not all wells require 

intermediate casing, and wells that 

require intermediate casing may do so 

for reasons other than to protect usable 

water. In addition to requiring a CEL on 

the surface casing of type wells and 

wells not associated with a type-well 

development proposal, the rule would 

compel CELs on intermediate casing 

that protects usable water, and further, 

is deemed to compel CELs only on those 

intermediate casings where the operator 

would not otherwise conduct a CEL in 

compliance with State regulations or 

conditions of approval or do so 

voluntarily. 

Subsequent wells under a type well 

approval: Under the revised proposed 

rule, not all wells would be subject to 

the CEL requirement. The subject 

activity should reflect the number of 

CELs on single wells and on type wells, 

but not for the subsequently drilled 

wells under a type well approval. 

Requiring a CEL when there is an 

indication of inadequate cementing: 

Under the rule, operators on all wells 

(single wells, type wells, and 

subsequent wells to a type well) are 

required to run a CEL when there is an 

indication of inadequate cementing of a 

casing string that protects usable water. 

The BLM and many State regulations 

and requirements have established 

protocols for remedial actions in the 

event of inadequate cementing. Those 

protocols require operators to remediate 


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to the authorized officer’s satisfaction 

and where the regulatory authority may 

request results from a CEL. For example, 

Onshore Order 2 requires that operators 

perform remedial cementing if cement is 

not circulated back to the surface for the 

surface casing (Section III.B.1.c). 

Onshore Order 2 also requires an 

additional pressure test or remedial 

action as specified by the authorized 

officer if a pressure test indicates that 

casing strings do not meet minimum 

standards (Section III.B.1.h). Onshore 

Order 2 lists other minimum standards 

and corrective actions, including some 

that require logging or testing, remedial 

cementing, and actions specified by the 

authorized officer. 

Measuring the costs of a CEL: The rule 

introduces a new step (or steps) to the 

drilling process, depending on the well. 

This new step potentially poses an 

additional cost burden to operators for 

the costs of the CEL and the costs to 

maintain idle drilling equipment if the 

drilling process is delayed. 

After cementing the casing, operators 

must wait for a period of time for the 

cement to harden before conducting any 

well tests and drilling the plug. The 

BLM requires operators to wait until the 

cement at the casing shoe reaches a 

compressive strength of 500 psi. States 

generally have compressive strength 

standards similar to the BLM’s. For 

example, the State of Montana requires 

operators to wait 8 hours and New 

Mexico requires operators to wait 

anywhere from 8 to 18 hours. 

While waiting for the cement behind 

the surface casing to set, operators will 

install other required equipment on the 

well, including blowout preventers. 

After the cement has hardened 

sufficiently and the operator has 

satisfied Federal or State requirements, 

operators would normally conduct a 

pressure test on the surface casing, drill 

through the plug, drill for an additional 

interval into the formation, and then test 

the shoe. After a successful shoe test, 

operators then drill the intermediate 

hole. The process is generally the same 

for the intermediate casing; however, 

operators may also run a log on the 

intermediate casing depending on the 

circumstances described before. 

We received some comments on the 

proposed rule suggesting that, by 

requiring CBLs, the rule would force all 

operators to maintain idle drilling 

equipment while the cement reached 

additional compressive strength 

sufficient for a CBL to show meaningful 

results. At issue is the idea that an 

operator would need to wait an 

additional amount of time before 

pressure testing the casing or drilling 

through the plug. 

An operator does not have to stand 

idle at this point in time. For example, 

an operator may pressure test the 

surface casing, drill out the plug, test 

the shoe, and then drill the intermediate 

hole. An operator may then perform a 

CEL at any point in time before setting 

the intermediate casing, i.e., while 

replacing a drill bit. In any of these 

scenarios, however, ancillary delays 

associated with the availability of the 

logging company and the time required 

to run the log could still result. 

Operators drilling multiple wells on a 

pad should also be able to run a CEL 

and avoid potential drilling delays. 

When drilling multiple wells on a pad, 

an operator may use a smaller drilling 

rig (known throughout the industry as a 

‘‘double’’ rig) to sequentially drill a 

casing hole, set casing, and cement 

casing of each well, one by one. After 

the surface holes have all been 

sequentially drilled, cased, and 

cemented, the operator will remove the 

small drilling rig from the pad, and 

bring in a large drilling rig to drill the 

subsequent sections of each well. If an 

operator is drilling multiple wells in 

this fashion, then it may continue the 

drilling process while the cement sets 

on the first well, and log that well at the 

operator’s convenience. In these 

situations, the operator would incur no 

additional costs associated with 

maintaining idle drilling equipment. 

Benefits Framework 

While the potential benefits of the 

rule are more challenging to monetize 

than the costs, they are significant. The 

rule is designed to reduce the 

environmental and health risk posed by 

hydraulic fracturing operations, 

particularly in its treatment of flowback 

fluids, well construction, and hydraulic 

fracture design. Stronger field 

operations with sound resource 

protections provide improved efficiency 

for the BLM to administer the program 

management for oil and gas with fewer 

protests, fewer compliance problems, 

fewer FOIAs, and other activities that 

divert limited available staff. 

The primary challenge in monetizing 

benefits lies in the quantification of a 

risk that is largely unknown. Risk is the 

product of the likelihood of an incident 

occurring and the impact that would 

result. In this context, risk is the 

probability of an incident occurring 

from hydraulic fracturing times the cost 

of the damage. The monetized benefit of 

this rule would be the reduction in risk 

attributed to the rule, which also 

represents the avoided costs of 

remediating damage. 

Though operators are required to 

remediate damage when it occurs, there 

may be uncertainty about the true cost 

or extent of the damage or limitations in 

connecting an incident with an 

operation. Even if the damage is 

internalized, the overall benefit to 

society would be less than if the 

incident was avoided (if the compliance 

costs are less than the damage costs), 

since resources would have been 

unnecessarily dedicated to the 

remediation. 

Operators are required to notify the 

BLM when undesirable events occur. 

Undesirable events may include 

accidents, or accidental spills or 

releases of hydrocarbon fluids, 

produced water, hydraulic fracturing 

flowback fluids, or other substances. 

These events have the potential to 

adversely affect public lands and other 

important resources; reduce the value of 

the minerals and lands; plus add 

expensive costs to the BLM inspection 

and enforcement by diverting limited 

staff. 

There are limitations in using the 

BLM data on undesirable events for this 

analysis. First, the data do not specify 

whether the undesirable events 

occurred as a result of any of the drilling 

or completion activities associated with 

the hydraulic fracturing operations. In 

addition, the available data cannot be 

readily matched with particular 

provisions in the rule. The data 

provides figures for the incidence of 

spills, accidents, injuries, and other 

impacts on a well, but the pit liner 

information is generally not specified in 

the incident reports for spills or leaks. 

As such, there is difficulty in 

quantifying the level of risk reduction 

that would be attributed to the 

regulations, even though the regulations 

would most certainly reduce risk. 

Damage, in general, is unknown, 

particularly when attempting to 

generalize damage costs which may vary 

by expected magnitude and reversibility 

of effects. Also, the valuation of the 

damage may also take many and highly 

variable forms. For example, an 

undesirable incident occurring during 

hydraulic fracturing might require the 

remediation of surface or subsurface 

areas. The incident might also require 

that the operator shut-in temporarily or 

plug the well before it may produce all 

of the mineral resources. In this case, 

the operator would lose revenue and 

society would not benefit from the 

produced resources. Such would be the 

same for spills. 

Discounted Present Value 

There is a time dimension to 

estimates of potential costs and benefits. 

The potential events described, if they 

occur at all, may be in the distant future. 


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1 Discount factor = 1/(1+ r)t where r is the 

discount rate and t is time measured in years during 

which benefits and costs are expected to occur. 

The further in the future the benefits 

and costs are expected to occur, the 

smaller the present value associated 

with the stream of costs and benefits. As 

such, future costs and benefits must be 

discounted.1 The discount factor is then 

used to convert the stream of costs and 

benefits into ‘‘present discounted 

values.’’ When the estimated benefits 

and costs have been discounted, they 

can be added to determine the overall 

value of net benefits. 

The OMB’s basic guidance on the 

appropriate discount rate to use is 

provided in OMB Circular A–94. The 

OMB’s Circular A–94 states that a real 

discount rate of 7 percent should be 

used as a base-case for regulatory 

analysis. The OMB considers the 7 

percent rate as an estimate of the 

average before-tax rate of return to 

private capital in the U.S. economy. It 

is a broad measure that reflects the 

returns to real estate and small business 

capital as well as corporate capital. It 

approximates the opportunity cost of 

capital, and it is the appropriate 

discount rate whenever the main effect 

of a regulation is to displace or alter the 

use of capital in the private sector. 

OMB Circular A–4 also states that a 3 

percent discount rate should be used for 

regulatory analyses and provides an 

explanation of the use of the discount 

rate as follows: ‘‘The effects of 

regulation do not always fall exclusively 

or primarily on the allocation of capital. 

When regulation primarily and directly 

affects private consumption (e.g., 

through higher consumer prices for 

goods and services), a lower discount 

rate is appropriate. The alternative most 

often used is sometimes called the 

‘social rate of time preference.’ This 

simply means the rate at which ‘society’ 

discounts future consumption flows to 

their present value.’’ 

The analysis also examines potential 

costs and benefits using 10 and 12 

percent discount rates. The 

consideration of higher discount rates 

are appropriate for this analysis, since 

the rule imposes costs on the oil and gas 

industry and the opportunity cost of not 

having that available capital is generally 

higher than 3 and 7 percent. The higher 

rates also serve as a sensitivity test. 

Uncertainty 

The costs and benefits provided in 

this analysis are estimates and come 

with uncertainty. We describe the 

primary sources of uncertainty below: 

• Type well applicability: The 

estimates for the rule rely largely on the 

concept of the type well. In terms of cost 

calculations, the uncertainty lies in an 

average number of wells that would be 

covered under a type well approval. 

While the BLM is confident that the 

average number of wells that an 

operator completes in a field is a good 

measure with which to base the 

estimate, the measure is positively 

skewed by a fewer number of firms with 

a high number of wells. This does not 

suggest a problem with the data, but 

rather that the experiences of operators 

will vary, and that the likely scenario is 

that the typical operator completes 

fewer wells than the average. In terms 

of benefit calculations, there is 

uncertainty about the effectiveness of 

the type well concept, and how reliably 

the CEL results on casing strings of a 

type well assure adequate cementing for 

subsequent wells in the same geologic 

area. 

• Length of delay time to run a CEL: 

A large source of uncertainty is the 

amount of time that the CEL 

requirement might delay drilling 

operations. The BLM received 

comments suggesting that the CEL 

would delay drilling operations for up 

to 72 hours. The CEL on the surface 

casing, in particular, poses a new step 

in the drilling process for operators. A 

large source of uncertainty is the extent 

to which operators would be subject to 

delays, and if so, how they will be able 

to incorporate this new requirement and 

minimize or eliminate potential delays 

through operating efficiencies. 

• Percent of wells encountering 

problems during the cementing process: 

Cementing problems and downhole 

conditions, in general, are not widely 

reported metrics. This analysis uses 3 

percent as the basis for calculating the 

potential costs and benefits. 

• Benefits of specific provisions for 

well integrity and NOI Sundry 

submission: Further uncertainty lies in 

the estimation of benefits and the 

cumulative effect of the rule’s 

provisions on mitigating the potential 

risks of hydraulic fracturing operations. 

This rule has specific provisions that 

would help operators and the BLM 

better identify potential issues in 

wellbore integrity and fracturing design, 

before operations begin. However, it is 

difficult to attribute benefits to one 

single test (for instance the CEL) when 

that is only one part of the overall 

evaluation of wellbore integrity. 

Results 

Where appropriate, this analysis 

monetizes costs and benefits expected to 

occur over the next 10 years, from 2013 

to 2022. This period of analysis was 

chosen because 10 years is the length of 

the primary lease term on BLMmanaged lands. The analysis presents a 

range of expected outcomes due to 

uncertainty about the generalization of 

costs and benefits across all hydraulic 

fracturing operations. In developing the 

rule, the BLM considered several 

alternatives. The alternatives primarily 

focused on two topic areas: Verification 

of proper cementing behind casing 

strings through CELs and the 

management of flowback fluids from 

operations. One alternative would 

require CELs on casing strings 

protecting usable water for all wells and 

the use of storage tanks to manage 

flowback. A second alternative would 

require CELs on casing strings 

protecting usable water for all wells but 

does not establish requirements for 

storage tanks or lined pits. Table 3 and 

Table 4 show a summary of incremental 

costs and benefits, respectively, for the 

rule and the alternatives examined. To 

annualize the incremental costs and 

benefits, the analysis calculates the 

annualized value (AV). Where 

monetized, the results are presented in 

2012 dollars. 

The entire results are available in the 

full Economic Analysis and Regulatory 

Flexibility Analysis available at the 

address listed in the ADDRESSES section 

of this rule. 

TABLE 3—SUMMARY OF COSTS

[$Million] 

Annualized value Revised 

proposed rule Alternative 1 Alternative 2 

Undiscounted ............................................................................................................................... 12–20 119–213 119–213 

Discounted at 3% ........................................................................................................................ 12–19 118–213 118–213 


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TABLE 3—SUMMARY OF COSTS—Continued 

[$Million] 

Annualized value Revised 

proposed rule Alternative 1 Alternative 2 

Discounted at 7% ........................................................................................................................ 12–19 118–212 118–212 

Discounted at 10% ...................................................................................................................... 12–19 117–211 117–211 

Discounted at 12% ...................................................................................................................... 12–19 117–211 117–211 

The annualized values of the costs do 

not vary significantly across different 

discount rates. This is expected for 

several reasons. When the original cost 

schedule is relatively constant over time 

(neither front-loaded nor back-loaded) 

the AV will be relatively similar to the 

average cost. This is expected with 

compliance costs related to this rule, 

since the total compliance costs for the 

rule are expected to be relatively similar 

over future years, owing to similar 

activity data (i.e., the number of 

hydraulic fracturing operations) and 

that the compliance costs for a single 

operation are contained within a short 

timeframe. 

TABLE 4—SUMMARY OF NON-MONETIZED BENEFITS

Non-monetized benefits Rule 

(percent) 

Alternative 1 

(percent) 

Alternative 2 

(percent) 

Percent of individual hydraulic fracturing plans reviewed by the BLM ....................................... 11 100 100 

Percent of hydraulic fracturing operations using unlined pits ..................................................... 0 0 0.15 

Percent of individual wells where wellbore integrity is demonstrated with CELs on casing 

strings that protect usable water .............................................................................................. 8 96 96 

Percent of wells where wellbore integrity is demonstrated with pressure tests ......................... 100 100 100 

Percent of hydraulic fracturing operations where chemical content of fluids are disclosed ....... 100 100 100 

Non-monetized benefits 

Estimated 

baseline 

(percent) 

Rule Alternative 1 Alternative 2 

Likelihood of Minor Incident ............................................................................. 2.70 N/A N/A N/A 

Likelihood of Major Incident ............................................................................. 0.03 N/A N/A N/A 

Estimated Costs of Revised Proposed 

Rule 

Annualized costs to the industry are 

estimated to be between about $12 and 

$20 million when undiscounted and 

when using discount rates of 3, 7, 10, 

and 12 percent. The net present value of 

total costs over the 10-year period are 

estimated to be between $102 to $166 

million when discounted at 3 percent, 

between $84 and $136 million when 

discounted at 7 percent, between $73 

and $119 million when discounted at 10 

percent, and between $67 and $109 

million when discounted at 12 percent. 

The largest cost burden lies with the 

CEL requirement, which is also the 

source of the greatest amount of 

uncertainty when developing estimates. 

Drilling methods, procedures, and 

requirements vary across operations, 

locations, and States, so it is challenging 

to place an exact dollar figure on the 

appropriate cost. 

The estimated costs for the CEL 

requirement are driven to a large extent 

by the amount of time operators might 

have to maintain idle drilling 

equipment on-site. The lower bound of 

the estimated CEL requirement includes 

the annual costs of conducting CELs on 

the surface casing, assuming that 

operators using a small rig to drill the 

surface holes of wells would likely 

avoid the costs of maintaining idle 

drilling equipment. The estimate 

possibly represents the lowest possible 

cost; however, there is a chance it could 

be even lower depending on the ability 

of the operators on other wells to 

maximize efficiencies and reduce 

delays. The upper bound of the 

estimated CEL requirement does not 

account for the potential of operators to 

reduce delays below 24 hours per CEL 

on the surface casing and 48 hours on 

the intermediate casing. While the 

estimate possibly represents the 

maximum total cost, it may 

underestimate the total costs if CELs 

result in delays assumed. 

The BLM has assumed delay times to 

account for additional compressive 

requirements and ancillary delays that 

could occur. However, there are several 

ways for operators to reduce the amount 

of idle time. The Economic Analysis 

prepared for this rule analyzed the 

sensitivity of the upper bound total 

estimates to assumed idle times. If 

operators are able to reduce the assumed 

delays by 25 percent, then the upper 

bound costs estimates would be reduced 

by 19 percent. On the other hand, if the 

assumptions underestimate the delay 

times by 25 percent, then the upper 

bound estimate would be increased by 

19 percent. 

The administrative compliance costs 

are non-trivial and are based on a per 

submission cost of $478. It is likely that 

operators, over time, will be able to gain 

efficiencies and reduce costs below the 

estimates provided. 

The costs provided are estimates of 

the direct costs and not the overall costs 

to society. There is uncertainty about 

the effect that the rule would have 

across all potential hydraulic fracturing 

operations. The rule has a provision for 

type well approval of the NOI Sundry 

and log requirements (unless the 

operator encounters problems with 

improper cementing) and affords 

operators drilling many wells in a 

geologic area greater efficiency than it 

does for operators drilling a single well 

or few wells. If one assumes that 

operators cannot derive efficiencies to 

avoid the costs of idle rig time, it could 

favor activity in development fields over 

exploratory areas. 

There is also flexibility in how the 

various BLM authorized officers might 

treat applications for variances, and to 

what extent that will allow operators to 

potentially reduce costs. There are well 


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construction methods, such as the use of 

a ‘‘frac string,’’ that reduce the pressures 

placed on the intermediate casing and 

surface casing strings during hydraulic 

fracturing operations. This is one 

potential area where an operator might 

receive a variance. 

Average Compliance Costs for Operators 

The provisions of the rule would 

result in compliance costs ranging from 

$3,138 to $5,110 for all hydraulic 

fracturing operations differentially, for 

example, if the operation is for a type 

well versus a subsequent well. 

Averaging the total compliance costs for 

the industry in the first year of 

regulation by the number of hydraulic 

fracturing operations, the BLM expects 

the compliance costs to range from 

$3,138 to $5,110 per operation. The CEL 

requirements represent the bulk of that 

portion, $2,591 to $4,564. Average 

compliance costs per operation for each 

of the policy options are shown in Table 

5. 

TABLE 5—AVERAGE COMPLIANCE COSTS IN 2013 ACROSS ALL OPERATIONS FOR THE RULE, ALTERNATIVE 1, AND

ALTERNATIVE 2 

Requirement 

Average across all operations 

Revised proposed rule Alternative 1 Alternative 2 

Low High Low High Low High 

Count of Hydraulic Fracturing Operations (in 2013) ....... 3,566 3,566 3,566 

CEL on Surface Casing ................................................... $1,980 $3,953 $24,894 $49,692 $24,894 $49,692 

CEL on Intermediate Casing ........................................... 409 409 5,140 5,140 5,140 5,140 

CEL if Inadequate Cementing ......................................... 202 202 0 0 0 0 

Lining Pits ........................................................................ 9 9 9 9 0 0 

NOI Sundry ...................................................................... 54 54 478 478 478 478 

SR Sundry ........................................................................ 478 478 478 478 478 478 

Variance Requests ........................................................... 5 5 48 48 48 48 

Total .......................................................................... 3,138 5,110 31,047 55,845 31,038 55,836 

BLM Administrative Burden 

The processing of NOI Sundry, SR 

Sundry, and variance requests 

associated with the rule would pose 

additional burden to the BLM; however, 

it is unclear the extent to which the 

BLM can meet the additional burden 

with existing capacity. An additional 

8.44 FTE of workload is estimated to be 

required to meet the administrative 

burden of the rule in the first year of 

implementation. 

Benefits of the Revised Proposed Rule 

The rule provisions, as described in 

the revised proposed rule, would 

require an operator to conduct tests on 

a well before it conducts hydraulic 

fracturing operations on that well. For 

all operators on Federal and Indian land 

the revised proposed rule would compel 

operators to conduct an average of 293 

CELs per year on surface casings, 14 

CELs per year on intermediate casings, 

and 110 CELs per year on casing strings 

where there is an initial indication of 

inadequate cementing. 

Relative to the initial proposed rule, 

the revised proposed rule would not 

compel as many CELs. Therefore, there 

is a chance that the rule would not 

reduce as much risk as the alternatives. 

The rule would ensure that operators 

demonstrate wellbore integrity with 

pressure tests on 100 percent of the 

wells and with CELs on the casing 

strings that protect usable water on 8 

percent of wells. The level of risk 

reduction across subsequent wells relies 

on the replication of adequate 

cementing across multiple wells in a 

geographic area with the same geologic 

characteristics. 

The rule would compel 110 CELs to 

demonstrate that inadequate cementing 

was corrected by operators. As such, it 

requires a verification of proper 

remedial cementing on the very wells 

that pose greater risk. 

Under the rule, operators would 

submit an average of 432 NOI Sundry 

applications per year covering about 

3,816 hydraulic fracturing operations 

(average over the 10-year period, 2013– 

2022). The BLM would receive 

individual hydraulic fracturing plans for 

an estimated 11 percent of the expected 

operations, and the remaining 89 

percent of operations would be for 

subsequent wells to a type well. The 

type well provision, relative to the 

alternatives, reduces burden on the 

industry and the BLM. The submission 

of NOI Sundry applications would 

provide the BLM with the necessary 

information to make informed decisions 

about the public’s resources and thus 

improve the public welfare, and have 

the same benefits for Indian resources 

and Indian welfare. 

The rule is estimated to compel only 

six additional lined pits per year, 

simply because most of the States where 

the BLM manages oil and gas resources 

already require lined pits. For those six 

pits, the requirement would 

immediately remove sources of harm to 

the environment and the public from 

the contamination of the surface 

environment with fracturing fluids. 

The rule would compel 3,816 Sundry 

reports and public disclosures of the 

chemical content of the hydraulic 

fracturing fluids. The increase in 

information about additives could aid 

water users when they consider the 

potential effects of hydraulic fracturing 

operations and constituent chemicals. 

Overall, the rule would potentially 

reduce the risks associated with 

hydraulic fracturing operations. The 

BLM estimated the likelihood of an 

incident resulting from a hydraulic 

fracturing operation could be between 

0.03 and 2.70 percent. Damage from an 

incident could cost between $15,000 

and $1 million for remediation plus any 

lost revenue from unrecoverable 

resources, including spilled or stranded 

resources. 

Economic Impact Analysis and 

Distributional Assessments Energy 

System Impact Analysis 

Executive Order 13211 requires that 

agencies prepare and submit to the 

Administrator of the Office of 

Information and Regulatory Affairs 

(OIRA), OMB, a Statement of Energy 

Effects for certain actions identified as 

significant energy actions. Section 4(b) 

of Executive Order 13211 defines a 

‘‘significant energy action’’ as ‘‘any 

action by an agency (normally 


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published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of OIRA as a significant 

energy action.’’ 

The additional burden posed by this 

rule would vary by the type of well 

proposed for hydraulic fracture. A key 

consideration is the extent to which the 

costs of the requirements might impact 

investment, production, employment, 

and a number of other factors. That is, 

to what extent, if any, would an 

operator choose to invest in other areas, 

non-Federal and non-Indian lands, 

when faced with the cost requirements 

of the rule. Since the bulk of the costs 

would apply to hydraulic fracturing 

operations on wells that are yet to be 

drilled (and not on existing wells and to 

refracturing operations), operators will 

be able to account for any cost increases 

up front when making investment 

decisions. The BLM believes that the 

additional cost per hydraulic fracturing 

operation is insignificant when 

compared with the drilling costs in 

recent years, the production gains from 

hydraulically fractured wells 

operations, and the net incomes of 

entities within the oil and natural gas 

industries. 

Table 6 shows the average compliance 

costs, by well type or operation, as a 

percent of the total costs of drilling a 

well. For a single well or a type well, 

the compliance costs represent about 0.4 

to 1.4 percent of the costs of drilling a 

well. For a subsequent well to a type 

well, the costs represent between 0.01 

and 0.02 percent of the total drilling 

costs. For existing wells and refracture 

operations, the percentages are even 

lower, at about 0.01 to 0.03 percent. 

When averaging the compliance costs 

across all operations, the costs represent 

between 0.04 and 0.13 percent of the 

costs of drilling a well. 

Since the estimated compliance costs 

are not a substantial when compared 

with the total costs of drilling a well, the 

BLM believes that the rule is unlikely to 

have an effect on the investment 

decisions of firms, and the rule is 

unlikely to affect the supply, 

distribution, or use of energy. 

TABLE 6—THE AVERAGE COMPLIANCE COSTS OF THE REVISED PROPOSED RULE AS A PERCENT OF TOTAL DRILLING

COSTS

Activity 

Well type 

fracturing operation 

Average across all 

operations 

(percent) 

Type well or single well Subsequent 

well under 

type well 

approval 

(percent) 

Existing 

well 

(percent) 

Refracture 

operation 

(percent) 

Low 

(percent) 

High 

Low (percent) 

(percent) 

High 

(percent) 

Percent of Drilling Costs for a Crude Oil, 

Natural Gas, and Dry Well (2007$) 1 ... 0.7128 1.3301 0.0167 0.0243 0.0241 0.0752 0.1225 

Percent of Drilling Costs for a Crude Oil 

Well (2007$) 1 ....................................... 0.7434 1.3871 0.0174 0.0253 0.0251 0.0784 0.1277 

Percent of Drilling Costs for a Natural 

Gas Well (2007$) 1 ............................... 0.7611 1.4202 0.0178 0.0259 0.0257 0.0803 0.1308 

Percent of Drilling Costs for a horizontal 

well in the Bakken Three Forks (reported in 2010) 2 ................................... 0.5507 1.0275 0.0129 0.0188 0.0186 0.0581 0.0946 

Percent of Drilling Costs for a horizontal 

well in the Marcellus Shale (reported in 

2011) 3 .................................................. 0.3913 0.7301 0.0092 0.0133 0.0132 0.0413 0.0672 

NOTES: 1Average drilling costs in 2007 range from $3.9 million to about $4.2 million. U.S. Energy Information Administration (January 31, 2012). Costs 

of Crude Oil and Natural Gas Wells Drilled. 2 Costs of $5.4 million cited by Investopedia from Continental Resources. Investopedia (March 12, 2010). Oil Service Costs to Move Higher. 3 Costs of $7.6 million cited by Marcellus Drilling News from a University of Pittsburgh Study (Marcellus Drilling News (September 2011) How 

much does it cost to drill a single Marcellus well? $7.6M. 

Employment Impact Analysis 

Executive Order 13563 reaffirms the 

principles established in Executive 

Order 12866, but calls for additional 

consideration of the regulatory impact 

on employment. It states, ‘‘Our 

regulatory system must protect public 

health, welfare, safety, and our 

environment while promoting economic 

growth, innovation, competitiveness, 

and job creation.’’ An analysis of 

employment impacts is a standalone 

analysis and the impacts should not be 

included in the estimation of benefits 

and costs. 

This proposed rule would require 

operators, who have not already done 

so, to conduct one-time tests on a well 

or make a one-time installation of a 

mitigation control feature. In addition, 

operators would be required to perform 

administrative tasks related to a onetime event. 

Compliance with the operational 

requirements is expected to shift 

resources from firms in the crude oil 

and natural gas extraction industries 

(NAICS codes:: 211111—Crude 

Petroleum and Natural Gas Extraction, 

211112—Natural Gas Liquid Extraction) 

to firms providing support services for 

drilling oil and gas wells (NAICS code: 

213111—Drilling Oil and Gas Wells). 

For example, the requirement for a CEL 

on the surface casing represents a 

burden to the operator, but a benefit to 

the company running the log. 

Of principal interest is the extent to 

which the financial burden is expected 

to change operators’ investment 

decisions. If the financial burden is not 

significant and all other factors are 

equal, then one would expect operators 

to maintain existing levels of investment 

and employment. The BLM believes that 

the proposed rule would result in an 

additional cost per well stimulation that 

is small and will not alter the 

investment or employment decisions of 

firms. 


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Firms in the support services for oil 

and gas drilling industry are likely to 

benefit from the rule, since they would 

likely carry out the operational 

requirements of the rule. Though we do 

not know the incremental revenue gains 

from performing these services, the 

operational requirements themselves are 

likely to require additional capacity. 

Executive Order 12866, Regulatory 

Planning and Review 

In accordance with the criteria in 

Executive Order 12866, the Office of 

Management and Budget has 

determined that this rule is a significant 

regulatory action. 

The rule will not have an annual 

effect on the economy of $100 million 

or more or adversely affect in a material 

way the economy, a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities. However, 

the rule may raise novel policy issues 

because of the requirement that 

operators provide to the BLM 

information regarding hydraulic 

fracturing operations that they are not 

currently providing to the BLM. 

This rule would not create 

inconsistencies or otherwise interfere 

with an action taken or planned by 

another agency. This rule would not 

change the relationships of the oil and 

gas operations with other agencies. 

These relationships are included in 

agreements and memoranda of 

understanding that would not change 

with this rule. In addition, this rule 

would not materially affect the 

budgetary impact of entitlements, 

grants, loan programs, or the rights and 

obligations of their recipients. Please see 

the discussion of the impacts of the rule 

as described earlier in this section of the 

preamble. 

Regulatory Flexibility Act 

Congress enacted the Regulatory 

Flexibility Act of 1980 (RFA), as 

amended, 5 U.S.C. 601–612, to ensure 

that Government regulations do not 

unnecessarily or disproportionately 

burden small entities. The RFA requires 

a regulatory flexibility analysis if a rule 

would have a significant economic 

impact, either detrimental or beneficial, 

on a substantial number of small 

entities. For the purposes of this 

analysis, the BLM assumes that all 

entities (all lessees and operators) that 

may be affected by this rule are small 

entities, even though that is not actually 

the case. 

The rule deals with hydraulic 

fracturing on all Federal and Indian 

lands (except those excluded by statute). 

There would be some increased costs 

associated with the enhanced 

recordkeeping requirements and some 

new operational requirements. 

However, the BLM expects that these 

costs would be minor in comparison to 

overall operations costs. Therefore, the 

BLM has determined under the RFA 

that the rule would not have a 

significant economic impact on a 

substantial number of small entities. 

Please see the discussion earlier in this 

section of the preamble for a discussion 

of the impacts of the rule. 

Small Business Regulatory Enforcement 

Fairness Act 

The Regulatory Flexibility Act as 

amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA) generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute, unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small governmental jurisdictions, or 

small not-for-profit enterprises. 

The BLM reviewed the Small 

Business Administration (SBA) size 

standards for small businesses and the 

number of entities fitting those size 

standards as reported by the U.S. 

Census Bureau in the 2007 Economic 

Census. Using the Economic Census 

data, the BLM concludes that about 99 

percent of the entities operating in the 

relevant sectors are small businesses in 

that they employ fewer than 500 

employees. 

The BLM also examined potential 

impacts on small businesses that are 

most likely to be impacted by the rule 

and, more specifically, the requirements 

that would pose a burden to operators. 

Using Automated Fluid Mineral 

Support System data for well 

completions, the BLM compiled a list of 

firms that completed wells within the 

past 5 years. The BLM expects that these 

firms are most likely to be financially 

impacted by the CEL requirements. 

From that list the BLM researched 

company annual report filings with the 

SEC to determine annual company net 

incomes and employment figures. From 

the original list, the BLM found 55 

company filings. Of those, 33 firms were 

classified as small businesses. 

Using the net income data for the 

small businesses that filed SEC Form 

10–K, the BLM used the estimated 

compliance costs per well type or 

fracturing operation, and the average 

costs across all operations to calculate 

the percent of compliance costs as a 

portion of annual company net incomes 

for 2011. Averaging results for the small 

businesses that the BLM examined, the 

average costs of the rule are expected to 

represent between 0.041 and 0.066 

percent of the company net incomes. 

Therefore, after considering the 

economic impact of the rule on these 

small entities, the screening analysis 

indicates that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Unfunded Mandates Reform Act 

Under the Unfunded Mandates Act, 

agencies must prepare a written 

statement about benefits and costs prior 

to issuing a proposed or final rule that 

may result in aggregate expenditure by 

State, local, and tribal governments, or 

by the private sector, of $100 million or 

more in any one year. 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for State, local, 

and tribal governments, in the aggregate, 

or to the private sector in any one year. 

Thus, the rule is also not subject to the 

requirements of Sections 202 or 205 of 

the Unfunded Mandates Reform Act 

(UMRA). 

This rule is also not subject to the 

requirements of Section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments; it 

contains no requirements that apply to 

such governments nor does it impose 

obligations upon them. 

Executive Order 12630, Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights (Takings) 

Under Executive Order 12630, the 

rule would not have significant takings 

implications. A takings implication 

assessment is not required. This rule 

would establish recordkeeping 

requirements for hydraulic fracturing 

operations and some additional 

operational requirements on Federal 

and Indian lands. All such operations 

are subject to lease terms which 

expressly require that subsequent lease 

activities be conducted in compliance 

with subsequently adopted Federal laws 

and regulations. The rule conforms to 

the terms of those Federal leases and 

applicable statutes, and as such the rule 

is not a governmental action capable of 

interfering with constitutionally 

protected property rights. Therefore, the 

rule would not cause a taking of private 

property or require further discussion of 

takings implications under this 

Executive Order. 


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Executive Order 13352, Facilitation of 

Cooperative Conservation 

Under Executive Order 13352, the 

BLM has determined that this rule 

would not impede facilitating 

cooperative conservation and would 

take appropriate account of and 

consider the interests of persons with 

ownership or other legally recognized 

interests in land or other natural 

resources. This rulemaking process 

involved Federal, State, local and tribal 

governments, private for-profit and 

nonprofit institutions, other 

nongovernmental entities and 

individuals in the decision-making. The 

process provides that the programs, 

projects, and activities are consistent 

with protecting public health and safety. 

Executive Order 13132, Federalism 

Under Executive Order 13132, this 

rule would not have significant 

Federalism effects. A Federalism 

assessment is not required because the 

rule would not have a substantial direct 

effect on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. The rule 

would not have any effect on any of the 

items listed. The rule would affect the 

relationship between operators, lessees, 

and the BLM, but would not impact 

States. Therefore, under Executive 

Order 13132, the BLM has determined 

that this rule would not have sufficient 

Federalism implications to warrant 

preparation of a Federalism Assessment. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

Under Executive Order 13175, the 

President’s memorandum of April 29, 

1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951), The 

Department of the Interior Policy on 

Consultation with Indian Tribes (Dec. 1, 

2011), and 512 Departmental Manual 2, 

the BLM evaluated possible effects of 

the rule on federally recognized Indian 

tribes. The BLM approves proposed 

operations on all Indian onshore oil and 

gas leases (except those excluded by 

statute). Therefore, the rule has the 

potential to affect Indian tribes. In 

conformance with the Department’s 

policy on tribal consultation, the Bureau 

of Land Management held four tribal 

consultation meetings to which over 175 

tribal entities were invited. The 

consultations were held in: 

• Tulsa, Oklahoma on January 10, 

2012; 

• Billings, Montana on January 12, 

2012; 

• Salt Lake City, Utah on January 17, 

2012; and 

• Farmington, New Mexico on 

January 19, 2012. 

The purpose of these meetings was to 

solicit initial feedback and preliminary 

comments from the tribes. To date, the 

tribes have expressed concerns about 

the BLM’s Inspection and Enforcement 

program’s ability to enforce the terms of 

this rule; previously plugged and 

abandoned wells being potential 

conduits for contamination of 

groundwater; and the operator having to 

provide documentation that the water 

used for the fracturing operation was 

legally acquired. The BLM considered 

these concerns during the drafting of the 

proposed rule. 

After publication of the proposed 

rule, the BLM held another series of 

meetings to obtain comments and 

recommendations from tribes and tribal 

organizations. Those meetings were 

held in June 2012 in Salt Lake City, 

Utah; Farmington, New Mexico; Tulsa, 

Oklahoma; and Billings, Montana. The 

BLM also engaged in one-on-one 

consultations as requested by several 

tribes. Some tribal representatives were 

concerned about risks to the quality of 

their vital water supplies. Others, 

though, were more concerned with the 

risk that increased compliance costs 

would drive the industry off of Indian 

lands, and deprive the tribes of muchneeded revenues and economic 

development. 

The BLM has considered and 

responded to the concerns expressed by 

the tribal representatives both orally and 

in written comments, as described 

above. In particular, it has made 

changes that will reduce economic 

burdens of compliance for many 

operators. Several tribes provided 

written and oral comments critical of 

the proposed rule. Other tribes argued 

that the proposed rules violated tribal 

sovereignty. The proposed rule, 

however, is not unique. Regulations 

promulgated by the Bureau of Indian 

Affairs render the BLM’s operating 

regulations in 43 CFR part 3160 

applicable to oil and gas leases of trust 

and restricted Indian lands, both tribal 

and individually-owned. See 25 CFR 

211.4, 212.4, and 225.4. 

Some tribes insist that those BIA 

regulations are in violation of FLPMA, 

which they argue restricts the BLM’s 

authority to Federal lands. Section 301 

of FLPMA, however, charges the 

Director of the BLM to carry out 

functions and duties as the Secretary 

may prescribe with respect to the lands 

and the resources under the Secretary’s 

jurisdiction according to the applicable 

provisions of FLPMA and any other 

applicable law. 43 U.S.C. 1731(a). See 

also 43 U.S.C. 1731(b). The Act of 

March 3,1909 (1909 Act) (at 25 U.S.C. 

396), the Indian Minerals Leasing Act 

(IMLA) (at 25 U.S.C. 396d) and the 

Indian Mineral Development Act 

(IMDA) (at 25 U.S.C. 2107) provide the 

Secretary of the Interior with authority 

to promulgate regulations governing oil 

and gas operations and mineral 

agreements on certain Indian lands. As 

previously cited, the Secretary, through 

the regulations promulgated by the BIA, 

has assigned to the BLM part of the 

Secretary’s trust responsibilities to 

regulate oil and gas operations on those 

Indian lands. This rule concerning 

Indian lands is promulgated pursuant to 

the 1909 Act, the IMLA, and the IMDA, 

and will be implemented by the BLM 

under those authorities, consistent with 

Section 301 of FLPMA. 

Some tribes have asked that the 

proposed rule exempt Indian lands from 

its scope. Such an exemption would 

require the Secretary of the Interior to 

conclude, among other things, that 

usable waters in Indian lands, and the 

persons who use such waters, are less 

deserving of protection than waters and 

water users on Federal land. The 

Department of the Interior declines to 

reach that conclusion. 

Some tribes have advocated that the 

proposed rule should allow Indian 

tribes to decide individually whether 

the hydraulic fracturing regulations 

would apply on their lands. The BIA’s 

regulations, however, apply all of the 

BLM’s oil and gas operating regulations 

to Indian lands, and do not allow the 

tribes to pick and select which of the 

BLM’s regulations apply on their lands. 

The tribes, however, report that 

industry representatives have 

threatened not to bid on Indian leases if 

the initial proposed rule were 

promulgated. The tribes are concerned 

that a major source of revenue and of 

economic development might leave 

Indian lands because of the costs of 

compliance with the proposed rule. The 

BLM has carefully considered the tribes’ 

comments, along with those of the oil 

and gas industry and of concerned 

citizens and governments. The revised 

proposed rule includes several changes 

from the initial proposed rule to reduce 

the costs and other burdens of 

compliance. Examples include allowing 

operators to use any one of a class of 

CELs to verify the adequacy of cement 

casings, not requiring the CEL to be 

submitted or approved before fracturing 

operations if there is no indication of 

problems with the cementing, and the 

‘‘type well’’ approach allowing an 

operator’s approved group of wells that 

conform to the operator’s proven type 


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well in the same field to be 

hydraulically fractured without 

additional CELs, unless there is a 

problem with the cementing. The 

revised proposed rule also explicitly 

states that BLM will require isolation of 

zones that the tribes designate for 

protection from oil and gas operations, 

and will not require isolation of zones 

that tribes have exempted from 

protection. (Note, though, that the 

revised proposed rule would not exempt 

an operator from the provisions of the 

SDWA.) Furthermore, the BLM could 

approve a variance applicable to all or 

parts of Indian lands, provided the 

variance meets or exceeds the 

effectiveness of the revised proposed 

rule. Such a variance could allow an 

operator’s compliance with a tribe’s 

standard or procedure to be accepted as 

compliance with the revised proposed 

rule, thus reducing the compliance 

burdens for operators. Such changes 

should significantly reduce compliance 

costs for operators while still assuring 

protection of usable water resources. 

The BLM is aware that the revised 

proposed rule would nonetheless result 

in some higher costs for operators on 

Federal and Indian lands, compared 

with compliance costs for hydraulic 

fracturing on non-Federal, non-Indian 

lands in several States. Regulatory 

compliance costs, however, are only one 

set in a long list of costs that operators 

compare to anticipated revenues when 

deciding whether and how much to bid 

on a Federal or Indian lease. It has not 

been the BLM’s experience that 

regulatory compliance costs have 

caused the industry as a whole to avoid 

valuable oil and gas resources on 

Federal and Indian lands. 

Executive Order 12988, Civil Justice 

Reform 

Under Executive Order 12988, the 

Office of the Solicitor has determined 

that this rule would not unduly burden 

the judicial system and meets the 

requirements of Sections 3(a) and 3(b)(2) 

of the Order. The Office of the Solicitor 

has reviewed the rule to eliminate 

drafting errors and ambiguity. It has 

been written to minimize litigation, 

provide clear legal standards for affected 

conduct rather than general standards, 

and promote simplification and avoid 

unnecessary burdens. 

Paperwork Reduction Act 

The Paperwork Reduction Act (PRA) 

(44 U.S.C. 3501–3521) provides that an 

agency may not conduct or sponsor, and 

a person is not required to respond to, 

a ‘‘collection of information,’’ unless it 

displays a currently valid control 

number. Collections of information 

include requests and requirements that 

an individual, partnership, or 

corporation obtain information, and 

report it to a Federal agency (44 U.S.C. 

3502(3); 5 CFR 1320.3(c) and (k)). 

The BLM included its information 

collection request in the proposed rule 

and invited public comment. OMB did 

not approve or disapprove the request at 

that time. The BLM has revised the 

information collection that was in the 

proposed rule and has re-submitted its 

information collection request. In 

accordance with the PRA, the BLM is 

inviting public comment on its request 

that OMB approve new uses of Form 

3160–5 (Sundry Notices and Reports on 

Wells). The BLM is proposing that these 

new uses would replace certain existing 

uses of Form 3160–5 for hydraulic 

fracturing operations. 

OMB has approved the use of Form 

3160–5 under control number 1004– 

0137, Onshore Oil and Gas Operations 

(43 CFR part 3160), to collect 

information on a number of operations, 

including some hydraulic fracturing 

operations. Once the BLM is authorized 

to collect hydraulic fracturing 

information in accordance with 

finalized new section 3162.3–3 and new 

control number 1004–0203, the BLM 

will request revision of control number 

1004–0137 to: 

• Add the new hydraulic fracturing 

uses and burdens of Form 3160–5 to 

control number 1004–0137; 

• Remove the existing hydraulic 

fracturing uses and burdens from the 

existing approval of Form 3160–5; and 

• Discontinue new control number 

1004–0203. 

The new collection of information 

would be required to obtain or retain a 

benefit for the operators of Federal and 

Indian (except on the Osage 

Reservation, the Crow Reservation, and 

certain other areas) onshore oil and gas 

leases, units, or communitization 

agreements that include Federal leases. 

The BLM has requested a 3-year term of 

approval for the new control number. 

The information collection request for 

this revised proposed rule has been 

submitted to OMB for review under 44 

U.S.C. 3504(h) of the Paperwork 

Reduction Act. A copy of the request 

can be obtained from the BLM by 

electronic mail request to Candice 

Money at cmoney@blm.gov or by 

telephone request to 202–912–7144. 

You may also review the information 

collection request online at http:// 

www.reginfo.gov/public/do/PRAMain. 

The BLM requests comments to: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Comments on the information 

collection requirements should be sent 

to both OMB and the BLM as directed 

in the ADDRESSES section of this 

preamble. OMB is required to make a 

decision concerning the collection of 

information contained in this revised 

proposed rule between 30 to 60 days 

after publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it by June 24, 

2013. 

Summary of Information Collection 

Requirements 

The revised proposed rule is intended 

to increase transparency for the public 

regarding the fluids and additives used 

in hydraulic fracturing, and to protect 

Federal and Indian resources. The 

proposed provisions that include 

information collection requirements are 

amendments to 43 CFR 3162.3–2 and 

new 43 CFR 3162.3–3. 

OMB has approved the use of Form 

3160–5 under control number 1004– 

0137 for the operations listed in existing 

section 3162.3–2. As revised in the 

proposed rule, section 3162.3–2 would 

no longer include hydraulic fracturing 

jobs (i.e., nonroutine fracturing, routine 

fracturing, and acidizing) on the list of 

operations for which prior approval and 

subsequent reports would be required. 

Other categories of operations would 

remain subject to the information 

collection requirements in section 

3162.3–2. Once the BLM is authorized 

to collect hydraulic fracturing 

information under new section 3162.3– 

3 and a new control number, the BLM 

will request revision of control number 

1004–0137 by removing the hydraulic 

fracturing burdens from the existing 

approval of Form 3160–5. New section 

3162.3–3 would require operators to use 

Form 3160–5 both to seek prior BLM 

approval of hydraulic fracturing 

operations, and to submit a report on 


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subsequent actual hydraulic fracturing 

operations. It would also encourage 

operators to use Form 3160–5 if they 

want to request a variance from the 

requirements of new section 3162.3–3. 

In accordance with the PRA, the BLM 

invited public comments on the 

information collection in the initial 

proposed rule. One commenter 

submitted comments specifically in 

response to this opportunity. In 

addition, some commenters addressed 

the necessity, practical utility, and/or 

estimated burdens of the proposed 

collections. 

1. Necessity/Avoidance of Unnecessary 

Duplication 

The PRA requires each Federal agency 

to certify that its collections of 

information are necessary for the proper 

performance of agency functions, and 

are not unnecessarily duplicative of 

information otherwise reasonably 

accessible to the agency. 43 U.S.C. 

3506(c)(3)(A) and (B). 

One commenter stated that the 

proposed collections are unnecessary, 

given the existing Eight-Point Drilling 

Program associated with APDs and the 

subsequent well completion reports. In 

addition, the commenter stated that 

operators on Indian lands already 

comply with Colorado State rules that 

make Federal disclosure a redundant 

and unnecessary burden on operators. 

Other commenters also questioned 

whether the proposed collections are 

necessary and avoid unnecessary 

duplication. For example: 

• One commenter stated that the 

proposed collection of both pre- and 

post-fracturing information is a 

requirement to submit basically the 

same information twice, and 

recommended that the BLM consider 

requiring submission of pre-completion 

information and then requiring 

operators to advise the BLM of any postcompletion changes or deviations; 

• Another commenter recommended 

that operators be allowed to submit a 

generic or Master Plan for similar 

operations on a plan of development, at 

the field or unit level; 

• One commenter stated that the 

proposed collection of information 

about the water source to be used in 

hydraulic fracturing duplicates 

protections afforded by the 

Environmental Protection Agency and 

States under the Clean Water Act and 

the Safe Drinking Water Act; 

• One commenter stated that the 

proposed collections duplicate Staterequired collections in Colorado, New 

Mexico, Alabama, and Texas; 

• One commenter stated that the 

proposal to collect an estimate of the 

volume of fluid to be recovered during 

flowback, swabbing, and recovery from 

production facility vessels (43 CFR 

3162.3–3(c)(6)(i)) duplicates a 

requirement in Wyoming for postfracturing reporting as to the amounts, 

handling, and disposal or reuse of 

hydraulic fracturing fluid; and 

• One commenter stated that the 

information in the NOI Sundry and the 

Subsequent Report Sundry Notice 

duplicates information required and 

approved by individual States, and 

suggested that the BLM provide for 

exemptions for operators in States that 

have adopted hydraulic fracturing 

regulations, or accept information filed 

under State laws or regulations in lieu 

of requiring operators to submit 

duplicative information to the BLM for 

approval. 

Some commenters specifically 

questioned the necessity of proposed 

section 3162.3–3(c)(2), which would 

have required the Notice of Intent 

Sundry to include the ‘‘proposed 

measured depths (both top and bottom) 

of all occurrences of usable water and 

the CBLs (or another log acceptable to 

the authorized officer) proving that the 

occurrences of usable water have been 

isolated to protect them from 

contamination.’’ 

Some comments included statements 

of support. One commenter stated that 

full disclosure of chemicals involved in 

the hydraulic fracturing process results 

in a transparent process that benefits 

industry, regulatory agencies, and the 

public. 

Some other commenters generally 

supported transparency and full 

disclosure of pollution data. For 

example, one commenter stated that the 

post-fracturing collection of information 

on the volume of water used in the 

fracturing process will aid water 

resource managers in planning water 

resources on and near Federal lands, 

and suggested that the same type of 

information be collected on the Notice 

of Intent Sundry. 

Some commenters were supportive of 

disclosure of information through 

FracFocus.org to avoid duplicating or 

creating another platform for disclosure. 

Response: Because hydraulic 

fracturing has been a growing practice 

in recent years, the BLM has determined 

that the collections of information in the 

revised proposed rule are necessary to 

enable the BLM to meet its statutory 

obligations to regulate operations 

associated with Federal and some 

Indian oil and gas leases; prevent 

unnecessary or undue degradation; and 

manage public lands using the 

principles of multiple use and sustained 

yield. The collections of information 

will assist in the modernization of the 

BLM’s management of hydraulic 

fracturing operations in ways not 

anticipated when the existing collection 

requirements approved under control 

number 1004–0137 were developed, and 

will enable the BLM to ensure that 

operators are using best practices in 

fracturing operations. Moreover, the 

information that States, tribes, or other 

Federal agencies collect is not 

necessarily reasonably accessible to the 

BLM. For these reasons, the BLM has 

determined that the collections in the 

revised proposed rule are necessary, and 

are not unnecessarily duplicative of 

existing Federal, tribal, or State 

collection requirements. Accordingly, 

the BLM is not adopting the suggestion 

that it provide for exemptions for 

operators on Indian lands or in States 

that have promulgated hydraulic 

fracturing regulations; or that the BLM 

accept information filed under State or 

tribal laws or regulations in lieu of 

information that meets BLM standards. 

However, if information submitted in 

accordance with State laws or 

regulations meets the standards 

prescribed by the BLM, such 

information may be submitted to the 

BLM in accordance with the revised 

proposed rule. 

In response to comments that 

requiring both pre- and post-fracturing 

information amounts to a requirement to 

submit basically the same information 

twice, the BLM has deleted the 

following pre-fracturing collections: 

• Submission of a CBL for approval 

before commencing fracturing 

operations, which was part of proposed 

43 CFR 3162.3–3(c)(2); and 

• Submission of a pre-fracturing 

certification of compliance with all 

applicable permitting and notice 

requirements, which was proposed as 

43 CFR 3162.3–3(c)(4). 

The revised proposed rule (at 43 CFR 

3162.3–3(d)) also allows an NOI Sundry 

to be submitted for a single well or a 

type well covering a group of wells 

sharing substantially similar geological 

characteristics within the same geologic 

formation. If the submission is for a 

group of wells, the information should 

describe a ‘‘type well,’’ defined in the 

revised proposed rule to mean an oil 

and gas well that can be used as a model 

for well completion in a field where 

geologic characteristics are substantially 

similar across the field, and operations 

such as drilling, cementing, and 

hydraulic fracturing are likely to be 

successfully replicated using the same 

design. This provision will give 

operators an opportunity to streamline 

the submission of pre-fracturing 

information in appropriate 


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circumstances. However, the revised 

proposed rule provides (at 43 CFR 

3162.3–3(e)(4)) that where there are 

indications of problems with the 

cementing of casings, the operator must 

submit information showing that the 

problem has been corrected before 

commencing hydraulic fracturing 

operations, and (at 43 CFR 3162.3–3(i)) 

that post-fracturing data for each well is 

required. 

The BLM has taken these actions in 

recognition that: 

• The BLM can meet its statutory 

responsibilities without collecting a full 

complement of pre-fracturing data; but 

• The BLM needs more complete 

post-fracturing information in order to 

meet its statutory responsibilities. 

The BLM has not adopted the 

suggestions to: 

• Allow operators to meet their prefracturing information-submission 

obligations by submitting a generic or 

master plan for similar operations on a 

plan of development, at the field or unit 

level; 

• Allow operators to meet their postfracturing obligations solely by advising 

the BLM of any post-completion 

changes or deviations; or 

• Require data about water volume in 

pre-fracturing as well as post-fracturing 

information collections. 

Both the proposed rule and the 

revised proposed rule include 

provisions that require more detailed 

data after fracturing than before 

fracturing. For example, the information 

about water volume that is required 

before fracturing is limited to a plan that 

includes the estimated total volume of 

fluid to be used. See section 3162.3– 

3(d)(4) of the revised proposed rule 

(proposed as 43 CFR 3162.3–3(c)(5)). 

Regarding post-fracturing information, 

the BLM has revised proposed section 

3162.3–3(g)(1) (designated as section 

3162.3–3(i)(1) of the proposed rule) to 

require the total water volume used and 

in other paragraphs within subsection 

(i) of the revised proposed rule, 

operators are required to provide: 

• The actual surface pressure and rate 

at the end of each stage of the hydraulic 

fracturing operation, and the actual 

flush volume, rate, and final proposed 

pump pressure (section 3162.3–3(i)(3)); 

and 

• The volume of fluid recovered 

during flowback, swabbing, or recovery 

from production facility vessels (section 

3162.3–3 (i)(5)(i)). 

In both the initial proposed and 

revised proposed rule, the BLM has 

identified water volume to be a 

necessary element of both pre- and postfracturing information collections. The 

BLM is requiring all hydraulic 

fracturing and refracturing operations to 

isolate all usable water and other 

mineral-bearing formations and protect 

them from contamination. 43 CFR 

3162.3–3(b) and 3162.5–2. Operators are 

thus on notice that they must meet this 

performance standard during all 

operations covered by this rule. The 

commenter’s suggestion seems to be to 

collect pre-fracturing information about 

water volume that is as detailed, or 

similarly detailed, as that which will be 

collected after fracturing. However, 

upon consideration of this comment, the 

BLM has determined that the same 

amount of detail both before and after 

fracturing is not necessary in order to 

enable the BLM to verify that the 

proposed engineering design is adequate 

for safely conducting the proposed 

hydraulic fracturing. In addition, the 

BLM understands that such detail is 

unlikely to be available before 

commencing hydraulic fracturing. The 

BLM, therefore, has not adopted the 

commenter’s suggestion. Regarding the 

comments about FracFocus, section 

3162.3–3(i) of the revised proposed rule 

allows the following required postfracturing information to be submitted 

to the BLM through FracFocus, another 

data base specified by the BLM, or in a 

Subsequent Report Sundry Notice: 

• True vertical depth of the well; 

• Total water volume used; and 

• For each chemical used (including 

base fluid) the trade name, supplier, 

purpose, ingredients, Chemical Abstract 

Service Number (CAS #), maximum 

ingredient concentration in additive (% 

by mass), and maximum ingredient 

concentration in hydraulic fracturing 

fluid (% by mass). 

The initial proposed rule, at 43 CFR 

3162.3–3(g), would have required that 

this information, as well as additional 

information, be included in SR Sundry 

Notices, and provided no other options 

for submission. However, the preamble 

to the initial proposed rule indicated 

that this information is intended to be 

posted on a public Web site, and that 

the BLM was working with the 

Groundwater Protection Council to 

determine whether the disclosure can be 

integrated into FracFocus. Some 

commenters expressed concerns that 

this statement in the preamble could 

result in duplicative submissions of 

information. By clarifying the regulatory 

text, the BLM is preventing such 

unnecessary duplication. 

2. Practical Utility 

The PRA requires each Federal agency 

to certify that its collections of 

information have ‘‘practical utility.’’ 43 

U.S.C. 3506(c)(3)(A). A collection has 

practical utility if the agency can use the 

information that is collected. 

Some commenters questioned 

whether the BLM has sufficient 

expertise and staffing to use the 

information that is collected. One 

commenter specifically stated that it has 

seen no indication that the BLM intends 

to provide the training and education to 

enable its staff to use the information. 

One commenter also stated that the 

proposed collections could result in 

submissions of inaccurate information 

to the BLM because the details of a 

hydraulic fracturing design are typically 

not available to operators until after a 

well has been drilled and specific 

details regarding the target formation 

have been obtained. The commenter 

suggested that a more appropriate 

approach would be to collect 

appropriate information as it is obtained 

and for information purposes only. 

Response: The BLM employs many 

petroleum engineers and technicians, 

and they are well qualified to use the 

information required by the revised 

proposed rule, and thus disagrees with 

commenters that question the BLM’s 

ability to use the information that is 

required in the revised proposed rule. 

The BLM also disagrees with statements 

to the effect that pre-fracturing data will 

be inaccurate. The industry has many 

years of experience collecting and 

enhancing the accuracy of pre-fracturing 

engineering and data collection. 

3. Reduction of Burdens on the Public 

The PRA requires each Federal agency 

to certify that its collections of 

information: 

• Reduce respondents’ burdens to the 

extent practicable and appropriate; 

• Are written using plain, coherent, 

and unambiguous terminology that is 

understandable to those who are to 

respond; 

• Will be implemented in ways 

consistent and compatible, to the 

maximum extent practicable, with 

respondents’ existing reporting and 

recordkeeping practices; and 

• To the maximum extent practicable, 

use information technology to reduce 

burden and improve data quality, 

agency efficiency, and responsiveness to 

the public. 

43 U.S.C. 3506(c)(3)(C) through (E) and 

(J). 

One commenter stated that the BLM 

underestimated the annual costs 

associated with the proposed rule. Some 

commenters commented generally that 

the BLM has underestimated burdens 

under the Paperwork Reduction Act, 

other statutes, and various executive 

orders. 


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Other comments included the 

following: 

• One commenter stated that the BLM 

should consider ways to minimize the 

submission of information by allowing 

operators to conduct fracturing 

operations within acceptable operating 

ranges and allowing operators to use 

standard completion reports; and 

• One commenter suggested that, to 

reduce the burdens on operators, the 

BLM should allow operators to submit 

generic hydraulic fracturing plans for a 

targeted zone in resource play areas that 

can be referenced when an APD is 

submitted. Similarly, another 

commenter requested that the rule 

provide for acceptance of a general 

Operator’s Master Fluid Management 

Plan that may be used consistently 

across a plan of development. 

Response: The BLM has revised its 

estimates of the burdens to respondents, 

in part because of responses to 

comments that are described above. 

Specifically, the BLM has deleted some 

aspects of the pre-fracturing collection 

from the revised proposed rule, and has 

provided in the revised proposed rule 

for submission of pre-fracturing data 

either for each well or for a type well 

covering a group of wells sharing 

substantially similar geological 

characteristics within the same geologic 

formation. These revisions of the 

proposed rule result in a reduction of 

the estimated annual number of NOI 

Sundries from 1,700 to 415. They also 

result in a reduction of the estimated 

number of Variance Requests, from 170 

to 41, because such requests apply to 

NOI Sundries. These estimates are the 

average of the expected responses over 

the first 3 years of implementation. 

The estimated number of annual SR 

Sundry Notices has increased because 

the revised proposed rule (at 43 CFR 

3162.3–3) now requires post-fracturing 

data on both fracturing and re-fracturing 

operations. This revision results in an 

increase in the estimated annual 

responses, from 1,700 to 3,657. 

The following table shows the 

itemized estimated burdens associated 

with the revised proposed rule: 

A. 

Type of response 

B. 

Number of 

responses/ 

revised proposed 

rule 

C. 

Hours per 

response 

(same for 

proposed and 

revised 

proposed rule) 

D. 

Total 

hours/revised 

proposed rule 

(column B × 

column C) 

Sundry Notices and Reports on Wells/Well Stimulation/Notice of Intent Sundry (43 

CFR 3162.3–3) Form 3160–5 ...................................................................................... 415 8 3,320 

Sundry Notices and Reports on Wells/Well Stimulation/Subsequent Report Sundry 

Notice (43 CFR 3162.3–3) Form 3160–5 .................................................................... 3,657 8 29,256 

Sundry Notices and Reports on Wells/Well Stimulation/Variance Request (43 CFR 

3162.3–3) Form 3160–5 .............................................................................................. 41 8 328 

Totals ........................................................................................................................ 4,113 ............................ 32,904 

The general comments about the 

BLM’s analysis under the Paperwork 

Reduction Act, other statutes, and 

various executive orders did not address 

the specific information collection 

associated with the proposed rule. 

Therefore, the BLM has not changed the 

collection in response to these 

comments. However, the BLM invites 

further comments on the revised 

collection in this revised proposed rule. 

The BLM has not adopted the 

suggestions to allow operators to 

conduct fracturing operations within 

acceptable operating ranges, to allow 

operators to use standard completion 

reports, or to allow operators to submit 

Fluid Management Plans or generic 

hydraulic fracturing plans for a targeted 

zone in resource play areas that can be 

referenced when an APD is submitted. 

Such provisions would not enable the 

BLM to meet its statutory 

responsibilities. 

National Environmental Policy Act 

The BLM has prepared an 

environmental assessment (EA) that 

concludes that this rule would not 

constitute a major Federal action that 

may result in a significant adverse effect 

on the human environment under 

section 102(2)(C) of the National 

Environmental Policy Act (NEPA), 42 

U.S.C. 4332(2)(C). The EA and the draft 

Finding of No Significant Impact are 

available for review and on file in the 

BLM Administrative Record at the 

address specified in the ADDRESSES

section. 

Data Quality Act 

In developing this rule, we did not 

conduct or use a study, experiment, or 

survey requiring peer review under the 

Data Quality Act (Pub. L. 106–554). 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Under Executive Order 13211, 

agencies are required to prepare and 

submit to OMB a Statement of Energy 

Effects for significant energy actions. 

This Statement is to include a detailed 

statement of ‘‘any adverse effects of 

energy supply, distribution, or use 

(including a shortfall in supply, price 

increases, and increase use of foreign 

supplies)’’ for the action and reasonable 

alternatives and their effects. 

Section 4(b) of Executive Order 13211 

defines a ‘‘significant energy action’’ as 

‘‘any action by an agency (normally 

published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of OIRA as a significant 

energy action. 

The BLM believes that the additional 

cost per hydraulic fracturing operation 

is insignificant when compared with the 

drilling costs in recent years, the 

production gains from hydraulically 

fractured wells operations, and the net 

incomes of entities within the oil and 

natural gas industries. For a single well 

or a type well, the compliance costs 

represent about 0.4 to 1.5 percent of the 

costs of drilling a well. For a well 

subsequent to a type well, the costs 

represent between 0.04 and 0.08 percent 

of the total drilling costs. For existing 

wells and refracture operations, the 

percentages are even lower, at about 

0.01 to 0.03 percent. When averaging 

the compliance costs across all 

operations, the costs represent between 


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0.04 and 0.13 percent of the costs of 

drilling a well. 

Since the estimated compliance costs 

are not a substantial when compared 

with the total costs of drilling a well, the 

BLM believes that the rule is unlikely to 

have an effect on the investment 

decisions of firms, and the rule is 

unlikely to affect the supply, 

distribution, or use of energy. As such, 

the rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211. 

Clarity of the Regulations 

Executive Order 12866 requires each 

agency to write regulations that are 

simple and easy to understand. We 

invite your comments on how to make 

these proposed regulations easier to 

understand, including answers to 

questions such as the following: 

1. Are the requirements in the 

proposed regulations clearly stated? 

2. Do the proposed regulations 

contain technical language or jargon that 

interferes with their clarity? 

3. Does the format of the proposed 

regulations (grouping and order of 

sections, use of headings, paragraphing, 

etc.) aid or reduce their clarity? 

4. Would the regulations be easier to 

understand if they were divided into 

more (but shorter) sections? 

5. Is the description of the proposed 

regulations in the SUPPLEMENTARY

INFORMATION section of this preamble 

helpful in understanding the proposed 

regulations? How could this description 

be more helpful in making the proposed 

regulations easier to understand? 

Please send any comments you have 

on the clarity of the regulations to the 

address specified in the ADDRESSES

section. 

Authors 

The principal authors of this rule are: 

Subijoy Dutta of the BLM Washington 

Office; Donato Judice of the BLM Great 

Falls, Montana Oil and Gas Field Office, 

assisted by the BLM’s Division of 

Regulatory Affairs and the Department 

of the Interior’s Office of the Solicitor. 

List of Subjects 43 CFR Part 3160 

Administrative practice and 

procedure; Government contracts; 

Indians—lands; Mineral royalties; Oil 

and gas exploration; Penalties; Public 

lands—mineral resources; Reporting 

and recordkeeping requirements. 

43 CFR Chapter II 

For the reasons stated in the 

preamble, and under the authorities 

stated below, the Bureau of Land 

Management amends 43 CFR part 3160 

as follows: 

PART 3160—ONSHORE OIL AND GAS 

OPERATIONS 

■ 1. The authorities citation for part 

3160 is revised to read as follows: 

Authority: 25 U.S.C. 396d and 2107; 30 

U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 

1732(b), 1733, and 1740. 

Subpart 3160—Onshore Oil and Gas 

Operations: General 

§ 3160.0–3 [Amended] 

■ 2. In § 3160.0–3 add ‘‘the Federal 

Land Policy and Management Act (43 

U.S.C. 1701 et seq.),’’ after ‘‘the Mineral 

Leasing Act for Acquired lands, as 

amended (30 U.S.C. 351–359),’’. 

■ 3. Amend § 3160.0–5 by adding 

definitions of ‘‘annulus,’’ ‘‘bradenhead,’’ 

‘‘hydraulic fracturing,’’ ‘‘hydraulic 

fracturing fluid,’’ ‘‘proppant,’’ 

‘‘refracturing,’’ ‘‘type well,’’ and ‘‘usable 

water,’’ in alphabetical order and by 

removing the definition of ‘‘fresh 

water’’. 

The additions read as follows: 

§ 3160.0–5 Definitions. 

* * * * * 

Annulus means the space around a 

pipe in a wellbore, the outer wall of 

which may be the wall of either the 

borehole or the casing; sometimes also 

called annular space. 

* * * * * 

Bradenhead means a heavy, flanged 

steel fitting connected to the first string 

of casing that allows the suspension of 

intermediate and production strings of 

casing and supplies the means for the 

annulus to be sealed. 

* * * * * 

Hydraulic fracturing means those 

operations conducted in an individual 

wellbore designed to increase the flow 

of hydrocarbons from the rock formation 

to the wellbore through modifying the 

permeability of reservoir rock by 

fracturing it. Hydraulic fracturing does 

not include enhanced secondary 

recovery such as water flooding, tertiary 

recovery, recovery through steam 

injection, or other types of well 

stimulation operations such as 

acidizing. 

* * * * * 

Hydraulic fracturing fluid means the 

liquid or gas, and any associated solids 

used in hydraulic fracturing, including 

constituents such as water, chemicals, 

and proppants. 

* * * * * 

Proppant means a granular substance 

(most commonly sand, sintered bauxite, 

or ceramic) that is carried in suspension 

by the fracturing fluid that serves to 

keep the cracks open when fracturing 

fluid is withdrawn after a hydraulic 

fracture operation. 

* * * * * 

Refracturing means a hydraulic 

fracturing operation subsequent to the 

completion of a prior hydraulic 

fracturing operation in the same well. 

For purposes of this definition, a 

hydraulic fracturing operation is 

completed when a well begins 

producing oil or gas, or when 

equipment necessary to inject the 

hydraulic fracturing fluid at sufficient 

pressure to fracture the stratum is 

removed from the well pad, whichever 

occurs earlier. 

* * * * * 

Type well means an oil and gas well 

that can be used as a model for well 

completion in a field where geologic 

characteristics are substantially similar 

within the same field, and where 

operations such as drilling, cementing, 

and hydraulic fracturing are likely to be 

successfully replicated using the same 

design. 

* * * * * 

Usable water means generally those 

waters containing up to 10,000 parts per 

million (ppm) of total dissolved solids. 

The following geologic zones are 

deemed to contain usable water: 

(1) Underground sources of drinking 

water as defined by the U.S. 

Environmental Protection Agency or by 

State law (for Federal lands) or tribal 

law (for Indian lands); 

(2) Zones in use for supplying water 

for agricultural or industrial purposes, 

regardless of the concentration of total 

dissolved solids, unless the operator 

demonstrates that the existing 

agricultural or industrial user would not 

be adversely affected; 

(3) Zones designated by a State (for 

Federal lands) or a tribe (for Indian 

lands) as requiring isolation or 

protection from oil and gas operations; 

and 

(4) Zones containing up to 10,000 

ppm of total dissolved solids that are 

not excluded by paragraphs (A), (B), or 

(C) of this definition. The following 

geologic zones are deemed not to 

contain usable water: 

(A) Zones from which an operator is 

authorized to produce hydrocarbons; 

(B) Zones designated as exempted 

aquifers pursuant to the Safe Drinking 

Water Act; and 

(C) Zones which the State (for Federal 

lands) or the tribe (for Indian lands) has 

designated as exempt from any 

requirement to be isolated or protected 

from oil and gas operations. 

* * * * * 


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Subpart 3162—Requirements for 

Operating Rights Owners and 

Operators 

■ 4. Amend § 3162.3–2 by revising the 

first sentence of paragraph (a) and 

revising paragraph (b) to read as follows: 

§ 3162.3–2 Subsequent well operations. 

(a) A proposal for further well 

operations must be submitted by the 

operator on Form 3160–5 for approval 

by the authorized officer prior to the 

operator’s commencing operations to 

redrill, deepen, perform casing repairs, 

plug-back, alter casing, recomplete in a 

different interval, perform water shut 

off, combine production between zones, 

and/or convert to injection. * * * 

(b) Unless additional surface 

disturbance is involved and if the 

operations conform to the standard of 

prudent operating practice, prior 

approval is not required for acidizing 

jobs or recompletion in the same 

interval; however, a subsequent report 

on these operations must be filed on 

Form 3160–5. 

* * * * * 

■ 5. Revise § 3162.3–3 to read as 

follows: 

§ 3162.3–3 Subsequent well operations; 

Hydraulic fracturing. 

(a) Activities To Which This Section 

Applies. 

This section applies to all hydraulic 

fracturing operations, and refracturing 

operations. All other injection activities 

must comply with section 3162.3–2. 

(b) Isolation of Usable Water to 

Prevent Contamination. All hydraulic 

fracturing and refracturing operations 

must meet the performance standard in 

section 3162.5–2(d) of this title. 

(c) When an Operator Must Submit 

Notification for Approval of Hydraulic 

Fracturing. A proposal for hydraulic 

fracturing or refracturing must be 

submitted by the operator and approved 

by the BLM before commencement of 

operations. The proposal may be 

submitted in one of the following ways: 

(1) The operator may submit with its 

application for permit to drill the 

information required in paragraph (d) of 

this section; 

(2) The operator may submit a 

proposal for hydraulic fracturing 

operations on Form 3160–5 (Sundry 

Notices and Reports on Wells) as a 

Notice of Intent Sundry for approval by 

the authorized officer prior to hydraulic 

fracturing. If the hydraulic fracturing 

operation would cause additional 

surface disturbance, the proposal must 

include a surface use plan of operations; 

or 

(3) If an operator has received BLM 

approval for hydraulic fracturing 

operations, it must submit a new Notice 

of Intent Sundry if: 

(i) Hydraulic fracturing or refracturing 

operations have not commenced within 

5 years after the effective date of 

approval of the fracturing operation; 

(ii) The operator has significant new 

information about the geology of the 

area, the stimulation operation or 

technology to be used, or the anticipated 

impacts of the fracturing operation to 

any resource; or 

(iii) The operator proposes 

refracturing of the well. For refracturing 

operations, the operator must submit 

any information in this section that is 

required by the authorized officer, 

including a mechanical integrity test. 

(d) What the Notice of Intent Sundry 

Must Include. The authorized officer 

may prescribe that each proposal 

contain all or a portion of the 

information set forth in section 3162.3– 

1 of this title. The Sundry Notice may 

be submitted for a single well or a group 

of wells within the same geologic 

formation. If the submission is for a 

group of wells, the information should 

describe a type well. If the type well has 

not been completed, the cement 

evaluation log described in paragraph 

(e)(2) of this section must be provided 

to BLM before drilling operations may 

begin on the other wells in the group. 

If information submitted in accordance 

with State (on Federal lands) or tribal 

(on Indian lands) laws or regulations 

meets the standards prescribed by the 

BLM, such information may be 

submitted to the BLM as part of the 

Sundry Notice. 

The Notice of Intent Sundry must 

include the following: 

(1) The geological names, a geological 

description, and the proposed measured 

depth of the top and the bottom of the 

formation into which hydraulic 

fracturing fluids are to be injected; 

(2) The measured or estimated depths 

(both top and bottom) of all occurrences 

of usable water by use of a drill log from 

the subject well or another well in the 

vicinity and within the same field; 

(3) The proposed measured depth of 

perforations or the open-hole interval, 

estimated pump pressures, and 

information concerning the source and 

location of water supply, such as reused 

or recycled water, or rivers, creeks, 

springs, lakes, ponds, and wells, which 

may be shown by quarter-quarter 

section on a map or plat, or which may 

be described in writing. It must also 

identify the anticipated access route and 

transportation method for all water 

planned for use in fracturing the well; 

(4) A plan for the proposed hydraulic 

fracturing design that includes, but is 

not limited to, the following: 

(i) The estimated total volume of fluid 

to be used; 

(ii) The anticipated surface treating 

pressure range; 

(iii) The maximum injection treating 

pressure; 

(iv) The estimated or calculated 

fracture direction, length, and height, 

including the estimated fracture 

propagation plotted on the well 

schematics and on a map. The map 

must be of a scale no smaller than 

1:24,000; and 

(v) The estimated vertical distance to 

the nearest usable water aquifer above 

the fracture zone; 

(5) The following information 

concerning the handling of recovered 

fluids: 

(i) The estimated volume of fluid to be 

recovered during flowback, swabbing, 

and recovery from production facility 

vessels; 

(ii) The proposed methods of 

handling the recovered fluids, 

including, but not limited to, pit 

requirements, pipeline requirements, 

holding pond use, re-use for other 

stimulation activities, or injection; and 

(iii) The proposed disposal method of 

the recovered fluids, including, but not 

limited to, injection, hauling by truck, 

or transporting by pipeline; and 

(6) The authorized officer may request 

additional information prior to the 

approval of the Notice of Intent Sundry. 

(e) Monitoring of Cementing 

Operations and Cement Evaluation Log 

Prior to Hydraulic Fracturing. 

(1) During cementing operations the 

operator must monitor and record the 

flow rate, density, and treating pressure 

and submit a cement operation 

monitoring report to the authorized 

officer within 30 days after completion 

of the hydraulic fracturing operations. 

(2) The operator must run a cement 

evaluation log or logs on each casing 

that protects usable water and the 

operator must submit those logs to the 

authorized officer within 30 days after 

completion of the hydraulic fracturing 

operations, except as provided under 

(e)(3) of this section. A cement 

evaluation log, is any one of a class of 

tools that verify the integrity of annular 

cement bonding, such as, but not 

limited to, a cement bond log, ultrasonic 

imager, variable density logs, microseismograms, CBLs with directional 

receiver array, ultrasonic pulse echo 

technique, or isolation scanner. An 

operator may select the tool used to 

prepare the CEL, as long as it is at least 

as effective in verifying the integrity of 

annular cement bonding as is a cement 

bond log. 


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(3) An operator is not required to run 

a cement evaluation log on the casings 

of a subsequent well where an operator: 

(i) Submitted a cement evaluation log 

for a type well (see paragraph (d) of this 

section) that shows successful cement 

bonding to protect against downhole 

fluid cross-migration into water zones; 

and 

(ii) Completes a subsequent well or 

wells with the same specifications and 

geologic characteristics as the type well, 

and approved in the same group sundry 

notice for the same field (see paragraph 

(d) of this section), and the cementing 

operations monitoring data parallels 

those of the type well. 

(4) For any well, if there is an 

indication of an inadequate cement job 

(such as, but not limited to, lost returns, 

cement channeling, gas cut mud, or 

failure of equipment), then the operator 

must report that information to the 

authorized officer within 24 hours, 

followed by a written report within 48 

hours. Prior to commencing hydraulic 

fracturing operations, the operator must 

run a cement evaluation log showing 

that the inadequate cement job has been 

corrected and the occurrences of usable 

water have been isolated to protect them 

from contamination. At least 72 hours 

before commencing the hydraulic 

fracturing operation, the operator must 

submit: 

(i) A signed certification indicating 

that the operator corrected the 

inadequate cement job; and 

(ii) Documentation that shows that 

there is adequate cement bonding. 

(5) The operator must submit the 

information required by paragraph 

(e)(1), and (e)(2) of this section with the 

Subsequent Report Sundry Notice 

required in paragraph (i) of this section. 

(f) Mechanical Integrity Testing Prior 

to Hydraulic Fracturing. Prior to 

hydraulic fracturing, or refracturing, the 

operator must perform a successful 

mechanical integrity test (MIT) of the 

vertical sections of the casing. 

(1) If hydraulic fracturing through the 

casing is proposed, the casing must be 

tested to not less than the maximum 

anticipated treating pressure. 

(2) If hydraulic fracturing through a 

fracturing string is proposed, the 

fracturing string must be inserted into a 

liner or run on a packer-set not less than 

100 feet below the cement top of the 

production or intermediate casing. The 

fracturing string must be tested to not 

less than the maximum anticipated 

treating pressure minus the annulus 

pressure applied between the fracturing 

string and the production or 

intermediate casing. 

(3) The MIT will be considered 

successful if the pressure applied holds 

for 30 minutes with no more than a 10 

percent pressure loss. 

(g) Monitoring and Recording During 

Hydraulic Fracturing. 

(1) During any hydraulic fracturing or 

refracturing operation, the operator 

must continuously monitor and record 

the annulus pressure at the bradenhead. 

The pressure in the annulus between 

any intermediate casings and the 

production casing must also be 

continuously monitored and recorded. 

A continuous record of the annulus 

pressure during the fracturing operation 

must be submitted with the required 

Subsequent Report Sundry Notice (Form 

3160–5, Sundry Notices and Reports on 

Wells) identified in paragraph (i) of this 

section. 

(2) If during any hydraulic fracturing 

or refracturing operation the annulus 

pressure increases by more than 500 

pounds per square inch as compared to 

the pressure immediately preceding the 

stimulation, the operator must take 

immediate corrective action and must 

orally notify the authorized officer as 

soon as practicable, but no later than 24 

hours following the incident. Within 30 

days after the hydraulic fracturing 

operations are completed, the operator 

must submit a report containing all 

details pertaining to the incident, 

including corrective actions taken, as 

part of a Subsequent Report Sundry 

Notice (Form 3160–5, Sundry Notices 

and Reports on Wells). 

(h) Storage of all recovered fluids 

must be in either tanks or lined pits. 

The authorized officer may require any 

other BLM approved method to protect 

the mineral resources, other natural 

resources, and environmental quality 

from the release of recovered fluids. 

(i) Information that Must be Provided 

to the Authorized Officer After 

Completed Operations. The information 

required in paragraphs (i)(1) through 

(i)(8) of this section must be submitted 

to the authorized officer within 30 days 

after the hydraulic fracturing or 

refracturing operations are completed. 

The information is required for each 

well, even if the BLM approved 

fracturing of a group of wells (see 

§ 3162.3–3(d)). The information 

required in paragraph (i)(1) of this 

section must be submitted to the 

authorized officer through FracFocus, 

another BLM-designated database, or in 

a Subsequent Report Sundry Notice 

(Form 3160–5, Sundry Notices and 

Reports on Wells). If information is 

submitted through FracFocus or another 

designated database, the operator must 

specify that the information is for a 

Federal or an Indian well, certify that 

the information is correct, and certify 

compliance with applicable law as 

required by paragraph (i)(7)(ii) or 

(i)(7)(iii) of this section using FracFocus 

or the designated database. The 

information required in paragraphs (i)(2) 

though (i)(8) of this section must be 

submitted to the authorized officer in a 

Subsequent Report Sundry Notice. The 

operator is responsible for the 

information submitted by a contractor or 

agent, and the information is considered 

to have been submitted directly from the 

operator to the BLM. The operator must 

submit the following information: 

(1) The true vertical depth of the well, 

total water volume used, and for each 

chemical used (including base fluid) the 

trade name, supplier, purpose, 

ingredients, Chemical Abstract Service 

Number (CAS #), maximum ingredient 

concentration in additive (% by mass), 

and maximum ingredient concentration 

in hydraulic fracturing fluid (% by 

mass). 

(2) The actual measured depth of 

perforations or the open-hole interval, 

and actual pump pressures and the 

source(s) and location(s) of the water 

used in the hydraulic fracturing fluid. 

(3) The actual surface pressure and 

rate at the end of each stage of the 

hydraulic fracturing operation, and the 

actual flush volume, rate, and final 

pump pressure. 

(4) The actual, estimated, or 

calculated fracture length, height and 

direction; 

(5) The following information 

concerning the handling of recovered 

fluids: 

(i) The volume of fluid recovered 

during flowback, swabbing, or recovery 

from production facility vessels; 

(ii) The methods of handling the 

recovered fluids, including, but not 

limited to, transfer pipes and tankers, 

holding pond use, re-use for other 

stimulation activities, or injection; and 

(iii) The disposal method of the 

recovered fluids, including, but not 

limited to, injection, hauling by truck, 

or transporting by pipeline. The 

disposal of fluids produced during the 

flowback from the hydraulic fracturing 

process must follow the requirements 

set out in Onshore Order Number 7, 

Disposal of Produced Water, Section 

III.B. (October 8, 1993, 58 FR 58506). 

(6) If the actual operations deviate 

from the approved plan, the deviation(s) 

must be documented and explained. 

(7) A certification signed by the 

operator that: 

(i) Wellbore integrity was maintained 

prior to and throughout the hydraulic 

fracturing operation, as required by 

paragraph (b) of this section. The 

operator must also certify that it 

complied with the requirements in 


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Federal Register / Vol. 78, No. 101 / Friday, May 24, 2013 / Proposed Rules 31677 

paragraphs (e), (f), (g), and (h) of this 

section; 

(ii) For Federal lands, the hydraulic 

fracturing fluid used complied with all 

applicable permitting and notice 

requirements as well as all applicable 

Federal, State, and local laws, rules, and 

regulations; and 

(iii) For Indian lands, the hydraulic 

fracturing fluid used complied with all 

applicable permitting and notice 

requirements as well as all applicable 

Federal and tribal laws, rules, and 

regulations. 

(8) The operator must submit well 

logs and records of adequate cement 

bonds including the cementing 

operations monitoring report, any 

cement evaluation log, and the result of 

the mechanical integrity test as required 

by paragraphs (e)(1), (e)(2), and (f) of 

this section. 

(9) The authorized officer may require 

the operator to provide documentation 

substantiating any information 

submitted under paragraph (i) of this 

section. 

(j) Identifying Information Claimed to 

be Exempt from Public Disclosure. 

(1) For the information required in 

paragraph (i)(1) of this section, the 

operator will be deemed to have waived 

any right to protect from public 

disclosure information submitted with a 

Subsequent Report Sundry Notice or 

through FracFocus or another 

designated database. For information 

required in paragraph (i)(1) of this 

section that the operator claims to be 

exempt from public disclosure, the 

operator must submit to the BLM an 

affidavit that: 

(i) Identifies the Federal statute or 

regulation that allows withholding of 

the information from the BLM or 

prohibits the BLM from disclosing the 

information if it were in the BLM’s 

possession; 

(ii) Affirms that the information is not 

publicly available; 

(iii) Affirms that the information is 

not required to be publicly available 

under any applicable law; 

(iv) Affirms that the release of the 

information would likely harm the 

operator’s competitive position; and 

(v) Affirms that the information is not 

readily apparent through reverse 

engineering. 

(2) The BLM may require any operator 

to disclose to the BLM any information 

claimed to be exempt from public 

disclosure, along with any other 

relevant information. 

(3) If the BLM determines that the 

information is not exempt from 

disclosure, the BLM will make the 

information available to the public after 

providing the operator with no fewer 

than 10 business days’ notice of the 

BLM’s determination. 

(4) The operator must maintain 

records of the information claimed to be 

exempt from disclosure for the period of 

time as required by section 3162.4–1(d) 

of this title. 

(k) Requesting a Variance from the 

Requirements of this Section. The 

operator may make a written request to 

the authorized officer for a variance 

from the requirements under this 

section. The BLM encourages 

submission using a Sundry Notice 

(Form 3160–5, Sundry Notices and 

Reports on Wells). In cooperation with 

a State (for Federal lands) or a tribe (for 

Indian lands), the BLM may issue a 

variance that would apply to all wells 

within a State or within Indian lands, or 

to specific fields or basins within the 

State or the Indian lands, if the BLM 

finds that the variance meets the criteria 

in paragraph (k)(2) of this section. 

(1) A request for a variance must 

specifically identify the regulatory 

provision of this section for which the 

variance is being requested, explain the 

reason the variance is needed, and 

demonstrate how the operator will 

satisfy the objectives of the regulation 

for which the variance is being 

requested. 

(2) The authorized officer, after 

considering all relevant factors, may 

approve the variance, or approve it with 

one or more conditions of approval, 

only if the BLM determines that the 

proposed alternative meets or exceeds 

the objectives of the regulation for 

which the variance is being requested. 

The decision whether to grant or deny 

the variance request is entirely within 

the BLM’s discretion. 

(3) A variance under this section does 

not constitute a variance to provisions 

of other regulations, laws, or orders. 

(4) Due to changes in Federal law, 

technology, regulation, BLM policy, 

field operations, noncompliance, or 

other reasons, the BLM reserves the 

right to rescind a variance or modify any 

conditions of approval. The authorized 

officer must provide a written 

justification if a variance is rescinded or 

a condition of approval is modified. 

■ 6. Amend § 3162.5–2 by revising the 

first sentence of paragraph (d) to read as 

follows: 

§ 3162.5–2 Control of wells. 

* * * * * 

(d) Protection of usable water and 

other minerals. The operator must 

isolate all usable water and other 

mineral-bearing formations and protect 

them from contamination. 

* * * * * 

Tommy P. Beaudreau, 

Acting Assistant Secretary, Land and 

Minerals Management. 

[FR Doc. 2013–12154 Filed 5–23–13; 8:45 am] 

BILLING CODE 4310–84–P 


sroberts on DSK5SPTVN1PROD with PROPOSALS