10308 Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 

DEPARTMENT OF AGRICULTURE 

Forest Service 

36 CFR Part 228 

RIN 0596–AC20 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

43 CFR Part 3160 

[W0–610–411H12–24 1A] 

RIN 1004–AD59 

Onshore Oil and Gas Operations; 

Federal and Indian Oil and Gas Leases; 

Onshore Oil and Gas Order Number 1, 

Approval of Operations 

AGENCIES: U.S. Forest Service, 

Agriculture; Bureau of Land 

Management, Interior. 

ACTION: Joint final rule. 

SUMMARY: This final rule revises existing 

Onshore Oil and Gas Order Number 1 

which was published in the October 21, 

1983, edition of the Federal Register. 

The Order provides the requirements 

necessary for the approval of all 

proposed oil and gas exploratory, 

development, or service wells on all 

Federal and Indian (other than those of 

the Osage Tribe) onshore oil and gas 

leases, including leases where the 

surface is managed by the U.S. Forest 

Service (FS). It also covers most 

approvals necessary for subsequent well 

operations, including abandonment. 

The revision is necessary due to 

provisions of the 1987 Federal Onshore 

Oil and Gas Leasing Reform Act (Reform 

Act), the Energy Policy Act of 2005 

(Act), legal opinions, court cases since 

the Order was issued, and other policy 

and procedural changes. The revised 

Order addresses the submittal of a 

complete Application for Permit to Drill 

or Reenter package (APD), including a 

Drilling Plan, Surface Use Plan of 

Operations, evidence of bond coverage 

and Operator Certification. The final 

rule ensures that the processing of APDs 

is consistent with the Act and clarifies 

the regulations and procedures that are 

to be used when operating in split 

estates, including those lands within 

Indian country. The final rule addresses 

using Master Development Plans (which 

address two or more APDs) to approve 

multiple well development proposals 

and encourages the voluntary use of 

Best Management Practices as a part of 

APD processing. Finally, the rule 

requires additional bonding on certain 

off-lease facilities and clarifies the 

BLM’s authority to require this 

additional bond. 

DATES: This final rule is effective April 

6, 2007. 

FOR FURTHER INFORMATION CONTACT: 

James Burd at (202) 452–5017 or Ian 

Senio at (202) 452–5049 at the BLM or 

Barry Burkhardt at (801) 625–5157 at 

the Forest Service. Persons who use a 

telecommunications device for the deaf 

(TDD) may contact these persons 

through the Federal Information Relay 

Service (FIRS) at 1–800–877–8339, 24 

hours a day, 7 days a week. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of the Final Rule and 

Comments 

III. Procedural Matters 

I. Background 

The regulations at 43 Code of Federal 

Regulations (CFR) part 3160, Onshore 

Oil and Gas Operations, in section 

3164.1 provide for the issuance of 

onshore oil and gas orders to 

‘‘implement and supplement’’ the 

regulations in part 3160. Also, 36 CFR 

228.105 provides for the issuance of FS 

Onshore Orders or for the co-signing of 

orders with the BLM. Although they are 

not codified in the CFR, all onshore 

orders are issued using notice and 

comment rulemaking and, when issued 

in final form, apply nationwide to all 

Federal and Indian (other than those of 

the Osage Tribe) onshore oil and gas 

leases. The table in 43 CFR 3164.1(b) 

lists existing Orders. This rule revises 

existing Onshore Oil and Gas Order 

Number 1 (the Order) which 

supplements primarily 43 CFR 3162.3 

and 3162.5. Section 43 CFR 3162.3 

covers conduct of operations, 

applications to drill on a lease, 

subsequent well operations, other 

miscellaneous lease operations, and 

abandonment. Section 3162.5 covers 

environmental and safety obligations. In 

this rule the FS adopts the Order which 

would supplement 36 CFR 228 subpart 

E. The existing Order has been in effect 

since November 21, 1983. For further 

information, see the October 21, 1983 

Federal Register at 48 FR 48916. 

The BLM and the FS published the 

proposed rule in the Federal Register on 

July 27, 2005 (70 FR 43349), for a 30- 

day comment period and on August 26, 

2005 (70 FR 50262) extended the 

comment period for 60 days. On August 

8, 2005, the President signed the Energy 

Policy Act of 2005 (Act). Provisions in 

the Act impacted the timing of APD 

approval provisions in the original 

proposed rule. Therefore, on March 13, 

2006, the BLM and the FS published a 

further proposed rule to make the 

provisions in the originally published 

proposed rule consistent with the Act. 

The further proposed rule also modified 

a provision in the proposal regarding 

proposed operations on lands with 

Indian surface and Federal minerals. 

II. Discussion of the Final Rule and 

Comments 

There are four primary reasons the 

Order is being revised: 

1. The 1987 Reform Act, which 

amended the Mineral leasing Act, 30 

U.S.C. 181 et seq., included two 

significant changes affecting APD 

processing on Federal leases. The first 

important change is the addition of a 

provision for public notification of a 

proposed action before APD approval or 

substantial modification of the terms of 

a Federal lease. 

The second important change the 

Reform Act made is the assignment of 

authority to the Secretary of Agriculture 

to approve and regulate the surface 

disturbing activity associated with oil 

and gas wells on National Forest System 

(NFS) lands. Where NFS lands are 

involved, a Surface Use Plan of 

Operations, included in an APD, is now 

approved by the FS. The FS also 

approves surface disturbing aspects of 

related and subsequent operations. The 

FS has actively participated in this 

revision, and is a cosigner of this Order. 

The Order would apply to FS review of 

oil and gas surface operations. 

Section 366 of the Energy Policy Act 

of 2005 sets steps and time requirements 

for processing APDs. The Order has 

been revised to be consistent with 

section 366 requirements. 

2. In response to protests to two 

Resource Management Plans in April 

1988, the Office of the Solicitor of the 

Department of the Interior issued two 

memorandums related to oil and gas 

issues. The first and most far-reaching 

(issued by the Associate Solicitor, 

Energy and Resources on April 1, 1988, 

titled ‘‘Legal Responsibilities of BLM for 

Oil and Gas Leasing and Operations on 

Split Estate Lands’’), concerned BLM 

responsibilities on Federal leases 

overlain by private surface (split estate). 

In this memorandum the Solicitor’s 

Office opined that the National 

Environmental Policy Act (NEPA), the 

Endangered Species Act (ESA), and the 

National Historic Preservation Act 

(NHPA) require the BLM to regulate 

exploration, development, and 

abandonment on Federal leases on split 

estate lands in essentially the same 

manner as a lease overlain by Federal 

surface. The memorandum also stated 

that while a private owner’s wishes 

should be considered in decisions, they 

do not overrule requirements of these 


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statutes and their implementing 

regulations. 

The second memorandum (issued by 

the Assistant Solicitor, Onshore 

Minerals, Division of Energy and 

Resources on April 4, 1988, titled ‘‘Legal 

Responsibilities of BLM for Oil and Gas 

Leasing and Operations under the 

National Historic Preservation Act’’) 

lays out in more detail the BLM’s 

responsibilities under NHPA, 

elucidating further the discussion on 

cultural resources in the first opinion. 

The pertinent requirements of the 

existing Order do not fully conform to 

the memorandums issued by the 

Solicitor’s Office in 1988. 

3. The existing Order does not 

adequately address the BLM Rights-ofWay or FS Special Use Authorizations 

which are often required for ancillary 

facilities or those activities outside of 

lands committed to a unitized area. This 

has led to confusion and delays on the 

part of both the agencies and industry. 

Under the existing Order, APD approval 

is often delayed pending completion 

and approval of a Right-of-Way or 

Special Use Authorization. We intend 

for the proposal to eliminate or reduce 

this delay. The rule provides for early 

identification of any needed Right-ofWay or Special Use Authorization, 

allows for conducting a single 

environmental analysis for the APD and 

Right-of-Way or Special Use 

Authorization, and permits concurrent 

approval of the Right-of-Way or Special 

Use Authorization with the APD. On 

NFS lands, the FS will approve 

activities directly related to the drilling 

and production of the well consistent 

with 36 CFR Subpart E. 

4. Existing Order Number 1 is over 20 

years old. Conditions, regulations, 

policies, procedures, and requirements 

have been altered, added, and 

eliminated since the Order was issued. 

The BLM is in the process of reviewing 

Field Office practices and the 

preliminary findings from that review 

were considered in the proposed 

revisions to the Order. The BLM has 

reorganized the Order to follow the 

review and approval process and the 

processing timeframes for each step are 

now in one section. Also, operations on 

split estate are discussed in more detail. 

The BLM encourages operators to 

employ Best Management Practices 

when they develop their APDs. Best 

Management Practices are innovative, 

dynamic, and economically feasible 

mitigation measures applied on a sitespecific basis to reduce, prevent, or 

avoid adverse environmental or social 

impacts. The BLM Field Offices 

incorporate appropriate Best 

Management Practices into proposed 

APDs and associated on-lease and offlease Rights-of-Way approvals after 

required NEPA evaluation. They can 

then be included in approved APDs as 

Conditions of Approval. Typical Best 

Management Practices can currently be 

found on the BLM’s Web site at 

http://www.blm.gov/bmp/. 

Discussion of Major Changes 

Definition of ‘‘Complete APD’’

The term ‘‘Technically and 

Administratively Complete APD’’ has 

been replaced with a clear definition of 

‘‘Complete APD.’’ This new definition 

reflects what is already a common 

practice in many Field Offices and 

would require all Field Offices to adopt 

the same convention. The new 

definition makes the approval process 

more consistent. The BLM considered 

defining the terms ‘‘Administratively 

complete’’ and ‘‘Technically complete’’

separately, but abandoned this idea 

because it is difficult to separate the two 

concepts and because potential delays 

might be caused when processing APDs 

in certain circumstances. This final rule 

requires that an onsite inspection 

conducted jointly by the BLM (and the 

FS if appropriate) and the operator be 

completed prior to the BLM designating 

the APD package as complete. The BLM 

(and the FS if appropriate) currently 

conducts onsite inspections to 

determine if the material submitted in 

the APD package is accurate and to 

determine if Conditions of Approval are 

necessary. Examining existing on-theground circumstances is the only way to 

ensure that the information in the APD 

package is consistent with conditions at 

the proposed drill site and along the 

proposed access route. The final rule 

codifies the current BLM practice of 

onsite inspections as part of the APD 

approval process. 

APD Processing 

Section 366 of the Act amends the 

Mineral Leasing Act (30 U.S.C. 

226(p)(1)) and adds the statutory 

requirement that the Secretary shall 

notify an applicant within 10 days of 

receiving an APD and state that either 

the APD is complete or specify what 

additional information is required to 

make the application complete. 

The Act requires that the Secretary 

(the BLM is the delegated authority) 

approve an APD within 30 days after its 

completion or notify the applicant of: 

(1) Any actions that the operator can 

take to get approval; and (2) What steps, 

such as National Environmental Policy 

Act (NEPA) or other regulatory 

compliance, remain to be completed 

and the schedule for completion of 

these requirements. This provision of 

the Act is made a part of the final rule. 

In those situations where the BLM 

defers the decision, the Act and the final 

rule give the applicant 2 years to take 

whatever actions are identified in the 

30-day notice. The Act amends 30 

U.S.C. 226 by adding a new paragraph 

(p)(3)(B), and the final rule also adds a 

new requirement that the BLM must 

make a final decision on the application 

within 10 days of the applicant’s 

completion of these requirements, if all 

other regulatory requirements are 

complete. The timeframes established in 

this section apply to both individual 

APDs and to the multiple APDs 

included in Master Development Plans. 

Even though the time limits established 

in Section 366 of the Act are 

amendments to the Mineral Leasing Act 

and, therefore, do not apply to Indian 

leases, the final rule states that the same 

time limit will apply to both Federal 

and Indian leases. 

The BLM does not approve Surface 

Use Plans of Operations for National 

Forest Service (NFS) lands. The FS 

notifies the BLM of its Surface Use Plan 

of Operations approval and the BLM 

proceeds with its APD review. For APDs 

on NFS lands, the decision to approve 

a Surface Use Plan of Operations or 

Master Development Plan are subject to 

existing FS appeal procedures, which 

may take up to 105 days from the date 

of the decision. Pursuant to the Mineral 

Leasing Act (30 U.S.C. 226(g)), as 

amended by the Reform Act, the final 

rule in Section III.E.2.b. provides that 

the BLM may not approve an APD until 

the FS has approved the Surface Use 

Plan of Operations. This condition is 

consistent with the addition to Section 

17 of the Mineral Leasing Act (30 U.S.C. 

226(p)(2)) adopted in Section 366 of the 

Energy Policy Act, which provides that 

the Secretary shall issue a permit within 

30 days only if requirements of other 

applicable law have been completed 

within that timeframe. Therefore, in 

situations where the Surface Use Plan of 

Operations is not approved, the BLM 

will provide notice within the 30-day 

period that action on the APD will be 

deferred until the FS completes action 

on the Surface Use Plan of Operations. 

Operating on Split Estate Lands With 

Indian Surface Ownership 

The final rule makes it clear that split 

estate lands include those having Indian 

surface and Federal minerals. It also 

explains that the operator is required to 

address surface use issues with the 

Bureau of Indian Affairs (BIA) when 

Indian trust lands are involved. 

The final rule addresses the 

responsibility of the operator to confer 


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10310 Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 

with surface owners in the case of 

privately owned surface and Federal/ 

Indian leases, as well as Indian oil and 

gas leases where the surface is in 

different Indian ownership. The final 

rule applies to privately owned surface 

and to all Indian surface and Federal oil 

and gas lease situations. The final rule 

requires a good faith effort to reach a 

Surface Access Agreement, and 

provides for the posting of a bond to 

protect against covered damages in the 

absence of an agreement. This final rule 

codifies existing policy with the 

exception that surface owner 

compensation is based on the terms of 

the statute that reserved the mineral 

estate. Under the previous rules, this 

compensation was based on the terms of 

the Stockraising Homestead Act. 

Drilling and Surface Use Plans 

The final rule makes specific changes 

to the drilling and surface use plans as 

follows: 

The former 8-point Drilling Program 

(also referred to as the Subsurface Use 

Plan) is replaced with a 9-point Drilling 

Plan. The new requirement in the final 

rule requires the operator to address the 

type and amount of cement to be used 

in setting each casing string. 

The final rule replaces the former 13- 

point Surface Use Program (or Plan) 

with a 12-point Surface Use Plan of 

Operations. ‘‘Operator Certification’’ is a 

separate component of the APD in the 

final rule. The final rule makes it clear 

that the Operator Certification covers 

the entire APD package and not just the 

Surface Use Plan of Operations. Under 

the final rule, the operator is required to 

certify that they have made a good faith 

effort to provide the surface owner with 

a copy of the Surface Use Plan of 

Operations and any Conditions of 

Approval that are attached to the APD. 

Master Development Plans 

The final rule establishes a new 

approval process for Master 

Development Plans. An operator uses 

this process to submit plans for field 

development of a multiple well 

program. A Master Development Plan 

proposal can be addressed in a single 

NEPA analysis and approval. This 

facilitates the consideration of 

cumulative effects early in the process 

and enables broad application of 

identified mitigation measures, and 

minimizes the overall timeframe for 

approval. Because the process allows for 

better planning of field development, 

adverse environmental impacts are 

minimized. 

Use of Best Management Practices 

The final rule encourages operators to 

use Best Management Practices when 

developing their APDs. Using Best 

Management Practices is the BLM’s 

current policy. Best Management 

Practices are innovative, dynamic, and 

economically feasible mitigation 

measures applied on a site-specific basis 

that reduce, prevent, and avoid adverse 

environmental or social impacts of oil 

and gas activities. The BLM Field 

Offices currently incorporate Best 

Management Practices into proposed 

APDs and associated on-lease and offlease Rights-of-Way approvals if they 

are carried forward as part of the NEPA 

required evaluation or environmental 

review. This final rule clarifies the 

existing policy that Best Management 

Practices may be included as Conditions 

of Approval. The BLM started using 

Best Management Practices in 2004 and 

encourages the voluntary use of these 

practices. 

Bonding Authority 

The final rule clarifies the BLM’s 

authority under 43 CFR 3104.5 to 

require an additional bond to be applied 

to off-lease facilities that are required to 

develop a lease, such as the large 

impoundments being created in 

Wyoming for water produced from 

Federal and non-Federal coalbed natural 

gas wells. The BLM is directed by the 

Reform Act to require sufficient bond to 

insure ‘‘the restoration of any lands or 

surface waters adversely affected by 

lease operations after the abandonment 

or cessation of oil and gas operations on 

the lease’’ 30 U.S.C. 226(g). An Assistant 

Solicitor’s Opinion of July 19, 2004, 

concluded that the BLM has the 

authority under existing regulations to 

require an additional bond for such 

facilities and that the current regulation 

does not limit the BLM to increasing the 

required amount of an existing bond. 

Accordingly, the final rule does not 

represent a change in the regulatory 

scheme. 

Response to Comments 

The BLM received 81 comments on 

the proposed and further proposed 

rules. In the following discussion we 

categorize the comments according to 

the sections of the text or preamble to 

which the comments were directed. 

Some comments were general in nature 

and did not relate to a particular section 

in the text or preamble. These are 

grouped in a general category and 

addressed accordingly. Other comments 

are grouped by the section of the Order 

to which they pertain. If a section of the 

Order is not discussed in this preamble, 

that means that we received no public 

comment on that section. Note that, 

when used in conjunction with Section 

106 of the National Historic 

Preservation Act and the Endangered 

Species Act, ‘‘inventory’’ and ‘‘survey’’

are equivalent terms and are used 

interchangeably. 

Although we received no substantive 

comments on the proposed changes to 

36 CFR 228.105(a)(1) (FS regulations), 

we amended that section in the final 

rule to make it consistent with the final 

Order. 

General Comments 

Several commenters asked that the 

five statutory categorical exclusions that 

are in Section 390 of the Energy Policy 

Act of 2005 be included in the Order. 

The Order does not address the 

statutory categorical exclusions because 

they are already a legal requirement and 

we believe they would best be 

addressed in subsequent manual and 

handbook updates. Some commenters 

were concerned that we would apply 

acreage limits for categorical exclusions 

to Master Development Plans rather 

than leases. These comments exemplify 

the problems that would be inherent in 

addressing categorical exclusions in the 

Order. 

One commenter asserted that revising 

the Order was premature until the BLM 

has the data from the pilot project under 

Section 365 of the Energy Policy Act of 

2005. We disagree. The BLM is looking 

forward to obtaining useful information 

from the pilot projects, but there is no 

reason to delay revisions to the Order. 

A few commenters believed that we 

should use stronger language than 

saying that ‘‘BLM will comply with 

other applicable laws’’ before approving 

an APD as stated in Section III. and in 

numerous other places in the Order. We 

disagree. The language in the rule is 

similar to that in the Energy Policy Act 

of 2005 (Act). The Order is clear and 

requires that the BLM comply with 

applicable law naming NEPA, the 

National Historic Preservation Act, and 

the Endangered Species Act, which are 

the principal laws impacting Federal 

actions related to approval of APDs. We 

do not believe that a description of the 

requirements of other applicable law is 

needed or appropriate because those 

requirements are adequately addressed 

in other rules and policy specific to 

implementation of those laws. 

One commenter said the rule should 

address conducting cultural inventories 

prior to approving geophysical 

operations. We disagree. Geophysical 

operations are outside the scope of this 

rule and are generally approved under 


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43 CFR subpart 3150 (or FSM 2860 on 

National Forest System (NFS) lands). 

One commenter asked that we delay 

publishing a final rule until the split 

estate report to Congress required by 

Section 1835 of the Act was complete. 

We believe that it is not necessary to 

wait for completion of the report 

because the rule must be consistent with 

existing law and we cannot speculate on 

potential changes to law that may occur 

as a result of the split estate report. 

However, the rule has been written in 

consultation with those involved in 

drafting the split estate report and is 

consistent with their findings and 

existing law. 

One commenter asked that we 

describe in the Order how we would 

revise existing leases and modify them 

with a stronger emphasis on monitoring 

and public involvement that result from 

new or updated land use plans. The 

BLM involves stakeholders in land use 

plans when they are written and this 

becomes the basis for subsequent 

leasing decisions. However, revision of 

existing leases is beyond the scope of 

this Order. We are required by the 

Reform Act to post for public 

notification each pending APD and we 

evaluate each APD and attach 

appropriate Conditions of Approval 

depending on the proposed action. 

While this may not change previously 

approved APDs, the duration of the 

approved APD and subsequent drilling 

activity is sufficiently short that we do 

not anticipate that they will need to be 

updated. We are required by the Reform 

Act to conduct a certain level of 

monitoring regardless of Conditions of 

Approval or even the vintage of the APD 

so that existing productive wells are 

similarly not likely to present a problem 

relevant to decisions based on old land 

use plans. 

Several commenters suggested that 

the BLM and the FS adopt certain state 

procedures that the commenter said 

would greatly reduce the amount of 

time required to process an application. 

The BLM and the FS have other 

regulatory requirements that exceed the 

states’ responsibilities. The additional 

requirements may lengthen the 

application and approval process. The 

BLM and the FS must comply with 

various legal mandates such as NEPA 

and the National Historic Preservation 

Act that do not apply to states, but must 

be addressed in the Order. These 

Federal mandates make the process for 

approving oil and gas operations 

different than the process for State 

governments and, therefore, we did not 

modify the final Order as a result of this 

comment. 

A few commenters stated that as 

proposed, the Order will not streamline 

the APD process. The Order cannot 

eliminate any steps required by various 

environmental laws, but can provide 

clarification, for both industry and the 

involved agencies. We believe that the 

Order will facilitate and encourage upfront planning, application of Best 

Management Practices, submission of 

geospatial data, etc., which may shorten 

the time needed to approve an APD. 

Also, the use of Master Development 

Plans will facilitate early project design 

and analysis and help to streamline 

subsequent permitting. 

Many commenters believe that the 

Order nullifies or preempts the various 

state laws related to drilling operations 

and private surface owner negotiations. 

We disagree. The Order only addresses 

Federal obligations for operations on 

Federal lands which may be distinct 

from state obligations or private surface 

owner agreements. The Order would 

only impact state law or private 

agreements to the extent that they 

conflict with Federal obligations. In 

addition, the Order does not negate or 

preempt other Federal, state, or local 

laws and/or ordinances. 

Two commenters challenged our 

purpose for the proposed Order and said 

that our purpose was really to elevate 

the legal standing of the existing Order 

and to limit the ability of surface owners 

to negotiate damages with operators as 

may be provided in certain state laws. 

We disagree. The proposed Order will 

have the same level of importance as the 

existing Order. As a regulation the 

Order does not change or negate other 

Federal or state statutes. State laws are 

limited in their application to Federal 

leases by the terms of Federal law, such 

as those that are the source of the titles 

of the surface owners, i.e., Federal land 

patenting statutes, and not because of 

this regulation. 

Several commenters challenged our 

inclusion of the April 1, 1988 solicitor’s 

memorandum that defines the BLM’s 

responsibilities regarding compliance 

with various laws without input from 

the current solicitor. The Office of the 

Solicitor was fully involved in review 

and drafting of the proposed rule, the 

further proposed rule, and this final 

rule. Contrary to what the commenters 

imply, the Solicitor’s memorandum 

cited in the proposed rule still reflects 

the state of the law. 

Several commenters suggested that 

the BLM and the FS honor state statutes 

which outline a procedure whereby 

private landowners negotiate with oil 

and gas lessees toward damages 

presumably caused by oil and gas 

development. Some commenters 

contended that the proposed rule would 

put new limits on compensation that are 

based in the original surface patents. 

The BLM and the FS do not enforce 

state law; however, we do not object to 

negotiations between the surface owner 

and operators. In fact, Federal law and 

our policy require that the operator 

make a good faith effort to enter into an 

agreement with the surface owner. How 

that negotiation takes place and the 

nature of any agreement reached is 

beyond our authority to direct. We do 

not determine the amount of 

compensation unless a bond is filed 

when the operator and surface owner 

are unable to reach an agreement. In 

those cases we must determine what, if 

any, limitations on compensation were 

contained in the original patent and 

then determine the amount of bond 

necessary under Federal law for the 

damages it addresses. We will assure 

that the bond amount is maintained 

throughout the life of the oil and gas 

operation by requiring replenishment of 

the bond if it is drawn upon for 

compensation. Whether states require, 

or can require, additional bonding is 

outside the scope of this rule. 

Several commenters stated that the 

Surface Use Plan of Operations does not 

require the operator to identify the 

location of the proposed well and that 

the draft Order should require 

restoration, not reclamation. A listing of 

the proposed well location is a required 

part of a complete APD. A well plat is 

required as is a map in the Surface Use 

Plan of Operations that shows all 

proposed surface disturbance. 

Reclamation is described in the Order as 

returning the disturbed land to as near 

its predisturbed condition as is 

reasonably possible. Section XII.B. of 

the Order requires that the surface 

owner be notified and involved in 

determining reclamation requirements. 

Several commenters stated that the 

rule removes the rights of private 

landowners granted by various state 

statutes pertaining to planning and 

damage compensation. We disagree. The 

final rule does not affect rights of 

private landowners; it is based on long 

established law. 

Several commenters stated that the 

rule was contrary to the provisions of 

Executive Order 13352 on the 

facilitation of cooperative conservation. 

We disagree with the commenters. The 

same commenters believe that the Order 

eliminates private parties from 

significant decisions that affect their 

ability to manage their private property. 

It is unclear what in the rule these 

commenters believe is limiting private 

surface owner rights. This Order does 

not change existing laws that deal with 


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split estate situations. The laws 

(Stockraising Homestead Act and others 

and implementing regulations at 43 CFR 

subpart 3814) are not revised as a result 

of this rule. This Order clarifies and 

ensures the APD review process 

includes the private surface owner and 

that the BLM adheres to existing laws 

and legal decisions involving split 

estate. Also this rule offers surface 

owners more input into the process and 

also provides surface owners more 

information than did the previous 

Order. 

Several commenters stated that the 

rule does not promote cooperative 

conservation, but rather removes rights 

of the private property owner and places 

them in the hands of BLM personnel 

with regards to negotiations for surface 

activities and damages. The commenters 

appear to be addressing the provisions 

in Section VI. of the Order that address 

operations on private surface with 

underlying Federal minerals. We 

disagree with the commenters that the 

Order does not promote cooperative 

conservation. This rule offers surface 

owners more input into the process and 

also provides surface owners more 

information than did the previous 

Order. In addition, the rule is not 

creating new procedures, but is merely 

implementing existing law and 

procedures. 

Several commenters said that the 

BLM should acknowledge that its 

attempt to impose Federal regulations 

for oil and gas development underneath 

private lands in states with surface 

owner protection acts is not in any way 

simple or easy to understand. 

Commenters said that it complicates 

and confuses the issue, regardless of the 

words used and that it could have an 

effect on energy supplies. The same 

commenters said that if the BLM wants 

to clarify this issue, then it needs to 

intervene and have the courts resolve 

the issue of Federal preemption of state 

statutes. No intervention by the BLM on 

this subject is necessary; any party may 

raise that issue. The final rule 

implements existing law, it does not 

change its interpretation. There is no 

administrative action the rulemaking 

can take which will change the acts of 

Congress, the body of law, nor over a 

hundred years of legal decisions, 

highlighted by the decision in KinneyCoastal Oil Co. v. Kieffer, 277 U.S. 488 

(1928). 

Several commenters disagreed that 

the rule will not have Federalism 

implications as defined by Executive 

Order 13132. We disagree. Existing 

policy and this final rule are based on 

a strict interpretation of existing law. 

Surface owners have only the 

substantive rights provided by Federal 

statute, including the laws under which 

the surface was patented. The Order 

adds a procedural requirement of a good 

faith attempt to notify the surface owner 

and attempt to reach an agreement, but 

that does not change the dominant 

character of the federally owned oil and 

gas or the rights of Federal lessees. The 

Order includes the lessee’s right to post 

a bond if a good faith attempt to reach 

an agreement with the surface owner 

fails and requires compensation to 

surface owners as is required by the 

patenting act. The authority of states 

with respect to reserved Federal 

minerals is established in statutes dating 

back to the early twentieth century and 

is not altered by this Order and there are 

no Federalism implications because it is 

existing law, not this Order, that may 

conflict with state statutes. 

Several commenters said that private 

landowners would be significantly 

impacted by the rule and were ‘‘* * * 

entitled to protection under the 

Regulatory Flexibility Act * * *.’’ We 

disagree. Even if private land owners 

were considered to be ‘‘small entities’’

as that term is defined under the 

Regulatory Flexibility Act, we do not 

believe that private land owners are 

significantly impacted by the changes 

that this rule makes to the existing 

Order. Furthermore, it is existing law 

that governs split estate; this rule merely 

codifies the existing law. 

Several commenters stated that the 

rule would constitute a taking because 

of diminution of land values that the 

rule causes. We disagree. This Order 

implements existing law. Surface 

owners still own the surface, which 

remains subservient to the dominant 

mineral ownership of the United States. 

The procedures adopted in this Order 

do not affect surface owners’ property 

rights. 

Many commenters disagreed with the 

statement in the proposed rule that the 

regulations do not impose an unfunded 

mandate on State, local, or tribal 

governments or the private sector of 

more than $100 million citing costs 

private landowners are forced to bear by 

being limited in the damages that they 

can receive for oil and gas activities on 

their lands. We disagree. The changes 

that this rule makes to the existing 

Order and existing procedures do not 

alter the damages to be covered by bond. 

The changes this rule makes having to 

do with damages that occur on private 

surface as a result of operations to 

extract Federal minerals are not as a 

result of the BLM’s exercise of this 

rulemaking, but our effort to more 

faithfully reflect existing statutory law. 

Furthermore, the rule primarily impacts 

lessees or operators filing APDs with the 

BLM and the FS, not State, local, or 

tribal governments. 

Several commenters stated that they 

disagree with the statement in the 

proposed rule that ‘‘this proposed rule 

would not unduly burden the judicial 

system * * *.’’ The commenters said 

that given the inherent legal conflict 

with states which have passed surface 

owner protection acts with provisions 

that are different than those included in 

this rule, the BLM’s statement that this 

will not burden the judicial system is 

unsubstantiated. We disagree. As stated 

earlier, this rule implements well 

established law and therefore is not the 

source of the legal conflict in which the 

commenters are involved. 

Section-By-Section Discussion 

Section I. Introduction 

Purpose: This section describes the 

statutory authority on which this Order 

is based and describes the purpose and 

scope of the Order. The authority upon 

which the Order is based has changed 

since the 1983 Order was published by 

the Reform Act and the Energy Policy 

Act of 2005. The Reform Act granted the 

Secretary of Agriculture authority to 

regulate all surface disturbing activities 

conducted pursuant to an oil and gas 

lease on NFS lands. 

Comments and Responses: One 

commenter asked that the BLM consider 

delegating the permitting responsibility 

to state agencies. The BLM cannot 

delegate permitting responsibility 

because Federal law requires that the 

Department of Interior (delegated to the 

BLM) authorize permitting of oil and gas 

activities on Federal land. Also, 30 

U.S.C. 1735 does not provide for 

delegation of APD approval as it does 

for other aspects of the oil and gas 

program. The process of delegation is 

available to State governments for 

consideration under 43 CFR subpart 

3191; however, it is limited to 

inspection, enforcement, and 

investigation, but not for the approval of 

operations. Further, the commenter 

didn’t offer any statutory authority for 

this delegation and we are not aware of 

any. 

One commenter did not think it 

appropriate for the Order to apply to 

operations within a unit or 

communitized area on private minerals 

or private surface. We agree. While the 

site security, measurement, and 

production reporting regulations apply 

to unitized wells drilled on private 

minerals (43 CFR 3161.1), it is not 

appropriate for the BLM or the FS to 

exercise authority over surface 

operations conducted on privately 


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owned lands just because those lands 

are contained within a unit or 

communitized area. The BLM only 

requires a copy of the permit to be 

provided for non-Federal wells within a 

unit or communitized area and wording 

in the ‘‘Scope’’ section of the Order is 

revised to make this clear. 

Section II. Definitions 

Purpose: This section contains the 

meaning of terms that are necessary to 

ensure consistent interpretation and 

implementation of this Order. 

Summary of Changes: We added 

definitions for Best Management 

Practices and Casual Use to make the 

definition of those terms clearer. 

Another change made in this section 

was to accept the many 

recommendations to change ‘‘Surface 

Management Entity’’ to ‘‘Surface 

Managing Agency.’’ By doing so, many 

of the other comments that sought 

clarification of the role of BIA and tribes 

were resolved. We also added a 

definition of ‘‘Private Surface Owner’’ to 

provide clarity. 

Comments and Responses: Several 

commenters expressed concern that all 

maps and plats required as part of a 

complete APD (see the definition of 

‘‘Complete APD’’) must be submitted in 

both hard copy and geospatial data 

formats. They were concerned that the 

requirement could impose a financial 

hardship for some operators and that 

some of the data may be proprietary. 

They requested that the geospatial data 

format be optional. Geospatial data is a 

vital tool for facilitating timely 

processing of applications. The BLM 

and the FS use the geospatial data to 

link data and facilitate analysis. 

However, we recognize the concerns 

expressed in the comments and have 

modified the rule to make submission of 

geospatial data, except for the well plat, 

optional rather than mandatory. The 

BLM strongly recommends the 

submission of the data in geospatial 

format as it will assist us in timely 

review of applications. We will still 

require geospatial data for the well plat 

showing the proposed well location to 

assist us in assuring that the well is 

accurately located in relation to lease 

boundaries. 

Many commenters made observations 

or asked questions about the definition 

of a complete APD. Many noted that the 

definition now includes an onsite 

inspection. A few commenters stated 

that this requirement circumvents the 

intent of Congress expressed in the 

Energy Policy Act of 2005 by making 

moot the statutory 10-day timeframe for 

the BLM to determine the completeness 

of an APD. These commenters note that 

there is no set timeframe from the date 

the APD is received until the onsite 

must be conducted. Many of these 

commenters assume that various 

inventories must be completed in order 

to hold the onsite, thereby creating 

additional delays. However, one 

commenter expressed support for 

including the onsite inspection as part 

of the ‘‘Complete APD’’ definition. A 

few other commenters expressed 

concerns that the Order fails to put 

timeframes on the BLM and the FS staff 

for the timely review of APDs and 

allows each specialist to review the APD 

on their own schedule. The BLM and 

the FS recognize the significance of 

these comments, but from our 

experience we know that it is necessary 

to conduct an onsite inspection to 

determine if certain aspects of the APD 

are accurate, sufficient to describe the 

proposed action and, thereby, complete. 

It is also our experience that scheduling 

and conducting an onsite inspection 

within a specific period of time (e.g., 15 

days from receipt of the APD as is in the 

existing Order) is often not possible 

because of availability of key agency 

staff, the operator, and surface owner (in 

the case of private surface) or because of 

inclement weather. It is the policy of the 

BLM and the FS to conduct onsite 

inspections as soon as they can be 

scheduled. The BLM and the FS plan to 

closely monitor the interval between 

Notice of Staking or APD filing and 

onsite inspections to ensure that 

excessive delays do not occur and take 

corrective action if patterns of delay are 

noted. We added a requirement for the 

BLM and the FS, if appropriate, to 

evaluate any additional material 

requested in the 10-day notice or at the 

onsite inspection within 7 days (see 

Section III.D.2.a.). Inventories are not 

necessary for a complete APD and are 

not required before the onsite 

inspection. The operator may 

voluntarily provide cultural and 

wildlife survey data, but the 

responsibility to comply with NEPA, 

Endangered Species Act, National 

Historic Preservation Act, and other 

requirements is the responsibility of the 

agencies and therefore, is not a 

requirement of the applicant. 

Inventories are not part of an 

application. They are part of the 

analysis that must be made of the 

proposed action. They must be 

conducted prior to the approval of the 

proposed actions, not prior to 

determination of completeness of the 

application. In the final Order we 

modified the definition of ‘‘Complete 

APD’’ to clarify that inventories and 

NEPA documentation are not part of a 

‘‘Complete APD’’ determination. 

Several commenters wanted the 

definition of ‘‘Complete APD’’ to be 

expanded to clarify that a second onsite 

inspection is not needed if one was 

done as part of the Notice of Staking 

process. We believe that the Order 

adequately addresses this concern. The 

definition states that an onsite 

inspection is required for a complete 

APD. However, Section III. of the Order 

indicates that an onsite inspection will 

not be necessary after the APD is filed 

if one was conducted as part of the 

Notice of Staking process. These 

commenters also wanted the text to 

provide criteria for circumstances when 

an onsite would not be necessary. We 

understand that in some cases onsite 

inspections may not be necessary (e.g., 

new wells in developed fields). These 

situations are relatively uncommon and 

would be better addressed by a request 

for variance on a case-by-case basis, 

rather than by addressing it in the rule. 

One commenter requested that ‘‘other 

information that may be required by 

Order or Notice’’ (see 43 CFR 3162.3–

1(d)(4)) in the definition of ‘‘Complete 

APD’’ be deleted because it is not 

necessary. We did not delete the phrase 

from the definition in the final rule 

because the BLM may require additional 

information before approving an APD. 

One commenter suggested that in 

addition to public health and safety or 

the environment, the definition of 

emergency repairs should be expanded 

to allow for repairs designed to preserve 

reservoir integrity. The BLM did not 

modify the final rule as a result of this 

comment because operators already 

have the option in Section VIII. to 

request approval of emergency 

operations verbally, if needed, followed 

by a Sundry Notice for reservoir 

operations. 

Several commenters asked for 

clarification to the definitions of 

‘‘Indian Oil and Gas’’ and ‘‘Indian 

lands.’’ They also asked that in the final 

rule we add a definition of ‘‘Tribal 

Lands’’ and clarify what we mean by the 

reference to ‘‘tribal lands held in trust’’

in Section VII. of the proposed Order. 

For the purpose of this Order, the 

definitions for ‘‘Indian lands’’ and 

‘‘Indian Oil and Gas’’ is limited to those 

lands held in trust by the United States 

or subject to Federal restrictions against 

alienation and as such do not include 

unrestricted fee lands. Only for surface 

held in trust by the United States or 

subject to Federal restrictions against 

alienation does the BLM seek input 

from the Bureau of Indian Affairs (BIA) 

for APD approval. For other lands held 

in unrestricted fee, Indian owners are 


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treated as any other private surface 

owner, including for the purposes of 

bonding in lieu of surface owner 

agreement. We have added a definition 

of ‘‘Private Surface Owner’’ that 

includes certain Indian surface owners. 

We deleted the term ‘‘Tribal lands’’ from 

the Order and, therefore, did not 

provide a definition for that term. 

One commenter stated that the 

regulations on Master Development 

Plans should not require submission of 

detailed surveys and designs for 

projected or future potential 

development. We agree. The intent of 

the requirement is to have the operator 

provide sufficient detail in the Master 

Development Plan application to 

facilitate NEPA analysis. The detail 

submitted with a Master Development 

Plan can vary depending on the project 

size and other criteria. However, final 

design and surveys are required for 

subsequent APDs that will reference a 

Master Development Plan before those 

APDs are approved. Another commenter 

stated that the filing of Master 

Development Plans should start the 30- 

day public posting requirement rather 

than the subsequent APDs. The Master 

Development Plan does initiate the 30- 

day posting period for any APDs 

contained in the Master Development 

Plan. However, any subsequent APD 

will have its own 30-day posting. We do 

not believe that it is necessary to change 

the text as a result of these comments 

because the process the commenter 

points out can be followed within the 

provisions in the final Order. 

Several commenters stated that the 

proposed reclamation standard of 

‘‘reasonably practical,’’ in the definition 

of ‘‘Reclamation’’ in Section II. is 

unacceptable. Commenters stated that 

this standard is so low that it flouts the 

Order’s accountability mandate that 

lessees and operators properly reclaim 

disturbed lands in what could amount 

to a taking of private property. We 

understand the commenter’s concern, 

but also recognize the difficulty in 

writing regulations that fit all 

circumstances when local conditions 

are highly variable. ‘‘Reasonably 

practical’’ is dependent upon the 

conditions at the specific site. The 

Conditions of Approval that address 

specific site conditions are much more 

effective in achieving reclamation goals 

than are general regulations. We also 

note that the surface owner is given an 

opportunity to participate in the 

development of the site specific 

reclamation standards and is consulted 

prior to acceptance of final 

abandonment. Other commenters were 

concerned that in some cases the BLM 

or the FS require that the disturbed area 

be reclaimed to a new use. They observe 

that some well pads have been 

reclaimed for trailheads rather than back 

to pre-existing condition. We agree and 

have added ‘‘or as specified in an 

approved APD’’ to the definition of 

reclamation to address these concerns. 

Many commenters recommended 

replacing the term ‘‘Surface 

Management Entity’’ with ‘‘Surface 

Managing Agency’’ because use of the 

word ‘‘entity’’ implies that Federal 

agencies may delegate their 

responsibilities to states. Other 

commenters thought use of the word 

‘‘entity’’ suggested that private land 

owners may have the same authority as 

state or Federal agencies. This definition 

also caused uncertainty relative to the 

role of tribes in the approval process. 

We agree with the commenters that the 

proposed term could cause confusion, 

therefore, in the final Order the term 

‘‘Surface Management Entity’’ has been 

replaced by the term ‘‘Surface Managing 

Agency.’’ Under existing regulations 

and this final rule the BIA is the Surface 

Managing Agency when tribal lands are 

held in trust, but if lands are held in fee 

by an individual Indian those lands are 

treated as private surface. 

Many comments suggested that the 

definition of ‘‘split estate’’ include 

surface that is leased from the Federal 

Government (such as grazing permits), 

and require that these permittees be 

notified when an APD or Notice of 

Staking is filed. Permittees are given use 

privileges, not property rights, and, 

therefore, are not considered surface 

owners. Therefore we did not amend the 

definition of split estate as requested by 

the commenter. Posting requirements 

under Section III. of the final Order and 

in existing 43 CFR 3162.3–1(h) are 

intended to make this type of 

information available to the interested 

public, including other Federal permit 

holders. 

Several commenters suggested that we 

add definitions for waivers, exceptions, 

and modifications and a few 

commenters were unclear about the 

criteria for granting of variances. Based 

on these comments, in the final rule we 

added a section that addresses waivers, 

exceptions, and modifications to 

distinguish them from variances. 

Waivers, exceptions, and modifications 

are described in the BLM guidance and 

FS regulations (see 36 CFR 228.104). A 

variance from the Order may be granted 

if the applicant shows to the authorized 

officer that the purpose of the Order will 

still be met. We removed the reference 

to 43 CFR 3101.1–4 from the definition 

of variance because that regulation 

applies to waivers and modifications. 

One commenter stated that the granting 

of waivers, exceptions, and 

modifications should be based solely on 

technical grounds and that all 

challenges or appeals be reserved to the 

lessee or operator. We disagree because 

challenges and appeals of waivers, 

exceptions, and modifications cannot be 

restricted to lessees or operators unless 

the basis for this decision has already 

been made in a land use plan or other 

document that received public 

comment. Further, 43 CFR 3101.1–4 

requires that if the authorized officer 

determines that the modification or 

waiver of a lease term or stipulation is 

substantial, the modification or waiver 

is subject to public review for at least 30 

days. 

One commenter recommended that 

the Order include definitions of ‘‘Notice 

of Staking’’ and of ‘‘Sundry Notice.’’

Proposed Section III.F. (Section III.C. in 

the final Order) describes the Notice of 

Staking option and a sample format is 

attached as an exhibit to the Order. The 

Sundry Notices and Reports on Wells 

(Form 3160–5) is self-explanatory and 

instructions are on the back of the form. 

We believe that the meaning of ‘‘Notice 

of Staking’’ and of ‘‘Sundry Notice’’ is 

adequately explained and, therefore, no 

change to the regulation text is 

necessary. 

Section III. Application for Permit To 

Drill 

Note: This section has been reorganized in 

the final rule and the references to sections 

used in this discussion of comments are from 

the proposed rule unless otherwise noted. 

Purpose: This section describes where 

an operator files an APD; the early 

notification process; the Notice of 

Staking option; the components of a 

complete APD; how an APD is posted 

for public notice; how it is processed by 

the BLM and the FS; how the APD is 

approved; and the valid period of the 

APD. This section is the heart of the 

Order because it addresses the content 

of the APD; what an operator must do 

and some options an operator may take 

prior to filing an APD (in the form of 

early notification and Notice of Staking 

options); how the APD is processed and 

approved; and the period for which the 

APD is valid. We received more 

comments on this section than any 

other. 

Summary of Changes: This section 

has been reorganized to follow the 

sequential progression of the APD 

submission and approval process. 

Information related to specific 

components of a complete APD was 

moved to the description of that 

component to make the process clearer. 

Many of the comments and changes in 


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this section related to timeframes 

associated with posting notices, holding 

onsite inspections, supplying needed 

information, and processing of the APD 

once deemed complete. The above 

mentioned reorganization and 

associated clarification should address 

those concerns and ensure that the 

Order is consistent with timeframes 

mandated by the Energy Policy Act of 

2005. 

In the final rule we added a provision 

stating the BLM’s authority to deny an 

APD within 30 days after the BLM 

determines the APD to be complete (see 

Section III.C.2.b. of the further proposed 

rule or Section III.E.2.b. in the final 

rule). This addition restates the present 

authority to deny a permit in 43 CFR 

3162.3–1(h). Denial of an APD is not 

mentioned in Section 366 (2) of the 

Energy Policy Act, but it is authorized 

by the Reform Act which added 

subsection (g) to 30 U.S.C. 226 which 

provides that no drilling permit may be 

issued unless the appropriate Secretary 

approves the surface disturbing 

activities. It has been the policy of the 

agency to deny APDs when analysis or 

negotiation with the operator will not 

enable the BLM to approve the permit. 

We believe that it is in the operator’s 

best interest for the BLM to deny an 

APD that is so flawed that it cannot be 

modified to warrant approval as early as 

possible. We also believe that it is the 

intent of Congress to keep the agencies 

and operators working on APDs so that 

none would be left unresolved for 

unreasonable lengths of time. If the BLM 

decides that an APD is so flawed that 

we would deny it, the operator has the 

right to know promptly and to have an 

appeal right. The alternative would be 

to issue a deferment notice that would 

require the operator to wait up to 2 

years before receiving a denial and an 

appeal right. That would defeat the 

purpose of expediency that motivated 

Congress in enacting Section 366 of the 

Act. 

Associated with the timeframes is the 

clear recognition that compliance with 

non-discretionary environmental laws 

prior to approval of an APD is an 

integral part of those timeframes. In the 

final rule we made one discretionary 

timeframe change so that an approved 

APD is valid for 2 years rather than the 

1 year period in the previous Order. 

Another change in this section of the 

Order is to require the operator to certify 

that they have provided or made a good 

faith effort to provide a copy of the 

Surface Use Plan of Operations to the 

private surface owner in the case of split 

estate. What constitutes a good faith 

effort will be determined by the 

authorized officer. The BLM has 

assumed the responsibility to ensure the 

private surface owner is invited to 

attend the onsite inspection and that 

their concerns are considered in the 

approval process. 

We also modified this section and the 

definition of Best Management Practices 

to make it clear that Best Management 

Practices are voluntary for the operator 

to use in the design of their project and 

are only a requirement if they are a 

result of the NEPA process as a 

Condition of Approval for an APD. 

Finally, we modified Sections III.a. and 

b. to make it clear that the BLM is 

responsible for compliance with NEPA, 

the National Historic Preservation Act, 

and the Endangered Species Act on 

BLM lands and the FS has the same 

responsibility on their lands. 

We received a number of comments 

about reposting when the proposed well 

location is moved. Existing BLM 

regulations require that the well 

location be described in the posting to 

the nearest quarter-quarter section in the 

Public Land Survey System. Therefore, 

if the proposed location is moved to a 

different quarter-quarter section, the 

APD will be reposted. For lands that do 

not have a Public Land Survey, 

proposed locations that are moved 660 

feet or more will be reposted. We 

established the 660 feet criterion 

because a well at the center of a quarterquarter section that is moved 660 feet 

will by definition be in a different 

quarter-quarter section. 

In Section III.G. we deleted the 

language that stated that if no well is 

drilled during the initial period or 

extension of the APD, the APD expires. 

We deleted the statement because it is 

self evident. 

In Section III.D.6., we modified the 

Operator Certification slightly by adding 

an entry for the operator to insert an 

email address where the operator can be 

contacted. This entry is optional, but 

will provide the BLM and the operator 

another avenue for communication. 

In Section III.D.2.a. we added 

language to clarify who the operator 

should contact prior to surveying and 

staking on tribal or allotted lands. This 

is not a new requirement and is 

consistent with existing practice. 

Comments and Responses: Several 

commenters recommended that the 

subsections within Section III. be 

rearranged to better follow the 

sequential progression of the APD 

submission and approval process. 

Another commenter asked for further 

clarification of the Notice of Staking 

section. We recognize that 

reorganization would add clarity and 

have reorganized the subsections in 

Section III. to follow the order in which 

they occur. In the final rule we: 

(A) Explain where to file the APD 

(subsection A); 

(B) Describe the advantages of Early 

Notification (subsection B) and Notice 

of Staking (subsection C); 

(C) Provide a detailed discussion of 

the components of a complete APD 

(subsection D) and describe the posting 

and processing of the APD (subsection 

E); and 

(D) Describe some of the 

responsibilities of the approving 

agencies and the period for which the 

APD is valid (subsections F and G). 

This reorganization also makes clear 

the purpose and advantages of the 

Notice of Staking option. 

Many commenters recommend that 

early notification in Section III.B. be 

mandatory. One commenter supported 

the early notification section as drafted. 

Early Notification, as the Order states, 

could help all parties identify unusual 

conditions of the land, time-sensitive 

issues, and potential areas of conflict. 

The BLM and the FS recognize the 

advantages of early notification, but the 

same level of resource protection will be 

applied whether there is early 

notification or not. There is no statutory 

requirement for early notification and 

we do not believe that it is necessary in 

all cases. Therefore, we did not change 

the Order based on this comment. 

One commenter suggested that the 

wording ‘‘wildlife inventory’’ in Section 

III.B. be changed to ‘‘biological 

inventory’’ to cover flora as well as 

fauna. We adopted the commenter’s 

suggestion and revised Section III.B., 

accordingly. 

One commenter asked how early 

notification relates to the Notice of 

Staking Option. We amended the 

wording in the Early Notification 

section based on this comment to make 

it clear that early notification is different 

from and precedes the Notice of Staking, 

that neither option is required, and that 

one may be used without the other. 

One commenter suggested that we 

revise the Order to make it clear that the 

operator is not required to conduct 

surveys or studies under Section III.B. 

We believe that the Order is clear on the 

subject of inventories, surveys, and 

studies; they are the responsibility of 

the agencies and are not required as part 

of the APD. However, in the final rule 

we added language in Section III.B. to 

clarify that they are not the 

responsibility of the operator. 

A few commenters stated that the 

BLM must recognize in Section III.B., 

Early Notification, that in some cases it 

may be impossible to contact all private 

surface owners. Consistent with existing 


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practice, the Order requires the operator 

to make a good faith effort to contact 

private surface owners. However, a good 

faith effort does not mean that there is 

an absolute requirement to make contact 

with the surface owner. Section VI. of 

the Order provides procedures for 

operations on private surface. 

One commenter stated that even if a 

categorical exclusion is used, the 30-day 

posting is required. We agree. Posting is 

an existing requirement under the 

Reform Act, even for actions covered by 

a statutory categorical exclusion. We did 

not revise the proposed Order because 

we do not discuss categorical exclusions 

in the Order. 

Several commenters stated that they 

opposed the requirement that an APD be 

reposted for an additional 30 days when 

the operator subsequently moves the 

proposed well location. They further 

state that this 30-day reposting time 

period should not be required when the 

new location is covered by an existing 

NEPA document or if the new location 

is for an in-fill well within a developed 

field. One commenter said that posting 

for public notice was duplicative of 

NEPA requirements for soliciting public 

comments. We disagree. The 30-day 

public posting period is required by the 

Reform Act and is distinct from NEPA 

related public participation. However, 

we have revised proposed Section 

III.C.1. (final Section III.E.1.) to provide 

clarity and conform with regulations at 

43 CFR 3162.3–1 and 36 CFR 228.115 

that require posting. As previously 

discussed, we adopted a 660 feet 

criterion for reposting where no Public 

Land Survey exists because that would 

mean the well could be relocated in a 

different quarter-quarter section if the 

survey did exist. The 660 feet criterion 

would apply the same standard for 

reposting where Public Lands Survey 

descriptions are not available. We also 

retained the criterion of ‘‘substantial’’ to 

assure that the authorized officer can 

notify the public of changes that create 

essentially ‘‘new’’ proposals within the 

existing APD in the same quarterquarter section. 

Many commenters stated that the 

Order requires an agency to give at least 

30 days public notice before approval of 

an APD. They suggested that the BLM 

inform the surface owner and any other 

Federal lease or permit holders directly. 

We did not amend the Order as a result 

of this comment. We are required by the 

Reform Act to post APDs for public 

notification. In the final rule we 

modified Section III. of the Order to 

require the operator to certify that they 

have provided to the private surface 

owner copies of the Surface Use Plan of 

Operations and any related subsequent 

changes. We believe that this provides 

ample notification to the surface owner. 

We addressed notification of other 

Federal permittees in the Section II. 

discussion above. 

One commenter said it is unclear 

whether APD notices must be posted by 

the BIA and/or the affected Indian tribe, 

in addition to such notices being posted 

by the BLM, or whether only the BLM 

will post APD notices. The final rule 

requires that other Federal Surface 

Managing Agencies, including the BIA 

where Indian lands overlie Federal 

minerals, post the APD information for 

Federal leases. Posting is not required 

for an APD on an Indian oil and gas 

lease, since there is no requirement in 

the Indian leasing statutes similar to 

that in Section 17 of the Mineral Leasing 

Act. 

One commenter stated that the Order 

needs to be revised to recognize the 

timeframes specified in the Energy 

Policy Act of 2005. The further 

proposed rule published in the Federal 

Register on March 13, 2006, 

incorporated the specified timeframes in 

Section III.C.2. (Section III.E.2. in the 

final Order), APD Posting and 

Processing, for APD processing as does 

the final rule. 

One commenter stated that the Order 

should be revised to recognize the need 

to issue permits within 30 days of the 

BLM’s receipt of a complete APD as the 

Energy Policy Act of 2005 requires. We 

recognize the importance of this 

comment, but also recognize that the 

Energy Policy Act does not relieve the 

BLM or the FS from complying with 

other applicable laws. Section 366 of the 

Act clearly states that the BLM cannot 

approve a permit without first 

complying with other applicable laws. 

One commenter stated that the 

proposed timeframe in Section III. is so 

short as to be impractical and 

unrealistic, and encourages sloppy 

processing. They believe that no matter 

how much increased funding is 

channeled to the budgets, neither the 

BLM nor the FS could be sufficiently 

staffed to be able to competently handle 

the turnaround time in Section III. of the 

Order. Further, they believe there is no 

justification for expediting permits. The 

timeframe for processing APDs is 

mandated by the Energy Policy Act of 

2005. As such, the agencies must 

comply with this timeframe. However, 

neither the Energy Policy Act nor this 

Order requires a final decision on an 

APD prior to compliance with nondiscretionary statutes. 

One commenter stated that the BLM 

must establish timelines for ‘‘outside 

agencies and surveyors’’ to act on pain 

of waiver of their participation. 

Regulation of other Federal, state, or 

local agencies or of their contractors is 

beyond the scope of this Order. 

One commenter noted that there is no 

time limit for completion of a NEPA 

analysis nor is there a definitive time 

limit for approval of the APD once 

NEPA is completed. The commenter is 

correct; there is no time limit for the 

completion of the NEPA analysis but 

there is a requirement to comply with 

NEPA. The Order states (proposed 

Order Section III.C.2.c.1. and final rule 

Section III.E.2.c.1.) that the BLM should 

make the decision on whether to 

approve the APD within 10 days of the 

operator submitting the information or 

actions identified in the deferral notice 

(required by Section 366 (2)(B) of the 

Energy Policy Act), unless other legal 

requirements such as NEPA have not yet 

been met. When these requirements are 

met, the BLM will make the final 

decision on the APD. These 

requirements are consistent with 

Section 366 of the Act. The Energy 

Policy Act requires that the BLM 

comply with NEPA and other applicable 

laws, it does not set a time limit for 

compliance. The BLM and the FS 

understand the urgency for approving 

APDs, but cannot establish a regulatory 

time limit for complying with 

applicable law. 

A few commenters noted that the 

operator is given 45 days after receiving 

notice from the BLM to provide any 

additional information requested before 

the APD is returned to the operator. The 

commenter stated that the data the BLM 

requests could take longer than 45 days 

to accumulate (e.g., an endangered 

species survey); therefore, a rigid 45-day 

deadline may not be possible to meet. 

The commenter seems to misunderstand 

what is included in a ‘‘Complete APD’’

determination. The definition of a 

complete APD is very specific and does 

not include things such as endangered 

species surveys and therefore any 

information that the BLM requires to 

make a complete APD determination 

should be easily provided within 45 

days; however, the authorized officer 

has the discretion to extend the 45-day 

limit especially if the operator so 

requests. 

One commenter stated that the 

operator has 2 years and 45 days after 

receiving notice of a request for 

additional information from the BLM to 

provide the additional information or 

the BLM may return the APD to the 

operator. Under the proposed rule 

Section III.C.2.a. (final Section III.E.2.a.), 

the operator has 45 days (non-statutory) 

from the BLM’s request at the onsite 

inspection to provide missing 

information that will make the APD 


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complete. The BLM has 30 days 

(Section 366 (2) of the Act) from the 

date that the APD is complete to 

approve the APD or to notify the 

operator that the decision must be 

deferred pending compliance with 

NEPA and other laws. The notice must 

also tell the operator what specific 

steps, if any, that the operator could 

take for the permit to be issued (Section 

366 (2)(B) of the Act). Consistent with 

the Act, the operator has 2 years 

(Section 366 (3)(A) of the Act) to 

complete the steps specified in the 

notice. Without a complete APD the 30- 

day timeframe and, therefore, the 2-year 

timeframe do not begin. If the operator 

has not taken the specific steps within 

2 years, the BLM must deny the APD 

(Section 366 (3)(C) of the Act). 

One commenter stated that the phrase 

‘‘Within 7 days of the onsite inspection, 

BLM, and the FS if appropriate, will 

notify the operator that the APD is 

complete or that additional information 

is required to make the APD complete’’

in Section III.C.2.b. of the proposed 

Order, should be deleted because it is 

inconsistent with paragraph (a) of the 

Order. We agree and in the final Order 

we moved Section III.C.2. to III.E.2. and 

revised the statement to state that 

‘‘deficiencies will be identified at the 

onsite’’ and deleted the wording cited 

above. In the final Order we retained the 

7-day timeframe for Notices of Staking 

because agencies typically would not 

have had a detailed proposal to review 

prior to an onsite inspection associated 

with a Notice of Staking (final Section 

III.C.). 

Many commenters stated it is clear 

that no final decisions will be made 

until the regulatory requirements of the 

Endangered Species Act, National 

Historic Preservation Act, and NEPA 

have been satisfied. The commenters 

said that the Order should not violate 

the opinion of the two 1988 solicitor’s 

memos. The commenter said that the 

memos required the BLM to consider 

and adopt landowner suggestions and 

concerns to the extent they do not 

violate the statutory requirements of the 

cited acts. We believe that the intent of 

the 1988 solicitor’s memorandum was to 

emphasize that these statutes apply to 

private surface overlying Federal 

minerals and nothing in the memos 

preclude consideration of surface owner 

concerns and suggestions that do not 

conflict with Federal statutes or 

implementing regulations. We 

emphasize that we invite the surface 

owner to the onsite inspection (Section 

VI.) to facilitate surface owner input and 

to ensure consideration of their 

suggestions and concerns. As discussed 

earlier, we have added a requirement 

that the operators certify that they have 

provided a copy of the Surface Use Plan 

of Operations to the private surface 

owner so that the surface owner has the 

clearest possible understanding of the 

proposed action. The BLM will explain 

the statutory requirements of NEPA, 

National Historic Preservation Act, and 

Endangered Species Act to the surface 

owners and will discuss any concerns 

that the surface owner may have about 

compliance with these statutes. We 

believe that any substantive request of 

the surface owner can be accommodated 

within these statutory requirements. 

One commenter referred to Section 

III.C.2.c., which states that no final 

decision is made pending regulatory 

compliance with Federal statutes and 

suggested that this provision should be 

revised to recognize the actions that 

have been categorically excluded from 

NEPA analysis pursuant to the Energy 

Policy Act of 2005. We did not modify 

the Order as a result of this comment. 

It is not the intent of this Order to make 

determinations on whether or not NEPA 

applies in a given situation. 

One commenter requested that we 

revise Section III.C.2.c. to state that the 

BLM and the FS must be sure that the 

NEPA and Endangered Species Act 

analysis are current prior to approving 

the APD, especially in cases where there 

is a lengthy delay in APD approval. We 

did not modify the Order as a result of 

this comment. Nothing in this Order 

relieves the BLM or the FS from 

compliance with these statutes. Nor is it 

our intent to provide in this Order 

detailed procedures for compliance with 

other laws and regulations. 

One commenter recommended that 

APDs should be effective within 60 days 

if no action is taken by the BLM within 

that time. We emphasize that the Energy 

Policy Act of 2005 establishes 

timeframes for APD approvals, but it 

also requires that all applicable 

environmental laws be complied with 

prior to APD approval (Section 366 

(2)(A) and (3)(A) and (B)). 

A few commenters referred to Section 

III.C.2.d. dealing with the FS Appeal 

procedures applicable to APDs on NFS 

lands and stated that they oppose 

having the FS appeal procedures apply 

to oil and gas operations on NFS lands. 

The commenter suggested that the FS 

conform its administrative appeals 

process to the BLM timeframes. We did 

not modify the Order as a result of this 

comment because the FS appeal 

timeframes contained in 36 CFR part 

215 are consistent with timeframes in 

the Appeals Reform Act (P.L. 102–381) 

and therefore we did not make the 

suggested change. 

Several commenters suggested that 

the BLM should continue reviewing the 

drilling plan while FS reviews the 

Surface Use Plan of Operations. One 

commenter stated that evaluation of the 

application should continue while 

waiting for the onsite inspection to be 

held. We agree. Our existing processes 

and those in the final Order are 

consistent with what the commenter 

suggests. Furthermore, the Order states 

that the application will be processed 

up to the point that missing information 

or actions makes it impractical 

(proposed Section III.C.2.a.). This 

statement will be moved to the lead 

paragraph for final Section III.E.2. so 

that it pertains to all of this section. 

Several commenters noted that an 

APD approval is valid for 1 year from 

the date of approval and commented 

that this does not provide adequate 

flexibility for operators, particularly 

given the high demand for, and limited 

availability of, drill rigs. They suggested 

that the valid period should be 

expanded to at least 2 years to allow 

operator’s more operating flexibility 

(i.e., drill rig availability). Another 

commenter stated that the shortest 

timeframe of either 1 year or lease 

expiration is too long a period for an 

APD to remain valid and requested that 

an extension not be automatically 

granted. We considered these comments 

and in the final Order will allow an 

APD to be valid for 2 years with an 

option to extend for an additional 2 

years. This takes into account the 

narrow drilling windows created by 

seasonal conditions, wildlife habitat 

needs, and the availability of drilling 

rigs. We considered the adequacy of the 

information and analysis from the 

perspective of timeliness in this 

decision. We believe that NEPA 

documentation and cultural and 

wildlife surveys will be adequate for at 

least the 2 year term and potential 2 

year extension. Our decision is 

consistent with the Energy Policy Act of 

2005 in that the categorical exclusions 

in Section 390 are based on NEPA 

documents that are up to 5 years in age, 

which is longer than the initial APD 

term and extension in the final Order. 

One commenter asked how we can 

require diligent drilling, continue the 

APD, and potentially extend a lease. 

The commenter also asked that we add 

a deadline for reclamation, especially on 

private surface. We did not modify the 

final Order as a result of these 

comments. We are not certain what the 

commenter meant by diligent drilling. If 

the commenter is asking how we will 

require the operator to commence 

drilling soon after the APD is approved, 

we do not believe this to be an issue of 


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concern. In fact, we are concerned that 

seasonal restrictions and drill rig 

availability may cause delays and we 

have extended the valid period for the 

APD to accommodate this potential 

problem. If the comment concerned 

environmental obligations (43 CFR 

3162.5–1(b)), we believe that involving 

the surface owner in the onsite 

inspection, the environmental review 

process done before approving the APD, 

and the periodic inspection conducted 

by the BLM personnel are adequate to 

assure surface protection, compliance 

with lease terms and reclamation. Lease 

extension is beyond the scope of this 

Order and is covered in other 

regulations (43 CFR subpart 3107). 

Reclamation properly begins as soon as 

the drilling operation ends. We typically 

require interim reclamation of that 

portion of the site that is no longer 

needed once a producing well is 

established. We believe that interim 

reclamation can best be handled by 

attaching Conditions of Approval and 

by compliance with lease terms rather 

than by regulation. 

One commenter recommended that 

the BLM develop a standard checklist of 

required information for processing an 

APD. This checklist should include 

NEPA, National Historic Preservation 

Act, and Endangered Species Act 

requirements applicable to the APD that 

have been, or still need to be, 

completed. The commenter said that 

this form would aid operators in 

ensuring that they submit to the BLM a 

complete APD and aid the BLM in 

efficiently ascertaining items that may 

be missing from the APD submission. 

We did not modify the rule as a result 

of this comment. Section III.D. of the 

final Order lists all of the components 

of a complete APD. The Order clearly 

states that the operator may voluntarily 

provide cultural and wildlife survey 

data, but the responsibility to comply 

with NEPA, Endangered Species Act, 

National Historic Preservation Act, and 

other applicable laws, is the 

responsibility of the agencies and not a 

requirement of the applicant and, 

therefore, is not listed as being part of 

a complete APD. 

Many commenters stated that Best 

Management Practices should be strictly 

voluntary and not constitute a new set 

of stipulations or Conditions of 

Approval for every future Federal lease 

or APD. These commenters believe that 

while Best Management Practices may 

be innovative and dynamic, they must 

be considered for their economic 

viability and be applied to site specific 

projects only when necessary to mitigate 

adverse environmental, cultural, or 

social impacts. Other commenters stated 

that Best Management Practices should 

be mandatory to ensure protection from 

resource abuse. One commenter asked 

that operators be required to explain 

what Best Management Practices they 

intend to use in their Surface Use Plan 

of Operations. While the BLM 

encourages the use of Best Management 

Practices, they are voluntary unless after 

specific analysis during the APD 

processing, the BLM includes them as 

Conditions of Approval to mitigate 

impacts. In the cases where Best 

Management Practices are included as 

Conditions of Approval, costs of the 

Best Management Practices will be 

considered in the environmental review, 

but may not determine the final 

decision if the BLM finds that the 

Conditions of Approval are necessary to 

mitigate environmental, cultural, or 

social impacts. If an operator proposes 

using Best Management Practices, they 

should be included in the Surface Use 

Plan of Operations. We added a 

definition of ‘‘Best Management 

Practices’’ and we modified the 

definition of ‘‘Conditions of Approval’’

for clarity. 

One commenter recommended 

deleting the paragraph about Best 

Management Practices that leads the 

discussion of components of a complete 

APD package because they should not 

be required. We agree that Best 

Management Practices are not a required 

component of a complete APD and we 

revised the final rule to make it clear 

that Best Management Practices are not 

mandatory unless they have been 

analyzed as a mitigation measure in the 

environmental review, but that we 

encourage their use. 

One commenter asked why the BLM 

should be notified prior to entering 

private lands for surveying, staking, and 

inventories. The final rule does not 

require, but only encourages, operators 

to notify the BLM or the FS prior to 

entering private lands. In general, early 

BLM notification is encouraged 

regardless of surface ownership so that 

applicants are aware of lease specific 

issues (such as the presence of 

endangered species) before an operator 

commits to a particular course of action 

or completes an inventory that does not 

address all relevant issues. 

A few commenters recommend that 

we revise the sentence that states, ‘‘No 

entry on private lands for surveying, 

staking, and inventories should occur 

without the operator first making an 

effort to notify the surface owner.’’

Commenters said that requiring 

approval from a surface owner prior to 

entry could impair rights under their 

mineral lease. The BLM and the FS 

believe that it is important to involve 

the surface owner in the process as soon 

as possible. However, the final rule 

makes it clear that the Order only 

requires an operator to attempt to obtain 

approval from the surface owner, but 

after such effort, surveying and staking 

may proceed. 

Many commenters noted that the level 

of effort required of the operators to 

notify the surface owners prior to 

staking is not clearly defined. We agree. 

We cannot add a requirement to contact 

the surface owner because in some 

circumstances such contact may not be 

possible. Such a requirement could 

negate lease rights. In the final rule we 

added language requiring the operator to 

certify that they have made a good faith 

effort to provide a copy of the Surface 

Use Plan of Operations to the surface 

owner but that plan may not have been 

prepared at the staking stage. One 

commenter disagreed with our 

statement that staking on private lands 

is casual use. We agree with this 

comment. The statement that staking is 

a casual use refers only to staking on 

public lands for which casual use is a 

defined term. Therefore, casual use does 

not apply to private surface. We 

understand that this is a sensitive issue, 

but the BLM cannot make an absolute 

requirement that the operator obtain 

surface owner consent prior to entering 

private land, because the Stockraising 

Homestead Act offers the option of 

bonding to the lessee. However, we do 

require that the operator make a good 

faith effort to contact the surface owner 

and enter into a Surface Access 

Agreement at the earliest possible time. 

One commenter noted that not all 

access permits for Indian lands are 

granted by the area offices of the BIA, 

now known as regional offices. We agree 

and have replaced ‘‘Area Offices’’ with 

‘‘appropriate office.’’ Further discussion 

of access to Indian lands is in Section 

VII. of the Order. 

Many commenters asked that we 

delete the following language in 

paragraph (d) of Section III.E.2.: ‘‘The 

operator must include the minimum 

design criteria, including casing loading 

assumptions and corresponding safety 

factors for burst, collapse, and tensions 

(body yield, and joint strength).’’ These 

commenters recommend that this 

provision be deleted because it is too 

detailed and no rationale for requiring 

such additional specificity in the APD 

has been given. We did not delete the 

language in the final rule because we 

believe that the information is necessary 

to ensure compliance with minimum 

standards defined in Onshore Orders 

Number 2, Drilling Operations (53 FR 

46790) and Number 6, Hydrogen Sulfide 

Operations (55 FR 48958) and to meet 


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other regulatory requirements in 43 CFR 

3161.2. 

One commenter asked that all aspects 

of a Drilling Plan be made available to 

the surface owners at or before 

submission of the APD. The commenter 

believes that the surface owners are 

entitled to review the plan in order to 

assess the necessity and extent of the 

disturbance proposed. We believe that 

the Surface Use Plan of Operations is 

more useful to the surface owner and 

that the Drilling Plan would provide no 

useful information to the surface owner 

because it primarily contains technical 

information about the drilling of a well 

and down-hole issues. Although we did 

not amend the Order to require 

operators to provide drilling plans to 

surface owners, we amended the Order 

to require operators to certify that they 

have attempted to provide a copy of the 

Surface Use Plan of Operations to the 

surface owner. In addition, the complete 

APD is available for public review at the 

approving BLM office, with the 

exception of proprietary information 

under the provisions of the Freedom of 

Information Act—43 CFR part 2. 

A few commenters stated that the 

proposed rule is unclear as to whether 

roads associated with an APD that cross 

Indian surface must meet the standards 

of the pertinent tribe or the standards of 

the BIA, or in the case of tribal Indian 

surface, both. If the roads are on the 

lease, the BLM will consult with the 

other Surface Managing Agencies (BIA) 

to obtain the appropriate road standards 

and route. After this consultation, in 

order to comply with the standards that 

the BIA provided to the BLM, the BLM 

may add Conditions of Approval. For 

off-lease roads the operator must contact 

the appropriate Surface Managing 

Agency or tribe. 

A commenter suggested we add ‘‘map 

or’’ after ‘‘include’’ to the phrase, ‘‘the 

operator must include a plat diagram 

and geospatial database of facilities 

planned either on or off the well pad 

that shows, to the extent known or 

anticipated, the location of all 

production facilities and lines likely to 

be installed if the well is successfully 

completed for production.’’ We agree 

with the commenter and we added the 

phrase because a map may in some 

cases provide sufficient detail rather 

than requiring a detailed survey in all 

cases. 

One commenter stated that the 

information called for in Section 

III.E.3.d. (Location of Existing and 

Proposed Production Facilities) is 

usually provided before construction. 

We agree with the commenter. That 

section refers to existing production 

facilities within the general area of the 

proposed well and, therefore, no change 

is necessary. 

One commenter says that they may 

not know where they will obtain water 

if they intend to buy it at the time they 

submit their APD. We did not modify 

the Order as a result of this comment. 

The BLM and the FS need the 

information to ascertain the impacts 

associated with operations and the need 

for any mitigation applicable to public 

lands. Under this provision, we don’t 

require specific contract information, 

just the location of the water supply and 

transportation method proposed so that 

we can complete the NEPA analysis. If 

the water source is unknown at the time 

the APD is filed, the information can be 

submitted as a Sundry Notice once it is 

identified. 

One commenter suggested that we 

add language to the Order to direct 

operators to obtain appropriate state 

agency water permits to avoid 

misunderstanding regarding jurisdiction 

in permitting water source wells. We 

did not modify the Order as a result of 

this comment since the Order is not 

intended to enforce regulations or 

requirements of other governing 

agencies and those rules stand on their 

own authority. 

One commenter suggested deleting 

the last sentence of the Section III.E.3.f. 

on construction materials described in 

the Surface Use Plan of Operations. The 

provision requires that the operator 

contact the Surface Managing Agency or 

owner of construction materials before 

those materials are used. We believe 

that the operator should make 

arrangements with the owner prior to 

use; however, it is not necessary for the 

Order to regulate private agreements. 

Therefore, we removed the final 

sentence of that section. 

Many commenters noted that an 

operator may amend his plan for surface 

reclamation at the time of abandonment, 

yet no notice must be given to a surface 

owner then or at any stage of the 

reclamation process. These commenters 

ask that the operator be required to 

notify and at least attempt discussing 

reclamation needs with the surface 

owners. We agree with the commenters. 

Changes to reclamation plans are not 

unusual because final reclamation may 

not occur for several years after the 

original plan was approved, especially if 

the well is productive or because 

reclamation standards or techniques 

change. We added language to the 

reclamation part of the abandonment 

section to require the operator to notify 

the surface owner and consider their 

views when an operator submits a 

reclamation plan for wells not having an 

approved plan. The surface owner will 

have an opportunity to express their 

views regarding all issues including 

reclamation before APDs for new wells 

are approved. 

Several commenters recommended 

that the APD should only require a basic 

reclamation plan that meets current 

standards and then require a more 

detailed, site appropriate final 

reclamation plan when the notice of 

intent to abandon is filed. We disagree. 

The reclamation plan must be 

sufficiently detailed at the APD stage to 

facilitate analysis and identification of 

needed Conditions of Approval to 

ensure adequate reclamation. If changes 

are proposed prior to abandonment, 

they may be submitted with a Sundry 

Notice. 

A few commenters suggested that 

‘‘when obtainable’’ or ‘‘to the best of his 

ability’’ (regarding surface owner 

contact information) be added to the 

first sentence in proposed Section 

III.E.3.k. and in the last paragraph of 

proposed Section III.F. to recognize that 

some surface owners are difficult to 

locate. We believe the phrase ‘‘if 

known’’ already in that sentence 

addresses this concern and additional 

wording would be redundant (see 

Section III.D.4.k. in the final rule). 

Some commenters supported the use 

of Master Development Plans and a few 

recommended that the BLM encourage 

their use. The commenters note that 

Master Development Plans are an 

effective method to address the impacts 

associated with Surface Use Plans of 

Operation in a comprehensive manner, 

especially the development of access 

roads and pipeline systems for wells 

that are to be developed under a 

common drilling plan. However, they 

note, because of the unique 

environmental impacts that each well 

site may pose, specific environmental 

assessments are imperative for each well 

pad location. We agree with the 

comment concerning the advantages 

gained by using Master Development 

Plans. Subsequent APDs will be 

reviewed in light of the Master 

Development Plan when such a Plan is 

in place. Any new environmental 

concerns that are identified will be 

addressed before any subsequent APD is 

approved. This is existing practice and 

no change in the Order is necessary. 

One commenter suggested that the 

BLM should clarify whether all APDs 

submitted as part of the Master 

Development Plan will be approved at 

the same time. The commenter said that 

if all the APDs associated with the Plan 

were approved at one time, there may be 

a problem with validity (we assume this 

means difficulty in timely drilling 

because of the 1-year term). Under this 


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section the BLM will analyze all APDs 

proposed with the Plan and subsequent 

APDs that are anticipated in the Plan 

and make a decision on whether to 

approve the Master Development Plan. 

Subsequent phased implementation of 

that decision will involve approval of 

individual APDs. The operator should 

work with the BLM and the FS to assure 

that APDs are phased according to the 

operator’s schedule. We believe that this 

can be achieved without changing the 

text of the Order. However, we have for 

other reasons extended the term of the 

APD to 2 years (see the discussion of 

Section III.D. above). 

One commenter wanted master APDs 

to be included in a Master Development 

Plan. We agree and view a master APD 

to be the part of the proposed Master 

Development Plan that addresses 

proposed and anticipated future wells. 

Master APDs contain common details of 

multiple wells. The master APD can be 

approved by the BLM and then in 

subsequent APDs the operator 

references the master APD and makes 

any appropriate changes such that the 

material referenced in the master APD 

or Master Development Plan and the 

changes or new material constitute a 

complete APD. Our environmental 

review, including NEPA analysis, would 

then focus on the new or changed 

information and rely on the existing 

analysis of the referenced material in 

the master APD or Master Development 

Plan. We did not amend the Order as a 

result of this comment because we 

believe that the existing provisions 

allow for master APDs. 

Several commenters expressed 

concerns about having to provide both 

state and Federal bonds in varying 

amounts. We understand the 

commenter’s concerns, but operators are 

required by statute (30 U.S.C 226(g)) and 

our regulations to have a Federal bond 

(see 43 CFR subpart 3104). The Order 

cannot regulate bonds that may be 

required by states. The BLM 

requirements and procedures may be 

different than those of any given state. 

For example, states may have different 

criteria for releasing bonds than our 

criteria or they may release bonds 

without informing us and that could 

lead to insufficient bond coverage. State 

bonds cannot replace Federal bonds, but 

the BLM may, under certain 

circumstances, consider state bonds in 

setting Federal bond amounts. However, 

we did not modify the rule as a result 

of these comments. 

A few commenters pointed out that 

several references in the bonding 

section were incorrect and related to 

coal leases rather than oil and gas. The 

commenters are correct. We did not 

intend to limit the regulatory 

requirements to only those in 25 CFR 

part 200 and those specific references 

have been deleted. The FS is required to 

consider the cost of reclamation and, if 

deemed necessary, require additional 

bonding. The operator has the option to 

either increase the bond held by the 

BLM or file a separate bond with the FS 

(36 CFR 228.109). 

Many commenters expressed concern 

that the bond amounts are inadequate 

and do not address the concerns of the 

surface owners or consider other surface 

uses. They asked why the BLM and the 

FS do not have the ability to increase 

bond amounts. One commenter 

referenced the sentence in Section 

III.E.5. that states ‘‘In determining the 

bond amount, the BLM may consider 

impacts of activities on both Federal 

and non-Federal lands required to 

develop the lease that impact lands, 

waters, and other resources off the 

lease’’ and they requested that the BLM 

clarify what they may or may not 

consider in determining the bond 

amount under this rule. Lease bonds 

under 43 CFR 3104.1 ensure 

performance of the operator in the 

drilling, production, and reclamation of 

the well and compliance with lease 

terms and the approved APD. If lease 

operations adversely affect off lease 

lands or surface waters, these impacts 

may be covered by the bond. The 

preamble for the proposed rule (see 70 

FR 43354) discussed the authority for 

considering the costs of restoration of 

any lands or surface waters that are 

adversely affected by lease operations in 

setting the bond amount, citing 30 

U.S.C. 226(g). The Order does not, as the 

commenter requested, provide a 

comprehensive list of what may or may 

not be considered in setting the bond 

amount. However, existing regulations 

at 43 CFR 3104.5 as well as Section 

III.E.5.a. of the final Order provide 

criteria for that purpose. 

Section III.E.5.a. of this Order and 43 

CFR 3104.5 state the criteria for setting 

bond amounts. The regulation and our 

policy to require less than the full bond 

amounts have shown to be greatly 

effective in managing risk without 

excessive costs. We have not modified 

the Order as a result of these comments. 

Surface owner compensation is not 

provided by lease bonds under 43 CFR 

subpart 3104 or this section of the 

Order. Bonds for the benefit of the 

surface owner are addressed in Section 

VI. of this Order and are addressed later 

in the discussion of that section of this 

preamble. 

One commenter asked why the bond 

number was included in the self 

certification when it is required on 

Form 3160–3. We agree with the 

commenter and since it is duplicative 

we eliminated it from being a 

requirement in the self certification 

clause in the final rule. 

One commenter stated that the 

requirement to stake the outer limits of 

the pad, pit, etc., should not be required 

for the Notice of Staking option. We 

agree. Complete staking is not required 

for the Notice of Staking option, but is 

required for final staking when the APD 

is filed (see Section III.F. of the 

proposed rule (Section III.C. of the final 

Order)). 

Many commenters noted that before 

filing an APD, the operator ‘‘may file a 

Notice of Staking with BLM’’ who will 

then inform the surface owner. 

Commenters asked why notice to those 

directly affected by operations is only 

voluntary, implying that the notice to 

surface owners should be mandatory. 

We did not modify the final rule as a 

result of this comment. It should be 

noted that the Notice of Staking is a 

voluntary process. The BLM will notify 

the surface owner if possible and invite 

them to the onsite inspection. 

One commenter expressed concern 

that surveying and related requirements 

are scattered between the APD and 

Notice of Staking sections of the Order 

and are confusing. In the final rule we 

rearranged Section III. of the Order so 

that the provisions are in a more logical 

sequence and to make the process 

clearer. 

One commenter suggested that the 

bottom-hole location should not be a 

requirement of the Notice of Staking 

option. We disagree. The bottom hole 

location is key in identifying the lease 

involved and the associated permitting 

requirements. The sooner this is known, 

the less likely there will be delays. 

Because of this importance, Attachment 

I, Sample Format for Notice of Staking, 

has been edited to eliminate the ‘‘if 

known’’ wording associated with the 

bottom hole location component. 

One commenter stated that it is 

inconsistent to have the BLM as the lead 

agency for NEPA compliance and the 

BIA the lead for Right-of-Way approval. 

We disagree. Sections III.G.a. and III.G.c. 

refer to different, discrete actions, APD 

approval and Right-of-Way approval, 

respectively, and therefore may require 

separate NEPA analysis. 

A few commenters stated that the 

proposed Order is inconsistent with 25 

CFR 211.7 and 225.4, which gives the 

BIA environmental review authority. 

The commenters also note that our 

statement that the BIA has 

responsibility for approving Rights-ofWay on Indian lands is partially 

incorrect. The commenters stated that 


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Rights-of-Way on Indian lands are 

granted by the Secretary of the Interior, 

but only with the consent of the Indian 

landowner (see U.S.C. 323–328 and 25 

CFR 169.3(a) and (b)). The BIA is 

responsible for NEPA analysis for 

actions that it approves, similarly, the 

BLM is responsible for NEPA analysis 

for actions that it approves. The BLM 

approves all lease operations that occur 

on the lease or under Indian Minerals 

Development Act of 1982 (IMDA), 25 

U.S.C. 2101–2108. This includes 

drilling, access to drilling, flowlines to 

or from the wells, construction of onlease facilities for oil and gas 

development, and other well operations. 

The BIA’s role for on-lease activities is 

to consult with the BLM on those 

actions if the minerals or the surface are 

Indian trust. 

Section IV. General Operating 

Requirements 

Purpose: This section summarizes 

general requirements of the operator 

such as conducting operations to 

minimize impacts to surface and 

subsurface resources. It also summarizes 

responsibilities for protecting cultural 

and biological resources and briefly 

describes safety issues. It requires the 

operator to submit a Completion Report 

after it completes a well. This section 

identifies some key operating 

requirements without details that might 

limit or unnecessarily constrain 

operations based on site specific 

proposals. 

Summary of Changes: No substantive 

changes have been made to this section. 

However, we changed ‘‘Watershed 

Protection’’ to ‘‘Surface Protection’’

because the term ‘‘watershed’’ has legal 

implications that are not intended and 

are beyond the scope of this Order. We 

also amended the Endangered Species 

Act language in this section to more 

accurately reflect the statutory language 

and existing policy. 

Comments and Responses: One 

commenter stated that under the 

heading of ‘‘Operator Responsibilities,’’

the proposed rule states that an 

‘‘operator must conduct operations to 

minimize adverse effects to surface and 

subsurface resources and prevent 

unnecessary surface disturbance.’’ The 

commenter suggested that to avoid 

vague and ambiguous language, the 

phrase ‘‘unnecessary surface 

disturbance’’ should be precisely and 

narrowly defined or explained. We 

disagree that narrowly defining 

‘‘unnecessary surface disturbance’’

would be useful. We purposefully use 

broad language in the Order to cover the 

many different circumstances and 

conditions that may occur during 

drilling. Also, we carefully review 

surface use plans and limit surface 

disturbance to that which we think is 

necessary for the proposed operation. 

We limit the size of drill pads and 

require interim reclamation of the area 

no longer needed after drilling is 

complete. 

One commenter stated that when 

third party contractors are used, the 

operator needs to have assurances that 

the work will be accepted by the BLM 

if established standards or procedures 

have been followed. We disagree. 

Products and services supplied by third 

party contractors will be reviewed on 

their own merits and, as with any 

operations on public lands, the BLM 

approval will not occur until we are 

sure that operations or reclamation is 

consistent with the APD, Orders, and 

regulations. Operators and third party 

contractors should contact the local 

BLM office if they are not clear what is 

expected of them. 

A few commenters suggested that the 

sentence referring to 43 CFR 

3163.1(b)(2) be corrected. They believe 

that sentence is partially incorrect as the 

regulatory language specifies ‘‘For 

drilling without approval or for causing 

surface disturbance on Federal or Indian 

surface preliminary to drilling without 

approval, $500 per day for each day that 

the violation existed, including days the 

violation existed prior to discovery, not 

to exceed $5,000.’’ We believe that it is 

not necessary to include in the final 

Order all of the regulatory language in 

43 CFR 3163.1(b)(2) since that provision 

is already a regulatory requirement. 

However, we removed from the final 

rule the text regarding the immediate 

daily assessment because it is not in 43 

CFR 3163.1. 

One commenter stated that cultural 

resource, endangered species, and 

watershed protection requirements are 

better addressed in Conditions of 

Approval, rather than imposing a broad 

requirement in this Order. In addition, 

the commenter stated that the proposed 

rule does not recognize the authority of 

the State Historic Preservation Officer 

with respect to cultural resources. With 

regard to the State Historic Preservation 

Office, we believe that failure to 

establish national procedures could 

potentially cause substantial delays and 

wide variation in procedures. Therefore, 

we believe it is advantageous to define 

a uniform process in this Order rather 

than to allow each BLM and FS office 

to develop unique procedures. With 

regard to the requirements in Section 

IV., we believe that the requirements in 

this section are broad and apply to every 

APD. Only specific requirements that 

apply to the actual conditions at the site 

are appropriate for Conditions of 

Approval. 

A few commenters stated that the 

proposed language that requires 

recording of historical or archeological 

sites that the operator avoids is not 

appropriate. One commenter suggested 

changing ‘‘recording’’ to ‘‘reporting.’’

We disagree. The operator is responsible 

for recording the site (Section 106 of the 

National Historic Preservation Act). 

Recordation means those routine 

procedures adopted by the BLM or the 

FS, as appropriate, and the State 

Historic Preservation Officer to record 

any cultural site inventoried or 

discovered during earthwork and are 

part of compliance with the 

requirements of 36 CFR part 800 

regulations governing Section 106 

compliance and many State Historic 

Preservation Officer protocols. 

Recordation is a routine part of any 

cultural survey provided by third party 

cultural contractors and does not refer 

to extensive data recovery or other site 

mitigation techniques that are necessary 

if the site is not avoided. Recordation is 

the least complicated method of 

reporting a site that is required under 

Section 106 regulations and most 

protocols. 

One commenter stated that Section 

IV.a. of the Order (describing what an 

operator must do if cultural resources 

are uncovered during construction and 

the operator chooses to avoid further 

impacts to the site) does not provide 

adequate protection of cultural 

resources. They asked that the rule be 

amended to state that when an operator 

encounters cultural or historic resources 

during the conduct of operations, they 

would be immediately shut down and 

required to relocate, rather than to 

produce a report that potentially 

minimizes the impacts and allows the 

operator to proceed. We disagree. We 

believe that the process in the Order, 

which is consistent with existing 

practice, will provide and has provided 

adequate protection to cultural 

resources. A report intentionally 

falsified would likely result in 

revocation of permits and possible 

penalties, including revocation of 

authorizations to conduct cultural 

surveys. 

One commenter requested clarity as to 

who is defined as the Surface Managing 

Agency in various scenarios relative to 

Indian lands. The final Order makes it 

clear that for tribal or allotted lands held 

in trust, the BIA is the Surface Managing 

Agency. The final Order also recognizes 

that surface owners have rights and 

responsibilities with respect to trust 

lands. 


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One commenter requested that the 

Order address the protection of 

vertebrate fossil materials. We did not 

modify the Order as a result of this 

comment. It is existing policy that will 

continue under this Order to address the 

protection of fossils through Conditions 

of Approval. 

One commenter asked for an 

explanation of procedures for tribal 

involvement should cultural resources 

be encountered on lands covered by the 

APD. We did not modify the final rule 

as a result of this comment. Cultural 

resource compliance under the National 

Historical Preservation Act is covered 

by the implementing regulations for 

Section 106 of the National Historic 

Preservation Act along with various 

local agreements with State (and Tribal) 

Historical Preservation Officers. Since 

those procedures are defined elsewhere 

and are subject to protocols and 

agreements that differ depending on 

locale, we did not address them in this 

Order. 

One commenter stated that in order to 

protect watersheds, an operator ‘‘must 

take measures to minimize or prevent 

erosion and sediment production.’’ The 

commenter said that the agency should 

be much more specific and careful in 

protecting water values. Section IV.c. of 

the Order and 36 CFR 228.108(j) address 

watershed protection. In addition, it is 

existing policy that will continue under 

the Order to require site specific 

mitigation for each approved APD. 

Effective protective measures can be 

developed only after an actual proposed 

action is evaluated and this must be 

done on a case-by-case basis. Therefore, 

we did not modify the Order to address 

this comment. Many commenters 

wanted more specific protection of 

municipal watersheds and water 

resources. Protection of municipal 

watersheds and water resources is 

outside the scope of this Order. 

Measures to protect resources such as 

water are included in oil and gas leases, 

are addressed in Resource Management 

Plans, and are developed by site specific 

NEPA analysis, as appropriate. 

One commenter requested that we 

remove the word, ‘‘may’’ from the 

sentence, ‘‘Such measures may include, 

but are not limited to: Avoiding steep 

slopes and excessive land clearing 

***’’ in the watershed protection 

provisions of the Order. The commenter 

believes that these measures should be 

mandatory, not discretionary. A few 

commenters suggested that this 

requirement should be reworded to say, 

‘‘Construction with frozen material is 

prohibited and surface disturbance may 

be suspended during periods when the 

soil material is saturated or when 

watershed damage is likely to occur 

(from Wyoming BLM Surface 

Disturbance Mitigation Guidelines).’’

We did not accept these comments 

because the list is intended to illustrate 

conditions to be avoided and is not 

intended to be comprehensive. Detailed 

mitigation measures are best developed 

on a case-by-case basis or in guidance 

documents such as the one the 

commenters quoted. 

A few commenters asked whether an 

operator is required to notify the 

affected tribe, the BIA, or both for 

operations on split estate lands 

containing Indian surface and Federal 

oil and gas when there are ‘‘emergency 

situations.’’ We replaced ‘‘surface 

management entity’’ with ‘‘Surface 

Managing Agency’’ and revised the 

definition. As a result, it is now clear 

that in the emergency situation the 

commenter described, an operator 

should notify the BLM and Surface 

Managing Agency (BIA in this case). 

Section V. Rights-of-Way and Special 

Use Authorization 

Purpose: This section describes the 

requirements for obtaining a Right-ofWay (BLM) or Special Use 

Authorization (FS) for activities that are 

attendant to but not part of the APD. 

Summary of Changes: No substantive 

changes were made to this section and 

comments focused on the desire or need 

to have both the Rights-of-Way and APD 

approved at the same time to avoid 

operating delays. 

Comments and Responses: A few 

commenters suggested that the BLM 

should combine Right-of-Way filing and 

approval with the APD process because 

it would allow approval of the access 

road Right-of-Way at the same time as 

the APD approval. They also suggested 

that the BLM standardize the Right-ofWay process for all BLM offices. One 

commenter suggested that we not 

approve an APD until any associated 

Right-of-Way or other authorizations 

were also approved. We did not amend 

the Order as a result of these comments. 

There is no need to address these issues 

in regulation. Given the limited time of 

an APD, no operator would want to start 

the term running before it has access to 

the well site. While it is the intent of 

this Order and BLM policy to ensure 

uniformity in approval processes, local 

conventions sometimes evolve to 

accommodate local needs. 

A few commenters said it was not 

clear whether to file a Right-of-Way 

application with the BIA for allotted 

Indian lands and to the tribe for tribal 

Indian lands for split estate easements, 

or whether the operator should file in 

accordance with the rules in 25 CFR 

part 169. The operator should comply 

with BIA regulations which define the 

appropriate tribal/Indian owner role in 

approving Rights-of-Way where Indian 

land is involved. 

Section VI. Operating on Lands With 

Private/State Surface and Federal or 

Indian Oil and Gas 

Purpose: This section discusses the 

requirements and procedures for 

operating on split estate lands. It 

describes: 

(A) The requirement of the operator to 

contact the surface owner before entry, 

including entry to stake the location; 

(B) Surface Access Agreements that 

are made with the surface owner for 

access to the private surface; and 

(C) Compensation for damage to the 

surface estate that are provided by law 

and the bond for the benefit of the 

surface owner if a good faith effort to 

reach agreement fails. 

The BLM will also make a good faith 

effort to contact the surface owner to 

assure that they understand their rights 

and to invite them to any onsite 

inspection that may be conducted. 

Summary of Changes: We made 

several changes to this section that are 

as a result of public comment. Those 

changes include: (A) Adding a 

requirement of the operator to provide 

a copy of the Surface Use Plan of 

Operations, the Conditions of Approval, 

and any emergency notices to the 

surface owner; and (B) Removing from 

the rule the universal use of the 

Stockraising Homestead Act standard to 

define the damages covered. 

We also clarified the section regarding 

access to Federal minerals underlying 

Indian surface. The new language makes 

clear that the operator must make a good 

faith effort to obtain a surface access 

agreement with a majority of the Indian 

surface owners who can be located with 

the assistance and concurrence of the 

BIA or with the tribe in the case of 

tribally owned surface. This is 

consistent with existing practice and 25 

CFR 169.3. 

Comments and Responses: One 

commenter complains that the Order 

would give new rights to surface 

owners. We disagree. The Order only 

formalizes the existing practice of 

making a good faith effort to notify the 

surface owners. The surface owners’

participation and input is welcome, but 

the Order gives them no veto over 

development of Federal oil and gas. 

Several commenters were uncertain 

whether or not privately owned surface 

includes tribal surface estates owned in 

fee simple. When tribal lands are held 

in trust or are subject to Federal 

restrictions against alienation the BIA is 


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the Surface Managing Agency, but if 

lands are held in unrestricted fee, those 

lands are treated the same as private 

surface. 

Many commenters expressed 

concerns that the Order changed current 

procedures for operations on private 

surface with Federal oil and gas. We 

disagree. The Order does not change the 

existing legal relationship between the 

surface and mineral estates or the 

relationship between the surface owner 

and the operator, but clarifies the 

relationship between operators and 

surface owners. 

Many commenters wanted the Order 

to support state laws that address split 

estate operations. Existing policy and 

this final rule are based on a strict 

interpretation of existing law. The 

authority of states with respect to 

reserved Federal minerals is established 

in statutes dating back to the early 

twentieth century and is not altered by 

this Order. Therefore, we did not amend 

the final rule as a result of this 

comment. 

Some commenters wanted the policy 

stated in BLM’s Instruction 

Memorandum 2003–131, Permitting Oil 

and Gas on Split Estate Lands and 

Guidance for Onshore Oil and Gas 

Order No. 1 (IM 2003–131), to be 

included in the final rule. Section VI. of 

the proposed and final rule is based on 

IM 2003–131. However, we addressed 

an inaccuracy in the existing 1983 

version of the Order and IM 2003–131. 

The existing Order and the Instruction 

Memorandum extends the Stockraising 

Homestead Act (43 U.S.C. 299) 

limitation on compensation to all split 

estate. The Stockraising Homestead Act 

(and our regulations at 43 CFR 

3814.1(c)) clearly limit compensation to 

grazing and associated tangible 

improvements. Other laws that created 

split estates may not have this same 

limitation. The final rule states that 

compensation is based on the law that 

reserved the mineral estate. 

One commenter said that the Order 

and the BLM are biased toward surface 

owners in violation of law. The final 

rule incorporates the split estate policy 

that has been in effect since 2003 which 

is based on a strict interpretation of 

existing law. It adds nothing new with 

the exception that it bases compensation 

on the patenting act rather than 

extending the terms of the Stockraising 

Homestead Act to all split estate. As 

explained elsewhere, surface owners 

have only the substantive rights 

provided by statute, especially the laws 

under which the surface was patented. 

A procedural requirement of a good 

faith attempt to notify the surface owner 

and attempt to reach an agreement does 

not change the dominant character of 

the federally owned oil and gas or the 

rights of Federal lessees. The Order 

reflects no bias; it includes the lessee’s 

right to post a bond if a good faith 

attempt to reach a Surface Access 

Agreement with the surface owner fails. 

This Order does not require 

compensation to surface owners beyond 

that which is required by the patenting 

act. 

Several commenters objected to the 

surface owner compensation limitations 

in the Stockraising Homestead Act and 

wanted us to eliminate them. The BLM 

cannot modify a statute through 

rulemaking. 

Several commenters want a clear 

definition of ‘‘good faith’’ as that term 

pertains to negotiations with a surface 

owner and a definition of what an 

operator must do to contact and 

negotiate with a surface owner. We did 

not modify the Order as a result of these 

comments. We believe that a good faith 

effort can be demonstrated in too many 

ways to be codified. For example, a 

single phone call does not demonstrate 

a good faith effort while in similar 

circumstances an extensive log of 

unanswered phone calls or evidence of 

numerous returned unopened properly 

addressed letters would. Therefore, the 

final Order does not contain such a 

definition. In response to the second 

comment, we believe that once contact 

has been made, negotiations are private 

and methods of negotiation are not 

easily codified. Some commenters 

oppose disclosing the terms of the 

Surface Access Agreements since the 

agreements are private contracts. 

Therefore, we have chosen to not 

address contract negotiations or terms of 

agreements in the Order. We have, 

however, eliminated the requirement 

that the operator provide the BLM with 

those terms of the Surface Access 

Agreement that could impact surface 

operations. We believe that the Surface 

Use Plan of Operations will contain 

sufficient detail to make this 

requirement redundant. 

Several commenters want the BLM to 

devise reasonable bonding requirements 

and provide guidelines for setting 

surface values rather than rely on the 

Stockraising Homestead Act. Bonds are 

used in lieu of a Surface Access 

Agreement to assure surface owner 

compensation for damages as prescribed 

by the appropriate law. Bonds can only 

be used when the operator certifies that 

a Surface Access Agreement could not 

be reached and the BLM confirms that 

fact with the surface owner, if possible. 

Bonds are not required when a Surface 

Access Agreement has been made. A 

commenter expressed concern that an 

operator may take the easy way out and 

merely post a bond rather than to 

negotiate an agreement with the surface 

owner. The final rule states that bonds 

are in lieu of a Surface Access 

Agreement only when the operator 

certifies that a Surface Access 

Agreement could not be reached and the 

BLM confirms this fact with the surface 

owner, if possible. The bond amount 

will be reviewed by the BLM to assure 

that it is sufficient based on the 

appropriate law. Some commenters said 

that these bonds would constitute 

‘‘double bonding.’’ We disagree. Bonds 

for the benefit of the surface owner are 

for a different purpose than the 

reclamation bonds required for all 

APDs. When both bonds are required, 

they satisfy the requirements of different 

statutes, protect different parties, and 

assure performance of different 

obligations, i.e., surface restoration 

versus damage to structures. 

One commenter alleged that the BLM 

managers actively dissuade surface 

owners from participating in the 

bonding process, thus somehow 

rendering the Order illegal. Any such 

conduct would be improper under the 

existing Order. No change to the Order 

is necessary based on this comment. 

One commenter asked why we require 

the operator to enter into an agreement 

with the surface owner prior to approval 

of the APD since the agreement may 

need to be revised to comply with 

changes that the BLM may make to the 

proposed action. We did not revise the 

Order as a result of this comment. 

Under the terms of the patenting 

statutes, the BLM cannot approve entry 

onto the land for drilling until either 

agreement is reached or a bond is 

posted. Each party should anticipate 

that changes to a proposed action may 

occur during the APD approval process 

and negotiate accordingly. 

Another commenter suggested that 

the Order should set minimum 

standards for Surface Access 

Agreements and suggested language for 

an agreement. The BLM and the FS 

believe that most surface owners and 

operators would object to such a 

requirement. In most split estate cases 

surface owners and operators do reach 

an agreement. This is evidenced by the 

very few bonds that we hold for the 

benefit of the surface owner. Also, there 

appears to be a general reluctance from 

both surface owners and operators alike 

to divulge the terms of these agreements 

and we take that to indicate that they 

would object to required terms for such 

agreements. We did not set minimum 

standards for Surface Access 

Agreements. However, the BLM and the 

FS are always willing to discuss 


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concerns with surface owners and 

operators. 

Some commenters asked for more 

involvement of the surface owner in 

review of the proposed action and asked 

why the BLM will not include all 

surface owner requests in the approved 

APD. We emphasize that the BLM will 

always invite the surface owner to the 

onsite inspection if they can be located. 

The BLM will consider any input that 

the surface owner may have and will 

make adjustments to the operator’s 

plans that are reasonable. These changes 

may include road realignment and other 

similar adjustments. They would not 

include terms of a Surface Access 

Agreement that are not directly related 

to the proposed action in the APD. A 

private contract may include an 

agreement to provide benefits that are 

not related to development of the oil 

and gas. These items would not be 

enforceable by the BLM and cannot be 

included in the Conditions of Approval 

of the APD. To avoid confusion, we 

removed the statement that suggested 

we would only consider the surface 

owner concerns to the extent that they 

are consistent with Federal land 

management policy. 

One commenter asked why the BLM 

and the FS would only require 

reclamation and not restoration, but did 

not provide a distinction between the 

two terms. We define reclamation in the 

Order to mean ‘‘returning disturbed 

land as near to its predisturbed 

condition as is reasonably practical or as 

specified in an approved APD.’’ Section 

XI.B. of the Order requires the BLM to 

contact the surface owner and involve 

them in determining reclamation 

requirements, any changes to 

reclamation plans, and the final 

approval of reclamation operations. 

A few commenters stated that the 

private surface owner should be 

provided with notices of oil and gas 

lease sales and be allowed to provide 

input into the leasing process. The 

commenters also wanted improved 

involvement in decisions that affect 

their private surface. The BLM’s leasing 

processes are outside the scope of this 

Order. However, under current rules 

and processes, diligent landowners have 

ample opportunities to make themselves 

aware of decisions to lease lands. The 

BLM makes decisions regarding areas to 

be made available for leasing and lease 

stipulations during the land use 

planning process. The land use 

planning process is open to public 

participation and comment and the 

BLM encourages private landowners to 

make their views known through this 

process. Also, lease sales are posted on 

the BLM’s Web sites and the details are 

also available through individual BLM 

offices. 

Several commenters stated that the 

BLM does not have the authority to 

require a private landowner to submit to 

cultural and biological surveys on 

privately owned surface. One 

commenter stated that it is incumbent 

upon the BLM to respect the wishes of 

the private landowner with respect to 

these surveys. We disagree. The Federal 

mineral estate is the dominant estate 

and the BLM and its lessees may enter 

the lands to perform such operations as 

are necessary to develop the minerals. 

The BLM and the FS are required to 

comply with Section 106 of the National 

Historic Preservation Act and Section 7 

of the Endangered Species Act prior to 

approving the lease operations on 

Federal minerals regardless of surface 

ownership. Satisfying statutory 

requirements may include conducting 

specific inventories. To the extent that 

these inventories are a necessary 

prerequisite to developing the minerals, 

they are within the rights reserved to the 

United States in the patent. We 

modified Section VI. of the Order to 

make this clear. 

One commenter wanted the Order to 

adopt language in proposed Federal 

legislation pending before Congress that 

provides more protections for surface 

owners. The final rule is consistent with 

existing law pertaining to split estate 

and the rights possessed by the holders 

of outstanding leases that limit what the 

BLM can do under current law. 

Therefore, we did not modify the Order 

as requested by the commenter. 

Section VII. Leases for Indian Oil and 

Gas 

Purpose: This section discusses the 

requirements and procedures for 

operating on Indian oil and gas leases. 

It also discusses the process for 

approval of APDs, Master Development 

Plans, and Sundry Notices on Indian 

tribal and allotted oil and gas leases 

held in trust and Indian Mineral 

Development Trust mineral agreements. 

Summary of Changes: In the final rule 

we clarified the relationship of the BIA 

as the Surface Managing Agency and the 

Indian mineral owners relative to the 

BLM approvals under the Order. 

Comments and Responses: A few 

commenters stated that the reference to 

Indian oil and gas does not clearly 

address the issues surrounding the 

relationship between the BLM and the 

tribal management with respect to 

APDs. They encouraged the BLM to 

approve APDs on tribal lands within 30 

days of receipt of a complete APD. The 

final rule reduces the confusion caused 

by using the term ‘‘Surface Management 

Entity’’ that included both the BIA and 

the Indian mineral owner. The final rule 

refers to the ‘‘Surface Managing 

Agency,’’ which is the BIA and not the 

tribe. The BLM cannot approve an APD 

until all non-discretionary actions are 

completed and other Surface Managing 

Agencies, including the BIA in these 

cases, are consulted. The BLM must 

seek BIA input for Indian oil and gas 

leases and will strive to issue permits in 

a timely manner. 

One commenter asked for an 

explanation of the procedure to be used 

for processing APDs on tribal lands. The 

final rule makes it clear that on tribal 

lands held in trust or subject to Federal 

restrictions against alienation, the BLM 

will review and process APDs in the 

same manner as on BLM lands, but will 

consult and consider recommendations 

for the Surface Use Plan of Operations 

from the Surface Managing Agency 

(BIA) and surface owners (the tribe). We 

modified the provisions on surface 

access of Indian lands to make them 

consistent with BIA regulations. 

Decisions on APD approval are subject 

to State Director Review and the BLM’s 

appeal procedures. 

Section VIII. Subsequent Operations 

and Sundry Notices 

Purpose: This section describes 

approval of operations that occur after 

the APD has been approved, including 

changes to the drilling plan. The 

additional operations occasionally 

include additional surface disturbance. 

Summary of Changes: In the final rule 

we added a requirement that the 

operator must make a good faith effort 

to provide a copy of any Sundry Notice 

that requires additional surface 

disturbance to the private surface owner 

in the case of split estate. This is 

consistent with the requirement in the 

final rule to make a good faith effort to 

provide the Surface Use Plan of 

Operations to the split estate surface 

owner and is a result of comments that 

we received. 

Comments and Responses: One 

commenter suggested that operators be 

allowed to use e-mail and voice 

messages for notification of emergency 

repair. We agree. In the final rule the 

form of the contact is not specified, but 

the BLM will allow any form of contact 

as long as it is reasonable. The BLM and 

the FS contact information is listed on 

the approved APD. 

Section IX. Well Conversion 

Purpose: This section describes the 

process of converting an existing well 

into either an injection well or water 

well. 


ycherry on PROD1PC64 with RULES2
Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 10325 

Summary of Changes: We added 

language to the final rule to clarify that 

if a Surface Managing Agency or surface 

owner acquires a water supply well, 

they assume liability for that well. 

Comments and Responses: One 

commenter noted that the proposed 

Order requires application to both the 

BLM and the Surface Managing Agency 

to convert a production well to an 

injection well. The commenter stated 

that actual approval to inject rests with 

either the Environmental Protection 

Agency (EPA) or a state to which 

primacy has been granted by the EPA. 

The BLM recognizes the EPA’s (and the 

primacy states’) role in the Underground 

Injection Control program. However, 

that does not mean that the BLM does 

not have a role to play in the approval 

of the conversion of a well to an 

injection well on Federal lands. The 

BLM approves underground injection 

on Federal and Indian oil and gas leases 

under existing regulations at 43 CFR 

3162.3–4(b) (see also Onshore Order 

Number 7, Disposal of Produced Water, 

58 FR 47354). 

Several commenters questioned the 

authority given to the Surface Managing 

Agency regarding approval of injection 

well conversions. One commenter asked 

if the Surface Managing Agency has veto 

authority over the approval. Under 

existing procedures and this final rule, 

if another Federal agency other than the 

FS manages the surface, the decision 

will be made by the BLM in 

consultation with that agency if 

additional surface disturbance is 

involved. The FS approves surface use 

on NFS lands. The commenters also 

asked if the disapproval is the result of 

the position of the Surface Managing 

Agency, whether such disapproval is 

subject to appeal under Section XIII. 

The commenters pointed out that 

Interior Board of Land Appeals (IBLA) 

has no authority over BIA decisions. 

There are no decisions by other agencies 

to appeal. All BLM decisions under this 

rule are appealable to the IBLA. The 

FS’s decisions are appealable under 

Title 36 of the CFR. One cannot appeal 

a recommendation from another agency. 

One commenter stated that it is 

inappropriate to request that operators 

file the listed applications with Surface 

Managing Agencies that do not have any 

regulatory authority over conversions. 

The requirement to submit a Sundry 

Notice to a Surface Managing Agency 

other than the BLM has been eliminated 

from the Order if no additional surface 

disturbance is required. 

One commenter mentioned that in 

addition to the BLM approval, notice to 

the state agency with authority for 

conversion to a water well will also be 

required. They suggested that including 

a reference to the appropriate state 

agency with authority over groundwater 

would help avoid failing to meet any 

state requirements. We did not revise 

the Order as a result of this comment 

because such a list would be extensive 

and would have the potential to change 

periodically. Also, the Order only 

covers Federal approvals and, therefore, 

the suggested list is outside the scope of 

this rule. 

Section X. Variances 

Purpose: This section provides 

guidance and requirements for obtaining 

a variance from the requirements of the 

Order or Notice to Lessee. A request for 

variance must show how the operator 

expects to meet the intent of the Order 

with the variance. 

Summary of Changes: In the final rule 

we moved the discussion of waiver, 

exceptions, and modifications to a new 

section. We also explain that operators 

must demonstrate in their request for a 

variance that they will still meet the 

intent of the Order. This is based on 

comments requesting that we clarify the 

variance process (see the discussion in 

Section II. of this rule). 

Comments and Responses: One 

commenter asked why the BIA’s 

concurrence is not needed for variances. 

The BIA’s concurrence is not necessary 

to grant a variance because it is a 

request to vary from the provisions of 

this Order for which the BLM and the 

FS have responsibility. 

Section XI. Waivers, Exceptions, or 

Modifications 

We added this section to the final rule 

to distinguish variances, which concern 

requirements of the Order, from 

waivers, exceptions, and modifications 

which concern lease terms. We did not 

add a definition for these three terms in 

Section II.; however, we did add 

language that clarifies the differences 

between the waivers, exceptions, and 

modifications. The text in this section 

was moved from the variance section in 

the proposed rule. 

One commenter asked whether the 

BIA has authority to approve or deny 

waivers, exceptions, or modifications to 

lease stipulations. We did not amend 

the final rule as a result of this 

comment. On Indian oil and gas leases, 

where the surface is held in trust, the 

BIA is the sole authority for approval of 

waivers, exceptions, or modifications to 

lease stipulations. 

One commenter pointed out that a 30- 

day posting is not always necessary 

when a waiver, exception, or 

modification of lease terms is requested 

because these are often addressed in the 

planning document. We agree. A 30-day 

posting is only required if the waiver, 

exception, or modification is 

substantial. The granting of a waiver, 

exception, or modification would not be 

considered substantial if the 

circumstances warranting a waiver, 

exception, or modification were 

prescribed in the planning document 

and the associated impacts were 

disclosed in the environmental impact 

statement for the Resource Management 

Plan. 

One commenter was concerned that 

the requirement for concurrence from 

the Surface Managing Agency for 

waiver, exception, or modification will 

result in unnecessary delays. The BLM 

is required by the Reform Act to provide 

public notice whenever a waiver, 

exception, or modification is substantial 

(Section 5102(d) of the Federal Onshore 

Oil and Gas Leasing Reform Act of 1987, 

101 Stat. 1330–256, P.L. 100–203). The 

reason the BLM consults with the 

Surface Managing Agency is because the 

agency developed the lease stipulations 

and therefore any associated waivers, 

exceptions, or modifications must be 

based on that agency’s concurrence as 

well. 

Section XII. Abandonment 

Note: Since the final rule adds a separate 

section for waivers, exceptions, and 

modifications, the abandonment section has 

been renumbered from XI. to XII. 

Purpose: This section describes the 

requirements for notification of intent to 

abandon a well and reclaim the site. It 

describes requirements for providing 

notice of intended change in 

reclamation. Some of the comments 

related to this section dealt with timing 

of reclamation and involvement of a 

private surface owner (also see Section 

VI.). 

Summary of Changes: In the final rule 

we moved from this section to Section 

IX. the statements about the BLM and 

the FS approving complete 

abandonment of the well if the Surface 

Managing Agency or surface owner 

commits to acquiring it as a water well 

and the acquiring party’s assumption of 

liability. We also modified this section 

to require the operator to notify and 

consider the views of the private surface 

owner prior to a Notice of Abandonment 

being filed. 

Comments and Responses: One 

commenter asked that we add to the 

final rule a deadline for reclamation, 

especially on private surface. 

Reclamation properly begins as soon as 

the drilling operation ends. We typically 

require interim reclamation of that 

portion of the site that is no longer 


ycherry on PROD1PC64 with RULES2
10326 Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 

needed when a producing well is 

established. We believe that this can 

best be handled in Conditions of 

Approval and by lease terms rather than 

in the Order. We made no change based 

on this comment. 

XIII. Appeal Procedures 

Note: With the addition of a separate 

section for waivers, exceptions, and 

modifications the appeal procedures section 

has been renumbered from XII. to XIII. 

Purpose: This section describes the 

process of appealing decisions of the 

agencies and statutory basis for appeal 

procedures. 

Summary of Changes: The only 

change to this section was to change the 

term ‘‘are subject to’’ to ‘‘may be subject 

to’’ as that phrase applies to appeals of 

FS decisions. We made this change 

because some decisions based on 

categorical exclusions may not be 

subject to 36 CFR part 215. 

Comments and Responses: Comments 

received on this section are discussed 

earlier in previous section discussions 

of this preamble. 

XIV. Procedural Matters 

Executive Order 12866, Regulatory 

Planning and Review 

The final rule will not have an annual 

economic effect of $100 million or 

adversely affect an economic sector, 

productivity, jobs, the environment, or 

other units of government. A costbenefit and economic analysis has not 

been prepared. The final rule primarily 

involves changes to the BLM’s and the 

FS’s administrative processes. The 

revision to the definition of ‘‘Complete 

APD’’ requiring onsite inspections 

would have no impact on operators 

since onsite inspections are currently 

required as part of the APD approval 

process. The provisions are consistent 

with existing policy and practice when 

operating on split estate lands with 

Indian surface ownership, and therefore 

would have no economic impact. Other 

changes, such as adding a provision for 

the use of Master Development Plans, 

may improve processing and 

predictability of operations due to better 

advance planning of field development. 

Clarifying that our authority to require 

additional bond applies to off-lease 

facilities would have no economic 

impact since the BLM already has the 

authority under the existing regulatory 

scheme to require this bond. The other 

revisions this final rule makes to the 

Order primarily involve changing the 

BLM and the FS’s administrative 

processes. Because of clearer rules, 

operators will have a better 

understanding of the BLM and the FS 

requirements, processes, and timelines, 

and thus the result may be a reduction 

in delays when processing APDs. The 

BLM and operators should both see 

administrative cost savings realized 

from implementing the final rule. 

The final rule will not create 

inconsistencies with other agency 

actions. The BLM has worked closely 

with the FS in assuring the maximum 

consistency between the policies of the 

two agencies. In fact, the Forest Service 

will adopt the final rule under their 

regulations at 36 CFR 228.105. 

The final rule will not materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. As stated 

above, the final rule primarily revises 

administrative processes for APD 

approvals and should not impact any of 

the above listed items. 

The final rule does not raise novel 

legal or policy issues. Legal and policy 

issues addressed by the final rule are 

already addressed in the existing Order, 

existing regulations, existing policy, or 

existing law. 

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, we will assume that all entities 

(all lessees and operators) that may be 

impacted by these regulations are small 

entities. 

The final rule deals mainly with the 

requirements necessary for the approval 

of all proposed oil and gas exploratory, 

development, or service wells on all 

Federal and Indian (other than those of 

the Osage Tribe) onshore oil and gas 

leases. These changes are not 

significantly different from the existing 

Order and primarily consist of changes 

to the BLM’s and the FS’s 

administrative processes. As a result of 

clearer rules, operators will have a 

better understanding of the BLM’s and 

the FS’s requirements, processes, and 

timelines. This will likely reduce delays 

in processing and both the BLM and 

operators should see some 

administrative cost savings. The 

provision(s) for operating on split estate 

lands with Indian surface ownership is 

consistent with existing policy and 

practice and therefore would have no 

economic impact. Therefore, the BLM 

has determined under the RFA that the 

final rule would not have a significant 

economic impact on a substantial 

number of small entities. 

The use of Best Management Practices 

in Conditions of Approval for a permit 

to drill is not new. The BLM currently 

uses them as Conditions of Approval 

and therefore this provision will have 

no economic impact on small entities. 

The bonding provision in the rule will 

not impact small entities since the 

provision merely clarifies the existing 

regulations. As stated earlier, an 

Assistant Solicitor’s Opinion of July 19, 

2004, concluded that under the current 

regulation the BLM has the authority to 

require additional bond for off-site 

facilities and to require either a separate 

bond or an increase in the required 

amount of an existing bond. 

Accordingly, the rule does not represent 

a change in the regulatory scheme. 

Small Business Regulatory Enforcement 

Fairness Act 

These final regulations are not a 

‘‘major rule’’ as defined at 5 U.S.C. 

804(2). For the reasons stated in the 

RFA and Executive Order 12866 

discussions, this rule would not have an 

annual effect on the economy greater 

than $100 million; it would not result in 

major cost or price increases for 

consumers, industries, government 

agencies, or regions; and it would not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

Unfunded Mandates Reform Act 

These final regulations do not impose 

an unfunded mandate on State, local, or 

tribal governments or the private sector 

of more than $100 million per year; nor 

do these proposed regulations have a 

significant or unique effect on State, 

local, or tribal governments or the 

private sector. The final rule codifies 

certain decisions made by the Congress 

in the Energy Policy Act of 2005. The 

discretionary provisions primarily 

involve changes to the BLM’s and the 

FS’s administrative processes and 

would not have any significant effect 

monetarily, or otherwise, on the entities 

listed and therefore would not add to 

any burden imposed by the final rule. 

Therefore, the BLM is not required to 

prepare a statement containing the 

information required by the Unfunded 

Mandates Reform Act (2 U.S.C. 1531 et 

seq.). 


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Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 10327 

Executive Order 12630, Governmental 

Actions and Interference With 

Constitutionally Protected Property 

Rights (Takings) 

In accordance with Executive Order 

12630, the final rule does not have 

significant takings implications. A 

takings implication assessment in not 

required. This final rule identifies the 

procedural requirements necessary for 

approval of proposed exploratory, 

development of service wells, and most 

subsequent well operations. All such 

actions are subject to lease terms which 

expressly require that subsequent least 

activities must be approved in 

compliance with applicable Federal 

laws and regulations, including NEPA, 

ESA, and NHPA. The final rule carefully 

conforms to the terms of those Federal 

leases and regulations and as such the 

rule is not a governmental action 

capable of interfering with 

constitutionally protected property 

rights. Furthermore, this final rule has 

no potential to affect property rights 

because the changes reduce the burdens 

on regulated parties. Therefore, the final 

rule will not cause a taking of private 

property or require further discussion of 

takings implications under this 

Executive Order. 

Executive Order 13132, Federalism 

In accordance with Executive Order 

13132, the final rule does not have 

significant Federalism effects. A 

Federalism assessment is not required 

because the rule does 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 final rule will 

not have any effect on any of the items 

listed. The final rule affects the 

relationship between operators, lessees, 

and the BLM and the FS, but would not 

impact states. Therefore, in accordance 

with Executive Order 13132, the BLM 

has determined that the final rule does 

not have sufficient Federalism 

implications to warrant preparation of a 

Federalism Assessment. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951) and 512 

Departmental Manual 2, the BLM 

evaluated possible effects on federally 

recognized Indian tribes. The BLM 

approves proposed operations on all 

Indian (other than those of the Osage 

Tribe) onshore oil and gas leases and 

agreements and therefore the final rule 

has the potential to impact Indian tribes. 

The BLM has consulted with the tribes 

on the proposed revisions to the Order. 

Executive Order 12988, Civil Justice 

Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the final rule does not 

unduly burden the judicial system and 

meets the requirements of Sections 3(a) 

and 3(b)(2) of the Order. We have 

reviewed the final 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 burden 

reduction. The final rule was written in 

plain language and legal counsel 

assisted in all of these areas. 

Paperwork Reduction Act 

These regulations contain information 

collection requirements. As required by 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.), we submitted 

a copy of the proposed information 

collection requirements to the Office of 

Management and Budget for review. The 

OMB approved the information 

collection requirements under Control 

Number 1004–0137, which expires on 

March 31, 2007. 

National Environmental Policy Act 

We have analyzed this final rule in 

accordance with the criteria of the 

NEPA and 516 Departmental Manual. 

The revisions to the existing Order will 

not impact the environment 

significantly. For the most part, the 

revisions would involve changes to the 

BLM’s administrative processes. For 

example, changes to the meaning of 

‘‘Complete APD’’ only pertain to the 

application and the process the BLM 

will use to review APD packages and 

would have no impact on the 

environment. Other changes, such as 

adding provisions for the use of Master 

Development Plans, should provide 

improved environmental protection due 

to better advance planning of field 

development. The clarification as to the 

BLM’s obligation under the National 

Historic Preservation Act and the 

Endangered Species Act on split estate 

lands should reduce effects on cultural 

resources and protected species and 

their habitats. The clarification of the 

BLM’s authority to increase bond 

requirements to cover off-site facilities 

should also reduce potential effects on 

the environment. Also, procedural and 

clarifying changes will have no 

meaningful impact on the environment. 

The use of Best Management Practices 

as Conditions of Approval can lead to 

reduced environmental damage. 

Furthermore, environmental effects of 

proposed operations on public and 

Federal lands are analyzed on a case-bycase basis. The BLM and the FS have 

prepared an environmental assessment 

and have found that this final rule 

would not constitute a major Federal 

action significantly affecting the quality 

of the human environment under 

Section 102(2)(C) of the NEPA, 42 

U.S.C. 4332(2)(C). A detailed statement 

under NEPA is not required. The BLM 

has placed the EA and the Finding of No 

Significant Impact 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 

In accordance with Executive Order 

13211, the BLM has determined that the 

proposed rule will not have substantial 

direct effects on the energy supply, 

distribution or use, including a shortfall 

in supply or price increase. This rule 

would clarify the administrative 

processes involved in approving an APD 

and more clearly lay out the timeline for 

processing applications. It is not clear to 

what extent clarification of the rules 

will save the BLM, the FS, or operators’

administrative cost, but we anticipate 

that the cost savings will be minimal, as 

will any direct effects on the energy 

supply, distribution or use. 

Executive Order 13352, Facilitation of 

Cooperative Conservation 

In accordance with Executive Order 

13352, the BLM has determined that the 

final rule primarily involves changes to 

the BLM and Forest Service 

administrative processes. This rule does 

not impede facilitating cooperative 

conservation; takes appropriate account 

of and considers the interests of persons 

with ownership or other legally 

recognized interests in land or other 

natural resources; has no effect on local 

participation in the Federal decisionmaking process except to enhance the 

opportunities for surface owners; and 

provides that the programs, projects, 

and activities are consistent with 

protecting public health and safety. 


ycherry on PROD1PC64 with RULES2
10328 Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 

Authors 

The principal authors of this rule are: 

James Burd of the BLM Washington 

Office; Bo Brown of the BLM Alaska 

State Office; Brian Pruiett and Jennifer 

Spegon of the BLM Buffalo, Wyoming 

Field Office; Gary Stephens of the BLM 

New Mexico State Office; Hank 

Szymanski of the BLM Colorado State 

Office; Al McKee of the BLM Utah State 

Office; Howard Clevinger of the BLM 

Vernal, Utah Field Office; Roy Swalling 

of the Montana State Office; Greg Noble 

of the Alaska State Office; Steve Hansen 

of the BLM Arizona State Office; and 

Barry Burkhardt of the FS 

Intermountain Regional Office, Ogden, 

Utah, and assisted by the staff of the 

BLM’s Division of Regulatory Affairs 

and the Department of the Interior’s 

Office of the Solicitor. 

List of Subjects 

36 CFR Part 228 

Environmental protection; Mines; 

National forests; Oil and gas 

exploration; Public lands-mineral 

resources; Public lands-rights-of-way; 

Reporting and recordkeeping 

requirements; Surety bonds; Wilderness 

areas. 

43 CFR Part 3160 

Administrative practice and 

procedure; Government contracts; 

Indians-lands; Mineral royalties; Oil and 

gas exploration; Penalties; Public landsmineral resources; Reporting and 

recordkeeping requirements. 

36 CFR Chapter II 

■ For the reasons set out in the joint 

preamble, the FS amends 36 CFR part 

228 as follows: 

PART 228—MINERALS 

■ 1. The authority citation for part 228 

continues to read as follows: 

Authority: 30 Stat. 35 and 36, as amended 

(16 U.S.C. 478, 551); 41 Stat. 437, as 

amended, Sec. 5102(d), 101 Stat. 1330–256 

(30 U.S.C. 226); 61 Stat. 681, as amended (30 

U.S.C. 601); 61 Stat. 914, as amended (30 

U.S.C. 352); 69 Stat. 368, as amended (30 

U.S.C. 611); and 94 Stat. 2400. 

■ 2. Revise § 228.105(a)(1) to read as 

follows: 

§ 228.105 Issuance of onshore orders and 

notices to lessees 

(a) * * * 

(1) Surface Use Plans of Operations 

and Master Development Plans. 

Operators shall submit Surface Use 

Plans of Operations or Master 

Development Plans in accordance with 

Onshore Oil and Gas Order No. 1. 

Approval of a Master Development Plan 

constitutes a decision to approve 

Surface Use Plans of Operations 

submitted as a part of the Master 

Development Plan. Subsequently 

submitted Surface Use Plans of 

Operations shall be reviewed to verify 

that they are consistent with the 

approved Master Development Plan and 

whether additional NEPA 

documentation or consultation pursuant 

to the National Historic Preservation Act 

or the Endangered Species Act is 

required. If the review determines that 

additional documentation is required, 

the Forest Service will review the 

additional documentation or consult as 

appropriate and make an independent 

decision regarding the subsequently 

submitted Surface Use Plan of 

Operations, and notify the BLM and the 

operator whether the Surface Use Plan 

of Operations is approved. 

* * * * * 

■ 3. Revise § 228.107(c) to read as 

follows: 

§ 228.107 Review of surface use plan of 

operations. 

* * * * * 

(c) Public notice. The authorized 

Forest Service officer will give public 

notice of the decision regarding a 

surface use plan of operations and 

include in that notice whether the 

decision is appealable under the 

applicable Forest Service appeal 

procedures. 

* * * * * 

Appendix A to subpart E of part 228 

[Removed] 

■ 4. Remove Appendix A to subpart E 

of part 228. 

Dated: February 9, 2007. 

David P. Tenny, 

Deputy Under Secretary, Natural Resources 

Environment, Forest Service. 

43 CFR Chapter II 

■ For the reasons set out in the joint 

preamble, the Bureau of Land 

Management amends 43 CFR part 3160 

as follows: 

PART 3160—ONSHORE OIL AND GAS 

OPERATIONS 

■ 1. The authority citation for part 3160 

continues 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. 

■ 2. Amend § 3164.1(b) by revising the 

first entry in the table as follows: 

§ 3164.1 Onshore Oil and Gas Orders. 

* * * * * 

(b) * * * 

Order No. Subject Effective date Federal Register reference Supersedes 

1. ........................ Approval of operations .................. May 7, 2007 .................................. 71 FR ............................................ NTL–6. 

* * * * * 

The following Order would be 

implemented by the BLM and the FS, 

but will not be codified in the Code of 

Federal Regulations. 

Dated: December 1, 2006. 

C. Stephen Allred, 

Assistant Secretary, Land and Minerals 

Management. 

Appendix—Text of Oil and Gas 

Onshore Order 

Note: This appendix will not appear in the 

BLM regulations in 43 Code of Federal 

Regulations. 

Onshore Oil and Gas Order Number 1 

Approval of Operations 

I. Introduction 

A. Authority 

B. Purpose 

C. Scope 

II. Definitions 

III. Application for Permit To Drill (APD) 

A. Where to File 

B. Early Notification 

C. Notice of Staking Option 

D. Components of a Complete APD Package 

E. APD Posting and Processing 

F. Approval of APDs 

G. Valid Period of Approved APD 

H. Master Development Plans 

IV. General Operating Requirements 

V. Rights-of-Way and Special Use 

Authorizations 

VI. Operating on Lands With Private/State 

Surface and Federal or Indian Oil and 

Gas 

VII. Leases for Indian Oil and Gas 

A. Approval of Operations 

B. Surface Use 

VIII. Subsequent Operations and Sundry 

Notices 

A. Surface Disturbing Operations 

B. Emergency Repairs 

IX. Well Conversions 

A. Conversion to an Injection Well 

B. Conversion to a Water Supply Well 

X. Variances 

XI. Waivers, Exceptions, or Modifications 

XII. Abandonment 


ycherry on PROD1PC64 with RULES2
Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 10329 

A. Plugging 

B. Reclamation 

XIII. Appeal Procedures 

Attachment I—Sample Format for Notice of 

Staking 

Onshore Oil and Gas Order Number 1 

Approval of Operations 

I. Introduction 

A. Authority 

The Secretaries of the Interior and 

Agriculture have authority under 

various Federal and Indian mineral 

leasing laws, as defined in 30 U.S.C. 

1702, to manage oil and gas operations. 

The Secretary of the Interior has 

delegated this authority to the Bureau of 

Land Management (BLM), which has 

issued onshore oil and gas operating 

regulations codified at part 3160 of Title 

43 of the Code of Federal Regulations. 

The operating regulations at 43 CFR 

3164.1 authorize the BLM’s Director to 

issue Onshore Oil and Gas Orders when 

necessary to implement and supplement 

the operating regulations. The section 

also states that all such Orders are 

binding on the operator(s) of Federal 

and Indian onshore oil and gas leases 

(other than those of the Osage Tribe). 

For leases on Indian lands, the 

delegation to the BLM appears at 25 

CFR parts 211, 212, 213, 225, and 227. 

The Secretary of Agriculture has 

authority under the Federal Onshore Oil 

and Gas Leasing Reform Act of 1987 

(P.L. 100–203) (Reform Act) to regulate 

surface disturbing activities conducted 

pursuant to a Federal oil and gas lease 

on National Forest Service (NFS) lands. 

This authority has been delegated to the 

Forest Service (FS). Its regulatory 

authority is at Title 36 CFR, Chapter II, 

including, but not limited to, part 228 

subpart E, part 251 subpart B, and part 

261. Section 228.105 of 36 CFR 

authorizes the Chief of the FS to issue, 

or cosign with the Director of the BLM 

Onshore Oil and Gas Orders necessary 

to implement and supplement the 

operating regulations. The FS is 

responsible only for approving and 

regulating surface disturbing activities 

on NFS lands and appeals related to FS 

decisions or approvals. 

B. Purpose 

The purpose of this Order is to state 

the application requirements for the 

approval of all proposed oil and gas and 

service wells, certain subsequent well 

operations, and abandonment. 

C. Scope 

This Order applies to all onshore 

leases of Federal and Indian oil and gas 

(other than those of the Osage Tribe). It 

also applies to Indian Mineral 

Development Act agreements. For 

proposed operations on a committed 

state or fee tract in a federally 

supervised unit or communitized tract, 

the operator must furnish a copy of the 

approved state permit to the authorized 

officer of the BLM which will be 

accepted for record purposes. 

II. Definitions 

As used in this Order, the following 

definitions apply: 

Best Management Practices (BMP) are 

practices that provide for state-of-the-art 

mitigation of specific impacts that result 

from surface operations. Best 

Management Practices are voluntary 

unless they have been analyzed as a 

mitigation measure in the 

environmental review for a Master 

Development Plan, APD, Right-of-Way, 

or other related facility and included as 

a Condition of Approval. 

Blooie Line means a discharge line 

used in conjunction with a rotating head 

in drilling operations when air or gas is 

used as the circulating medium. 

Casual Use means activities involving 

practices that do not ordinarily lead to 

any appreciable disturbance or damage 

to lands, resources, or improvements. 

This term does not apply to private 

surface. Casual use includes surveying 

activities. 

Complete APD means that the 

information in the APD package is 

accurate and addresses all of the 

requirements of this Order. The onsite 

inspection verifies important 

information that is part of the APD 

package and is a critical step in 

determining if the package is complete. 

Therefore, the onsite inspection must be 

conducted, and any deficiencies 

identified at the onsite corrected, before 

the APD package can be considered to 

be complete. While cultural, biological, 

or other inventories and environmental 

assessments (EA) or environmental 

impact statements (EIS) may be required 

to approve the APD, they are not 

required before an APD package is 

considered to be complete. The APD 

package must contain: 

• A completed Form 3160–3 

(Application for Permit to Drill or 

Reenter) (see 43 CFR 3162.3–1(d)); 

• A well plat certified by a registered 

surveyor with a surveyor’s original 

stamp (see Section III.D.2. of this Order); 

• A Drilling Plan (see 43 CFR 3162.3–

1(d) and Section III.D.3. of this Order); 

• A Surface Use Plan of Operations 

(see 43 CFR 3162.3–1(d) and Section 

III.D.4. of this Order); 

• Evidence of bond coverage (see 43 

CFR 3162.3–1(d) and Section III.D.5. of 

this Order); 

• Operator certification with original 

signature (see Section III.D.6. of this 

Order); and 

• Other information that may be 

required by Order or Notice (see 43 CFR 

3162.3–1(d)(4)). 

The BLM and the Surface Managing 

Agency, as appropriate, will review the 

APD package and determine that the 

drilling plan, the Surface Use Plan of 

Operations, and other information that 

the BLM may require (43 CFR 3162.3–

1(d)(4)), including the well location plat 

and geospatial databases, completely 

describe the proposed action. 

Condition of Approval (COA) means a 

site-specific requirement included in an 

approved APD or Sundry Notice that 

may limit or amend the specific actions 

proposed by the operator. Conditions of 

Approval minimize, mitigate, or prevent 

impacts to public lands or other 

resources. Best Management Practices 

may be incorporated as a Condition of 

Approval. 

Days means all calendar days 

including holidays. 

Emergency Repairs means actions 

necessary to correct an unforeseen 

problem that could cause or threaten 

immediate substantial adverse impact 

on public health and safety or the 

environment. 

Geospatial Database means a set of 

georeferenced computer data that 

contains both spatial and attribute data. 

The spatial data defines the geometry of 

the object and the attribute data defines 

all other characteristics. 

Indian Lands means any lands or 

interest in lands of an Indian tribe or an 

Indian allottee held in trust by the 

United States or which is subject to a 

Federal restriction against alienation. 

Indian Oil and Gas means any oil and 

gas interest of an Indian tribe or on 

allotted lands where the interest is held 

in trust by the United States or is subject 

to Federal restrictions against 

alienation. It does not include minerals 

subject to the provisions of Section 3 of 

the Act of June 28, 1906 (34 Stat. 539), 

but does include oil and gas on lands 

administered by the United States under 

Section 14(g) of Public Law 92–203, as 

amended. 

Master Development Plan means 

information common to multiple 

planned wells, including drilling plans, 

Surface Use Plans of Operations, and 

plans for future production. 

National Forest System Lands means 

those Federal lands administered by the 

U.S. Forest Service, such as the National 

Forests and the National Grasslands. 

Onsite Inspection means an 

inspection of the proposed drill pad, 

access road, flowline route, and any 

associated Right-of-Way or Special Use 


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Authorization needed for support 

facilities, conducted before the approval 

of the APD or Surface Use Plan of 

Operations and construction activities. 

Private Surface Owner means a nonFederal or non-state owner of the 

surface estate and includes any Indian 

owner of surface estate not held in trust 

by the United States. 

Reclamation means returning 

disturbed land as near to its 

predisturbed condition as is reasonably 

practical. 

Split Estate means lands where the 

surface is owned by an entity or person 

other than the owner of the Federal or 

Indian oil and gas. 

Surface Managing Agency means any 

Federal or state agency having 

jurisdiction over the surface overlying 

Federal or Indian oil and gas. 

Variance means an approved 

alternative to a provision or standard of 

an Order or Notice to Lessee. 

III. Application for Permit To Drill 

(APD) 

An Application for Permit to Drill or 

Reenter, on Form 3160–3, is required for 

each proposed well, and for reentry of 

existing wells (including disposal and 

service wells), to develop an onshore 

lease for Federal or Indian oil and gas. 

A. Where To File 

The operator must file an APD or any 

other required documents in the BLM 

Field Office having jurisdiction over the 

lands described in the application. As 

an alternative to filing in a local BLM 

office, an operator may file an APD 

using the BLM’s electronic commerce 

application for oil and gas permitting 

and reporting. Contact the local BLM 

Field Office for details before using the 

electronic commerce application. 

B. Early Notification 

The operator may wish to contact the 

BLM and any applicable Surface 

Managing Agency, as well as all private 

surface owners, to request an initial 

planning conference as soon as the 

operator has identified a potential area 

of development. Early notification is 

voluntary and would precede the Notice 

of Staking option or filing of an APD. It 

allows the involved Surface Managing 

Agency or private surface owner to 

apprise the prospective operator of any 

unusual conditions on the lease area. 

Early notification also provides both the 

Surface Managing Agency or private 

surface owner and the prospective 

operator with the earliest possible 

identification of seasonal restrictions 

and determination of potential areas of 

conflict. The prospective operator 

should have a map of the proposed 

project available for Surface Managing 

Agency review to determine if a cultural 

or biological inventory or other 

information may be required. 

Inventories are not the responsibility of 

the operator. 

C. Notice of Staking Option 

Before filing an APD or Master 

Development Plan, the operator may file 

a Notice of Staking with the BLM. The 

purpose of the Notice of Staking is to 

provide the operator with an 

opportunity to gather information to 

better address site-specific resource 

concerns while preparing the APD 

package. This may expedite approval of 

the APD. Attachment I, Sample Format 

for Notice of Staking, provides the 

information required for the Notice of 

Staking option. 

For Federal lands managed by other 

Surface Managing Agencies, the BLM 

will provide a copy of the Notice of 

Staking to the appropriate Surface 

Managing Agency office. In Alaska, 

when a subsistence stipulation is part of 

the lease, the operator must also send a 

copy of the Notice of Staking to the 

appropriate Borough and/or Native 

Regional or Village Corporation. 

Within 10 days of receiving the Notice 

of Staking, the BLM or the FS will 

review it for required information and 

schedule a date for the onsite 

inspection. The onsite inspection will 

be conducted as soon as weather and 

other conditions permit. The operator 

must stake the proposed drill pad and 

ancillary facilities, and flag new or 

reconstructed access routes, before the 

onsite inspection. The staking must 

include a center stake for the proposed 

well, two reference stakes, and a flagged 

access road centerline. Staking activities 

are considered casual use unless the 

particular activity is likely to cause 

more than negligible disturbance or 

damage. Off-road vehicular use for the 

purposes of staking is casual use unless, 

in a particular case, it is likely to cause 

more than negligible disturbance or 

damage, or otherwise prohibited. 

On non-NFS lands, the BLM will 

invite the Surface Managing Agency and 

private surface owner, if applicable, to 

participate in the onsite inspection. If 

the surface is privately owned, the 

operator must furnish to the BLM the 

name, address, and telephone number of 

the surface owner if known. All parties 

who attend the onsite inspection will 

jointly develop a list of resource 

concerns that the operator must address 

in the APD. The operator will be 

provided a list of these concerns either 

during the onsite inspection or within 7 

days of the onsite inspection. Surface 

owner concerns will be considered to 

the extent practical within the law. 

Failure to submit an APD within 60 

days of the onsite inspection will result 

in the Notice of Staking being returned 

to the operator. 

D. Components of a Complete APD 

Package 

Operators are encouraged to consider 

and incorporate Best Management 

Practices into their APDs because Best 

Management Practices can result in 

reduced processing times and reduced 

number of Conditions of Approval. An 

APD package must include the 

following information that will be 

reviewed by technical specialists of the 

appropriate agencies to determine the 

technical adequacy of the package: 

1. A Completed Form 3160–3; And 

2. Well Plat 

Operators must include in the APD 

package a well plat and geospatial 

database prepared by a registered 

surveyor depicting the proposed 

location of the well and identifying the 

points of control and datum used to 

establish the section lines or metes and 

bounds. The purpose of this plat is to 

ensure that operations are within the 

boundaries of the lease or agreement 

and that the depiction of these 

operations is accurately recorded both 

as to location (latitude and longitude) 

and in relation to the surrounding lease 

or agreement boundaries (public land 

survey corner and boundary ties). The 

registered surveyor should coordinate 

with the cadastral survey division of the 

appropriate BLM State Office, 

particularly where the lands have not 

been surveyed under the Public Land 

Survey System. 

The plat and geospatial database must 

describe the location of operations in: 

• Geographical coordinates 

referenced to the National Spatial 

Reference System, North American 

Datum 1983 or latest edition; and 

• In feet and direction from the 

nearest two adjacent section lines, or, if 

not within the Rectangular Survey 

System, the nearest two adjacent 

property lines, generated from the 

BLM’s current Geographic Coordinate 

Data Base. 

The surveyor who prepared the plat 

must sign it, certifying that the location 

has been staked on the ground as shown 

on the plat. 

a. Surveying and staking are necessary 

casual uses, typically involving 

negligible surface disturbance. The 

operator is responsible for making 

access arrangements with the 

appropriate Surface Managing Agency 

(other than the BLM and the FS) or 


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private surface owner. On tribal or 

allotted lands, the operator must contact 

the appropriate office of the BIA to 

make access arrangements with the 

Indian surface owners. In the event that 

not all of the Indian owners consent or 

may be located, but a majority of those 

who can be located consent, or the 

owners of interests are so numerous that 

it would be impracticable to obtain their 

consent and the BIA finds that the 

issuance of the APD will cause no 

substantive injury to the land or any 

owner thereof, the BIA may approve 

access. Typical off-road vehicular use, 

when conducted in conjunction with 

these activities, is a necessary action for 

obtaining a permit and may be done 

without advance approval from the 

Surface Managing Agency, except for: 

• Lands administered by the 

Department of Defense; 

• Other lands used for military 

purposes; 

• Indian lands; or 

• Where more than negligible surface 

disturbance is likely to occur or is 

otherwise prohibited. 

b. No entry on split estate lands for 

surveying and staking should occur 

without the operator first making a good 

faith effort to notify the surface owner. 

Also, operators are encouraged to notify 

the BLM or the FS, as appropriate, 

before entering private lands to stake for 

Federal mineral estate locations. 

3. Drilling Plan 

With each copy of Form 3160–3, the 

operator must submit to the BLM either 

a Drilling Plan or reference a previously 

submitted field-wide drilling plan (a 

drilling plan that can be used for all the 

wells in a field, any differences for 

specific wells will be described in the 

APD specific to that well). The Drilling 

Plans must be in sufficient detail to 

permit a complete appraisal of the 

technical adequacy of, and 

environmental effects associated with, 

the proposed project. The Drilling Plan 

must adhere to the provisions and 

standards of Onshore Oil and Gas Order 

Number 2 (see 53 FR 46790) (Order 2) 

and, if applicable, Onshore Oil and Gas 

Order Number 6 (see 55 FR 48958) 

(Order 6), and must include the 

following information: 

a. Names and estimated tops of all 

geologic groups, formations, members, 

or zones. 

b. Estimated depth and thickness of 

formations, members, or zones 

potentially containing usable water, oil, 

gas, or prospectively valuable deposits 

of other minerals that the operator 

expects to encounter, and the operator’s 

plans for protecting such resources. 

c. The operator’s minimum 

specifications for blowout prevention 

equipment and diverter systems to be 

used, including size, pressure rating, 

configuration, and the testing procedure 

and frequency. Blowout prevention 

equipment must meet the minimum 

standards outlined in Order 2. 

d. The operator’s proposed casing 

program, including size, grade, weight, 

type of thread and coupling, the setting 

depth of each string, and its condition. 

The operator must include the 

minimum design criteria, including 

casing loading assumptions and 

corresponding safety factors for burst, 

collapse, and tensions (body yield and 

joint strength). The operator must also 

include the lengths and setting depth of 

each casing when a tapered casing string 

is proposed. The hole size for each well 

bore section of hole drilled must be 

included. Special casing designs such as 

the use of coiled tubing or expandable 

casing may necessitate additional 

information. 

e. The estimated amount and type(s) 

of cement expected to be used in the 

setting of each casing string. If stage 

cementing will be used, provide the 

setting depth of the stage tool(s) and 

amount and type of cement, including 

additives, to be used for each stage. 

Provide the yield of each cement slurry 

and the expected top of cement, with 

excess, for each cemented string or 

stage. 

f. Type and characteristics of the 

proposed circulating medium or 

mediums proposed for the drilling of 

each well bore section, the quantities 

and types of mud and weighting 

material to be maintained, and the 

monitoring equipment to be used on the 

circulating system. The operator must 

submit the following information when 

air or gas drilling is proposed: 

• Length, size, and location of the 

blooie line, including the gas ignition 

and dust suppression systems; 

• Location and capacity of the 

compressor equipment, including safety 

devices, describe the distance from the 

well bore, and location within the drill 

site; and 

• Anticipated amounts, types, and 

other characteristics as defined in this 

section, of the stand by mud or kill fluid 

and associated circulating equipment. 

g. The testing, logging, and coring 

procedures proposed, including drill 

stem testing procedures, equipment, and 

safety measures. 

h. The expected bottom-hole pressure 

and any anticipated abnormal pressures, 

temperatures, or potential hazards that 

the operator expects to encounter, such 

as lost circulation and hydrogen sulfide 

(see Order 6 for information on 

hydrogen sulfide operations). A 

description of the operator’s plans for 

mitigating such hazards must be 

included. 

i. Any other facets of the proposed 

operation that the operator would like 

the BLM to consider in reviewing the 

application. Examples include, but are 

not limited to: 

• For directional wells, proposed 

directional design, plan view, and 

vertical section in true vertical and 

measured depths; 

• Horizontal drilling; and 

• Coil tubing operations. 

4. Surface Use Plan of Operations 

The Surface Use Plan of Operations 

must: 

• Describe the access road(s) and drill 

pad, the construction methods that the 

operator plans to use, and the proposed 

means for containment and disposal of 

all waste materials; 

• Provide for safe operations, 

adequate protection of surface 

resources, groundwater, and other 

environmental components; 

• Include adequate measures for 

stabilization and reclamation of 

disturbed lands; 

• Describe any Best Management 

Practices the operator plans to use; and 

• Where the surface is privately 

owned, include a certification of Surface 

Access Agreement or an adequate bond, 

as described in Section VI. of this Order. 

All maps that are included in the 

Surface Use Plan of Operations must be 

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

unless otherwise stated below. 

Geospatial vector and raster data must 

include appropriate attributes and 

metadata. Georeferenced raster images 

must be from the same source as 

hardcopy plats and maps submitted in 

the APD package. All proposed on-lease 

surface disturbance must be surveyed 

and staked as described below in items 

a through l, including: 

• The well location; 

• Two 200-foot (61-meter) directional 

reference stakes; 

• The exterior pad dimensions; 

• The reserve pit; 

• Cuts and fills; 

• Outer limits of the area to be 

disturbed (catch points); and 

• Any off-location facilities. 

Proposed new roads require 

centerline flagging with stakes clearly 

visible from one to the next. In rugged 

terrain, cut and fill staking and/or 

slopestaking of proposed new access 

roads and locations for ancillary 

facilities that may be necessary, as 

determined by the BLM or the FS. 

The onsite inspection will not occur 

until the required surveying and staking 


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is complete, and any new access road(s) 

have been flagged, unless a variance is 

first granted under Section X. of this 

Order. 

Information required by the Surface 

Use Plan of Operations may be shown 

on the same map if it is appropriately 

labeled or on separate diagrams or maps 

and must include the following: 

a. Existing Roads: The operator must 

submit a legible map such as a highway 

or county road, United States Geological 

Survey (USGS) topographic, Alaska 

Borough, or other such map that shows 

the proposed well site and access route 

to the proposed well in relation to a 

town, village, or other locatable public 

access point. 

1. The operator must improve or 

maintain existing roads in a condition 

the same as or better than before 

operations began. The operator must 

provide any plans for improvement and/ 

or maintenance of existing roads. The 

information provided by the operator for 

construction and use of roads will be 

used by the BLM for any Right-of-Way 

application, as described in Section V. 

of this Order. The operator may use 

existing terrain and two-track trails, 

where appropriate, to assure 

environmental protection. The operator 

should consider using Best Management 

Practices in improving or maintaining 

existing roads. 

2. The operator may use existing 

roads under the jurisdiction of the FS 

for access if they meet the transportation 

objectives of the FS. When access 

involves the use of existing roads, the 

FS may require that the operator 

contribute to road maintenance. This is 

usually authorized by a Road Use 

Permit or a joint road use agreement. 

The FS will charge the operator a pro 

rata share of the costs of road 

maintenance and improvement, based 

upon the anticipated use of the road. 

b. New or Reconstructed Access 

Roads: The operator must identify on a 

map all permanent and temporary 

access roads that it plans to construct or 

reconstruct in connection with the 

drilling of the proposed well. Locations 

of all existing and proposed road 

structures (culverts, bridges, low water 

crossings, etc.) must be shown. The 

proposed route to the proposed drill site 

must be shown, including distances 

from the point where the access route 

exits established roads. All permanent 

and temporary access roads must be 

located and designed to meet the 

applicable standards of the appropriate 

Surface Managing Agency, and be 

consistent with the needs of the 

operator. The operator should consider 

using Best Management Practices in 

designing and constructing roads. 

The operator must design roads based 

upon the class or type of road, the safety 

requirements, traffic characteristics, 

environmental conditions, and the 

vehicles the road is expected to carry. 

The operator must describe for all road 

construction or reconstruction: 

• Road width; 

• Maximum grade; 

• Crown design; 

• Turnouts; 

• Drainage and ditch design; 

• On-site and off-site erosion control; 

• Revegetation of disturbed areas; 

• Location and size of culverts and/or 

bridges; 

• Fence cuts and/or cattleguards; 

• Major cuts and fills; 

• Source and storage of topsoil; and 

• Type of surfacing materials, if any, 

that will be used. 

c. Location of Existing Wells: The 

operator must include a map and may 

include a geospatial database that 

includes all known wells, regardless of 

the well status (producing, abandoned, 

etc.), within a one-mile radius of the 

proposed location. 

d. Location of Existing and/or 

Proposed Production Facilities: The 

operator must include a map or diagram 

of facilities planned either on or off the 

well pad that shows, to the extent 

known or anticipated, the location of all 

production facilities and lines likely to 

be installed if the well is successfully 

completed for production. 

The map or diagram and optional 

geospatial database must show and 

differentiate between proposed and 

existing flow lines, overhead and buried 

power lines, and water lines. If facilities 

will be located on the well pad, the 

information should be consistent with 

the layout provided in item i. of this 

section. 

The operator must show the 

dimensions of the facility layouts for all 

new construction. This information may 

be used by the BLM or the FS for Rightof-Way or Special Use Authorization 

application information, as specified in 

Section V. of this Order. 

If the operator has not developed 

information regarding production 

facilities, it may defer submission of 

that information until a production well 

is completed, in which case the operator 

will follow the procedures in Section 

VIII. of this Order. However, for 

purposes of NEPA analysis, the BLM or 

the FS will need a reasonable estimate 

of the facilities to be employed. 

e. Location and Types of Water 

Supply: Information concerning water 

supply, such as rivers, creeks, springs, 

lakes, ponds, and wells, may be shown 

by quarter-quarter section on a map or 

plat, or may be described in writing. 

The operator must identify the source, 

access route, and transportation method 

for all water anticipated for use in 

drilling the proposed well. The operator 

must describe any newly constructed or 

reconstructed access roads crossing 

Federal or Indian lands that are needed 

to haul the water as provided in item b. 

of this section. The operator must 

indicate if it plans to drill a water 

supply well on the lease and, if so, the 

operator must describe the location, 

construction details, and expected 

production requirements, including a 

description of how water will be 

transported and procedures for well 

abandonment. 

f. Construction Materials: The 

operator must state the character and 

intended use of all construction 

materials, such as sand, gravel, stone, 

and soil material. The proposed source 

must be shown on a quarter-quarter 

section of a map or plat or in a written 

description. 

g. Methods for Handling Waste: The 

Surface Use Plan of Operations must 

contain a written description of the 

methods and locations proposed for safe 

containment and disposal of each type 

of waste material (e.g., cuttings, garbage, 

salts, chemicals, sewage, etc.) that 

results from drilling the proposed well. 

The narrative must include plans for the 

eventual disposal of drilling fluids and 

any produced oil or water recovered 

during testing operations. The operator 

must describe plans for the construction 

and lining, if necessary, of the reserve 

pit. 

h. Ancillary Facilities: The operator 

must identify on a map the location and 

construction methods and materials for 

all anticipated ancillary facilities such 

as camps, airstrips, and staging areas. 

The operator must stake on the ground 

the approximate center of proposed 

camps and the centerline of airstrips. If 

the ancillary facilities are located offlease, depending on Surface Managing 

Agency policy, the BLM or the FS may 

require the operator to obtain an 

additional authorization, such as a 

Right-of-Way or Special Use 

Authorization. 

i. Well Site Layout: A diagram of the 

well site layout must have an arrow 

indicating the north direction. Diagrams 

with cuts and fills must be surveyed, 

designed, drawn, digitized, and certified 

by licensed professional surveyors or 

engineers. The operator must submit a 

plat of a scale of not less than 1 inch = 

50 feet showing the location and 

orientation of: 

• The proposed drill pad; 

• Reserve pit/blooie line/flare pit 

location; 


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• Access road entry points and their 

approximate location with respect to 

topographic features and with cross 

section diagrams of the drill pad; and 

• The reserve pit showing all cuts and 

fills and the relation to topography. 

The plat must also include the 

approximate proposed location and 

orientation of the: 

• Drilling rig; 

• Dikes and ditches to be constructed; 

and 

• Topsoil and/or spoil material 

stockpiles. 

j. Plans for Surface Reclamation: The 

operator must submit a plan for the 

surface reclamation or stabilization of 

all disturbed areas. This plan must 

address interim (during production) 

reclamation for the area of the well pad 

not needed for production, as well as 

final abandonment of the well location. 

Such plans must include, as 

appropriate: 

• Configuration of the reshaped 

topography; 

• Drainage systems; 

• Segregation of spoil materials 

(stockpiles); 

• Surface disturbances; 

• Backfill requirements; 

• Proposals for pit/sump closures; 

• Redistribution of topsoil; 

• Soil treatments; 

• Seeding or other steps to reestablish 

vegetation; 

• Weed control; and 

• Practices necessary to reclaim all 

disturbed areas, including any access 

roads and pipelines. 

The operator may amend this 

reclamation plan at the time of 

abandonment. Further details for 

reclamation are contained in Section 

XII. of this Order. 

k. Surface Ownership: The operator 

must indicate (in a narrative) the surface 

ownership at the well location, and of 

all lands crossed by roads that the 

operator plans to construct or upgrade, 

including, if known, the name of the 

agency or owner, phone number, and 

address. The operator must certify that 

they have provided a copy of the 

Surface Use Plan of Operations required 

in this section to the private surface 

owner of the well site location, if 

applicable, or that they made a good 

faith effort if unable to provide the 

document to the surface owner. 

l. Other Information: The operator 

must include other information required 

by applicable orders and notices (43 

CFR 3162.3–1(d)(4)). When an 

integrated pest management program is 

needed for weed or insect control, the 

operator must coordinate plans with 

state or local management agencies and 

include the pest management program 

in the Surface Use Plan of Operations. 

The BLM also encourages the operator 

to submit any additional information 

that may be helpful in processing the 

application. 

5. Bonding 

a. Most bonding needs for oil and gas 

operations on Federal leases are 

discussed in 43 CFR subpart 3104. The 

operator must obtain a bond in its own 

name as principal, or a bond in the 

name of the lessee or sublessee. If the 

operator uses the lessee or sublessee’s 

bond, the operator must furnish a rider 

(consent of surety and principal) that 

includes the operator under the 

coverage of the bond. The operator must 

specify on the APD, Form 3160–3, the 

type of bond and bond number under 

which the operations will be conducted. 

For Indian oil and gas, the appropriate 

provisions at 25 CFR Subchapter I, 

govern bonding. 

Under the regulations at 43 CFR 

3104.5 and 36 CFR 228.109, the BLM or 

the FS may require additional bond 

coverage for specific APDs. Other 

factors that the BLM or the FS may 

consider include: 

• History of previous violations; 

• Location and depth of wells; 

• The total number of wells involved; 

• The age and production capability 

of the field; and 

• Unique environmental issues. 

These bonds may be in addition to 

any statewide, nationwide, or separate 

lease bond already applicable to the 

lease. In determining the bond amount, 

the BLM may consider impacts of 

activities on both Federal and nonFederal lands required to develop the 

lease that impact lands, waters, and 

other resources off the lease. 

Separate bonds may be required for 

associated Rights-of-Way and/or Special 

Use Authorizations that authorize 

activities not covered by the approved 

APD. 

b. On Federal leases, operators may 

request a phased release of an 

individual lease bond. The BLM will 

grant this reduction after reclamation of 

some portion of the lease only if the 

operator: 

• Has satisfied the terms and 

conditions in the plan for surface 

reclamation for that particular 

operation; and 

• No longer has any down-hole 

liability. 

c. If appropriate, the BLM may reduce 

the bond in the amount requested by the 

operator or appropriate Surface 

Managing Agency. The FS also may 

reduce bonds it requires (but not the 

BLM-required bonds). The BLM and the 

FS will base the amount of the bond 

reduction on a calculation of the sum 

that is sufficient to cover the remaining 

operations (including royalty payments) 

and abandonment (including 

reclamation) as authorized by the 

Surface Use Plan of Operations. 

6. Operator Certification 

The operator must include its name, 

address, and telephone number, and the 

same information for its field 

representative, in the APD package. The 

following certification must carry the 

operator’s original signature or meet the 

BLM standards for electronic commerce: 

I hereby certify that I, or someone 

under my direct supervision, have 

inspected the drill site and access route 

proposed herein; that I am familiar with 

the conditions which currently exist; 

that I have full knowledge of state and 

Federal laws applicable to this 

operation; that the statements made in 

this APD package are, to the best of my 

knowledge, true and correct; and that 

the work associated with the operations 

proposed herein will be performed in 

conformity with this APD package and 

the terms and conditions under which 

it is approved. I also certify that I, or the 

company I represent, am responsible for 

the operations conducted under this 

application. These statements are 

subject to the provisions of 18 U.S.C. 

1001 for the filing of false statements. 

Executed this ll day oflllll, 

20ll. 

Name lllllllllllllll

Position Title llllllllllll

Address llllllllllllll

Telephone lllllllllllll

Field representative (if not above signatory) llllllllllllllll

Address (if different from above) lll

Telephone (if different from above) ll

E-mail (optional) llllllllll

Agents not directly employed by the 

operator must submit a letter from the 

operator authorizing that agent to act or 

file this application on their behalf. 

7. Onsite Inspection 

The onsite inspection must be 

conducted before the APD will be 

considered complete. 

E. APD Posting and Processing 

1. Posting 

The BLM and the Federal Surface 

Managing Agency, if other than the 

BLM, must provide at least 30 days 

public notice before the BLM may 

approve an APD or Master Development 

Plan on a Federal oil and gas lease. 

Posting is not required for an APD for 

an Indian oil and gas lease or agreement. 


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The BLM will post the APD or Notice 

of Staking in an area of the BLM Field 

Office having jurisdiction that is readily 

accessible to the public and, when 

possible, electronically on the internet. 

If the surface is managed by a Federal 

agency other than the BLM, that agency 

also is required to post the notice for at 

least 30 days. This would include the 

BIA where the surface is held in trust 

but the mineral estate is federally 

owned. The posting is for informational 

purposes only and is not an appealable 

decision. The purpose of the posting is 

to give any interested party notification 

that a Federal approval of mineral 

operations has been requested. The BLM 

or the FS will not post confidential 

information. 

Reposting of the proposal may be 

necessary if the posted location of the 

proposed well is: 

a. Moved to a different quarter-quarter 

section; 

b. Moved more than 660 feet for lands 

that are not covered by a Public Land 

Survey; or 

c. If the BLM or the FS determine that 

the move is substantial. 

2. Processing 

The timeframes established in this 

subsection apply to both individual 

APDs and to the multiple APDs 

included in Master Development Plans 

and to leases of Indian minerals as well 

as leases of Federal minerals. 

If there is enough information to begin 

processing the application, the BLM 

(and the FS if applicable) will process 

it up to the point that missing 

information or uncorrected deficiencies 

render further processing impractical or 

impossible. 

a. Within 10 days of receiving an 

application, the BLM (in consultation 

with the FS if the application concerns 

NFS lands) will notify the operator as to 

whether or not the application is 

complete. The BLM will request 

additional information and correction of 

any material submitted, if necessary, in 

the 10-day notification. If an onsite 

inspection has not been performed, the 

applicant will be notified that the 

application is not complete. Within 10 

days of receiving the application, the 

BLM, in coordination with the operator 

and Surface Managing Agency, 

including the private surface owner in 

the case of split estate minerals, will 

schedule a date for the onsite inspection 

(unless the onsite inspection has already 

been conducted as part of a Notice of 

Staking). The onsite inspection will be 

held as soon as practicable based on 

participants’ schedules and weather 

conditions. The operator will be notified 

at the onsite inspection of any 

additional deficiencies that are 

discovered during the inspection. The 

operator has 45 days after receiving 

notice from the BLM to provide any 

additional information necessary to 

complete the APD, or the APD may be 

returned to the operator. 

b. Within 30 days after the operator 

has submitted a complete application, 

including incorporating any changes 

that resulted from the onsite inspection, 

the BLM will: 

1. Approve the application, subject to 

reasonable Conditions of Approval, if 

the appropriate requirements of the 

NEPA, National Historic Preservation 

Act, Endangered Species Act, and other 

applicable law have been met and, if on 

NFS lands, the FS has approved the 

Surface Use Plan of Operations; 

2. Notify the operator that it is 

deferring action on the permit; or 

3. Deny the permit if it cannot be 

approved and the BLM cannot identify 

any actions that the operator could take 

that would enable the BLM to issue the 

permit or the FS to approve the Surface 

Use Plan of Operations, if applicable. 

c. The notice of deferral in paragraph 

(b)(2) of this section must specify: 

1. Any action the operator could take 

that would enable the BLM (in 

consultation with the FS if applicable) 

to issue a final decision on the 

application. The FS will notify the 

applicant of any action the applicant 

could take that would enable the FS to 

issue a final decision on the Surface Use 

Plan of Operations on NFS lands. 

Actions may include, but are not limited 

to, assistance with: 

(A) Data gathering; and 

(B) Preparing analyses and 

documents. 

2. If applicable, a list of actions that 

the BLM or the FS need to take before 

making a final decision on the 

application, including appropriate 

analysis under NEPA or other 

applicable law and a schedule for 

completing these actions. 

d. The operator has 2 years from the 

date of the notice under paragraph (c)(1) 

of this section to take the action 

specified in the notice. If the 

appropriate analyses required by NEPA, 

National Historic Preservation Act, 

Endangered Species Act, and other 

applicable laws have been completed, 

the BLM (and the FS if applicable), will 

make a decision on the permit and the 

Surface Use Plan of Operations within 

10 days of receiving a report from the 

operator addressing all of the issues or 

actions specified in the notice under 

paragraph (c)(1) of this section and 

certifying that all required actions have 

been taken. If the operator has not 

completed the actions specified in the 

notice within 2 years from the operator’s 

receipt of the paragraph (c)(1) notice, 

the BLM will deny the permit. 

e. For APDs on NFS lands, the 

decision to approve a Surface Use Plan 

of Operations or Master Development 

Plan may be subject to FS appeal 

procedures. The BLM cannot approve 

an APD until the appeal of the Surface 

Use Plan of Operations is resolved. 

F. Approval of APDs 

a.1. The BLM has the lead 

responsibility for completing the 

environmental review process, except in 

the case of NFS lands. 

2. The BLM cannot approve an APD 

or Master Development Plan until the 

requirements of certain other laws and 

regulations including NEPA, the 

National Historic Preservation Act, and 

the Endangered Species Act have been 

met. The BLM must document that the 

needed reviews have been adequately 

conducted. In some cases, operators 

conduct these reviews, but the BLM 

remains responsible for their scope and 

content and makes its own evaluation of 

the environmental issues, as required by 

40 CFR 1506.5(b). 

3. The approved APD will contain 

Conditions of Approval that reflect 

necessary mitigation measures. In 

accordance with 43 CFR 3101.1–2 and 

36 CFR 228.107, the BLM or the FS may 

require reasonable mitigation measures 

to ensure that the proposed operations 

minimize adverse impacts to other 

resources, uses, and users, consistent 

with granted lease rights. The BLM will 

incorporate any mitigation 

requirements, including Best 

Management Practices, identified 

through the APD review and 

appropriate NEPA and related analyses, 

as Conditions of Approval to the APD. 

4. The BLM will establish the terms 

and Conditions of Approval for any 

associated Right-of-Way when the 

application is approved. 

b. For NFS lands, the FS will establish 

the terms and Conditions of Approval 

for both the Surface Use Plan of 

Operations and any associated Surface 

Use Authorization. On NFS lands the FS 

has principal responsibility for 

compliance with NEPA, the National 

Historic Preservation Act, and the 

Endangered Species Act, but the BLM 

should be a cooperating or co-lead 

agency for this purpose and adopt the 

analysis as the basis for its decision. 

After the FS notifies the BLM it has 

approved a Surface Use Plan of 

Operations on NFS lands, the BLM must 

approve the APD before the operator 

may begin any surface-disturbing 

activity. 


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c. On Indian lands, BIA has 

responsibility for approving Rights-ofWay. 

d. In the case of Indian lands, the 

BLM may be a cooperating or co-lead 

agency for NEPA compliance or may 

adopt the NEPA analysis prepared by 

the BIA (516 DM 3). 

G. Valid Period of Approved APD 

1. An APD approval is valid for 2 

years from the date that it is approved, 

or until lease expiration, whichever 

occurs first. If the operator submits a 

written request before the expiration of 

the original approval, the BLM, in 

coordination with the FS, as appropriate 

may extend the APD’s validity for up to 

2 additional years. 

2. The operator is responsible for 

reclaiming any surface disturbance that 

resulted from its actions, even if a well 

was not drilled. 

H. Master Development Plans 

An operator may elect to submit a 

Master Development Plan addressing 

two or more APDs that share a common 

drilling plan, Surface Use Plan of 

Operations, and plans for future 

development and production. 

Submitting a Master Development Plan 

facilitates early planning, orderly 

development, and the cumulative effects 

analysis for all the APDs expected to be 

drilled by an operator in a developing 

field. Approval of a Master 

Development Plan serves as approval of 

all of the the APDs submitted with the 

Plan. Processing of a Master 

Development Plan follows the 

procedures in Section III.E.2. of this 

Order. After the Master Development 

Plan is approved, subsequent APDs can 

reference the Master Development Plan 

and be approved using the NEPA 

analysis for the Master Development 

Plan, absent substantial deviation from 

the Master Development Plan 

previously analyzed or significant new 

information relevant to environmental 

effects. Therefore, an approved Master 

Development Plan results in timelier 

processing of subsequent APDs. Each 

subsequent proposed well must have a 

survey plat and an APD (Form 3160–3) 

that references the Master Development 

Plan and any specific variations for that 

well. 

IV. General Operating Requirements 

Operator Responsibilities 

In the APD package, the operator must 

describe or show, as set forth in this 

Order, the procedures, equipment, and 

materials to be used in the proposed 

operations. The operator must conduct 

operations to minimize adverse effects 

to surface and subsurface resources, 

prevent unnecessary surface 

disturbance, and conform with currently 

available technology and practice. 

While appropriate compliance with 

certain statutes, such as NEPA, the 

National Historic Preservation Act, and 

the Endangered Species Act, are Federal 

responsibilities, the operator may 

choose to conduct inventories and 

provide documentation to assist the 

BLM or the Surface Managing Agency to 

meet these requirements. The 

inventories and other work may require 

entering the lease and adjacent lands 

before approval of the APD. As in 

Staking and Surveying, the operator 

should make a good faith effort to 

contact the Surface Managing Agency or 

surface owner before entry upon the 

lands for these purposes. 

The operator can not commence 

either drilling operations or preliminary 

construction activities before the BLM’s 

approval of the APD. A copy of the 

approved APD and any Conditions of 

Approval must be available for review at 

the drill site. Operators are responsible 

for their contractor and subcontractor’s 

compliance with the requirements of the 

approved APD and/or Surface Use Plan 

of Operations. Drilling without approval 

or causing surface disturbance without 

approval is a violation of 43 CFR 

3162.3–1(c) and is subject to a monetary 

assessment under 43 CFR 3163.1(b)(2). 

The operator must comply with the 

provisions of the approved APD and 

applicable laws, regulations, Orders, 

and Notices to Lessees, including, but 

not limited to, those that address the 

issues described below. 

a. Cultural and Historic Resources. If 

historic or archaeological materials are 

uncovered during construction, the 

operator must immediately stop work 

that might further disturb such 

materials, contact the BLM and if 

appropriate, the FS or other Surface 

Managing Agency. The BLM or the FS 

will inform the operator within 7 days 

after the operator contacted the BLM as 

to whether the materials appear eligible 

for listing on the National Register of 

Historic Places. 

If the operator decides to relocate 

operations to avoid further costs to 

mitigate the site, the operator remains 

responsible for recording the location of 

any historic or archaeological resource 

that are discovered as a result of the 

operator’s actions. The operator also is 

responsible for stabilizing the exposed 

cultural material if the operator created 

an unstable condition that must be 

addressed immediately. The BLM, the 

FS, or other appropriate Surface 

Managing Agency, will assume 

responsibility for evaluation and 

determination of significance related to 

the historic or archaeological site. 

If the operator does not relocate 

operations, the operator is responsible 

for mitigation and stabilization costs 

and the BLM, the FS, or appropriate 

Surface Managing Agency will provide 

technical and procedural guidelines for 

conducting mitigation. The operator 

may resume construction operations 

when the BLM or the FS verifies that the 

operator has completed the required 

mitigation. 

Relocation of activities may subject 

the proposal to additional 

environmental review. Therefore, if the 

presence of such sites is suspected, the 

operator may want to submit alternate 

locations for advance approval before 

starting construction. 

b. Endangered Species Act. To 

comply with the Endangered Species 

Act, as amended (16 U.S.C. 1531 et 

seq.), and its implementing regulations, 

the operator must conduct all operations 

such that all operations avoid a ‘‘take’’

of listed or proposed threatened or 

endangered species and their critical 

habitats. 

c. Surface Protection. Except as 

otherwise provided in an approved 

Surface Use Plan of Operations, the 

operator must not conduct operations in 

areas subject to mass soil movement, 

riparian areas, floodplains, lakeshores, 

and/or wetlands. The operator also must 

take measures to minimize or prevent 

erosion and sediment production. Such 

measures may include, but are not 

limited to: 

• Avoiding steep slopes and 

excessive land clearing when siting 

structures, facilities, and other 

improvements; and 

• Temporarily suspending operations 

when frozen ground, thawing, or other 

weather-related conditions would cause 

otherwise avoidable or excessive 

impacts. 

d. Safety Measures. The operator must 

maintain structures, facilities, 

improvements, and equipment in a safe 

condition in accordance with the 

approved APD. The operator must also 

take appropriate measures as specified 

in Orders and Notices to Lessees to 

protect the public from any hazardous 

conditions resulting from operations. 

In the event of an emergency, the 

operator may take immediate action 

without prior Surface Managing Agency 

approval to safeguard life or to prevent 

significant environmental degradation. 

The BLM or the FS must receive 

notification of the emergency situation 

and the remedial action taken by the 

operator as soon as possible, but not 

later than 24 hours after the emergency 

occurred. If the emergency only affected 


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drilling operations and had no surface 

impacts, only the BLM must be notified. 

If the emergency involved surface 

resources on other Surface Managing 

Agency lands, the operator should also 

notify the Surface Managing Agency and 

private surface owner within 24 hours. 

Upon conclusion of the emergency, the 

BLM or the FS, where appropriate, will 

review the incident and take 

appropriate action. 

e. Completion Reports. Within 30 

days after the well completion, the 

lessee or operator must submit to the 

BLM two copies of a completed Form 

3160–4, Well Completion or 

Recompletion Report and Log. Well logs 

may be submitted to the BLM in an 

electronic format such as ‘‘.LAS’’

format. Surface and bottom-hole 

locations must be in latitude and 

longitude. 

V. Rights-of-Way and Special Use 

Authorizations 

The BLM or the FS will notify the 

operator of any additional Rights-ofWay, Special Use Authorizations, 

licenses, or other permits that are 

needed for roads and support facilities 

for drilling or off-lease access, as 

appropriate. This notification will 

normally occur at the time the operator 

submits the APD or Notice of Staking 

package, or Sundry Notice, or during the 

onsite inspection. 

The BLM or the FS, as appropriate, 

will approve or accept on-lease 

activities that are associated with 

actions proposed in the APD or Sundry 

Notice and that will occur on the lease 

as part of the APD or Sundry Notice. 

These actions do not require a Right-ofWay or Special Use Authorization. For 

pipeline Rights-of-Way crossing lands 

under the jurisdiction of two or more 

Federal Surface Managing Agencies, 

except lands in the National Park 

Service or Indian lands, applications 

should be submitted to the BLM. Refer 

to 43 CFR parts 2800 and 2880 for 

guidance on BLM Rights-of-Way and 36 

CFR part 251 for guidance on FS Special 

Use Authorizations. 

A. Rights-of-Way (BLM) 

For BLM lands, the APD package may 

serve as the supporting document for 

the Right-of-Way application in lieu of 

a Right-of-Way plan of development. 

Any additional information specified in 

43 CFR parts 2800 and 2880 will be 

required in order to process the Rightof-Way. 

The BLM will notify the operator 

within 10 days of receipt of a Notice of 

Staking, APD, or other notification if 

any parts of the project require a Rightof-Way. If a Right-of-Way is needed, the 

information required from the operator 

to approve the Right-of-Way may be 

submitted by the operator with the APD 

package if the Notice of Staking option 

has been used. 

B. Special Use Authorizations (FS) (36 

CFR 251 Subpart B) 

When a Special Use Authorization is 

required, the Surface Use Plan of 

Operations may serve as the application 

for the Special Use Authorization if the 

facility for which a Special Use 

Authorization is required is adequately 

described (see 36 CFR 251.54(d)(ii)). 

Conditions regulating the authorized 

use may be imposed to protect the 

public interest, to ensure compatibility 

with other NFS lands programs and 

activities consistent with the Forest 

Land and Resources Management Plan. 

A Special Use Authorization, when 

related to an APD, will include terms 

and conditions (36 CFR 251.56) and 

may require a specific reclamation plan 

or incorporate applicable parts of the 

Surface Use Plan of Operations by 

reference. 

VI. Operating on Lands With NonFederal Surface and Federal Oil and 

Gas 

The operator must submit the name, 

address, and phone number of the 

surface owner, if known, in its APD. 

The BLM will invite the surface owner 

to the onsite inspection to assure that 

their concerns are considered. As 

provided in the oil and gas lease, the 

BLM may request that the applicant 

conduct surveys or otherwise provide 

information needed for the BLM’s 

National Historic Preservation Act 

consultation with the State Historic 

Preservation Officer or Indian tribe or its 

Endangered Species Act consultation 

with the relevant fisheries agency. The 

Federal mineral lessee has the right to 

enter the property for this purpose, 

since it is a necessary prerequisite to 

development of the dominant mineral 

estate. Nevertheless, the lessee or 

operator should seek to reach agreement 

with the surface owner about the time 

and method by which any survey would 

be conducted. 

Likewise, in the case of actual oil and 

gas operations, the operator must make 

a good faith effort to notify the private 

surface owner before entry and make a 

good faith effort to obtain a Surface 

Access Agreement from the surface 

owner. This section also applies to 

lands with Indian trust surface and 

Federal minerals. In these cases, the 

operator must make a good faith effort 

to obtain surface access agreement with 

the tribe in the case of tribally owned 

surface, otherwise with the majority of 

the Indian surface owners who can be 

located with the assistance and 

concurrence of the BIA. The Surface 

Access Agreement may include terms or 

conditions of use, be a waiver, or an 

agreement for compensation. The 

operator must certify to the BLM that: 

(1) It made a good faith effort to notify 

the surface owner before entry; and (2) 

That an agreement with the surface 

owner has been reached or that a good 

faith effort to reach an agreement failed. 

If no agreement was reached with the 

surface owner, the operator must submit 

an adequate bond (minimum of $1,000) 

to the BLM for the benefit of the surface 

owner sufficient to: (1) Pay for loss or 

damages; or (2) As otherwise required 

by the specific statutory authority under 

which the surface was patented and the 

terms of the lease. 

Surface owners have the right to 

appeal the sufficiency of the bond. 

Before the approval of the APD, the 

BLM will make a good faith effort to 

contact the surface owner to assure that 

they understand their rights to appeal. 

The BLM must comply with NEPA, 

the National Historic Preservation Act, 

the Endangered Species Act, and related 

Federal statutes when authorizing lease 

operations on split estate lands where 

the surface is not federally owned and 

the oil and gas is Federal. For split 

estate lands within FS administrative 

boundaries, the BLM has the lead 

responsibility, unless there is a local 

BLM/FS agreement that gives the FS 

this responsibility. 

The operator must make a good faith 

effort to provide a copy of their Surface 

Use Plan of Operations to the surface 

owner. After the APD is approved the 

operator must make a good faith effort 

to provide a copy of the Conditions of 

Approval to the surface owner. The APD 

approval is not contingent upon 

delivery of a copy of the Conditions of 

Approval to the surface owner. 

VII. Leases for Indian Oil and Gas 

A. Approval of Operations 

The BLM will process APDs, Master 

Development Plans, and Sundry Notices 

on Indian tribal and allotted oil and gas 

leases, and Indian Mineral Development 

Act mineral agreements in a manner 

similar to Federal leases. For processing 

such applications, the BLM considers 

the BIA to be the Surface Managing 

Agency. Operators are responsible for 

obtaining any special use or access 

permits from appropriate BIA and, 

where applicable, tribal offices. The 

BLM is not required to post for public 

inspection APDs for minerals subject to 

Indian oil and gas leases or agreements. 


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B. Surface Use 

Where the wellsite and/or access road 

is proposed on Indian lands with a 

different beneficial owner than the 

minerals, the operator is responsible for 

entering into a surface use agreement 

with the Indian tribe or the individual 

Indian surface owner, subject to BIA 

approval. This agreement must specify 

the requirements for protection of 

surface resources, mitigation, and 

reclamation of disturbed areas. The BIA, 

the Indian surface owner, and the BLM, 

pursuant to 25 CFR 211.4, 212.4 and 

225.4, will develop the Conditions of 

Approval. If the operator is unable to 

obtain a surface access agreement, it 

may provide a bond for the benefit of 

the surface owner(s) (see Section VI. of 

the Order). 

VIII. Subsequent Operations and 

Sundry Notices 

Subsequent operations must follow 43 

CFR part 3160, applicable lease 

stipulations, and APD Conditions of 

Approval. The operator must file the 

Sundry Notice in the BLM Field Office 

having jurisdiction over the lands 

described in the notice or the operator 

may file it using the BLM’s electronic 

commerce system. 

A. Surface Disturbing Operations 

Lessees and operators must submit for 

BLM or FS approval a request on Form 

3160–5 before: 

• Undertaking any subsequent new 

construction outside the approved area 

of operations; or 

• Reconstructing or altering existing 

facilities including, but not limited to, 

roads, emergency pits, firewalls, 

flowlines, or other production facilities 

on any lease that will result in 

additional surface disturbance. 

If, at the time the original APD was 

filed, the lessee or operator elected to 

defer submitting information under 

Section III.E.3.d. (Location of Existing 

and/or Proposed Facilities) of this 

Order, the lessee or operator must 

supply this information before 

construction and installation of the 

facilities. The BLM, in consultation with 

any other involved Surface Managing 

Agency, may require a field inspection 

before approving the proposal. The 

lessee or operator may not begin 

construction until the BLM approves the 

proposed plan in writing. 

The operator must certify on Form 

3160–5 that they have made a good faith 

effort to provide a copy of any proposal 

involving new surface disturbance to 

the private surface owner in the case of 

split estate. 

B. Emergency Repairs 

Lessees or operators may undertake 

emergency repairs without prior 

approval if they promptly notify the 

BLM. Lessees or operators must submit 

sufficient information to the BLM or the 

FS to permit a proper evaluation of any: 

• Resulting surface disturbing 

activities; or 

• Planned accommodations necessary 

to mitigate potential adverse 

environmental effects. 

IX. Well Conversions 

A. Conversion to an Injection Well 

When subsequent operations will 

result in a well being converted to a 

Class II injection well (i.e., for disposal 

of produced water, oil and gas 

production enhancement, or 

underground storage of hydrocarbons), 

the operator must file with the 

appropriate BLM office a Sundry Notice, 

Notice of Intent to Convert to Injection 

on Form 3160–5. The BLM and the 

Surface Managing Agency, if applicable, 

will review the information to ensure its 

technical and administrative adequacy. 

Following the review, the BLM, in 

consultation with the Surface Managing 

Agency, where applicable, will decide 

upon the approval or disapproval of the 

application based upon relevant laws 

and regulations and the circumstances 

(e.g., the well used for lease or non-lease 

operations, surface ownership, and 

protection of subsurface mineral 

ownership). The BLM will determine if 

a Right-of-Way or Special Use 

Authorization and additional bonding 

are necessary and notify the operator. 

B. Conversion to a Water Supply Well 

In cases where the Surface Managing 

Agency or private surface owner desires 

to acquire an oil and gas well and 

convert it to a water supply well or 

acquire a water supply well that was 

drilled by the operator to support lease 

operations, the Surface Managing 

Agency or private surface owner must 

inform the appropriate BLM office of its 

intent before the approval of the APD in 

the case of a dry hole and no later than 

the time a Notice of Intent to Abandon 

is submitted for a depleted production 

well. The operator must abandon the 

well according to BLM instructions, and 

must complete the surface cleanup and 

reclamation, in conjunction with the 

approved APD, Surface Use Plan of 

Operations, or Notice of Intent to 

Abandon, if the BLM or the FS require 

it. The Surface Managing Agency or 

private surface owner must reach 

agreement with the operator as to the 

satisfactory completion of reclamation 

operations before the BLM will approve 

any abandonment or reclamation. The 

BLM approval of the partial 

abandonment under this section, 

completion of any required reclamation 

operations, and the signed release 

agreement will relieve the operator of 

further obligation for the well. If the 

Surface Managing Agency or private 

surface owner acquires the well for 

water use purposes, the party acquiring 

the well assumes liability for the well. 

X. Variances 

The operator may make a written 

request to the agency with jurisdiction 

to request a variance from this Order. A 

request for a variance must explain the 

reason the variance is needed and 

demonstrate how the operator will 

satisfy the intent of the Order. The 

operator may include the request in the 

APD package. A variance from the 

requirements of this Order does not 

constitute a variance to provisions of 

other regulations, laws, or orders. When 

the BLM is the decision maker on a 

request for a variance, the decision 

whether to grant or deny the variance 

request is entirely within the BLM’s 

discretion. The decision on a variance 

request is not subject to administrative 

appeals either to the State Director or 

pursuant to 43 CFR part 4. 

XI. Waivers, Exceptions, or 

Modifications 

An operator may also request that the 

BLM waive (permanently remove), 

except (case-by-case exemption) or 

modify (permanently change) a lease 

stipulation for a Federal lease. In the 

case of Federal leases, a request to 

waive, except, or modify a stipulation 

should also include information 

demonstrating that the factors leading to 

its inclusion in the lease have changed 

sufficiently to make the protection 

provided by the stipulation no longer 

justified or that the proposed operation 

would not cause unacceptable impacts. 

When the waiver, exception, or 

modification is substantial, the 

proposed waiver, exception, or 

modification is subject to public review 

for 30 days. Prior to such public review, 

the BLM, and when applicable the FS, 

will post it in their local Field Office 

and, when possible, electronically on 

the internet. When the request is 

included in the Notice of Staking or 

APD, the request will be included as 

part of the application posting under 

Section III.C. of this Order. Prior to 

granting a waiver, exception, or 

modification, the BLM will obtain the 

concurrence or approval of the FS or 

Federal Surface Managing Agency. 

Decisions on such waivers, exceptions, 


ycherry on PROD1PC64 with RULES2
10338 Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 

or modifications are subject to appeal 

pursuant to 43 CFR part 4. 

After drilling has commenced, the 

BLM and the FS may consider verbal 

requests for waivers, exceptions, or 

modifications. However, the operator 

must submit a written notice within 7 

days after the verbal request. The BLM 

and the FS will confirm in writing any 

verbal approval. Decisions on waivers, 

exceptions, or modifications submitted 

after drilling has commenced are final 

for the Department of the Interior and 

not subject to administrative review by 

the State Director or appeal pursuant to 

43 CFR part 4. 

XII. Abandonment 

In accordance with the requirements 

of 43 CFR 3162.3–4, before starting 

abandonment operations the operator 

must submit a Notice of Intent to 

Abandon on Sundry Notices and 

Reports on Wells, Form 3160–5. If the 

operator proposes to modify the plans 

for surface reclamation approved at the 

APD stage, the operator must attach 

these modifications to the Notice of 

Intent to Abandon. 

A. Plugging 

The operator must obtain BLM 

approval for the plugging of the well by 

submitting a Notice of Intent to 

Abandon. In the case of dry holes, 

drilling failures, and in emergency 

situations, verbal approval for plugging 

may be obtained from the BLM, with the 

Notice of Intent to Abandon promptly 

submitted as written documentation. 

Within 30 days following completion of 

well plugging, the operator must file 

with the BLM a Subsequent Report of 

Plug and Abandon, using Sundry 

Notices and Reports on Wells, Form 

3160–5. For depleted production wells, 

the operator must submit a Notice of 

Intent to Abandon and obtain the BLM’s 

approval before plugging. 

B. Reclamation 

Plans for surface reclamation are a 

part of the Surface Use Plan of 

Operations, as specified in Section 

III.D.4.j., and must be designed to return 

the disturbed area to productive use and 

to meet the objectives of the land and 

resource management plan. If the 

operator proposes to modify the plans 

for surface reclamation approved at the 

APD stage, the operator must attach 

these modifications to the Subsequent 

Report of Plug and Abandon using 

Sundry Notices and Reports on Wells, 

Form 3160–5. 

For wells not having an approved 

plan for surface reclamation, operators 

must submit to the BLM a proposal 

describing the procedures to be 

followed for complete abandonment, 

including a map showing the disturbed 

area and roads to be reclaimed. The 

BLM will forward the request to the FS 

or other Surface Managing Agency. If 

applicable, the private surface owner 

will be notified and their views will be 

carefully considered. 

Earthwork for interim and final 

reclamation must be completed within 6 

months of well completion or well 

plugging (weather permitting). All pads, 

pits, and roads must be reclaimed to a 

satisfactorily revegetated, safe, and 

stable condition, unless an agreement is 

made with the landowner or Surface 

Managing Agency to keep the road or 

pad in place. Pits containing fluid must 

not be breached (cut) and pit fluids 

must be removed or solidified before 

backfilling. Pits may be allowed to air 

dry subject to BLM or FS approval, but 

the use of chemicals to aid in fluid 

evaporation, stabilization, or 

solidification must have prior BLM or 

FS approval. Seeding or other activities 

to reestablish vegetation must be 

completed within the time period 

approved by the BLM or the FS. 

Upon completion of reclamation 

operations, the lessee or operator must 

notify the BLM or the FS using Form 

3160–5, Final Abandonment Notice, 

when the location is ready for 

inspection. Final abandonment will not 

be approved until the surface 

reclamation work required in the 

Surface Use Plan of Operations or 

Subsequent Report of Plug and Abandon 

has been completed to the satisfaction of 

the BLM or the FS and Surface 

Managing Agency, if appropriate. 

XIII. Appeal Procedures 

Complete information concerning the 

review and appeal processes for BLM 

actions is contained in 43 CFR part 4 

and subpart 3165. Incorporation of a FS 

approved Surface Use Plan of 

Operations into the approval of an APD 

or a Master Development Plan is not 

subject to protest to the BLM or appeal 

to the Interior Board of Land Appeals. 

The FS’s decisions approving use of 

NFS lands may be subject to agency 

appeal procedures, in accordance with 

36 CFR parts 215 or 251. 

Decisions governing Surface Use Plan 

of Operations and Special Use 

Authorization approvals on NFS lands 

that involve analysis, documentation, 

and other requirements of the NEPA 

may be subject to agency appeal 

procedures, under 36 CFR part 215. 

The FS’s regulations at 36 CFR part 

251 govern appeals by an operator of 

written FS decisions related to 

Conditions of Approval or 

administration of Surface Use Plans of 

Operations or Special Use 

Authorizations to occupy and use NFS 

lands. 

The operator may appeal decisions of 

the BIA under 25 CFR part 2. 

Attachment I—Sample Format for 

Notice of Staking 

Attachment I Sample Format for Notice 

of Staking 

(Not to be used in place of 

Application for Permit to Drill or 

Reenter Form 3160–3) 

1. Oil Well 

Gas Well 

Other (Specify) 

2. Name, Address, and Telephone of 

Operator 

3. Name and Telephone of Specific 

Contact Person 

4. Surface Location of Well 

Attach: 

(a) Sketch showing road entry onto 

pad, pad dimensions, and reserve pit 

(b) Topographical or other acceptable 

map (e.g., a USGS 71⁄2′′ Quadrangle) 

showing location, access road, and lease 

boundaries 

5. Lease Number 

6. If Indian, Allottee or Tribe Name 

7. Unit Agreement Name 

8. Well Name and Number 

9. American Petroleum Institute (API) 

Well Number (if available) 

10. Field Name or Wildcat 

11. Section, Township, Range, 

Meridian; or Block and Survey; or Area 

12. County, Parish, or Borough 

13. State 

14. Name and Depth of Formation 

Objective(s) 

15. Estimated Well Depth 

16. For directional or horizontal 

wells, anticipated bottom-hole location. 

17. Additional Information (as 

appropriate; include surface owner’s 

name, address and, if known, 

telephone). 

18. Signed lllllTitlelllll 

Date 

Note: When the Bureau of Land 

Management or the Forest Service, as 

appropriate, receives this Notice, the agency 

will schedule the date of the onsite 

inspection. You must stake the location and 

flag the access road before the onsite 

inspection. Operators should consider the 

following before the onsite inspection and 

incorporate these considerations into the 

Notice of Staking Option, as appropriate: 

(a) H2S Potential; 

(b) Cultural Resources (Archeology); 

and 

(c) Federal Right-of-Way or Special 

Use Permit. 

[FR Doc. 07–934 Filed 3–6–07; 8:45 am] 

BILLING CODES 3410–11–P; 4310–84–P 


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