36 CFR Part 228 Subpart E

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Forest Service, USDA

§ 228.101

be conducted in accordance with regulations in subpart A of this part and
with the provisions of this section.
(b) Prior to approving a plan of operations, the authorized officer must consider:
(1) The resources of ecological, cultural,
geological,
historical,
prehistorical, and scientific interest likely
to be affected by the proposed operations, including access; and
(2) The potential adverse impacts on
the identified resource values resulting
from the proposed operations.
(c) A plan of operations will be approved if, in the judgment of the authorized officer, proposed operations
are compatible, to the maximum extent feasible, with the protection of the
resource values identified pursuant to
paragraph (b)(1) of this section.
(1) The authorized officer will deem
operations to be compatible if the plan
of operations includes all feasible
measures which are necessary to prevent or minimize potential adverse impacts on the resource values identified
pursuant to paragraph (b)(1) of this section and if the operations are conducted in accordance with the plan.
(2) In evaluating the feasibility of
mitigating measures, the authorized
officer shall, at a minimum, consider
the following:
(i) The effectiveness and practicality
of measures utilizing the best available
technology for preventing or minimizing adverse impacts on the resource
values identified pursuant to paragraph
(b)(1) of this section; and
(ii) The long- and short-term costs to
the operator of utilizing such measures
and the effect of these costs on the
long- and short-term economic viability of the operations.
(3) The authorized officer shall not
require implementation of mitigating
measures which would prevent the
evaluation or development of any valid
claim for which operations are proposed.
(d) In accordance with the procedures
described in subpart A and paragraphs
(c)(1) through (c)(3) of this section, the
authorized officer may approve modifications of an existing plan of operations:
(1) If, in the judgment of the authorized officer, environmental impacts un-

foreseen at the time of approval of the
existing plan may result in the incompatibility of the operations with the
protection of the resource values identified pursuant to paragraph (b)(1) of
this section; or
(2) Upon request by the operator to
use alternative technology and equipment capable of achieving a level of environmental protection equivalent to
that to be achieved under the existing
plan of operations.
[51 FR 20827, June 9, 1986]

Subpart E—Oil and Gas Resources
SOURCE: 55 FR 10444, Mar. 21, 1990, unless
otherwise noted.

§ 228.100

Scope and applicability.

(a) Scope. This subpart sets forth the
rules and procedures by which the Forest Service of the United States Department of Agriculture will carry out
its statutory responsibilities in the
issuance of Federal oil and gas leases
and management of subsequent oil and
gas operations on National Forest System lands, for approval and modification of attendant surface use plans of
operations, for monitoring of surface
disturbing operations on such leases,
and for enforcement of surface use requirements and reclamation standards.
(b) Applicability. The rules of this subpart apply to leases on National Forest
System lands and to operations that
are conducted on Federal oil and gas
leases on National Forest System lands
as of April 20, 1990.
(c) Applicability of other rules. Surface
uses associated with oil and gas
prospecting, development, production,
and reclamation activities, that are
conducted on National Forest System
lands outside a leasehold must receive
prior authorization from the Forest
Service. Such activities are subject to
the regulations set forth elsewhere in
36 CFR chapter II, including but not
limited to the regulations set forth in
36 CFR parts 251, subpart B, and 261.
§ 228.101

Definitions.

For the purposes of this subpart, the
terms listed in this section have the
following meaning:

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§ 228.101

36 CFR Ch. II (7–1–08 Edition)

Authorized Forest officer. The Forest
Service employee delegated the authority to perform a duty described in
these rules. Generally, a Regional Forester, Forest Supervisor, District
Ranger, or Minerals Staff Officer, depending on the scope and level of the
duty to be performed.
Compliance Officer. The Deputy Chief,
or the Associate Deputy Chiefs, National Forest System or the line officer
designated to act in the absence of the
Deputy Chief.
Leasehold. The area described in a
Federal
oil
and
gas
lease,
communitized, or unitized area.
Lessee. A person or entity holding
record title in a lease issued by the
United States.
National Forest System. All National
Forest lands reserved or withdrawn
from the public domain of the United
States, all National Forest lands acquired through purchase, exchange, donation, or other means, the National
Grasslands
and
land
utilization
projects administered under title III of
the Bankhead-Jones Farm Tenant Act
(7 U.S.C. 1010 et seq.), and other lands,
waters, or interests therein which are
administered by the Forest Service or
are designated for administration
through the Forest Service as a part of
the system (16 U.S.C. 1609).
Notices to Lessees, Transferees, and Operators. A written notice issued by the
authorized Forest officer. Notices to
Lessees, Transferees, and Operators implement the regulations in this subpart
and serve as instructions on specific
item(s) of importance within a Forest
Service Region, National Forest, or
Ranger District.
Onshore Oil and Gas Order. A formal
numbered order issued by or signed by
the Chief of the Forest Service that implements and supplements the regulations in this subpart.
Operating right. The interest created
out of a lease that authorizes the holder of that interest to enter upon the
leased lands to conduct drilling and related operations, including production
of oil and gas from such lands in accordance with the terms of the lease.
Operating rights owner. A person holding operating rights in a lease issued
by the United States. A leasee also
may be an operating rights owner if

the operating rights in a lease or portion thereof have not been conveyed to
another person.
Operations. Surface disturbing activities that are conducted on a leasehold
on National Forest System lands pursuant to a current approved surface use
plan of operations, including but not
limited to, exploration, development,
and production of oil and gas resources
and reclamation of surface resources.
Operator. Any person or entity, including, but not limited to, the lessee
or operating rights owner, who has
stated in writing to the authorized
Forest officer that they are responsible
under the terms and conditions of the
lease for the operations conducted on
the leased lands or a portion thereof.
Person. An individual, partnership,
corporation, association or other legal
entity.
Substantial modification. A change in
lease terms or a modification, waiver,
or exception of a lease stipulation that
would require an environmental assessment or environmental impact statement be prepared pursuant to the National Environmental Policy Act of
1969.
Surface use plan of operations. A plan
for surface use, disturbance, and reclamation.
Transfer. Any conveyance of an interest in a lease by assignment, sublease
or otherwise. This definition includes
the terms: Assignment which means a
conveyance of all or a portion of the
lessee’s record title interest in a lease;
and sublease which means a conveyance
of a non-record interest in a lease, i.e.,
a conveyance of operating rights is
normally a sublease and a sublease also
is a subsidiary arrangement between
the lessee (sublessor) and the sublessee,
but a sublease does not include a transfer of a purely financial interest, such
as overriding royalty interest or payment out of production, nor does it affect the relationship imposed by a
lease between the lessee(s) and the
United States.
Transferee. A person to whom an interest in a lease issued by the United
States has been transferred.

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Forest Service, USDA

§ 228.102

LEASING

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§ 228.102 Leasing analyses and decisions.
(a) Compliance with the National Environmental Policy Act of 1969. In analyzing lands for leasing, the authorized
Forest officer shall comply with the
National Environmental Policy Act of
1969, implementing regulations at 43
CFR parts 1500–1508, and Forest Service
implementing policies and procedures
set forth in Forest Service Manual
chapter 1950 and Forest Service Handbook 1909.15.
(b) Scheduling analysis of available
lands. Within 6 months of April 20, 1990,
Forest Supervisors shall develop, in cooperation with the Bureau of Land
Management and with public input, a
schedule for analyzing lands under
their jurisdiction that have not been
already analyzed for leasing. The Forest Supervisors shall revise or make
additions to the schedule at least annually. In scheduling lands for analysis,
the authorized Forest officer shall
identify and exclude from further review the following lands which are legally unavailable for leasing:
(1) Lands withdrawn from mineral
leasing by an act of Congress or by an
order of the Secretary of the Interior;
(2) Lands recommended for wilderness allocation by the Secretary of Agriculture;
(3) Lands designated by statute as
wilderness study areas, unless oil and
gas leasing is specifically allowed by
the statute designating the study area;
and
(4) Lands within areas allocated for
wilderness or further planning in Executive Communication 1504, NinetySixth Congress (House Document No.
96–119), unless such lands subsequently
have been allocated to uses other than
wilderness by an approved Forest land
and resource management plan or have
been released to uses other than wilderness by an act of Congress.
(c) Leasing analyses. The leasing analysis shall be conducted by the authorized Forest officer in accordance with
the requirements of 36 CFR part 219
(Forest land and resource management
planning)
and/or,
as
appropriate,
through preparation of NEPA docu-

ments. As part of the analysis, the authorized Forest officer shall:
(1) Identify on maps those areas that
will be:
(i) Open to development subject to
the terms and conditions of the standard oil and gas lease form (including an
explanation of the typical standards
and objectives to be enforced under the
standard lease terms);
(ii) Open to development but subject
to constraints that will require the use
of lease stipulations such as those prohibiting surface use on areas larger
than 40 acres or such other standards
as may be developed in the plan for
stipulation use (with discussion as to
why the constraints are necessary and
justifiable); and
(iii) Closed to leasing, distinguishing
between those areas that are being
closed through exercise of management
direction, and those closed by law, regulation, etc.
(2) Identify alternatives to the areas
listed in paragraph (c)(1) of this section, including that of not allowing
leasing.
(3) Project the type/amount of postleasing activity that is reasonably
foreseeable as a consequence of conducting a leasing program consistent
with that described in the proposal and
for each alternative.
(4) Analyze the reasonable foreseeable impacts of post-leasing activity
projected under paragraph (c)(3) of this
section.
(d) Area or Forest-wide leasing decisions (lands administratively available for
leasing). Upon completion of the leasing
analysis, the Regional Forest shall
promptly notify the Bureau of Land
Management as to the area or Forestwide leasing decisions that have been
made, that is, identify lands which
have been found administratively
available for leasing.
(e) Leasing decisions for specific lands.
At such time as specific lands are being
considered for leasing, the Regional
Forester shall review the area or Forest-wide leasing decision and shall authorize the Bureau of Land Management to offer specific lands for lease
subject to:

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§ 228.103

36 CFR Ch. II (7–1–08 Edition)

(1) Verifying that oil and gas leasing
of the specific lands has been adequately addressed in a NEPA document, and is consistent with the Forest
land and resource management plan. If
NEPA has not been adequately addressed, or if there is significant new
information or circumstances as defined by 40 CFR 1502.9 requiring further
environmental analysis, additional environment analysis shall be done before
a leasing decision for specific lands will
be made. If there is inconsistency with
the Forest land and resource management plan, no authorization for leasing
shall be given unless the plan is amended or revised.
(2) Ensuring that conditions of surface
occupancy
identified
in
§ 228.102(c)(1) are properly included as
stipulations in resulting leases.
(3) Determining that operations and
development could be allowed somewhere on each proposed lease, except
where stipulations will prohibit all surface occupancy.
[55 FR 10444, Mar. 21, 1990, as amended at 56
FR 56157, Nov. 1, 1991]

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§ 228.103 Notice of appeals of decisions.
The authorized Forest officer shall
promptly notify the Bureau of Land
Management if appeals of either an
area or Forest-wide leasing decision or
a leasing decision for specific lands are
filed during the periods provided for
under 36 CFR part 217.
§ 228.104 Consideration of requests to
modify, waive, or grant exceptions
to lease stipulations.
(a) General. An operator submitting a
surface use plan of operations may request the authorized Forest officer to
authorize the Bureau of Land Management to modify (permanently change),
waive (permanently remove), or grant
an exception (case-by-case exemption)
to a stipulation included in a lease at
the direction of the Forest Service. The
person making the request is encouraged to submit any information which
might assist the authorized Forest officer in making a decision.
(b) Review. The authorized Forest officer shall review any information submitted in support of the request and
any other pertinent information.

(1) As part of the review, consistent
with 30 U.S.C. 226 (f)–(g), the authorized
Forest officer shall ensure compliance
with the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.)
and any other applicable laws, and
shall ensure preparation of any appropriate environmental documents.
(2) The authorized Forest officer may
authorize the Bureau of Land Management to modify, waive, or grant an exception to a stipulation if:
(i) The action would be consistent
with applicable Federal laws;
(ii) The action would be consistent
with the current forest land and resource management plan;
(iii) The management objectives
which led the Forest Service to require
the inclusion of the stipulation in the
lease can be met without restricting
operations in the manner provided for
by the stipulation given the change in
the present condition of the surface resources involved, or given the nature,
location, timing, or design of the proposed operations; and
(iv) The action is acceptable to the
authorized Forest officer based upon a
review of the environmental consequences.
(c) Other agency stipulations. If a stipulation was included in a lease by the
Forest Service at the request of another agency, the authorized Forest officer shall consult with that agency
prior to authorizing modification,
waiver, or exception.
(d) Notice of decision. (1) When the review of a stipulation modification,
waiver, or exception request has been
completed and the authorized Forest
officer has reached a decision, the authorized Forest officer shall promptly
notify the operator and the appropriate
Bureau of Land Management office, in
writing, of the decision to grant, or
grant with additional conditions, or
deny the request.
(2) Any decision to modify, waive, or
grant an exception to a lease stipulation shall be subject to administrative
appeal only in conjunction with an appeal of a decision on a surface use plan
of operation or supplemental surface
use plan of operation.

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Forest Service, USDA

§ 228.106

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AUTHORIZATION OF OCCUPANCY WITHIN A
LEASEHOLD
§ 228.105 Issuance of onshore orders
and notices to lessees.
(a) Onshore oil and gas orders. The
Chief of the Forest Service may issue,
or cosign with the Director, Bureau of
Land Management, Onshore Oil and
Gas Orders necessary to implement and
supplement the regulations of this subpart.
(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.
(2) Adoption of additional onshore oil
and gas orders. Additional onshore oil
and gas orders shall be published in the
FEDERAL REGISTER for public comment
and codified in the CFR.
(3) Applicability of onshore oil and gas
orders. Onshore Oil and Gas Orders
issued pursuant to this section are
binding on all operations conducted on
National Forest System lands, unless
otherwise provided therein.
(b) Notices to lessees, transferees, and
operators. The authorized Forest officer
may issue, or cosign with the authorized officer of the Bureau of Land Management, Notices to Lessees, Transferees, and Operators necessary to implement the regulations of this subpart. Notices to Lessees, Transferees,

and Operators are binding on all operations conducted on the administrative
unit of the National Forest System (36
CFR 200.2) supervised by the authorized
Forest officer who issued or cosigned
such notice.
[55 FR 10444, Mar. 21, 1990, as amended at 72
FR 10328, Mar. 7, 2007]

§ 228.106 Operator’s submission of surface use plan of operations.
(a) General. No permit to drill on a
Federal oil and gas lease for National
Forest System lands may be granted
without the analysis and approval of a
surface use plan of operations covering
proposed surface disturbing activities.
An operator must obtain an approved
surface use plan of operations before
conducting operations that will cause
surface disturbance. The operator shall
submit a proposed surface use plan of
operations as part of an Application for
a Permit to Drill to the appropriate
Bureau of Land Management office for
forwarding to the Forest Service, unless otherwise directed by the Onshore
Oil and Gas Order in effect when the
proposed plan of operations is submitted.
(b) Preparation of plan. In preparing a
surface use plan of operations, the operator is encouraged to contact the
local Forest Service office to make use
of such information as is available
from the Forest Service concerning
surface resources and uses, environmental considerations, and local reclamation procedures.
(c) Content of plan. The type, size, and
intensity of the proposed operations
and the sensitivity of the surface resources that will be affected by the
proposed operations determine the
level of detail and the amount of information which the operator includes in
a proposed plan of operations. However,
any surface use plan of operations submitted by an operator shall contain the
information specified by the Onshore
Oil and Gas Order in effect when the
surface use plan of operations is submitted.
(d) Supplemental plan. An operator
must obtain an approved supplemental
surface use plan of operations before
conducting any surface disturbing operations that are not authorized by a
current approved surface use plan of

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§ 228.107

36 CFR Ch. II (7–1–08 Edition)

operations. The operator shall submit a
proposed supplemental surface use plan
of operations to the appropriate Bureau of Land Management office for
forwarding to the Forest Service, unless otherwise directed by the Onshore
Oil and Gas Order in effect when the
proposed supplemental plan of operations is submitted. The supplemental
plan of operations need only address
those operations that differ from the
operations authorized by the current
approved surface use plan of operations. A supplemental plan is otherwise subject to the same requirements
under this subpart as an initial surface
use plan of operations.

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§ 228.107 Review of surface use plan of
operations.
(a) Review. The authorized Forest officer shall review a surface use plan of
operations as promptly as practicable
given the nature and scope of the proposed plan. As part of the review, the
authorized Forest officer shall comply
with the National Environmental Policy Act of 1969, implementing regulations at 40 CFR parts 1500–1508, and the
Forest Service implementing policies
and procedures set forth in Forest
Service Manual Chapter 1950 and Forest Service Handbook 1909.15 and shall
ensure that:
(1) The surface use plan of operations
is consistent with the lease, including
the lease stipulations, and applicable
Federal laws;
(2) To the extent consistent with the
rights conveyed by the lease, the surface use plan of operations is consistent with, or is modified to be consistent with, the applicable current approved forest land and resource management plan;
(3) The surface use plan of operations
meets or exceeds the surface use requirements of § 228.108 of this subpart;
and
(4) The surface use plan of operations
is acceptable, or is modified to be acceptable, to the authorized Forest officer based upon a review of the environmental consequences of the operations.
(b) Decision. The authorized Forest
officer shall make a decision on the approval of a surface use plan of operations as follows:

(1) If the authorized Forest officer
will not be able to make a decision on
the proposed plan within 3 working
days after the conclusion of the 30-day
notice period provided for by 30 U.S.C.
226(f), the authorized Forest officer
shall advise the appropriate Bureau of
Land Management office and the operator as soon as such delay becomes apparent, either in writing or orally with
subsequent written confirmation, that
additional time will be needed to process the plan. The authorized Forest officer shall explain the reason why additional time is needed and project the
date by which a decision on the plan
will likely be made.
(2) When the review of a surface use
plan of operations has been completed,
the authorized Forest officer shall
promptly notify the operator and the
appropriate Bureau of Land Management office, in writing, that:
(i) The plan is approved as submitted:
(ii) The plan is approved subject to
specified conditions; or,
(iii) The plan is disapproved for the
reasons stated.
(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.
(d) Transmittal of decision. The authorized Forest officer shall immediately forward a decision on a surface
use plan of operations to the appropriate Bureau of Land Management office and the operator. This transmittal
shall include the estimated cost of reclamation and restoration (§ 228.109(a)) if
the authorized Forest officer believes
that additional bonding is required.
(e) Supplemental plans. A supplemental surface use plan of operations
(§ 228.106(d)) shall be reviewed in the
same manner as an initial surface use
plan of operations.
[55 FR 10444, Mar. 21, 1990, as amended at 72
FR 10328, Mar. 7, 2007]

§ 228.108

Surface use requirements.

(a) General. The operator shall conduct operations on a leasehold on National Forest System lands in a manner that minimizes effects on surface

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Forest Service, USDA

§ 228.109

resources, prevents unnecessary or unreasonable surface resource disturbance, and that is in compliance with
the other requirements of this section.
(b) Notice of operations. The operator
must notify the authorized Forest officer 48 hours prior to commencing operations or resuming operations following their temporary cessation
(§ 228.111).
(c) Access facilities. The operator shall
construct and maintain access facilities to assure adequate drainage and to
minimize or prevent damage to surface
resources.
(d) Cultural and historical resources.
The operator shall report findings of
cultural and historical resources to the
authorized Forest officer immediately
and, except as otherwise authorized in
an approved surface use plan of operations, protect such resources.
(e) Fire prevention and control. To the
extent practicable, the operator shall
take measures to prevent uncontrolled
fires on the area of operation and to
suppress uncontrolled fires resulting
from the operations.
(f) Fisheries, wildlife and plant habitat.
The operator shall comply with the requirements of the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.) and its
implementing regulations (50 CFR
chapter IV), and, except as otherwise
provided in an approved surface use
plan of operations, conduct operations
in such a manner as to maintain and
protect fisheries, wildlife, and plant
habitat.
(g) Reclamation. (1) Unless otherwise
provided in an approved surface use
plan of operations, the operator shall
conduct reclamation concurrently with
other operations.
(2) Within 1 year of completion of operations on a portion of the area of operation, the operator must reclaim
that portion, unless a different period
of time is approved in writing by the
authorized Forest officer.
(3) The operator must:
(i) Control soil erosion and landslides;
(ii) Control water runoff;
(iii) Remove, or control, solid wastes,
toxic substances, and hazardous substances;
(iv) Reshape and revegetate disturbed
areas;

(v) Remove structures, improvements, facilities and equipment, unless
otherwise authorized; and
(vi) Take such other reclamation
measures as specified in the approved
surface use plan of operations.
(h) Safety measures. (1) The operator
must maintain structures, facilities,
improvements, and equipment located
on the area of operation in a safe and
neat manner and in accordance with an
approved surface use plan of operations.
(2) The operator must take appropriate measures in accordance with applicable Federal and State laws and
regulations to protect the public from
hazardous sites or conditions resulting
from the operations. Such measures
may include, but are not limited to,
posting signs, building fences, or otherwise identifying the hazardous site or
condition.
(i) Wastes. The operator must either
remove garbage, refuse, and sewage
from National Forest System lands or
treat and dispose of that material in
such a manner as to minimize or prevent adverse impacts on surface resources. The operator shall treat or
dispose of produced water, drilling
fluid, and other waste generated by the
operations in such a manner as to minimize or prevent adverse impacts on
surface resources.
(j) Watershed protection. (1) Except as
otherwise provided in the approved surface use plan of operations, the operator shall not conduct operations in
areas subject to mass soil movement,
riparian areas and wetlands.
(2) The operator shall take measures
to minimize or prevent erosion and
sediment production. Such measures
include, but are not limited to, siting
structures, facilities, and other improvements to avoid steep slopes and
excessive clearing of land.
§ 228.109

Bonds.

(a) General. As part of the review of a
proposed surface use plan of operations, the authorized Forest officer
shall consider the estimated cost to the
Forest Service to reclaim those areas
that would be disturbed by operations

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§ 228.110

36 CFR Ch. II (7–1–08 Edition)

and to restore any lands or surface waters adversely affected by the lease operations after the abandonment or cessation of operations on the lease. If at
any time prior to or during the conduct
of operations, the authorized Forest officer determines the financial instrument held by the Bureau of Land Management is not adequate to ensure
complete and timely reclamation and
restoration, the authorized Forest officer shall give the operator the option
of either increasing the financial instrument held by the Bureau of Land
Management or filing a separate instrument with the Forest Service in
the amount deemed adequate by the
authorized Forest officer to ensure reclamation and restoration.
(b) Standards for estimating reclamation costs. The authorized Forest officer
shall consider the costs of the operator’s proposed reclamation program
and the need for additional measures to
be taken when estimating the cost to
the Forest Service to reclaim the disturbed area.
(c) Release of reclamation liability. An
operator may request the authorized
Forest officer to notify the Bureau of
Land Management of reduced reclamation liability at any time after reclamation has commenced. The authorized Forest officer shall, if appropriate,
notify the Bureau of Land Management
as to the amount to which the liability
has been reduced.

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§ 228.110

Indemnification.

The operator and, if the operator
does not hold all of the interest in the
applicable lease, all lessees and transferees are jointly and severally liable
in accordance with Federal and State
laws for indemnifying the United
States for:
(a) Injury, loss or damage, including
fire suppression costs, which the
United States incurs as a result of the
operations; and
(b) Payments made by the United
States in satisfaction of claims, demands or judgments for an injury, loss
or damage, including fire suppression
costs, which result from the operations.

ADMINISTRATION OF OPERATIONS
§ 228.111 Temporary cessation of operations.
(a) General. As soon as it becomes apparent that there will be a temporary
cessation of operations for a period of
45 days or more, the operator must verbally notify and subsequently file a
statement with the authorized Forest
officer verifying the operator’s intent
to maintain structures, facilities, improvements, and equipment that will
remain on the area of operation during
the cessation of operations, and specifying the expected date by which operations will be resumed.
(b) Seasonal shutdowns. The operator
need not file the statement required by
paragraph (a) of this section if the cessation of operations results from seasonally adverse weather conditions and
the operator will resume operations
promptly upon the conclusion of those
adverse weather conditions.
(c) Interim measures. The authorized
Forest officer may require the operator
to take reasonable interim reclamation
or erosion control measures to protect
surface resources during temporary
cessations of operations, including during cessations of operations resulting
from seasonally adverse weather conditions.
§ 228.112

Compliance and inspection.

(a) General. Operations must be conducted in accordance with the lease, including stipulations made part of the
lease at the direction of the Forest
Service, an approved surface use plan
of operations, the applicable Onshore
Oil and Gas Order (§ 228.105(a)), an applicable Notice to lessees, transferees,
and operators (§ 228.105(b)), and regulations of this subpart.
(b) Completion of reclamation. The authorized Forest officer shall give
prompt written notice to an operator
whenever reclamation of a portion of
the area affected by surface operations
has been satisfactorily completed in
accordance with the approved surface
use plan of operations and § 228.108 of
this subpart. The notice shall describe
the portion of the area on which the
reclamation has been satisfactorily
completed.

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Forest Service, USDA

§ 228.113

(c) Compliance with other statutes and
regulations. Nothing in this subpart
shall be construed to relieve an operator from complying with applicable
Federal and State laws or regulations,
including, but not limited to:
(1) Federal and State air quality
standards, including the requirements
of the Clean Air Act, as amended (42
U.S.C. 1857 et seq.);
(2) Federal and State water quality
standards, including the requirements
of the Federal Water Pollution Control
Act, as amended (33 U.S.C. 1151 et seq.);
(3) Federal and State standards for
the use or generation of solid wastes,
toxic substances and hazardous substances, including the requirements of
the Comprehensive Environmental Response, Compensation and Liability
Act, as amended, 42 U.S.C. 9601 et seq.,
and its implementing regulations, 40
CFR chapter I, subchapter J, and the
Resource Conservation and Recovery
Act, 42 U.S.C. 6901 et seq., and its implementing regulations, 40 CFR chapter I,
subchapter I;
(4) The Endangered Species Act of
1973, 16 U.S.C. 1531 et seq., and its implementing regulations, 50 CFR chapter
IV;
(5) The Archeological Resources Protection Act of 1979, as amended (16
U.S.C. 470aa et seq.) and its implementing regulations 36 CFR part 296;
(6) The Mineral Leasing Act of 1920,
30 U.S.C. 1981 et seq., the Mineral Leasing Act of Acquired Lands of 1947, 30
U.S.C. 351 et seq., the Federal Oil and
Gas Royalty Management Act of 1982,
30 U.S.C. 1701 et seq., and their implementing regulations, 43 CFR chapter
II, group 3100; and
(7) Applicable Onshore Oil and Gas
Orders and Notices to Lessees and Operators (NTL’s) issued by the United
States Department of the Interior, Bureau of Land Management pursuant to
43 CFR chapter II, part 3160, subpart
3164.
(d) Penalties. If surface disturbing operations are being conducted that are
not authorized by an approved surface
use plan of operations or that violate a
term or operating condition of an approved surface use plan of operations,
the person conducting those operations
is subject to the prohibitions and attendant penalties of 36 CFR part 261.

(e) Inspection. Forest Service officers
shall periodically inspect the area of
operations to determine and document
whether operations are being conducted in compliance with the regulations in this subpart, the stipulations
included in the lease at the direction of
the Forest Service, the approved surface use plan of operations, the applicable Onshore Oil and Gas Order, and
applicable Notices to Lessees, Transferees, and Operators.
§ 228.113

Notice of noncompliance.

(a) Issuance. When an authorized Forest officer finds that the operator is
not in compliance with a reclamation
or other standard, a stipulation included in a lease at the direction of the
Forest Service, an approved surface use
plan of operation, the regulations in
this subpart, the applicable onshore oil
and gas order, or an applicable notice
to lessees, transferees, and operators,
the authorized Forest officer shall
issue a notice of noncompliance.
(1) Content. The notice of noncompliance shall include the following:
(i) Identification of the reclamation
requirements or other standard(s) with
which the operator is not in compliance;
(ii) Description of the measures
which are required to correct the noncompliance;
(iii) Specification of a reasonable period of time within which the noncompliance must be corrected;
(iv) If the noncompliance appears to
be material, identification of the possible consequences of continued noncompliance of the requirement(s) or
standard(s) as described in 30 U.S.C.
226(g);
(v) If the noncompliance appears to
be in violation of the prohibitions set
forth in 36 CFR part 261, identification
of the possible consequences of continued noncompliance of the requirement(s) or standard(s) as described in
36 CFR 261.1b; and
(vi) Notification that the authorized
Forest officer remains willing and desirous of working cooperatively with
the operator to resolve or remedy the
noncompliance.
(2) Extension of deadlines. The operator may request an extension of a

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§ 228.113

36 CFR Ch. II (7–1–08 Edition)

deadline specified in a notice of noncompliance if the operator is unable to
come into compliance with the applicable requirement(s) or standard(s) identified in the notice of noncompliance
by the deadline because of conditions
beyond the operator’s control. The authorized Forest officer shall not extend
a deadline specified in a notice of noncompliance unless the operator requested an extension and the authorized Forest officer finds that there was
a condition beyond the operator’s control, that such condition prevented the
operator from complying with the notice of noncompliance by the specified
deadline, and that the extension will
not adversely affect the interests of the
United States. Conditions which may
be beyond the operator’s control include, but are not limited to, closure of
an area in accordance with 36 CFR part
261, subparts B or C, or inaccessibility
of an area of operations due to such
conditions
as
fire,
flooding,
or
snowpack.
(3) Manner of service. The authorized
Forest officer shall serve a notice of
noncompliance or a decision on a request for extension of a deadline specified in a notice upon the operator in
person, by certified mail or by telephone. However, if notice is initially
provided in person or by telephone, the
authorized Forest officer shall send the
operator written confirmation of the
notice or decision by certified mail.
(b) Failure to come into compliance. If
the operator fails to come into compliance with the applicable requirement(s) or standard(s) identified in a
notice of noncompliance by the deadline specified in the notice, or an approved extension, the authorized Forest officer shall decide whether: The
noncompliance appears to be material
given the reclamation requirements
and other standards applicable to the
lease established by 30 U.S.C. 226(g),
the regulations in this subpart, the
stipulations included in a lease at the
direction of the Forest Service, an approved surface use plan of operations,
the applicable Onshore Oil and Gas
Order, or an applicable Notice to lessees, transferees, and operators; the
noncompliance is likely to result in
danger to public health or safety or irreparable resource damage; and the

noncompliance is resulting in an emergency.
(1) Referral to compliance officer. When
the operations appear to be in material
noncompliance, the authorized Forest
officer shall promptly refer the matter
to the compliance officer. The referral
shall be accompanied by a complete
statement of the facts supported by appropriate exhibits. Apparent material
noncompliance includes, but is not limited to, operating without an approved
surface use plan of operations, conducting operations that have been suspended, failure to timely complete reclamation in accordance with an approved surface use plan of operations,
failure to maintain an additional bond
in the amount required by the authorized Forest officer during the period of
operation, failure to timely reimburse
the Forest Service for the cost of abating an emergency, and failing to comply with any term included in a lease,
stipulation, or approved surface use
plan of operations, the applicable onshore oil and gas order, or an applicable Notice to lessees, transferees, and
operators, relating to the protection of
a threatened or endangered species.
(2) Suspension of operations. When the
noncompliance is likely to result in
danger to public health or safety or in
irreparable resource damage, the authorized Forest officer shall suspend
the operations, in whole or in part.
(i) A suspension of operations shall
remain in effect until the authorized
Forest officer determines that the operations are in compliance with the applicable requirement(s) or standard(s)
identified in the notice of noncompliance.
(ii) The authorized Forest officer
shall serve decisions suspending operations upon the operator in person, by
certified mail, or by telephone. If notice is initially provided in person or
by telephone, the authorized Forest officer shall send the operator written
confirmation of the decision by certified mail.
(iii) The authorized Forest officer
shall immediately notify the appropriate Bureau of Land Management office when an operator has been given
notice to suspend operations.

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§ 228.114

(3) Abatement of emergencies. When the
noncompliance is resulting in an emergency, the authorized Forest officer
may take action as necessary to abate
the emergency. The total cost to the
Forest Service of taking actions to
abate an emergency becomes an obligation of the operator.
(i) Emergency situations include, but
are not limited to, imminent dangers
to public health or safety or irreparable resource damage.
(ii) The authorized Forest officer
shall promptly serve a bill for such
costs upon the operator by certified
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§ 228.114 Material noncompliance proceedings.
(a) Evaluation of referral. The compliance officer shall promptly evaluate a
referral made by the authorized Forest
officer pursuant to § 228.113(b)(1) of this
subpart.
(b) Dismissal of referral. The compliance officer shall dismiss the referral if
the compliance officer determines that
there is not adequate evidence to support a reasonable belief that:
(1) The operator was not in compliance with the applicable requirement(s) or standard(s) identified in a
notice of noncompliance by the deadline specified in the notice, or an extension approved by the authorized
Forest officer; or
(2) The noncompliance with the applicable requirement(s) or standard(s)
identified in the notice of noncompliance may be material.
(c) Initiation of proceedings. The compliance officer shall initiate a material
noncompliance proceeding if the compliance officer agrees that there is adequate evidence to support a reasonable
belief that an operator has failed to
come into compliance with the applicable requirement(s) or standard(s) identified in a notice of noncompliance by
the deadline specified in the notice, or
extension approved by the authorized
Forest officer, and that the noncompliance may be material.
(1) Notice of proceedings. The compliance officer shall inform the lessee and
operator of the material noncompliance proceedings by certified mail, return receipt requested.

(2) Content of notice. The notice of the
material noncompliance proceeding
shall include the following:
(i) The specific reclamation requirement(s) or other standard(s) of which
the operator may be in material noncompliance;
(ii) A description of the measures
that are required to correct the violation;
(iii) A statement that if the compliance officer finds that the operator is
in material noncompliance with a reclamation requirement or other standard applicable to the lease, the Secretary of the Interior will not be able
to issue new leases or approve new
transfers of leases to the operator, any
subsidiary or affiliate of the operator,
or any person controlled by or under
common control with the operator
until the compliance officer finds that
the operator has come into compliance
with such requirement or standard; and
(iv) A recitation of the specific procedures governing the material noncompliance proceeding set forth in
paragraphs (d) through (g) of this section.
(d) Answer. Within 30 calendar days
after receiving the notice of the proceeding, the operator may submit, in
person, in writing, or through a representative, an answer containing information and argument in opposition
to the proposed material noncompliance finding, including information
that raises a genuine dispute over the
material facts. In that submission, the
operator also may:
(1) Request an informal hearing with
the compliance officer; and
(2) Identify pending administrative or
judicial appeal(s) which are relevant to
the proposed material noncompliance
finding and provide information which
shows the relevance of such appeal(s).
(e) Informal hearing. If the operator
requests an informal hearing, it shall
be held within 20 calendar days from
the date that the compliance officer receives the operator’s request.
(1) The compliance officer may postpone the date of the informal hearing if
the operator requests a postponement
in writing.

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(2) At the hearing, the operator, appearing personally or through an attorney or another authorized representative, may informally present and explain evidence and argument in opposition to the proposed material noncompliance finding.
(3) A transcript of the informal hearing shall not be required.
(f) Additional procedures as to disputed
facts. If the compliance officer finds
that the answer raises a genuine dispute over facts essential to the proposed material noncompliance finding,
the compliance officer shall so inform
the operator by certified mail, return
receipt requested. Within 10 days of receiving this notice, the operator may
request a fact-finding conference on
those disputed facts.
(1) The fact-finding conference shall
be scheduled within 20 calendar days
from the date the compliance officer
receives the operator’s request, unless
the operator and compliance officer
agree otherwise.
(2) At the fact-finding conference, the
operator shall have the opportunity to
appear with counsel, submit documentary evidence, present witnesses, and
confront the person(s) the Forest Service presents.
(3) A transcribed record of the factfinding conference shall be made, unless the operator and the compliance
officer by mutual agreement waive the
requirement for a transcript. The transcript will be made available to the operator at cost upon request.
(4) The compliance officer may preside over the fact-finding conference or
designate another authorized Forest officer to preside over the fact-finding
conference.
(5) Following the fact-finding conference, the authorized Forest officer
who presided over the conference shall
promptly prepare written findings of
fact based upon the preponderance of
the evidence. The compliance officer
may reject findings of fact prepared by
another authorized Forest officer, in
whole or in part, if the compliance officer specifically determines that such
findings are arbitrary and capricious or
clearly erroneous.
(g) Dismissal of proceedings. The compliance officer shall dismiss the material noncompliance proceeding if, be-

fore the compliance officer renders a
decision pursuant to paragraph (h) of
this section, the authorized Forest officer who made the referral finds that
the operator has come into compliance
with the applicable requirements or
standards identified in the notice of
proceeding.
(h) Compliance officer’s decision. The
compliance officer shall base the decision on the entire record, which shall
consist of the authorized Forest officer’s referral and its accompanying
statement of facts and exhibits, information and argument that the operator provided in an answer, any information and argument that the operator provided in an informal hearing if
one was held, and the findings of fact if
a fact-finding conference was held.
(1) Content. The compliance officer’s
decision shall state whether the operator has violated the requirement(s) or
standard(s) identified in the notice of
proceeding and, if so, whether that
noncompliance is material given the
requirements of 30 U.S.C. 226(g), the
stipulations included in the lease at
the direction of the Forest Service, the
regulations in this subpart or an approved surface use plan of operations,
the applicable onshore oil and gas
order, or an applicable notice to lessees, transferees, and operators. If the
compliance officer finds that the operator is in material noncompliance, the
decision also shall:
(i) Describe the measures that are required to correct the violation;
(ii) Apprise the operator that the
Secretary of the Interior is being notified that the operator has been found
to be in material noncompliance with a
reclamation requirement or other
standard applicable to the lease; and
(iii) State that the decision is the
final administrative determination of
the Department of Agriculture.
(2) Service. The compliance officer
shall serve the decision upon the operator by certified mail, return receipt
requested. If the operator is found to be
in material noncompliance, the compliance officer also shall immediately
send a copy of the decision to the appropriate Bureau of Land Management
office and to the Secretary of the Interior.

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§ 228.115

(i) Petition for withdrawal of finding. If
an operator who has been found to be
in material noncompliance under the
provisions of this section believes that
the operations have subsequently come
into compliance with the applicable requirement(s) or standard(s) identified
in the compliance officer’s decision,
the operator may submit a written petition requesting that the material
noncompliance finding be withdrawn.
The petition shall be submitted to the
authorized Forest officer who issued
the operator the notice of noncompliance under § 228.113(a) of this subpart
and shall include information or exhibits which shows that the operator has
come into compliance with the requirement(s) or standard(s) identified in the
compliance officer’s decision.
(1) Response to petition. Within 30 calendar days after receiving the operator’s petition for withdrawal, the authorized Forest officer shall submit a
written statement to the compliance
officer as to whether the authorized
Forest officer agrees that the operator
has come into compliance with the requirement(s) or standard(s) identified
in the compliance officer’s decision. If
the authorized Forest officer disagrees
with the operator, the written statement shall be accompanied by a complete statement of the facts supported
by appropriate exhibits.
(2) Additional procedures as to disputed
material facts. If the compliance officer
finds that the authorized Forest officer’s response raises a genuine dispute
over facts material to the decision as
to whether the operator has come into
compliance with the requirement(s) or
standard(s) identified in the compliance officer’s decision, the compliance
officer shall so notify the operator and
authorized Forest officer by certified
mail, return receipt requested. The notice shall also advise the operator that
the fact finding procedures specified in
paragraph (f) of this section apply to
the compliance officer’s decision on the
petition for withdrawal.
(3) Compliance officer’s decision. The
compliance officer shall base the decision on the petition on the entire
record, which shall consist of the operator’s petition for withdrawal and its
accompanying exhibits, the authorized
Forest officer’s response to the petition

and, if applicable, its accompanying
statement of facts and exhibits, and if
a fact-finding conference was held, the
findings of fact. The compliance officer
shall serve the decision on the operator
by certified mail.
(i) If the compliance officer finds
that the operator remains in violation
of requirement(s) or standard(s) identified in the decision finding that the operator was in material noncompliance,
the decision on the petition for withdrawal shall identify such requirement(s) or standard(s) and describe the
measures that are required to correct
the violation(s).
(ii) If the compliance officer finds
that the operator has subsequently
come into compliance with the requirement(s) or standard(s) identified in the
compliance officer’s decision finding
that the operator was in material noncompliance, the compliance officer also
shall immediately send a copy of the
decision on the petition for withdrawal
to the appropriate Bureau of Land
Management office and notify the Secretary of the Interior that the operator
has come into compliance.
(j) List of operators found to be in material noncompliance. The Deputy Chief,
National Forest System, shall compile
and maintain a list of operators who
have been found to be in material noncompliance with reclamation requirements and other standards as provided
in 30 U.S.C. 226(g), the regulations in
this subpart, a stipulation included in
a lease at the direction of the Forest
Service, or an approved surface use
plan of operations, the applicable onshore oil and gas order, or an applicable notice to lessees, transferees, and
operators, for a lease on National Forest System lands to which such standards apply. This list shall be made
available to Regional Foresters, Forest
Supervisors, and upon request, members of the public.
§ 228.115 Additional
sions.

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(a) The authorized Forest officer
shall promptly post notices provided by
the Bureau of Land Management of:
(1) Competitive lease sales which the
Bureau plans to conduct that include
National Forest System lands;

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(2) Substantial modifications in the
terms of a lease which the Bureau proposes to make for leases on National
Forest System lands; and
(3) Applications for permits to drill
which the Bureau has received for
leaseholds located on National Forest
System lands.
(b) The notice shall be posted at the
offices of the affected Forest Supervisor and District Ranger in a prominent location readily accessible to the
public.
(c) The authorized Forest officer
shall keep a record of the date(s) the
notice was posted in the offices of the
affected Forest Supervisor and District
Ranger.
(d) The posting of notices required by
this section are in addition to the requirements for public notice of decisions provided in § 228.104(d) (Notice of
decision) and § 228.107(c) (Notice of decision) of this subpart.
§ 228.116 Information collection requirements.
(a) Sections containing information requirements. The following sections of
this subpart contain information requirements as defined in 5 CFR part
1320 and have been approved for use by
the Office of Management and Budget:
(1) Section 228.104(a) Requests to
Modify, Waive, or Grant Exceptions to
Leasing Stipulations;
(2) Section 228.106 (a), (c), and (d)
Submission of Surface Use Plan of Operations;
(3) Section 228.109(c) Request for Reduction in Reclamation Liability after
Reclamation;
(4) Section 228.111(a) Notice of Temporary Cessation of Operations;
(5) Section 228.113(a)(2) Extension of
Deadline in Notice of Noncompliance;
and
(6) Section 228.114 (c) through (i) Material Noncompliance Proceedings.
(b) OMB control number. The information requirements listed in paragraph
(a) of this section have been assigned
OMB Control No. 0596–0101.
(c) Average estimated burden hours. (1)
The average burden hours per response
are estimated to be:
(i) 5 minutes for the information requirements in § 228.104(a) of this subpart;

(ii) No additional burden hours required to meet the information requirements in § 228.106 (a), (c), and (d)
of this subpart;
(iii) 10 minutes for the information
requirements in § 228.109(c) of this subpart;
(iv) 10 minutes for the information
requirements in § 228.111(a) of this subpart;
(v) 5 minutes for the information requirements in § 228.113(a)(2) of this subpart; and
(vi) 2 hours for the information requirements in § 228.114 (c) through (i) of
this subpart.
(2) Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this burden, to Chief (2800), Forest Service,
USDA, P.O. Box 96090, Washington, DC
20090–6090 and to the Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington,
DC 20503.

PART 230—STATE AND PRIVATE
FORESTRY ASSISTANCE
Subpart A—Stewardship Incentive Program
Sec.
230.1
230.2
230.3
230.4
230.5
230.6
230.7
230.8
230.9
230.10
230.11
230.12
230.13

Purpose and scope.
Definitions.
National program administration.
State program administration.
Eligibility requirements.
Landowner forest stewardship plan.
Program practices.
Application and approval.
Payment to landowners.
Prohibitions.
Recapture of payment.
Reconsideration.
Information requirements.

Subpart B—Urban and Community Forestry
Assistance Program
230.20
230.21

Scope and authority.
Implementation of the program.

Subpart C—Forest Land Enhancement
Program
230.30 Purpose and scope.
230.31 Definitions.
230.32 National program administration.
230.33 Responsible official program administration.
230.34 State program administration.
230.35 FLEP elements.

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