Notice of Staking (Section III.C. of Onshore Order 1)

Wednesday,
March 7, 2007

Part II

Department of
Agriculture
Forest Service
36 CFR Part 228

Department of the
Interior
Bureau of Land Management
43 CFR Part 3160

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Onshore Oil and Gas Operations; Federal
and Indian Oil and Gas Leases; Onshore
Oil and Gas Order Number 1, Approval
of Operations; Final Rule

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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
U.S. Forest Service,
Agriculture; Bureau of Land
Management, Interior.
ACTION: Joint final rule.
AGENCIES:

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

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SUMMARY:

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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 30day 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

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

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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

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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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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 13point 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.

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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.

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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,

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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.

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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

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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

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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

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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

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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

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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 30day public posting requirement rather
than the subsequent APDs. The Master
Development Plan does initiate the 30day 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

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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

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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

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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

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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
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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.

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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 30day 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

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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.

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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

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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

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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

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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

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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

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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

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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
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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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 30day posting is not always necessary
when a waiver, exception, or
modification of lease terms is requested
because these are often addressed in the

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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

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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.

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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

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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

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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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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.

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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

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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

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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.

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Authors

PART 228—MINERALS

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:

■

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.
*
*
*
*
*

§ 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

1. ........................

Approval of operations ..................

May 7, 2007 ..................................

71 FR ............................................

*

*
*
*
*
The following Order would be
implemented by the BLM and the FS,
but will not be codified in the Code of
Federal Regulations.

Onshore Oil and Gas Order Number 1
Approval of Operations

Dated: December 1, 2006.
C. Stephen Allred,
Assistant Secretary, Land and Minerals
Management.
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3. Revise § 228.107(c) to read as
follows:

■

Appendix—Text of Oil and Gas
Onshore Order
Note: This appendix will not appear in the
BLM regulations in 43 Code of Federal
Regulations.

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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

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Supersedes
NTL–6.

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

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

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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

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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);

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• 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.

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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

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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

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

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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.

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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

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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.

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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.

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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

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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

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10333

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 signa­
tory) 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

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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

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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

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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

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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

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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.

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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

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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

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

ycherry on PROD1PC64 with RULES2

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.

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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.

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.

IX. Well Conversions

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.

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

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X. Variances

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,

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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.

ycherry on PROD1PC64 with RULES2

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

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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

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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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