[Code of Federal Regulations]
[Title 36, Volume 2, Parts 200 to 299]
[Revised as of July 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 36CFR228]

[Page 172-187]

              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY

           CHAPTER II--FOREST SERVICE, DEPARTMENT OF AGRICULTURE

PART 228--MINERALS--Table of Contents

Subpart E--Oil and Gas Resources

    Source: 55 FR 10444, Mar. 21, 1990, unless otherwise noted.

Sec. 228.100  Scope and applicability.

    (a) Scope. This subpart sets forth the rules and procedures by which
the Forest Service of the United States Department of Agriculture will
carry out its statutory responsibilities in the issuance of Federal oil
and gas leases and management of subsequent oil and gas operations on
National Forest System lands, for approval and modification of attendant
surface use plans of operations, for monitoring of surface disturbing
operations on such leases, and for enforcement of surface use
requirements and reclamation standards.
    (b) Applicability. The rules of this subpart apply to leases on
National Forest System lands and to operations that are conducted on
Federal oil and gas

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leases on National Forest System lands as of April 20, 1990.
    (c) Applicability of other rules. Surface uses associated with oil
and gas prospecting, development, production, and reclamation
activities, that are conducted on National Forest System lands outside a
leasehold must receive prior authorization from the Forest Service. Such
activities are subject to the regulations set forth elsewhere in 36 CFR
chapter II, including but not limited to the regulations set forth in 36
CFR parts 251, subpart B, and 261.

Sec. 228.101  Definitions.

    For the purposes of this subpart, the terms listed in this section
have the following meaning:
    Authorized Forest officer. The Forest Service employee delegated the
authority to perform a duty described in these rules. Generally, a
Regional Forester, Forest Supervisor, District Ranger, or Minerals Staff
Officer, depending on the scope and level of the duty to be performed.
    Compliance Officer. The Deputy Chief, or the Associate Deputy
Chiefs, National Forest System or the line officer designated to act in
the absence of the Deputy Chief.
    Leasehold. The area described in a Federal oil and gas lease,
communitized, or unitized area.
    Lessee. A person or entity holding record title in a lease issued by
the United States.
    National Forest System. All National Forest lands reserved or
withdrawn from the public domain of the United States, all National
Forest lands acquired through purchase, exchange, donation, or other
means, the National Grasslands and land utilization projects
administered under title III of the Bankhead-Jones Farm Tenant Act (7
U.S.C. 1010 et seq.), and other lands, waters, or interests therein
which are administered by the Forest Service or are designated for
administration through the Forest Service as a part of the system (16
U.S.C. 1609).
    Notices To Lessees, Transferees, and Operators. A written notice
issued by the authorized Forest officer. Notices To Lessees,
Transferees, and Operators implement the regulations in this subpart and
serve as instructions on specific item(s) of importance within a Forest
Service Region, National Forest, or Ranger District.
    Onshore Oil and Gas Order. A formal numbered order issued by or
signed by the Chief of the Forest Service that implements and
supplements the regulations in this subpart.
    Operating right. The interest created out of a lease that authorizes
the holder of that interest to enter upon the leased lands to conduct
drilling and related operations, including production of oil and gas
from such lands in accordance with the terms of the lease.
    Operating rights owner. A person holding operating rights in a lease
issued by the United States. A leasee also may be an operating rights
owner if the operating rights in a lease or portion thereof have not
been conveyed to another person.
    Operations. Surface disturbing activities that are conducted on a
leasehold on National Forest System lands pursuant to a current approved
surface use plan of operations, including but not limited to,
exploration, development, and production of oil and gas resources and
reclamation of surface resources.
    Operator. Any person or entity, including, but not limited to, the
lessee or operating rights owner, who has stated in writing to the
authorized Forest officer that they are responsible under the terms and
conditions of the lease for the operations conducted on the leased lands
or a portion thereof.
    Person. An individual, partnership, corporation, association or
other legal entity.
    Substantial modification. A change in lease terms or a modification,
waiver, or exception of a lease stipulation that would require an
environmental assessment or environmental impact statement be prepared
pursuant to the National Environmental Policy Act of 1969.
    Surface use plan of operations. A plan for surface use, disturbance,
and reclamation.
    Transfer. Any conveyance of an interest in a lease by assignment,
sublease or otherwise. This definition includes the terms: Assignment
which means a conveyance of all or a portion of the lessee's record
title interest in a lease; and sublease which means a conveyance

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of a non-record interest in a lease, i.e., a conveyance of operating
rights is normally a sublease and a sublease also is a subsidiary
arrangement between the lessee (sublessor) and the sublessee, but a
sublease does not include a transfer of a purely financial interest,
such as overriding royalty interest or payment out of production, nor
does it affect the relationship imposed by a lease between the lessee(s)
and the United States.
    Transferee. A person to whom an interest in a lease issued by the
United States has been transferred.

                                 Leasing

Sec. 228.102  Leasing analyses and decisions.

    (a) Compliance with the National Environmental Policy Act of 1969.
In analyzing lands for leasing, the authorized Forest officer shall
comply with the National Environmental Policy Act of 1969, implementing
regulations at 43 CFR parts 1500-1508, and Forest Service implementing
policies and procedures set forth in Forest Service Manual chapter 1950
and Forest Service Handbook 1909.15.
    (b) Scheduling analysis of available lands. Within 6 months of April
20, 1990, Forest Supervisors shall develop, in cooperation with the
Bureau of Land Management and with public input, a schedule for
analyzing lands under their jurisdiction that have not been already
analyzed for leasing. The Forest Supervisors shall revise or make
additions to the schedule at least annually. In scheduling lands for
analysis, the authorized Forest officer shall identify and exclude from
further review the following lands which are legally unavailable for
leasing:
    (1) Lands withdrawn from mineral leasing by an act of Congress or by
an order of the Secretary of the Interior;
    (2) Lands recommended for wilderness allocation by the Secretary of
Agriculture;
    (3) Lands designated by statute as wilderness study areas, unless
oil and gas leasing is specifically allowed by the statute designating
the study area; and
    (4) Lands within areas allocated for wilderness or further planning
in Executive Communication 1504, Ninety-Sixth Congress (House Document
No. 96-119), unless such lands subsequently have been allocated to uses
other than wilderness by an approved Forest land and resource management
plan or have been released to uses other than wilderness by an act of
Congress.
    (c) Leasing analyses. The leasing analysis shall be conducted by the
authorized Forest officer in accordance with the requirements of 36 CFR
part 219 (Forest land and resource management planning) and/or, as
appropriate, through preparation of NEPA documents. As part of the
analysis, the authorized Forest oficer shall:
    (1) Identify on maps those areas that will be:
    (i) Open to development subject to the terms and conditions of the
standard oil and gas lease form (including an explanation of the typical
standards and objectives to be enforced under the standard lease terms);
    (ii) Open to development but subject to constraints that will
require the use of lease stipulations such as those prohibiting surface
use on areas larger than 40 acres or such other standards as may be
developed in the plan for stipulation use (with discussion as to why the
constraints are necessary and justifiable); and
    (iii) Closed to leasing, distinguishing between those areas that are
being closed through exercise of management direction, and those closed
by law, regulation, etc.
    (2) Identify alternatives to the areas listed in paragraph (c)(1) of
this section, including that of not allowing leasing.
    (3) Project the type/amount of post-leasing activity that is
reasonably foreseeable as a consequence of conducting a leasing program
consistent with that described in the proposal and for each alternative.
    (4) Analyze the reasonable foreseeable impacts of post-leasing
activity projected under paragraph (c)(3) of this section.
    (d) Area or Forest-wide leasing decisions (lands administratively
available for leasing). Upon completion of the leasing analysis, the
Regional Forest shall promptly notify the Bureau of Land Management as
to the area or Forest-

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wide leasing decisions that have been made, that is, identify lands
which have been found administratively available for leasing.
    (e) Leasing decisions for specific lands. At such time as specific
lands are being considered for leasing, the Regional Forester shall
review the area or Forest-wide leasing decision and shall authorize the
Bureau of Land Management to offer specific lands for lease subject to:
    (1) Verifying that oil and gas leasing of the specific lands has
been adequately addressed in a NEPA document, and is consistent with the
Forest land and resource management plan. If NEPA has not been
adequately addressed, or if there is significant new information or
circumstances as defined by 40 CFR 1502.9 requiring further
environmental analysis, additional environment analysis shall be done
before a leasing decision for specific lands will be made. If there is
inconsistency with the Forest land and resource management plan, no
authorization for leasing shall be given unless the plan is amended or
revised.
    (2) Ensuring that conditions of surface occupancy identified in
Sec. 228.102(c)(1) are properly included as stipulations in resulting
leases.
    (3) Determining that operations and development could be allowed
somewhere on each proposed lease, except where stipulations will
prohibit all surface occupancy.
[55 FR 10444, Mar. 21, 1990, as amended at 56 FR 56157, Nov. 1, 1991]

Sec. 228.103  Notice of appeals of decisions.

    The authorized Forest officer shall promptly notify the Bureau of
Land Management if appeals of either an area or Forest-wide leasing
decision or a leasing decision for specific lands are filed during the
periods provided for under 36 CFR part 217.

Sec. 228.104  Consideration of requests to modify, waive, or grant
          exceptions to lease stipulations.

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

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grant with additional conditions, or deny the request.
    (2) Any decision to modify, waive, or grant an exception to a lease
stipulation shall be subject to administrative appeal only in
conjunction with an appeal of a decision on a surface use plan of
operation or supplemental surface use plan of operation.

              Authorization of Occupancy Within a Leasehold

Sec. 228.105  Issuance of onshore orders and notices to lessees.

    (a) Onshore oil and gas orders. The Chief of the Forest Service may
issue, or cosign with the Director, Bureau of Land Management, Onshore
Oil and Gas Orders necessary to implement and supplement the regulations
of this subpart.
    (1) Adoption of Onshore Oil and Gas Order No. 1. Until such time as
another order is adopted and codified in the CFR, operators shall submit
surface use plans of operations in accordance with Section III.G.4(b),
Guidelines for preparing surface use program, of the Department of the
Interior, Bureau of Land Management, Onshore Oil and Gas Order No. 1, 48
FR 48915-30 (Oct. 21, 1983), published as Appendix A to this subpart.
    (2) Adoption of additional onshore oil and gas orders. Additional
onshore oil and gas orders shall be published in the Federal Register
for public comment and codified in the CFR.
    (3) Applicability of onshore oil and gas orders. Onshore Oil and Gas
Orders issued pursuant to this section are binding on all operations
conducted on National Forest System lands, unless otherwise provided
therein.
    (b) Notices to lessees, transferees, and operators. The authorized
Forest officer may issue, or cosign with the authorized officer of the
Bureau of Land Management, Notices to Lessees, Transferees, and
Operators necessary to implement the regulations of this subpart.
Notices to Lessees, Transferees, and Operators are binding on all
operations conducted on the administrative unit of the National Forest
System (36 CFR 200.2) supervised by the authorized Forest officer who
issued or cosigned such notice.

Sec. 228.106  Operator's submission of surface use plan of operations.

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

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plan of operations need only address those operations that differ from
the operations authorized by the current approved surface use plan of
operations. A supplemental plan is otherwise subject to the same
requirements under this subpart as an initial surface use plan of
operations.

Sec. 228.107  Review of surface use plan of operations.

    (a) Review. The authorized Forest officer shall review a surface use
plan of operations as promptly as practicable given the nature and scope
of the proposed plan. As part of the review, the authorized Forest
officer shall comply with the National Environmental Policy Act of 1969,
implementing regulations at 40 CFR parts 1500-1508, and the Forest
Service implementing policies and procedures set forth in Forest Service
Manual Chapter 1950 and Forest Service Handbook 1909.15 and shall ensure
that:
    (1) The surface use plan of operations is consistent with the lease,
including the lease stipulations, and applicable Federal laws;
    (2) To the extent consistent with the rights conveyed by the lease,
the surface use plan of operations is consistent with, or is modified to
be consistent with, the applicable current approved forest land and
resource management plan;
    (3) The surface use plan of operations meets or exceeds the surface
use requirements of Sec. 228.108 of this subpart; and
    (4) The surface use plan of operations is acceptable, or is modified
to be acceptable, to the authorized Forest officer based upon a review
of the environmental consequences of the operations.
    (b) Decision. The authorized Forest officer shall make a decision on
the approval of a surface use plan of operations as follows:
    (1) If the authorized Forest officer will not be able to make a
decision on the proposed plan within 3 working days after the conclusion
of the 30-day notice period provided for by 30 U.S.C. 226(f), the
authorized Forest officer shall advise the appropriate Bureau of Land
Managemnt office and the operator as soon as such delay becomes
apparent, either in writing or orally with subsequent written
confirmation, that additional time will be needed to process the plan.
The authorized Forest officer shall explain the reason why additional
time is needed and project the date by which a decision on the plan will
likely be made.
    (2) When the review of a surface use plan of operations has been
completed, the authorized Forest officer shall promptly notify the
operator and the appropriate Bureau of Land Management office, in
writting, that:
    (i) The plan is approved as submitted:
    (ii) The plan is approved subject to specified conditions; or,
    (iii) The plan is disapproved for the reasons stated.
    (c) Notice of decision. The authorized Forest officer shall give
public notice of the decision on a pan and include in the notice that
the decision is subject to appeal under the administrative appeal
procedures at 36 CFR parts 217 and 251, subpart C.
    (d) Transmittal of decision. The authorized Forest officer shall
immediately forward a decision on a surface use plan of operations to
the appropriate Bureau of Land Management office and the operator. This
transmittal shall include the estimated cost of reclamation and
restoration (Sec. 228.109(a)) if the authorized Forest officer believes
that additional bonding is required.
    (e) Supplemental plans. A supplemental surface use plan of
operations (Sec. 228.106(d)) shall be reviewed in the same manner as an
initial surface use plan of operations.

Sec. 228.108  Surface use requirements.

    (a) General. The operator shall conduct operations on a leasehold on
National Forest System lands in a manner that minimizes effects on
surface resources, prevents unnecessary or unreasonable surface resource
disturbance, and that is in compliance with the other requirements of
this section.
    (b) Notice of operations. The operator must notify the authorized
Forest officer 48 hours prior to commencing operations or resuming
operations following their temporary cessation (Sec. 228.111).
    (c) Access facilities. The operator shall construct and maintain
access facilities to assure adequate drainage and to

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minimize or prevent damage to surface resources.
    (d) Cultural and historical resources. The operator shall report
findings of cultural and historical resources to the authorized Forest
officer immediately and, except as otherwise authorized in an approved
surface use plan of operations, protect such resources.
    (e) Fire prevention and control. To the extent practicable, the
operator shall take measures to prevent uncontrolled fires on the area
of operation and to suppress uncontrolled fires resulting from the
operations.
    (f) Fisheries, wildlife and plant habitat. The operator shall comply
with the requirements of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) and its implementing regulations (50 CFR chapter IV), and,
except as otherwise provided in an approved surface use plan of
operations, conduct operations in such a manner as to maintain and
protect fisheries, wildlife, and plant habitat.
    (g) Reclamation. (1) Unless otherwise provided in an approved
surface use plan of operations, the operator shall conduct reclamation
concurrently with other operations.
    (2) Within 1 year of completion of operations on a portion of the
area of operation, the operator must reclaim that portion, unless a
different period of time is approved in writing by the authorized Forest
officer.
    (3) The operator must:
    (i) Control soil erosion and landslides;
    (ii) Control water runoff;
    (iii) Remove, or control, solid wastes, toxic substances, and
hazardous substances;
    (iv) Reshape and revegetate disturbed areas;
    (v) Remove structures, improvements, facilities and equipment,
unless otherwise authorized; and
    (vi) Take such other reclamation measures as specified in the
approved surface use plan of operations.
    (h) Safety measures. (1) The operator must maintain structures,
facilities, improvements, and equipment located on the area of operation
in a safe and neat manner and in accordance with an approved surface use
plan of operations.
    (2) The operator must take appropriate measures in accordance with
applicable Federal and State laws and regulations to protect the public
from hazardous sites or conditions resulting from the operations. Such
measures may include, but are not limited to, posting signs, building
fences, or otherwise identifyng the hazardous site or condition.
    (i) Wastes. The operator must either remove garbage, refuse, and
sewage from National Forest System lands or treat and dispose of that
material in such a manner as to minimize or prevent adverse impacts on
surface resources. The operator shall treat or dispose of produced
water, drilling fluid, and other waste generated by the operations in
such a manner as to minimize or prevent adverse impacts on surface
resources.
    (j) Watershed protection. (1) Except as otherwise provided in the
approved surface use plan of operations, the operator shall not conduct
operations in areas subject to mass soil movement, riparian areas and
wetlands.
    (2) The operator shall take measures to minimize or prevent erosion
and sediment production. Such measures include, but are not limited to,
siting structures, facilities, and other improvements to avoid steep
slopes and excessive clearing of land.

Sec. 228.109  Bonds.

    (a) General. As part of the review of a proposed surface use plan of
operations, the authorized Forest officer shall consider the estimated
cost to the Forest Service to reclaim those areas that would be
disturbed by operations and to restore any lands or surface waters
adversely affected by the lease operations after the abandonment or
cessation of operations on the lease. If at any time prior to or during
the conduct of operations, the authorized Forest officer determines the
financial instrument held by the Bureau of Land Management is not
adequate to ensure complete and timely reclamation and restoration, the
authorized Forest officer shall give the operator the option of either
increasing the financial instrument held by the Bureau of Land
Management or filing a separate instrument with the Forest Service in

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the amount deemed adequate by the authorized Forest officer to ensure
reclamation and restoration.
    (b) Standards for estimating reclamation costs. The authorized
Forest officer shall consider the costs of the operator's proposed
reclamation program and the need for additional measures to be taken
when estimating the cost to the Forest Service to reclaim the disturbed
area.
    (c) Release of reclamation liability. An operator may request the
authorized Forest officer to notify the Bureau of Land Management of
reduced reclamation liability at any time after reclamation has
commenced. The authorized Forest officer shall, if appropriate, notify
the Bureau of Land Management as to the amount to which the liability
has been reduced.

Sec. 228.110  Indemnification.

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

                      Administration of Operations

Sec. 228.111  Temporary cessation of operations.

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

Sec. 228.112  Compliance and inspection.

    (a) General. Operations must be conducted in accordance with the
lease, including stipulations made part of the lease at the direction of
the Forest Service, an approved surface use plan of operations, the
applicable Onshore Oil and Gas Order (Sec. 228.105(a)), an applicable
Notice to lessees, transferees, and operators (Sec. 228.105(b)), and
regulations of this subpart.
    (b) Completion of reclamation. The authorized Forest officer shall
give prompt written notice to an operator whenever reclamation of a
portion of the area affected by surface operations has been
satisfactorily completed in accordance with the approved surface use
plan of operations and Sec. 228.108 of this subpart. The notice shall
describe the portion of the area on which the reclamation has been
satisfactorily completed.
    (c) Compliance with other statutes and regulations. Nothing in this
subpart shall be construed to relieve an operator from complying with
applicable Federal and State laws or regulations, including, but not
limited to:
    (1) Federal and State air quality standards, including the
requirements of the Clean Air Act, as amended (42 U.S.C. 1857 et seq.);
    (2) Federal and State water quality standards, including the
requirements of the Federal Water Pollution Control Act, as amended (33
U.S.C. 1151 et seq.);
    (3) Federal and State standards for the use or generation of solid
wastes, toxic substances and hazardous substances, including the
requirements of

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the Comprehensive Environmental Response, Compensation and Liability
Act, as amended, 42 U.S.C. 9601 et seq., and its implementing
regulations, 40 CFR chapter I, subchapter J, and the Resource
Conservation and Recovery Act, 42 U.S.C. 6901 et seq., and its
implementing regulations, 40 CFR chapter I, subchaper I;
    (4) The Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., and
its implementing regulations, 50 CFR chapter IV;
    (5) The Archeological Resources Protection Act of 1979, as amended
(16 U.S.C. 470aa et seq.) and its implementing regulations 36 CFR part
296;
    (6) The Mineral Leasing Act of 1920, 30 U.S.C. 1981 et seq., the
Mineral Leasing Act of Acquired Lands of 1947, 30 U.S.C. 351 et seq.,
the Federal Oil and Gas Royalty Management Act of 1982, 30 U.S.C. 1701
et seq., and their implementing regulations, 43 CFR chapter II, group
3100; and
    (7) Applicable Onshore Oil and Gas Orders and Notices to Lessees and
Operators (NTL's) issued by the United States Department of the
Interior, Bureau of Land Management pursuant to 43 CFR chapter II, part
3160, subpart 3164.
    (d) Penalties. If surface disturbing operations are being conducted
that are not authorized by an approved surface use plan of operations or
that violate a term or operating condition of an approved surface use
plan of operations, the person conducting those operations is subject to
the prohibitions and attendant penalties of 36 CFR part 261.
    (e) Inspection. Forest Service officers shall periodically inspect
the area of operations to determine and document whether operations are
being conducted in compliance with the regulations in this subpart, the
stipulations included in the lease at the direction of the Forest
Service, the approved surface use plan of operations, the applicable
Onshore Oil and Gas Order, and applicable Notices to Lessees,
Transferees, and Operators.

Sec. 228.113  Notice of noncompliance.

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

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be beyond the operator's control include, but are not limited to,
closure of an area in accordance with 36 CFR part 261, subparts B or C,
or inaccessibility of an area of operations due to such conditions as
fire, flooding, or snowpack.
    (3) Manner of service. The authorized Forest officer shall serve a
notice of noncompliance or a decision on a request for extension of a
deadline specified in a notice upon the operator in person, by certified
mail or by telephone. However, if notice is initially provided in person
or by telephone, the authorized Forest officer shall send the operator
written confirmation of the notice or decision by certified mail.
    (b) Failure to come into compliance. If the operator fails to come
into compliance with the applicable requirement(s) or standard(s)
identified in a notice of noncompliance by the deadline specified in the
notice, or an approved extension, the authorized Forest officer shall
decide whether: The noncompliance appears to be material given the
reclamation requirements and other standards applicable to the lease
established by 30 U.S.C. 226(g), the regulations in this subpart, the
stipulations included in a lease at the direction of the Forest Service,
an approved surface use plan of operations, the applicable Onshore Oil
and Gas Order, or an applicable Notice to lessees, transferees, and
operators; the noncompliance is likely to result in danger to public
health or safety or irreparable resource damage; and the noncompliance
is resulting in an emergency.
    (1) Referral to compliance officer. When the operations appear to be
in material noncompliance, the authorized Forest officer shall promptly
refer the matter to the compliance officer. The referral shall be
accompanied by a complete statement of the facts supported by
appropriate exhibits. Apparent material noncompliance includes, but is
not limited to, operating without an approved surface use plan of
operations, conducting operations that have been suspended, failure to
timely complete reclamation in accordance with an approved surface use
plan of operations, failure to maintain an additional bond in the amount
required by the authorized Forest officer during the period of
operation, failure to timely reimburse the Forest Service for the cost
of abating an emergency, and failing to comply with any term included in
a lease, stipulation, or approved surface use plan of operations, the
applicable onshore oil and gas order, or an applicable Notice to
lessees, transferees, and operators, relating to the protection of a
threatened or endangered species.
    (2) Suspension of operations. When the noncompliance is likely to
result in danger to public health or safety or in irreparable resource
damage, the authorized Forest officer shall suspend the operations, in
whole or in part.
    (i) A suspension of operations shall remain in effect until the
authorized Forest officer determines that the operations are in
compliance with the applicable requirement(s) or standard(s) identified
in the notice of noncompliance.
    (ii) The authorized Forest officer shall serve decisions suspending
operations upon the operator in person, by certified mail, or by
telephone. If notice is initially provided in person or by telephone,
the authorized Forest officer shall send the operator written
confirmation of the decision by certified mail.
    (iii) The authorized Forest officer shall immediately notify the
appropriate Bureau of Land Management office when an operator has been
given notice to suspend operations.
    (3) Abatement of emergencies. When the noncompliance is resulting in
an emergency, the authorized Forest officer may take action as necessary
to abate the emergency. The total cost to the Forest Service of taking
actions to abate an emergency becomes an obligation of the operator.
    (i) Emergency situations include, but are not limited to, imminent
dangers to public health or safety or irreparable resource damage.
    (ii) The authorized Forest officer shall promptly serve a bill for
such costs upon the operator by certified mail.

Sec. 228.114  Material noncompliance proceedings.

    (a) Evaluation of referral. The compliance officer shall promptly
evaluate a

[[Page 182]]

referral made by the authorized Forest officer pursuant to
Sec. 228.113(b)(1) of this subpart.
    (b) Dismissal of referral. The compliance officer shall dismiss the
referral if the compliance officer determines that there is not adequate
evidence to support a reasonable belief that:
    (1) The operator was not in compliance with the applicable
requirement(s) or standard(s) identified in a notice of noncompliance by
the deadline specified in the notice, or an extension approved by the
authorized Forest officer; or
    (2) The noncompliance with the applicable requirement(s) or
standard(s) identified in the notice of noncompliance may be material.
    (c) Initiation of proceedings. The compliance officer shall initiate
a material noncompliance proceeding if the compliance officer agrees
that there is adequate evidence to support a reasonable belief that an
operator has failed to come into compliance with the applicable
requirement(s) or standard(s) identified in a notice of noncompliance by
the deadline specified in the notice, or extension approved by the
authorized Forest officer, and that the noncompliance may be material.
    (1) Notice of proceedings. The compliance officer shall inform the
lessee and operator of the material noncompliance proceedings by
certified mail, return receipt requested.
    (2) Content of notice. The notice of the material noncompliance
proceeding shall include the following:
    (i) The specific reclamation requirement(s) or other standard(s) of
which the operator may be in material noncompliance;
    (ii) A description of the measures that are required to correct the
violation;
    (iii) A statement that if the compliance officer finds that the
operator is in material noncompliance with a reclamation requirement or
other standard applicable to the lease, the Secretary of the Interior
will not be able to issue new leases or approve new transfers of leases
to the operator, any subsidiary or affiliate of the operator, or any
person controlled by or under common control with the operator until the
compliance officer finds that the operator has come into compliance with
such requirement or standard; and
    (iv) A recitation of the specific procedures governing the material
noncompliance proceeding set forth in paragraphs (d) through (g) of this
section.
    (d) Answer. Within 30 calendar days after receiving the notice of
the proceeding, the operator may submit, in person, in writing, or
through a representative, an answer containing information and argument
in opposition to the proposed material noncompliance finding, including
information that raises a genuine dispute over the material facts. In
that submission, the operator also may:
    (1) Request an informal hearing with the compliance officer; and
    (2) Identify pending administrative or judicial appeal(s) which are
relevant to the proposed material noncompliance finding and provide
information which shows the relevance of such appeal(s).
    (e) Informal hearing. If the operator requests an informal hearing,
it shall be held within 20 calendar days from the date that the
compliance officer receives the operator's request.
    (1) The compliance officer may postpone the date of the informal
hearing if the operator requests a postponement in writing.
    (2) At the hearing, the operator, appearing personally or through an
attorney or another authorized representative, may informally present
and explain evidence and argument in opposition to the proposed material
noncompliance finding.
    (3) A transcript of the informal hearing shall not be required.
    (f) Additional procedures as to disputed facts. If the compliance
officer finds that the answer raises a genuine dispute over facts
essential to the proposed material noncompliance finding, the compliance
officer shall so inform the operator by certified mail, return receipt
requested. Within 10 days of receiving this notice, the operator may
request a fact-finding conference on those disputed facts.
    (1) The fact-finding conference shall be scheduled within 20
calendar days from the date the compliance officer receives the
operator's request, unless

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the operator and compliance officer agree otherwise.
    (2) At the fact-finding conference, the operator shall have the
opportunity to appear with counsel, submit documentary evidence, present
witnesses, and confront the person(s) the Forest Service presents.
    (3) A transcribed record of the fact-finding conference shall be
made, unless the operator and the compliance officer by mutual agreement
waive the requirement for a transcript. The transcript will be made
available to the operator at cost upon request.
    (4) The compliance officer may preside over the fact-finding
conference or designate another authorized Forest officer to preside
over the fact-finding conference.
    (5) Following the fact-finding conference, the authorized Forest
officer who presided over the conference shall promptly prepare written
findings of fact based upon the preponderance of the evidence. The
compliance officer may reject findings of fact prepared by another
authorized Forest officer, in whole or in part, if the compliance
officer specifically determines that such findings are arbitrary and
capricious or clearly erroneous.
    (g) Dismissal of proceedings. The compliance officer shall dismiss
the material noncompliance proceeding if, before the compliance officer
renders a decision pursuant to paragraph (h) of this section, the
authorized Forest officer who made the referral finds that the operator
has come into compliance with the applicable requirements or standards
identified in the notice of proceeding.
    (h) Compliance officer's decision. The compliance officer shall base
the decision on the entire record, which shall consist of the authorized
Forest officer's referral and its accompanying statement of facts and
exhibits, information and argument that the operator provided in an
answer, any information and argument that the operator provided in an
informal hearing if one was held, and the findings of fact if a fact-
finding conference was held.
    (1) Content. The compliance officer's decision shall state whether
the operator has violated the requirement(s) or standard(s) identified
in the notice of proceeding and, if so, whether that noncompliance is
material given the requirements of 30 U.S.C. 226(g), the stipulations
included in the lease at the direction of the Forest Service, the
regulations in this subpart or an approved surface use plan of
operations, the applicable onshore oil and gas order, or an applicable
notice to lessees, transferees, and operators. If the compliance officer
finds that the operator is in material noncompliance, the decision also
shall:
    (i) Describe the measures that are required to correct the
violation;
    (ii) Apprise the operator that the Secretary of the Interior is
being notified that the operator has been found to be in material
noncompliance with a reclamation requirement or other standard
applicable to the lease; and
    (iii) State that the decision is the final administrative
determination of the Department of Agriculture.
    (2) Service. The compliance officer shall serve the decision upon
the operator by certified mail, return receipt requested. If the
operator is found to be in material noncompliance, the compliance
officer also shall immediately send a copy of the decision to the
appropriate Bureau of Land Management office and to the Secretary of the
Interior.
    (i) Petition for withdrawal of finding. If an operator who has been
found to be in material noncompliance under the provisions of this
section believes that the operations have subsequently come into
compliance with the applicable requirement(s) or standard(s) identified
in the compliance officer's decision, the operator may submit a written
petition requesting that the material noncompliance finding be
withdrawn. The petition shall be submitted to the authorized Forest
officer who issued the operator the notice of noncompliance under
Sec. 228.113(a) of this subpart and shall include information or
exhibits which shows that the operator has come into compliance with the
requirement(s) or standard(s) identified in the compliance officer's
decision.
    (1) Response to petition. Within 30 calendar days after receiving
the operator's petition for withdrawal, the authorized Forest officer
shall submit a written statement to the compliance

[[Page 184]]

officer as to whether the authorized Forest officer agrees that the
operator has come into compliance with the requirement(s) or standard(s)
identified in the compliance officer's decision. If the authorized
Forest officer disagrees with the operator, the written statement shall
be accompanied by a complete statement of the facts supported by
appropriate exhibits.
    (2) Additional procedures as to disputed material facts. If the
compliance officer finds that the authorized Forest officer's response
raises a genuine dispute over facts material to the decision as to
whether the operator has come into compliance with the requirement(s) or
standard(s) identified in the compliance officer's decision, the
compliance officer shall so notify the operator and authorized Forest
officer by certified mail, return receipt requested. The notice shall
also advise the operator that the fact finding procedures specified in
paragraph (f) of this section apply to the compliance officer's decision
on the petition for withdrawal.
    (3) Compliance officer's decision. The compliance officer shall base
the decision on the petition on the entire record, which shall consist
of the operator's petition for withdrawal and its accompanying exhibits,
the authorized Forest officer's response to the petition and, if
applicable, its accompanying statement of facts and exhibits, and if a
fact-finding conference was held, the findings of fact. The compliance
officer shall serve the decision on the operator by certified mail.
    (i) If the compliance officer finds that the operator remains in
violation of requirement(s) or standard(s) identified in the decision
finding that the operator was in material noncompliance, the decision on
the petition for withdrawal shall identify such requirement(s) or
standard(s) and describe the measures that are required to correct the
violation(s).
    (ii) If the compliance officer finds that the operator has
subsequently come into compliance with the requirement(s) or standard(s)
identified in the compliance officer's decision finding that the
operator was in material noncompliance, the compliance officer also
shall immediately send a copy of the decision on the petition for
withdrawal to the appropriate Bureau of Land Management office and
notify the Secretary of the Interior that the operator has come into
compliance.
    (j) List of operators found to be in material noncompliance. The
Deputy Chief, National Forest System, shall compile and maintain a list
of operators who have been found to be in material noncompliance with
reclamation requirements and other standards as provided in 30 U.S.C.
226(g), the regulations in this subpart, a stipulation included in a
lease at the direction of the Forest Service, or an approved surface use
plan of operations, the applicable onshore oil and gas order, or an
applicable notice to lessees, transferees, and operators, for a lease on
National Forest System lands to which such standards apply. This list
shall be made available to Regional Foresters, Forest Supervisors, and
upon request, members of the public.

Sec. 228.115  Additional notice of decisions.

    (a) The authorized Forest officer shall promptly post notices
provided by the Bureau of Land Management of:
    (1) Competitive lease sales which the Bureau plans to conduct that
include National Forest System lands;
    (2) Substantial modifications in the terms of a lease which the
Bureau proposes to make for leases on National Forest System lands; and
    (3) Applications for permits to drill which the Bureau has received
for leaseholds located on National Forest System lands.
    (b) The notice shall be posted at the offices of the affected Forest
Supervisor and District Ranger in a prominent location readily
accessible to the public.
    (c) The authorized Forest officer shall keep a record of the date(s)
the notice was posted in the offices of the affected Forest Supervisor
and District Ranger.
    (d) The posting of notices required by this section are in addition
to the requirements for public notice of decisions provided in
Sec. 228.104(d) (Notice of decision) and Sec. 228.107(c) (Notice of
decision) of this subpart.

[[Page 185]]

Sec. 228.116  Information collection requirements.

    (a) Sections containing information requirements. The following
sections of this subpart contain information requirements as defined in
5 CFR part 1320 and have been approved for use by the Office of
Management and Budget:
    (1) Section 228.104(a) Requests to Modify, Waive, or Grant
Exceptions to Leasing Stipulations;
    (2) Section 228.106 (a), (c), and (d) Submission of Surface Use Plan
of Operations;
    (3) Section 228.109(c) Request for Reduction in Reclamation
Liability after Reclamation;
    (4) Section 228.111(a) Notice of Temporary Cessation of Operations;
    (5) Section 228.113(a)(2) Extension of Deadline in Notice of
Noncompliance; and
    (6) Section 228.114 (c) through (i) Material Noncompliance
Proceedings.
    (b) OMB control number. The information requirements listed in
paragraph (a) of this section have been assigned OMB Control No. 0596-
0101.
    (c) Average estimated burden hours. (1) The average burden hours per
response are estimated to be:
    (i) 5 minutes for the information requirements in Sec. 228.104(a) of
this subpart;
    (ii) No additional burden hours required to meet the information
requirements in Sec. 228.106 (a), (c), and (d) of this subpart;
    (iii) 10 minutes for the information requirements in Sec. 228.109(c)
of this subpart;
    (iv) 10 minutes for the information requirements in Sec. 228.111(a)
of this subpart;
    (v) 5 minutes for the information requirements in Sec. 228.113(a)(2)
of this subpart; and
    (vi) 2 hours for the information requirements in Sec. 228.114 (c)
through (i) of this subpart.
    (2) Send comments regarding the burden estimate or any other aspect
of this collection of information, including suggestions for reducing
this burden, to Chief (2800), Forest Service, USDA, P.O. Box 96090,
Washington, DC 20090-6090 and to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Washington, DC
20503.

 Appendix A to Subpart E of Part 228--Guidelines for Preparing Surface
                   Use Plans of Operation for Drilling

       I. Components of a Complete Application for Permit to Drill

    (a) Guidelines for Preparing Surface Use Program. In preparing this
program, the lessee or operator shall submit maps, plats, and narrative
descriptions which adhere closely to the following (maps and plats
should be of a scale no smaller than 1:24,000 unless otherwise stated
below):
    (1) Existing Roads. A legible map (USGS topographic, county road,
Alaska Borough, or other such map), labeled and showing the access route
to the location, shall be used for locating the proposed well site in
relation to a town (village) or other locatable point, such as a highway
or county road, which handles the majority of the through traffic to the
general area. The proposed route to the location, including appropriate
distances from the point where the access route exits established roads,
shall be shown. All access roads shall be appropriately labeled. Any
plans for improvement and/or a statement that existing roads will be
maintained in the same or better condition shall be provided. Existing
roads and newly constructed roads on surface under the jurisdiction of a
Surface Management Agency shall be maintained in accordance with the
standards of the Surface Management Agency.
    Information required by items (2), (3), (4), (5), (6), and (8) of
this subsection also may be shown on this map if appropriately labeled
or on a separate plat or map.
    (2) Access Roads to Be Constructed and Reconstructed. All permanent
and temporary access roads that are to be constructed, or reconstructed,
in connection with the drilling of the proposed well shall be
appropriately identified and submitted on a map or plat. Width, maximum
grade, major cuts and fills, turnouts, drainage design, location and
size of culverts and/or bridges, fence cuts and/or cattleguards, and
type of surfacing material, if any, shall be stated for all
construction. In addition, where permafrost exists, the methods for
protection from thawing must be indicated. Modification of proposed road
design may be required during the onsite inspection.
    Information also should be furnished to indicate where existing
facilities may be altered or modified. Such facilities include gates,
cattleguards, culverts, and bridges which, if installed or replaced,
shall be designed to adequately carry anticipated loads.

[[Page 186]]

    (3) Location of Existing Wells. It is recommended that this
information be submitted on a map or plat and include all wells (water,
injection or disposal, producing, and drilling) within a 1-mile radius
of the proposed location.
    (4) Location of Existing and/or Proposed Facilities if Well is
Productive.
    (i) On well pad--A map or plat shall be included showing, to the
extent known or anticipated, the location of all production facilities
and lines to be installed if the well is successfully completed for
production.
    (ii) Off well pad--A map or plat shall be included showing to the
extent known or anticipated, the existing or new production facilities
to be utilized and the lines to be installed if the well is successfully
completed for production. If new construction, the dimensions of the
facility layout are to be shown.
    If the information required under (a) or (b) above is not known and
cannot be accurately presented and the well subsequently is completed
for production, the operator shall then comply with section IV of this
Order.
    (5) Location and Type of Water Supply (Rivers, Creeks, Springs,
Lakes, Ponds, and Wells). This information may be shown by quarter-
quarter section on a map or plat, or may be a written description. The
source and transportation method for all water to be used in drilling
the proposed well shall be noted if the source is located on Federal or
Indian lands or if water is to be used from a Federal or Indian project.
If the water is obtained from other than Federal or Indian lands, only
the location need be identified. Any access roads crossing Federal or
Indian lands that are needed to haul the water shall be described in
items G.4.b. (1) and (2), as appropriate. If a water supply well is to
be drilled on the lease, it shall be so stated under this item, and the
authorized officer of the BLM may require the filing of a separate APD.
    (6) Construction Materials. The lessee or operator shall state the
character and intended use of all construction materials such as sand,
gravel, stone and soil material. If the materials to be used are
Federally-owned, the proposed source shall be shown by either quarter-
quarter section on a map or plat, or a written description. The use of
materials under BLM jurisdiction is governed by 43 CFR 3610.2-3. The
authorized officer shall inform the lessee or operator if the materials
may be used free of charge or if an application for sale is required. If
the materials to be used are Indian owned or under the jurisdiction of
any Surface Management Agency other than BLM, the specific tribe and or
Area Superintendent of BIA, or the appropriate Surface Management Agency
office shall be contacted to determine the appropriate procedure for use
of the materials.
    (7) Methods for Handling Waste Disposal. A written description shall
be given 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 the drilling of the proposed
well. Likewise, the narrative shall include plans for the eventual
disposal of drilling fluids and any produced oil or water recovered
during testing operations.
    (8) Ancillary Facilities. The plans, or subsequent amendments to
such plans, shall identify all ancillary facilities such as camps and
airstrips as to their location, land area required, and the methods and
standards to be employed in their construction. Such facilities shall be
shown on a map or plat. The approximate center of proposed camps and the
center line of airstrips shall be staked on the ground.
    (9) Well Site Layout. A plat of suitable scale (not less than 1
inch=50 feet) showing the proposed drill pad and its location with
respect to topographic features is required. Cross section diagrams of
the drill pad showing any cuts and fills and the relation to topography
are also required. The plat shall also include the approximate proposed
location of the reserve and burn pits, access roads onto the pad,
turnaround areas, parking area, living facilities, soil material
stockpiles, and the orientation of the rig with respect to the pad and
other facilities. Plans, if any to line the reserve pit should be
detailed.
    (10) Plans for Reclamation of the Surface. The program for surface
reclamation upon completion of the operation, such as configuration of
the reshaped topography, drainage system, segregation of spoil
materials, surface manipulations, waste disposal, revegetation methods,
and soil treatments, plus other practices necessary to reclaim all
disturbed areas, including any access roads or portions of well pads
when no longer needed, shall be stated. An estimate of the time for
commencement and completion of reclamation operations, dependent on
weather conditions and other local uses of the area, shall be provided.
    (11) Surface Ownership. The surface ownership (Federal, Indian,
State or private) at the well location, and for all lands crossed by
roads which are to be constructed or upgraded, shall be indicated. Where
the surface of the well site is privately owned, the operator shall
provide the name, address, and telephone number of the surface owner,
unless previously provided.
    (12) Other Information. The lessee or operator is encouraged to
submit any additional information that may be helpful in processing the
application.
    (13) Lessee's or Operator's Representative and Certification. The
name, address, and telephone number of the lessee's or operator's field
representative shall be included. The

[[Page 187]]

lessee or operator submitting the APD shall certify as follows:
    I hereby certify that I, or persons under my direct supervision,
have inspected the proposed drill site and access route; that I am
familiar with the conditions which currently exist; that the statements
made in this plan are, to the best of my knowledge, true and correct;
and that the work associated with operations proposed herein will be
performed by __________ and its contractors and subcontractors in
conformity with this plan and the terms and conditions under which it is
approved. This statement is subject to the provisions of 18 U.S.C. 1001
for the filing of a false statement.

   Date_________________________________________________________________

   Name and Title_______________________________________________________