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Rule2026-01655

Oil and Gas Resources

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Published

January 28, 2026

Effective

February 27, 2026

Issuing agencies

Agriculture DepartmentForest Service

Abstract

The U.S. Department of Agriculture (USDA or Department) is finalizing revisions to its regulations governing Federal oil and gas resources within the National Forest System (NFS). The Department is making these revisions to update and modernize its existing regulations. In addition, conforming technical amendments to other parts of the Code of Federal Regulations (CFR) affected by this rule are also being updated. The regulations revise the process for analyzing whether the USDA, Forest Service will consent to making certain lands available for oil and gas leasing by the Bureau of Land Management (BLM). The regulations also clarify requirements for conducting lease operations and revise procedures concerning monitoring operator compliance with all applicable terms and conditions of leasing. The revised regulations will apply to operations on both existing and future leases.

Full Text

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<title>Federal Register, Volume 91 Issue 18 (Wednesday, January 28, 2026)</title>
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[Federal Register Volume 91, Number 18 (Wednesday, January 28, 2026)]
[Rules and Regulations]
[Pages 3643-3665]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-01655]

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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 214, 228, and 261

RIN 0596-AD33

Oil and Gas Resources

AGENCY: Forest Service, Agriculture (USDA).

ACTION: Final rule.

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SUMMARY: The U.S. Department of Agriculture (USDA or Department) is
finalizing revisions to its regulations governing Federal oil and gas
resources within the National Forest System (NFS). The Department is
making these revisions to update and modernize its existing
regulations. In addition, conforming technical amendments to other
parts of the Code of Federal Regulations (CFR) affected by this rule
are also being updated. The regulations revise the process for
analyzing whether the USDA, Forest Service will consent to making
certain lands available for oil and gas leasing by the Bureau of Land
Management (BLM). The regulations also clarify requirements for
conducting lease operations and revise procedures concerning monitoring
operator compliance with all applicable terms and conditions of
leasing. The revised regulations will apply to operations on both
existing and future leases.

DATES: This rule is effective February 27, 2026.

ADDRESSES: Supplementary documents prepared in conjunction with the
preparation of this rule, including a regulatory impact analysis and
environmental assessment, and the public comments received on the rule
are available at <a href="http://www.regulations.gov">www.regulations.gov</a> at Docket No. FS-2020-0007.

FOR FURTHER INFORMATION CONTACT: Jeffrey Salow, Solid Leasable Minerals
and Geothermal Resource Specialist, Lands, Minerals and Geology at 435-
636-3596 or by email at <a href="/cdn-cgi/l/email-protection#cea4aba8a8bcabb7e0bdafa2a1b98ebbbdaaafe0a9a1b8"><span class="__cf_email__" data-cfemail="91fbf4f7f7e3f4e8bfe2f0fdfee6d1e4e2f5f0bff6fee7">[email&#160;protected]</span></a>. Individuals who are
deaf, hard of hearing, or have a speech disability may call 711 to
reach the Telecommunications Relay Service and then provide the phone
number of the person named as a point of contact for further
information.

SUPPLEMENTARY INFORMATION:

Background

The Forest Service (Agency) is revising its Oil and Gas Resources
(36 CFR part 228, subpart E) regulations. Acting under established
legal authorities, the Forest Service regulates surface disturbing
activities conducted pursuant to a Federal oil and gas lease on
national forests and grasslands. The existing regulations were first
promulgated in 1990, with only a minor modification in 2007. Updating
the regulations affords an opportunity to modernize existing procedures
to streamline processes and promote efficiency. The Forest Service
anticipates that updated interpretive guidance for implementing the
final regulations will be developed in 2025 and set out in the Agency's
directive system in 2026.
On June 16, 2023, the BLM promulgated a final rule placing the
current content of Onshore Order 1, which provided requirements for the
approval of oil and gas operations, into its regulations at 43 CFR part
3170, subpart 3171--Approval of Operations. The Office of the Federal
Register had informed the BLM that it could no longer revise the
existing Onshore Orders unless the agency codified the Orders in the
Code of Federal Regulations. While this action has no substantive
effect on this final rule, they do necessitate citation changes where
Onshore Order 1 was used in the proposed Forest Service oil and gas
rule and removing section 228.102(a) (Issuance of Onshore Orders) as
later described under the heading ``Section-by-Section Description of
the Final Rule Changes from Existing and Proposed Rules.''
This rulemaking applies to only Federal oil and gas resources on
lands managed by the National Forest System, and it does not affect
nonfederal (such as reserved and outstanding private) oil and gas
resources.
The rule will contribute to increasing efficiencies in evaluating
and managing surface disturbing activities conducted pursuant to
Federal oil and gas leases and will help the Forest Service achieve its
strategic goal of delivering benefits to the public. The Agency is
revising its existing regulations to clarify internal processes related
to evaluating and approving oil and gas leasing operations, clarifying
oil and gas operators' responsibility to protect natural resources and
the environment, clarifying the Agency's procedures regarding
inspections and compliance, and updating material noncompliance
procedures to reflect existing Agency practices and better reflect
requirements of law. The changes to 36 CFR part 228 require minor
conforming changes to regulations at 36 CFR parts 214 (Post Decisional
Administrative Review Process for Occupancy or Use of National Forest
System Lands and Resources) and 261 (Prohibitions).
The changes finalized in this rule will not materially alter the
basic responsibilities of either the Forest Service or oil and gas
operators. The changes aim to clarify procedures, reduce redundancy,
and promote harmonious interaction with other existing rules. For
example, one notable change aims to simplify the administrative process
the Agency follows to determine which lands are available for leasing,
reduces the amount of time allotted for it to take the Agency to make
these decisions while at the same time maintaining all environmental
and human health and safety protections of the current rule.
The rule also clarifies the procedures that the Forest Service
follows to require an operator to take corrective actions if operations
are found to be out of

[[Page 3644]]

compliance with the approved surface use plan of operations, including
establishing a formal option to refer instances of continued
noncompliance to the BLM. The rule would retain operator requirements
for emergency abatement when the Agency acts to remedy emergency
situations such as fires or spills to which the operator cannot or will
not respond. The rule would also revise the Agency's material
noncompliance proceedings by streamlining the process and reflecting
consequences defined in the Mineral Leasing Act (30 U.S.C. 226(g)).
These changes would simplify the compliance process in Agency
inspections, resulting in better management and protection of surface
resources.
The rule will promote coordination and efficiency between the
Forest Service and the BLM. The BLM is the Federal agency primarily
responsible for managing federally owned minerals, including minerals
underlying lands managed by the Forest Service. The Forest Service and
the BLM jointly manage leasing and operations when oil and gas
activities involve National Forest System lands, and oftentimes project
proponents operate on lands managed by both agencies. Generally
speaking, the Secretary of the Interior has the final decision whether
to issue oil and gas leases on Federal lands, including National Forest
System lands, subject to Forest Service consent.
Congress has long recognized the importance of mineral resources
located on lands within the National Forest System and has repeatedly
made special provisions for the administration and development of these
minerals.
Congress enacted the Mineral Leasing Act of 1920 (30 U.S.C. 181, et
seq.), directing that the development of Federal oil and gas resources
would be subject to a leasing system under the direction of the
Department of the Interior. Initially, the Department of Interior did
not have to obtain the consent of the Forest Service to issue oil and
gas leases on National Forest System lands, but that was changed with
the Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. 351 et
seq.) and the Federal Onshore Oil and Gas Leasing Reform Act of 1987
(Pub. L. 100-203, the Reform Act), which directed that the Department
of the Interior may not issue any oil and gas lease on National Forest
System lands without the ``consent of'' or ``over the objection of''
the USDA, respectively. The Mineral Leasing Act for Acquired Lands
authorized the Secretary of the Interior to lease oil and gas deposits
on acquired National Forest System lands ``under the same conditions as
contained in the leasing provisions of the mineral leasing laws'' upon
obtaining the consent of the Secretary of Agriculture (30 U.S.C. 352).
The Act also required the Secretary of the Interior to include in such
leases any conditions prescribed by the Secretary of Agriculture to
``ensure the adequate utilization of the lands for the primary purposes
for which they have been acquired or are being administered.'' The 1987
Reform Act also granted the USDA express authority to regulate all
surface-disturbing activities conducted pursuant to any oil and gas
lease on lands managed by the Forest Service. The Mineral Leasing Act,
as amended, also specifies requirements for inspections and compliance,
the consequences of noncompliance, and for approvals to operate on
National Forest System lands.
In 2005, Congress directed Federal agencies to streamline and
reduce timeframes for processing proposals to lease and conduct oil and
gas operations on Federal lands. See Energy Policy Act of 2005 (Pub. L.
109-58), subtitle F, sections 361, 362, and 390. The BLM is principally
responsible for tracking applications for operations on Federal oil and
gas leases and does so through a database called the Automated Fluid
Minerals Support System (AFMSS II). The Forest Service has access to
AFMSS II to track surface use plans of operations and master surface
use plans of operations.
In 2007, the Forest Service and the BLM jointly established
coordination procedures for the review and analysis of permits to
drill, including the surface use plan of operation portion in Onshore
Order 1, now codified as 43 CFR part 3170, subpart 3171.
There are currently 5,154 Federal oil and gas leases covering about
3.8 million acres (about 2 percent) of National Forest System lands.
Approximately 2,850 of these leases, covering 1.8 million acres across
39 national forests and grasslands, have producing Federal oil or gas
wells; however, the footprint of actual operations comprises a small
percentage (less than 10 percent) of that area. Operating on these
leases are 2,901 wells, which in 2022 produced over 48 million barrels
of oils (1.1 percent of the Nation's total) and over 167 billion cubic
feet of natural gas (0.4 percent of the Nation's total). The production
was valued at over $4.5 billion and returned approximately $565 million
in royalties to the U.S. Treasury.
It is in the national interest to promote clean and safe
development of our Nation's vast energy resources while preserving the
surface resources of national forests and grasslands. To that end, the
Forest Service seeks to facilitate the orderly development of Federal
oil and gas resources in an environmentally sound manner. The final
regulatory revisions are consistent with those goals.

Advance Notice of Proposed Rulemaking, Proposed Rule, and Public
Comment Period

On September 13, 2018, the USDA issued an advance notice of
proposed rulemaking (ANPR) in the Federal Register (83 FR 46458),
inviting public input on key issues regarding the implementation of
existing oil and gas regulations and other areas of concern. The public
comment period occurred from September 13 to October 15, 2018, and
served as the initial scoping period for the environmental analysis.
The Forest Service received 91 responses, representing a mix of general
opposition and general support for the proposed rulemaking.
Stated reasons for general opposition to the rule include the
destruction of national forests and natural resources for financial or
political interests; inadequate protection of human and environmental
health; adverse impacts on recreation opportunities and tourism; and
unsustainable reliance on fossil fuels.
Stated reasons for general support of the rule include the
generation of revenue, large existing demands for oil and gas,
decreases in regulatory burden on the oil and gas industry, promotion
of domestic energy production, the creation of a simplified process
leading to quicker leasing decisions, and the elimination of
duplication with the BLM.
Public comments received in response to the ANPR can be found on
the internet at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Search for Docket ID: FS-
2018-0053. Responses to the ANPR were considered during preparation of
the proposed rule, which was published on September 1, 2020 (FR Doc.
2020-18518) and opened a 60-day comment period. The public submitted
nearly 80,000 comments during the 60-day comment period. Approximately
99.5 percent (79,180) of the comments received were form letters
collected by conservation organizations. Only 439 unique, substantive
comments or letters were submitted. These comments were from
unaffiliated private citizens, State agencies, counties, Alaska Native
Corporations, Tribal agencies, oil and gas owners and operators,
environmental groups, and business associations.
All the form letters and most of the unique comments expressed
opposition

[[Page 3645]]

at some level, whether to oil and gas development in general or to oil
and gas development on National Forest System lands in particular, or
to the proposed revisions to 36 CFR part 228 Subpart E or to the
rulemaking process itself.
Supportive comments generally applauded the Forest Service's
efforts to improve clarity and efficiency in the leasing analysis and
consent decision procedures, reduce redundancies in permitting, improve
coordination with the BLM, and update procedures addressing
noncompliance situations. Some supportive comments suggested specific
edits to regulation text to help improve the efficiency of the process
or the clarity of regulatory intent.
A detailed discussion of comments and our responses is contained in
the ``Summary of and Response to Public Comments'' section.

Summary of Final Rule

The final rule's revisions are based on Agency experience
implementing existing regulations and are intended to better align
these regulations with established joint Forest Service and the BLM
Onshore Order 1 (now 43 CFR part 3170, subpart 3171) and improve Agency
coordination for implementing the applicable components of the BLM's
regulations (43 CFR part 3100).
The rule clarifies and streamlines the processes for identifying
National Forest System lands that are available for leasing, while
emphasizing an operator's responsibilities for compliance and
clarifying management steps that the Forest Service will take when
operators do not comply with Forest Service regulations. The rule also
better aligns Forest Service regulations with those of the BLM
regarding sundry notices and instances of bonding. The rule clarifies
the applicability of the existing procedures in 43 CFR part 3170,
subpart 3171, by which the BLM and the Forest Service jointly respond
to operating proposals.
The rule relocates the contents of section 228.110,
Indemnification, in the current regulations to section 228.105,
Responsibilities of Operators, thereby reducing the number of sections
by one. The rule also reorders, renumbers, and retitles various
sections that would result in the following organization of the
regulations:

Section 228.100 Scope and Applicability
Section 228.101 Definitions
Section 228.102 Issuance of Notices to Lessees and Operators
Section 228.103 Leasing Analysis and Consent Decision
Section 228.104 Consideration of Requests To Waive, Except, or Modify
Lease Stipulations
Section 228.105 Responsibilities of Operators
Section 228.106 Operator's Submission of Surface Use Plan of Operations
Section 228.107 Review and Approval of Surface Use Plan of Operations
Section 228.108 Sundry Notices
Section 228.109 Bonds
Section 228.110 Temporary Cessation of Operations
Section 228.111 Compliance and Inspection
Section 228.112 Notice of Noncompliance
Section 228.113 Material Noncompliance
Section 228.114 Posting Requirements
Section 228.115 Information Collection Requirements

Section-by-Section Description of the Final Rule Changes From Existing
and Proposed Rules

The paragraphs below provide a section-by-section description of
the final rule, including a description of changes made from the
proposed rule. The ``Summary of and Response to Public Comments''
section of this preamble provides further explanation for changes that
are or are not included in the final rule.
Section 228.100 Scope and Applicability
The final rule does not change language from the proposed rule
except for reference to 43 CFR part 3170, subpart 3171 instead of
Onshore Order 1. Compared to the existing regulation, the changes or
additions to the section serve to improve readability and clarity and
provide specific reference to the applicability of the BLM regulations
at 43 CFR parts 3160 and 3171.
Section 228.101 Definitions
One definition was revised for the final rule. For the definition
of ``conditions of approval,'' the final rule modified language in the
proposed definition from ``site-specific requirements that may be
included with the approval of a surface use plan of operations that may
limit or modify the specific activities covered in the plan'' to
``site-specific requirements shall be included with the approval of a
surface use plan of operations where necessary to limit or modify the
specific activities covered in the plan.'' The change is made in
response to a public comment that stated the use of ``may'' implies
arbitrary discretion in the application of conditions of approval.
Compared to the existing regulation, the final rule adds the
following terms and their definitions to provide functionality to the
regulation's text and improve consistency with the BLM terminology:
acquired lands; agreement; conditions of approval; consent;
infrastructure or facilities; final abandonment notice; lease; master
development plan; master surface use plan of operations; material
noncompliance; Reasonably Foreseeable Development Scenario;
stipulation; sundry notice; and waiver, exception, or modification.
The final rule retains as is or with minor wording changes to
improve clarity the following definitions: authorized Forest Service
officer; compliance officer; lessee; National Forest System lands;
Notices to Lessees and Operators; operations; operator; substantial
modification (described in the definition for waiver, exception, or
modification); and surface use plan of operations.
The final rule removes the definitions of the following terms
because they are redundant, lack applicability to the rule, or do not
merit a stand-alone definition due to limited use or no special meaning
beyond the plain English usage within the regulation: leasehold;
onshore oil and gas order; operating right; operating rights owner;
person; transfer; and transferee.
These changes are expected to benefit the regulated community, the
Forest Service, and the BLM with a more harmonious set of definitions
between the agencies' regulations.
Section 228.102 Issuance of Onshore Orders and Notices to Lessees and
Operators
The final rule removes section 228.102(a)--Onshore Oil and Gas
Orders and renames the title to Issuance of Notices to Lessees and
Operators. The use of Onshore Orders has been discontinued based on the
advice and recommendations of the Office of the Federal Register to the
Department of the Interior and USDA.
Compared to the existing regulation, the final rule moves the
content of the existing section 228.102 regarding leasing analysis and
decisions to section 228.103. The rule moves the requirements for
Notices to Lessees and Operators from section 228.105 in the existing
regulations to paragraph (b) of this section. The rule removes the
procedure for the Chief of the Forest Service to issue onshore oil and
gas orders for the same reasons described above regarding Onshore
Orders. The final rule makes editorial changes to the

[[Page 3646]]

text for clarity and readability that were included in the proposed
rule.
Section 228.103 Leasing Analysis and Consent Decision
The final rule carries forward the same language as the proposed
rule for sections 228.103(a) through (d). The final rule removes
section 228.103(e) titled Withdrawing Leasing Consent and adds a new
section 228.103(e) titled Review of Leasing Consent Decision for
Specific Lands, with the review leading to either a confirmation of the
leasing consent decision or a withdrawal of consent (based on new
information necessitating further analysis, for example). Additional
language directs the Forest Service to provide notification to the BLM
with the results of the review confirming the leasing consent decision
for specific lands or withdrawing its leasing consent for specific
parcels. If the consent is withdrawn, the notification will describe
the reasons for the withdrawal and provide an anticipated course of
action.
The rule removes reference to the former post-decisional appeal
process governing plan and project decisions (36 CFR part 217) because
it has been rendered obsolete by subsequent statutory enactments and
regulations. The change remedies the outdated reference and provides
direction that 36 CFR part 219, subpart B, will operate as the sole
process by which the public may file objections concerning the leasing
analysis and consent decision.
The final rule streamlines the approach that the Agency follows to
identify lands open to leasing and stipulations to protect surface
resources on lands open to leasing by establishing that the Forest
Service has one decision point, that being consent to leasing made at
the completion of the leasing analysis. This approach better aligns the
Forest Service leasing availability analysis methods with those
followed by the BLM. The rule also clearly states that the Forest
Service may withdraw its consent to lease prior to the BLM conducting a
lease sale.
The rule removes references to other laws and regulatory
requirements, particularly with respect to complying with the National
Environmental Policy Act and the Endangered Species Act and their
implementing regulations, in favor of letting those laws and
regulations speak for themselves and to reduce the likelihood that
direction could be confused in the future if other regulations change.
While several citations to specific laws and regulations have been
removed, the Forest Service and lessees must still comply with all
applicable laws and regulations.
Paragraph (a) of section 228.103 modernizes language regarding
scheduling leasing analyses. The existing regulation references
scheduling analyses within 6 months of April 20, 1990, and calls for an
annual update of the schedule. The rule removes reference to a specific
date, emphasizes coordination between national forests and grasslands
and the BLM for scheduling, informs the public that the agencies would
consider public interest in leasing, and requires an annual update to
the schedule. The changes help align the efforts of Forest Service and
the BLM with each other and interested parties in conducting leasing
analyses.
Paragraph (b) of section 228.103 defines the required components of
a leasing consent analysis. The rule maintains the same components of
analysis but provides additional direction on cooperation with the BLM,
the development of alternatives, and the use of stipulations. These
requirements include clarifying how stipulations must be designed to
carry out provisions of the Energy Policy Act of 2005 (42 U.S.C. 15922)
to ensure that lease stipulations are applied consistently, coordinated
between agencies, and are only as restrictive as necessary to protect
the resource for which the stipulations are applied. This section
incorporates parts of the existing section 228.102(b) and (c). The
leasing consent analysis process directs the Forest Service to make a
single decision identifying lands on which the Agency would consent to
the BLM's offering oil and gas leases for the affected National Forest
System lands. The existing regulation directs an administrative review
by the Forest Service at the time that specific lands, which have
already been subject to an area or forest-wide leasing analysis, are
being scheduled for leasing by the BLM. Paragraph 228.103(f) replaces
that language as described above.
Paragraph (c) of section 228.103 carries forward the components of
a leasing consent decision from the existing regulations but is renamed
Leasing Consent Decision. The paragraph clarifies that the Forest
Service has one decision point in the process and clearly defines the
required components of the Forest Service decision: which lands are
open to leasing and under what conditions (standard lease terms or
added stipulations); and which lands are closed through exercise of
management direction, statute, regulation, or withdrawal EOI's on a
regular and recurring basis.
Paragraph (d) clarifies the effect of a leasing consent decision.
Paragraph (e) of the rule codifies the existing practice that the
Forest Service could withdraw its consent decision prior to a BLM lease
sale.
Paragraph (e) emphasizes any additional environmental analysis to
be conducted of the leasing consent analysis decision. Environmental
analysis will be consistent with leasing analysis and consent decision
and conducted in an expeditious manner.
The addition of paragraph (f) is described above.
Section 228.104 Consideration of Request To Waive, Except or Modify
Lease Stipulations
After considering public comment, the language in the final rule is
the same as in the proposed rule.
Compared to the existing regulation, the final rule adds direct
reference regarding the applicability of procedures in 43 CFR part
3170, subpart 3171 for requesting waivers or exceptions from or
modifications to a lease stipulation (see regulation text in section
228.104). The final rule directs the Forest Service to provide notice
to the BLM on its determination as to whether to grant or deny a
request for a waiver, exception, or modification. The existing
regulation directs notification to both the BLM and operator. As the
administrator of Federal leases, the appropriate notification to the
operator is from the BLM. The final rule removes statements concerning
administrative ``appeal'' regulations that are obsolete in light of
subsequent statutory and regulatory changes, and rather than providing
redundant regulatory instructions, the final rule will instead rely
directly on the Agency's existing administrative review regulations at
36 CFR part 214 and part 218.
The existing regulation requires the Forest Service to consult with
other agencies when considering a waiver, exception, or modification to
a lease stipulation included at the other agency's request. Examples of
instances when this might occur would be if the Forest Service included
a stipulation that restricted occupancy in the vicinity of an
electrical transmission line operated by a Federal power authority, or
a stipulation to protect threatened or endangered wildlife species
required by the U.S. Fish and Wildlife Service. The final rule
maintains this requirement unchanged from the proposed rule.

[[Page 3647]]

Section 228.105 Responsibilities of Operators
After consideration of public comments, three minor changes were
made from the proposed rule to the final rule.
First, in section 228.105(a), the phrase ``and avoids conflicts
with other land uses'' was added to the general standard of resource
protection. The clause in section 228.105(a)(1)(vii) ``. . . as
required by the authorized Forest Service officer'' was removed as
unnecessary in the final rule.
Finally, the text in section 228.105(c) was modified to specify
that an operator must allow access to ``authorized'' Forest Service
personnel and remove the restriction that access is only related to
inspection purposes.
The final rule moves the content of the existing section 228.105 to
section 228.102. The final rule moves the content of the existing
section 228.108 to section 228.105 and retitles it as Responsibilities
of Operators. To improve efficient implementation of the regulations,
the final rule generally revises the content to not duplicate
requirements in 43 CFR part 3170, subpart 3171; readers are referred to
43 CFR part 3170, subpart 3171, as applicable.
The final rule retains requirements from the existing regulations
in paragraphs (g), (i), and (j)(2), places them in paragraph (a), and
reorders them for readability. Paragraph (a) of the final rule
reinforces existing practices for operators to maximize use of existing
roads and utility corridors in planning and constructing new
infrastructure and report to the Forest Service any spills, blowouts,
fires, or personal injuries that are reported to the BLM under its
requirements.
Paragraph (b) of the final rule requires the operator to comply
with all other applicable State and Federal statutes and regulations.
Paragraph (c) of the final rule requires the operator to allow the
Forest Service access to its operations for compliance inspection and
other authorized purposes. Paragraph (d) of the final rule informs the
operator of existing requirements that it is responsible for obtaining
Forest Service permits for uses of National Forest System lands and
resources not otherwise included in a surface use plan of operation,
most notably for uses outside an operator's lease area. Paragraph (e)
of the final rule maintains the requirement that the operator shall
conduct its activities in a manner that avoids the cause, or minimizes
the spread, of fire.
The final rule moves section 228.110 in the existing regulation to
paragraph (f) of this section and retitles it Liability. The final rule
maintains the same conditions of liability to the United States for
injury, loss, or damage, including fire suppression costs incurred by
the government resulting from the operator and all lessees' activities.
Section 228.106 Operator's Submission of Surface Use Plan of Operations
No changes were made from the proposed rule to the final rule
except for changing reference of Onshore Order 1 to 43 CFR part 3170,
subpart 3171.Compared to the existing regulation, the final rule
revises language clarifying the applicability of the requirements in 43
CFR part 3170, subpart 3171 when an operator submits a surface use plan
of operation and addresses use of master development plans and master
surface use plans of operations. The final rule revises paragraph (c)
to emphasize the need for operators to include in their applications a
description of infrastructure or facilities to the extent known that
would be used to support their operations such as pipelines or roads,
and whether it would be within the boundaries of a lease or agreement,
or outside lease or agreement boundaries. The final rule removes
paragraph (d) Supplemental Plan, which uses terminology that is
inconsistent with the BLM regulations and instead addresses sundry
notices in section 228.108.
Section 228.107 Review and Approval of Surface Use Plan of Operations
After consideration of public comments, a change was made from the
proposed rule to the final rule. The proposed rule removed the language
from 228.107(c) in the existing regulation, which states, ``The
authorized Forest Service officer shall give public notice of the
decision on a surface use plan of operations and include in the notice
that the decision is subject to appeal under 36 CFR part 214 or 215.''
The final rule inserts language in 228.107(b) expressly addressing when
objection and appeal regulations will be available for proposed and
final decisions concerning surface use plans of operations. Language
has been added in 228.107(b) identifying that the authorized Forest
Service officer will provide public notice for the proposed decision on
a surface use plan of operation expected to be documented in a decision
notice or record of decision (i.e., environmental assessments and
environmental impact statements; not categorical exclusions) and
identify that the proposed decision will be subject to the 36 CFR part
218 pre decisional objection process. Additionally, 228.107(e) Notice
of decision now provides that ``The authorized Forest Service officer
shall give public notice of the final decision on a surface use plan of
operations and identify in the notice that the decision may only be
appealed by the applicant under 36 CFR part 214.''
Compared to the existing regulation, the final rule improves
references to 43 CFR part 3170, subpart 3171, including the timeframes
established in the regulation for Agency response. The final rule
removes existing section 228.107(e), which uses terminology that is
inconsistent with the BLM's regulations and instead clarifies sundry
notices in section 228.108.
Section 228.108 Sundry Notices
Public comments prompted us to look closely at the language in this
section. The final rule makes some minor changes to place language in
the correct paragraph and improve clarity.
Compared to the existing regulation, the final rule moves the
content of the existing section 228.108 to section 228.105,
Responsibilities of Operators. The final rule renames this section
Sundry Notices, replacing references to supplemental plans in sections
228.106 and 228.107 of the existing regulations. This removes language
inconsistent with the BLM regulations and aligns the final rule with
the BLM's procedures. New content regarding sundry notices states that
the operator must follow the BLM procedures for submitting a sundry
notice and that Forest Service approval of a sundry notice is required
if the notice proposes surface-disturbing activities. The final rule
clarifies that surface-disturbing activities may or may not require
additional environmental analysis and may be assessed using any of the
mechanisms provided in the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.).
Section 228.109 Bonds
The final rule language remains the same as the proposed rule after
consideration of public comments. The final rule maintains the same
bond requirement as the existing rule but provides additional
instruction to Forest Service managers and operators regarding 43 CFR
part 3170, subpart 3171. The final rule makes general clarifications
and editorial corrections for readability. The final rule clarifies how
the Forest Service will coordinate

[[Page 3648]]

with the BLM if an operator chooses to increase its BLM bond to cover
additional bonding required by the Forest Service for surface
reclamation purposes. The Forest Service's experience in managing
Federal oil and gas resources since the existing regulations were
promulgated in 1990 indicates that in many cases, the BLM lease bonds
are insufficient to support surface reclamation needs if a lessee or
operator defaults. Recently, the BLM has updated its regulations
concerning bonding requirements for leasing, development, and
production to address shortcomings identified in reports by the
Government Accountability Office and the Department of the Interior's
Office of Inspector General (see 89 FR 30916). The final rule retains
language for the Forest Service to exercise its authority under the
Mineral Leasing Act to ensure adequate financial assurance is in place
to reclaim surface disturbance. The final rule adds language that
describes what factors authorized Forest Service officers would
consider when determining if BLM lease bonds are adequate. The final
rule retains language to the effect that the operator may increase the
BLM performance bond or post a separate surface reclamation bond with
the Forest Service when the Forest Service determines additional
bonding is necessary. The final rule adds paragraph (d) to clarify
methods for posting bonds, and paragraph (e) to clarify methods for
releasing a Forest Service-held surface reclamation bond.
Section 228.110 Temporary Cessation of Operations
Compared to the proposed rule, the final rule changes language in
228.110(b) Interim measures from ``The authorized Forest Service
officer may require the operator to take reasonable interim reclamation
or erosion control measures to protect . . .'' to ``The authorized
Forest Service officer shall require, as necessary, the operator to
take reasonable interim reclamation or erosion control measures to
protect . . .''
Compared to the existing regulation, the final rule moves the
content of the existing section 228.110 to paragraph (f) of section
228.105, Responsibilities of Operators, and renames it Liability. The
final rule places the content from the existing section 228.111 into
this section. The final rule also makes editorial clarifications.
Section 228.111 Compliance and Inspection
The final rule language remains the same as the proposed rule.
Compared to the existing regulation, the final rule moves the content
of the existing section 228.112, paragraph (c), to section 228.105(b)
Responsibilities of Operators and simplifies it to reference Compliance
with Other Statutes. The final rule places the remaining content of the
existing section 228.112 into this section. The final rule also
reorders and renames the paragraphs in this section and makes editorial
corrections to clarify the Agency's responsibility to inspect
operations for compliance with the terms of applicable approvals and
the regulations in this subpart.
Section 228.112 Notice of Noncompliance
The final rule remains largely the same as the proposed rule for
this section. In section (f) Shut down of operations, paragraphs (1)
and (2) are changed in order. Also, the criteria for lifting a shutdown
are simplified to a determination that operations are in compliance
with the applicable requirements identified in the notice of
noncompliance. The duplicative clause ``or that it is no longer likely
that any remaining noncompliance is likely to result in danger to
public health or safety or in irreparable resource damage'' was
removed. This second clause is one of the criteria for issuing the
shutdown in the first place.
The final rule moves the content of the existing section 228.112 to
section 228.111. The final rule also moves the content of the existing
section 228.113 to this section. The final rule then reorders, renames,
and revises the paragraphs in this section. The final rule streamlines
the procedures that the Agency would use to notify an operator of
issues concerning noncompliance with the terms of approvals or the
regulations in this subpart. The final rule accomplishes the improved
efficiency by moving from a two-step process to a one-step process. The
final rule clarifies when the Agency would either engage the BLM to act
under 43 CFR part 3163, refer a noncompliance action to law
enforcement, or refer a noncompliance issue to the Agency's material
noncompliance proceedings. The final rule clarifies an operator's
opportunity to correct issues of noncompliance and an operator's appeal
opportunities. The final rule updates the methods for notifying
operators of noncompliance issues by including electronic means of
notification.
Section 228.113 Material Noncompliance
Except for paragraph (c) Notifying the Bureau of Land Management,
the final rule language in this section remains the same as the
proposed rule. In paragraph (c), the language ``advising the BLM not to
issue a lease or approve the assignment of any lease to an entity the
Forest Service has determined to be in material noncompliance'' was
removed. The final rule simply requires notification to the BLM of our
findings. By statute, the BLM administers all questions concerning the
ineligibility of an entity to acquire a new lease.
The final rule moves the content of the existing section to section
228.112 and moves the content of section 228.114 to this section. The
final rule revises, reorders, and renames the paragraphs in this
section. The final rule streamlines the procedures that the Agency
would follow when determining if an operator is in material
noncompliance with reclamation or other requirements or standards and
better reflects the requirements and consequences established in the
Mineral Leasing Act. The 1990 procedures in the existing regulation for
oil and gas material noncompliance proceedings were designed to be
consistent with other debarment procedures that are now defunct, thus
prompting the need to revise these procedures.
Section 228.114 Posting Requirements
The Posting Requirements text remains the same from the proposed to
final rule. The final rule moves the content of the existing section
228.114 to section 228.113; moves the content of section 228.115 to
section 228.114; retitles this section; and revises it to make the
timeframes consistent with the timeframes in the BLM's 43 CFR subpart
3171. The final rule also removes internal direction regarding posting
decisions, which is addressed in the Agency's regulations for
implementing the National Environmental Policy Act.
Section 228.115 Information Collection Requirements
The final rule language is the same as the proposed rule for
Information Collection Requirements. The final rule moves the content
of the existing section 228.116 to section 228.115 and retitles it
Information Collection Requirements. The final rule includes statements
regarding Office of Management and Budget requirements from the
existing section 228.116.

Summary of and Response to Public Comments

A summary of substantive comments and Forest Service responses is
provided below including descriptions of changes made to the final rule
based on the analysis of the comments and other administrative
considerations.

[[Page 3649]]

Rulemaking Process

1. Comment: Commenters stated the rulemaking process should be
paused (or the comment period extended) due to COVID-19 pandemic
impeding the ability for public participation, and that all open public
comment periods and associated leasing and permitting activities are
paused during this crisis.
Agency Response: COVID-19 presented challenges to many normal
processes. However, the Forest Service declined to extend the public
comment period because the proposed revisions are not complex, and do
not materially change the existing analyses and decisions related to
land use or post-lease permitting. The Forest Service did extend the
Tribal consultation period from 120 days to 150 days. Any ongoing
leasing and permitting actions are separate and apart from this
rulemaking process.
2. Comment: Several commenters indicate that the programmatic
environmental assessment (EA) associated with the proposed rule does
not consider a sufficient range of alternatives, and that additional
alternatives capable of meeting the purpose and need should be carried
forward for analysis. Likewise, concern is expressed that the purpose
and need is defined too narrowly to permit consideration of a
reasonable range of alternatives. Comments also express concern that
the programmatic environmental assessment does not take a hard look at
the environmental and social costs associated with the proposed rule,
and that additional evidence is needed to support the assessment's
findings, as well as the stated purpose and need. It is stated that the
Forest Service should prepare an environmental impact statement for the
proposed rule to address these concerns.
Agency Response: A programmatic environmental assessment was
prepared to determine whether this rule would have a significant impact
on the quality of the human environment under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). The
programmatic environmental assessment describes and analyzes two
alternatives: the rule (proposed action) and continuing with the
existing regulations (no action). The programmatic environmental
assessment found no impacts on any natural or cultural resources and
low, but beneficial socioeconomic benefits. The programmatic
environmental assessment supports a finding of no significant impact
for the rule, and preparation of an environmental impact statement
pursuant to the National Environmental Policy Act is not required.
3. Comment: With regard to public involvement, some comments stated
that the overall structure and style of the proposed rule reduces the
public's ability to meaningfully engage in the rulemaking process.
Concern is specifically expressed that this will curtail involvement by
affected communities and indigenous people or affect decisions for
specific public resources.
Agency Response: The process provided adequate opportunity for
meaningful public and Tribal engagement as described in the preceding
section titled ``Advance Notice of Proposed Rulemaking, Proposed Rule,
and Public Comment Period.'' The proposed revisions are not overly
complex, and do not materially change the existing analyses and
decisions related to land use or post-lease permitting. Formal
consultation and coordination with Indian Tribal governments was
conducted as described in the ``Regulatory Certifications'' section of
this preamble.

Agency Organization

4. Comment: Concern is expressed that the proposed rule does not
address training and funding for Agency staff and programs. As one
commenter states, ``Creating efficient processes is about more than
revising regulations. Without sufficient funding and qualified resource
professionals, streamlining regulations is a reaction to symptoms
instead of addressing the root causes. Congress and the Administration
must address proper funding, to not only ensure healthier forests, but
a healthier Forest Service.''
Agency Response: The rule does not address training and funding for
Agency staff and programs, and any shortcomings in this area are best
addressed outside the context of this rulemaking process. Management of
Federal oil and gas resources on National Forest System lands does
require an adequate number of qualified resource professionals, and the
Service does strive to maintain the required staff.

Public Involvement

5. Comment: Many commenters viewed the proposed rule's removal of
existing references and citations of required laws, such as the
National Environmental Policy Act or the Endangered Species Act, in
several places as reducing transparency and the ability for public
participation in Forest Service decisions on lands available for
leasing and approvals of post-leasing activities. For example, one
commenter stated, ``I am protesting the new rule that allows speedier
approval of oil and gas drilling in national forests. I believe that
the new rule unfairly reduces the chance for the public to comment by
eliminating much of the existing NEPA process.''
Agency Response: The proposed revisions do not affect the level of
notifications or public involvement in leasing or post leasing
activities. In several places, references or citations to mandatory
laws or regulations were removed in favor of letting them speak for
themselves and to reduce likelihood that direction could be confused in
the future if those laws or regulations change. While several citations
to specific laws and regulations have been removed, the Forest Service
and lessees must still comply with all applicable laws and regulations.

Protection of Natural and Cultural Resources and Other Land Uses

6. Comment: Many comments include statements of general opposition
for the proposed rule, as well as for oil and gas activities on
National Forest System lands or in general. Stated reasons for
resource-specific opposition include adverse consequences to varied
biological resources such as ecosystem health or wildlife, inadequate
economic benefits and protection of human and environmental health,
inappropriate use of public lands, adverse impacts on recreation
opportunities and tourism, air and water pollution, decreased carbon
sequestration and increased global warming/climate change impacts
(including wildfires/fire risk, storms, and sea level rise), traffic,
increased noise, and viewshed changes (such as views of natural gas
flaring), damage to cultural and Tribal resources, and loss of
medicinal plants.
Agency Response: The changes from the existing regulation do not
alter the high level of protection of natural and cultural resources
and other land uses affected by impacts of oil and gas development. The
existing regulation is administrative in nature. It does not make any
land use decisions or authorize any on-the-ground activity. The same
holds true for the final rule. The rule does not change any processes
by which the Forest Service complies with the National Environmental
Policy Act, Endangered Species Act, cultural laws, or interagency and
Tribal consultations in making decisions on land uses, leasing
conditions, or post-leasing surface use decisions. The programmatic
environmental assessment and regulatory impact analysis along with the
preamble to the

[[Page 3650]]

draft rule, are essential components of our open and transparent public
review process. A review of the documents demonstrates that the
proposed revisions are not highly complex, do not materially change the
existing analyses and decisions related to land use or post-lease
permitting, have no adverse impacts on any members of the public, and
do not alter public ability to participate in these decision-making
processes.

Support for the Proposed Revisions

7. Comment: Many commenters stated reasons for general support of
the proposed rule revisions, including efforts to ``reduce the burden
of Federal regulations on individuals and businesses, increase
efficiency, streamline processes, clarify the rule to reduce confusion
and the potential for litigation and promote consistency between
agencies all while maintaining health, safety and environmental
protections.''
Agency Response: These are the stated reasons why the Forest
Service decided to undertake the rulemaking effort. In general, the
existing rule does not impose undue burdens on the industry but the
Forest Service recognizes the value of providing clarity and improving
processes and consistency between agencies.

Proposed Rule Section-by-Section Comments

Section 228.100 Scope and Applicability
8. Comment: Support is expressed for language that clarifies the
roles of the Forest Service and the BLM in administering mineral
leasing on National Forest System lands. Comments also state that the
proposed rule should (1) regulate development of split-estate lands
(such as nonfederal (reserved and outstanding private)) oil and gas
resources, and the opposite (2) ensure that this rulemaking only
affects Federal oil and gas resources on land managed by the Forest
Service and does not affect nonfederal oil and gas resources.
Agency Response: The existing regulation and final regulation apply
only to management of Federal oil and gas resources. The exercise of
private oil and gas rights beneath lands managed by the Forest Service
occurs under a different umbrella of laws and policy. Attempting to
combine the different regimes under one regulation would likely promote
inefficiencies and less clarity.
9. Comment: For section 228.100(b), one commenter stated, ``The
Reform act gives the Secretary of Agriculture authority to regulate all
surface-disturbing activities conducted pursuant to a lease and does
not specify those activities must be ``on the lease'' and suggested
changing ``within such leases'' to ``pursuant to such leases.'' The
commenter suggested that surface uses associated with oil and gas
activities that are conducted on lands managed by the Forest Service
outside a lease or agreement should be covered under one authorization,
namely the surface use plan of operations.
Agency Response: As described in section 228.100(c)(3), surface
uses outside a Federal lease or agreement are subject to Forest Service
special uses authorizations under regulations set forth elsewhere in 36
CFR chapter II, including but not limited to the regulations set forth
in 36 CFR part 251, subpart B, and 36 CFR part 261. The Forest Service
could not identify any meaningful efficiencies for the Forest Service
or industry that would be gained by trying to combine authorizations
permitted under different authorities, different Forest Service
personnel or offices, or varying from long-standing processes.
Section 228.101 Definitions
10. Comment: Comments request that for ``conditions of approval,''
remove the ``may be'' or ``may'' language and instead provide specific,
required conditions.
Agency Response: The definition has been adjusted to remove
language that may imply arbitrary discretion in application of
conditions of approval.
11. Comment: One commenter viewed the definition of ``consent'' as
reversing the existing requirement that forest staff make an
affirmative decision following any leasing analysis. The commenter
interprets the final rule's definition of ``consent'' under both the
Mineral Leasing Act of 1920 (may not issue a lease ``over the
objection'' of USDA) and the Mineral Leasing Act for Acquired Lands of
1947 (no covered mineral deposit ``shall be leased except with the
consent'' of the agency) as demoting the Forest Service to a weak,
secondary role relative to oil and gas leasing on public domain lands.
Other commenters stated the definition would eliminate or reduce
confusion by the public relative to use of the different terminology.
Combining implementation of two separate authorities under one common
terminology improves efficiency and reduces complexity.
Agency Response: Regardless of whether a leasing analysis is
conducted for reserved public domain or acquired lands, the Forest
Service conducts the same analysis and effectively makes the same
decisions: what lands are unavailable for lease, what lands are
available, and under what conditions (such as lease stipulations). The
``consent'' and ``does not object'' language conveying the Forest
Service's decision to the BLM has the exact same effect. That is made
clearer with the ``consent'' definition in the proposed rule.
12. Comment: One commenter recommended the rule include a
definition of ``reclamation'' as the term is used frequently in the
proposed rule, but never explicitly defined.
Agency Response: No specific definition has been added for
``reclamation.'' The agencies, industry and public have a sufficient
understanding of its general meaning without providing a more precise
definition that could inadvertently overlook or exclude needed
flexibility for specific reclamation actions. What constitutes
reclamation is determined on a site-by-site case in the ``reclamation
plan'' of a surface use plan of operations, which is also used to
evaluate the amount of a reclamation bond.
Section 228.102 Issuance of Onshore Orders and Notices to Lessees and
Operators
13. Comment: It would seem advisable that if the authorized Forest
Service officer issues a specific Notice to Lessees and Operators that
that information should also be forwarded to the appropriate BLM office
also, usually the jurisdictional State office.
Agency Response: The agency agrees and has adjusted the final rule
to ensure proper notifications occur.
Section 228.103 Leasing Analysis and Consent Decision
14. Comment: The proposed rule would remove references to other
laws and regulatory requirements, particularly with respect to
complying with the National Environmental Policy Act and the Endangered
Species Act and their implementing regulations, in favor of letting
those laws and regulations speak for themselves. By removing
information such as this, it weakens the public's confidence in knowing
what the oil and gas industry is doing and to what regulatory measures
they are being held.
Agency Response: Reference and citation of mandatory laws were
removed in favor of letting those laws and regulations speak for
themselves and to reduce likelihood that direction could be confused in
the future if other regulations change. While several

[[Page 3651]]

citations to specific laws and regulations have been removed, the
Forest Service and lessees must still comply with all applicable laws
and regulations.
15. Comment: In addition to the BLM, one commenter requested that
State wildlife agencies also be identified and invited to participate
as a cooperating agency in the leasing consent analysis due to special
expertise or statutory authorities.
Agency Response: Although State wildlife agencies and other
agencies with resource responsibilities are often identified and
invited to participate, mandating invitations would not be an
appropriate regulatory requirement. The BLM's role as the final
authority over oil and gas leasing matters on Federal lands
distinguishes their participation and warrants a regulatory requirement
to receive an invitation to be a cooperator in the environmental review
process. The Forest Service will continue to coordinate and cooperate
with other Federal and State agencies as appropriate.
16. Comment: One commenter observed that the justification for the
change to clarify ``how stipulations must be designed to carry out
provisions of the Energy Policy Act of 2005'' is questionable. Notably,
the requirement of the Energy Policy Act of 2005 was for the BLM and
Forest Service to enter into memorandums of understanding concerning
oil and gas leasing and operations--nothing more. The commenter
believes that this requirement has been met and in no way does the
Energy Policy Act of 2005 require the Forest Service regulations to
incorporate this direction.
Agency Response: Though the commenter is technically correct that
the Energy Policy Act does not ``require'' the Forest Service to
include specific language in regulation, the concept that lease
stipulations are consistently applied and coordinated between agencies
and only as restrictive as necessary to protect the resource or
resources for which the stipulations are applied is entirely reasonable
and fully protective of resources. USDA has elected to maintain the
provision in regulation because it informs Forest Service managers of
the need to cooperate and develop stipulations that fully provide
necessary protections but avoid restrictions that only serve to make
leases less economically attractive.
17. Comment: Relating to the ``Effect of leasing consent
decision,'' commenters challenged the Forest Service proposed rule that
states, ``An authorized Forest Service officer's identification of
lands as open to leasing . . . does [not] constitute an irretrievable
or irreversible commitment of resources.''
Agency Response: The Forest Service consent decision does not
necessarily lead to leasing as that decision and action belongs to the
BLM. Further, the Forest Service may withdraw its consent at any time
prior to a lease sale.
18. Comments: On the topic of the proposed rule's removal of
language from the existing regulation for ``Leasing Decisions for
Specific Lands,'' this proposed change generated the highest number of
topic-specific comments--mostly unfavorable. Commenters asserted the
Forest Service was eliminating a step requiring environmental review
under the NEPA and additional public participation, ceding Forest
Service authority to the BLM and placing oil and gas leasing above any
environmental considerations. A few commenters stated removing the
language would help avoid confusion by the public as to exactly what
the current provision was calling for and thus avoid unnecessary legal
challenges.
Agency Response: Based on public comment, our attempt to refine and
clarify a single Forest Service decision point and avoid confusion was
not successful. The draft rule attempted to clarify that the Forest
Service would make a single decision identifying available lands for
which the Agency would provide consent to the BLM to offering oil and
gas leases for sale. The decision was to occur following a forest or
area-wide leasing analysis. It is notable that the existing regulation
actually uses the word ``decision'' in the paragraph titled ``Leasing
decisions for specific lands'' (36 CFR 228.102(e)). However, when
considering what the existing regulation requires, it is readily
apparent that this is not a second, independent decision or Federal
action requiring a more detailed analysis, but rather has been regarded
as an administrative review verifying that leasing of the specific
lands being reviewed has been adequately addressed in a NEPA document
and is consistent with the applicable land management plan. The draft
rule removed this regulatory text because it duplicates other
procedures and regulatory requirements. That is, the Forest Service
inevitably sought to assure that NEPA and other Forest Service
regulations and policy remained valid at the time specific tracts were
included in a lease sale. Removal of the text seemed to create more
confusion. As a result, the final rule includes new text titled
``Review of Leasing Consent Decision for Specific Lands'' with the
review leading to either a confirmation of the leasing consent decision
or a withdrawal of consent (based on new information necessitating
further analysis, for example). Additional direction was added for the
Forest Service to provide notification to the BLM of results of the
review confirming the leasing consent decision for specific lands or
withdrawing its leasing consent for specific parcels. If the consent is
withdrawn, the notification will describe the reasons for the
withdrawal and provide an anticipated course of action.
19. Comments: Several commenters expressed concern that the Forest
Service might withdraw its consent any time prior to a BLM lease sale,
with some suggesting there should be a specified timeframe prior to a
lease sale citing prospective bidders expending time and money
evaluating parcels.
Agency Response: After consideration, the final rule removes
section 228.103(e)--Withdrawing lease consent. The provision was added
to the draft rule with the removal of existing 228.102(e)--Leasing
decision for specific lands from the draft rule. The time between
Forest Service leasing consent and an actual lease sale could be a
number of years and conditions could change. A provision of the Forest
Service's ability to withdraw its consent for specific parcels was
informative to Forest Service and BLM, industry, and the public. The
time between a notice from the BLM to the Forest Service that Forest
Service parcels are scheduled for a lease sale is typically a month to
several months. The Forest Service retains the discretion to withdraw
its consent prior to a lease sale.
Section 228.104 Consideration of Requests To Waive, Except, or Modify
Lease Stipulations
20. Comment: Commenters expressed support allowing the Forest
Service discretion to provide waivers, exceptions, or modifications to
lease stipulations identified in section 228.104. Governments on
Colorado's Western Slope argued in other rulemaking processes, that one
size does not fit all, and this will allow the Forest Service to adjust
accordingly.
Agency Response: The Department agrees that this longstanding
procedure is a valuable tool in oil and gas leasing administration. To
ensure adequate protection is maintained, if the activity would cause
effects on surface resources not authorized by the currently approved
surface use plan of operations, the sundry notice is subject to the
same

[[Page 3652]]

requirements of sections 228.106 and 228.107.
21. Comment: Comments suggested that section 228.103 Leasing
Consent Analysis should identify the conditions that could lead to a
waiver, exception, or modification for each stipulation.
Agency Response: After consideration, it was determined that this
section as proposed provides the appropriate criteria for the Forest
Service to consider waivers, exceptions, or modifications to lease
stipulations, and that speculating on specific conditions for each
stipulation during the leasing analysis is not always practical. This
section provides a reasonable adaptive management tool.
22. Comment: Some commenters expressed concern that waivers,
exceptions, or modifications could be approved without analysis and
believed the section should explicitly define a public comment period
requirement.
Agency Response: Any stipulation contained in a Forest Service
lease has undergone full analysis including public participation. The
rule defines strict criteria for approval that cannot lower the level
of resource protection, including a review of the environmental
consequences. Specifically, a Forest Service officer must find the
management objectives which led the Forest Service to require the
inclusion of the stipulation in the lease can be met if the waiver,
exception, or modification is granted. Also, if a lease stipulation was
included in a Forest Service lease at the request of another agency, or
if another agency has specific jurisdiction over the specific resource,
the authorized Forest Service officer must coordinate with that agency
prior to approving a waiver, exception, or modification. These
provisions provide the necessary protections and a universal
requirement for public participation is not included in the final rule.
23. Comment: In section 228.104 (d) Coordination with other
agencies, the Rule specifies that if non-Forest Service agency-proposed
stipulations were incorporated into a lease, the Forest Service shall
coordinate with the agency prior to approving a waiver, exception, or
modification of those stipulations. However, this provision does not
require the consent of the agency to modify stipulations. This
provision could negate lease stipulations requested by the agency such
as seasonal timing restrictions of drilling within big game critical
winter range, fawning or calving habitat and the agency would have
little recourse to challenge such decisions.
Agency Response: The final regulation does require the consent of
such an agency to the waiver, exception, or modification when such
consent is independently required by statute or regulation. But even
given that, for the stipulation to have been included in the lease at
an agency's request suggests a genuine and effective level of
cooperation, and the rule requires (for example, Forest Service officer
shall coordinate . . .) further coordination as the Forest Service
considers the request. However, when an agency does not have statutory
or regulatory authority, the regulation recognizes the final decision
as being with the Forest Service. Agencies do not have the ability to
pursue predecisional objections concerning proposed Forest Service
decisions under 36 CFR part 218.
24. Comment: A commenter requested that the proposed amendments to
section 228.104 be expanded to provide for waivers, exceptions, or
modifications of lease stipulations to recognize North Dakota section
line rights of way (NDCC 24-07-03) on lands acquired by the United
States obtained by deed through purchase or gift, or through
condemnation proceedings after North Dakota statehood in 1889.
Agency Response: Development of stipulations during the leasing
analysis will conform with the legal obligations of the United States,
but state specific matters such as the one raised by the comment are
best addressed on a case-by-case basis rather than through these
nationwide regulations.
25. Comment: A commenter stated the change to only notify the BLM
of the Forest Service decision, and not the operator, would limit
Forest Service decision making.
Agency Response: Section 228.104(a)(2) clarifies that where the
request involves stipulations included in the lease as prescribed by
the Forest Service, the BLM must obtain approval from the Forest
Service before granting a request for a waiver, exception, or
modification. An operator is directed to submit its request to the BLM
under 43 CFR part 3170, subpart 3171.24, and the BLM is the final
decision maker on the request. The notification to the operator by only
the BLM promotes efficiency and does not change Forest Service
evaluation of the request or limit its decision-making authority.
Section 228.105 Responsibilities of Operators
26. Comment: Consider changing ``required'' to ``approved'' so that
it reads ``. . . as approved by the authorized Forest Service
officer.'' Based on ``Superfund'' litigation relative to phosphate
mining in Idaho where the Forest Service required specific reclamation
. . . which resulted in a Comprehensive Environmental Response,
Compensation, and Liability Act (Superfund) action . . . it was argued
that the Forest Service was liable since they ``required'' the specific
reclamation causing the problem. The operator should propose
reclamation which would be approved by the Forest Service and thereby
limiting potential taxpayer liability.
Agency Response: The clause in section 228.105(a)(1)(vii) ``. . .
as required by the authorized Forest Service officer'' appears to be
unnecessary and it has been removed from the final rule.
27. Comment: A commenter takes exception to section 228.104(c)
which states that the operator must allow Forest Service employees
access, for inspection purposes stating that if the Forest Service
employee is not certified (Forest Service Manual 2893) and/or does not
have proper equipment, the operator may deny access to meet their
``safety obligation'' as referenced in 228.105(e). The commenter
references Occupational Safety and Health Administration requiring
personnel on location to wear flame-resistant clothing at specified
times and references National Forest System Deputy Chief's letter dated
November 15, 2010.
Agency Response: The Department partially agrees. After
consideration, the text has been modified to specify that an operator
must allow access to ``authorized'' Forest Service personnel and has
removed the restriction that access is only related to inspection
purposes. Forest Service personnel may need to be on location for other
purposes such as planning new operations. While operators cannot
ultimately deny access to authorized Forest Service personnel,
conditions that provide for human health and safety should be in place.
28. Comment: Another commenter noted that there is no mention of or
reference to potential investigations by other enforcement entities
including State law enforcement officers or staff being permitted
access. This limitation could impede the State's ability to investigate
reports or clarify questions concerning wildlife or habitat related
issues.
Agency Response: If access by State agencies is required under
their own or other authorities, then it is not necessary to include
language to that effect in this regulation. The Forest Service is
committed to cooperating with State agencies to ensure that operations
are conducted in compliance

[[Page 3653]]

with all Federal, State, and local laws and regulations.
29. Comment: One comment noted language indicating that the
operator will ``reshape and revegetate areas disturbed by their
operations'' is not clear what area that constitutes. It appears that
the paragraph leaves that decision up to the operator. If the intent is
that this refers to the surface use plan of operation, the regulations
should so state; if not, then the area(s) should be defined.
Agency Response: After considering the comment, that language in
the final rule remains the same as the proposed rule. This accounts for
both approved and unapproved disturbance (such as spills that move off
a surface use plan of operation's approved area of disturbance).
30. Comment: A commenter recommends this section be further
clarified by adding language that directs the operator to conduct
activities (or develop best management practices) in a manner that
avoids and minimizes effects to all wildlife, regardless of
designation. Actions such as identifying opportunities to minimize
potential wildlife/vehicle collisions, presence of wildlife on sites
due to water or lighting are examples which would also improve site
safety for operators and their employees. Further, since Forest Service
lands are designated for multiple use, the commenter further recommends
language or practices that avoid and/or minimize impacts on public
recreation (or access to), namely wildlife related recreation (such as
hunting, angling and wildlife watching) as a result of the activities.
Agency Response: The Forest Service prefers language that is
inclusive of all natural and cultural resources rather than calling out
specific ones, such as wildlife. The words ``conflicts with other land
uses'' has been added to clarify that the Forest Service considers
these effects on land management as well as environmental impacts.
Section 228.106 Operator's Submission of Surface Use Plan of Operations
31. Comment: Comments express support for the requirement for
operators to include planned infrastructure or facilities in their
surface use plan of operations, including those located outside of
lease or agreement boundaries.
Agency Response: The Department agrees. Though the permitting
authorities are different and remain separate, the requirement serves
to facilitate compliance with environmental laws such as the National
Environmental Policy Act.
32. Comment: A commenter expressed concern that the proposed rule
removes existing subsection (d), which requires a supplemental use plan
if an operator wants to do something that is not covered by the
currently approved plan. The operator instead is directed to comply
with sundry notice requirements in section 228.108 which are simpler.
However, the proposed rule specifically states these changes are to
prevent inconsistency with the BLM regulations. As addressed above, the
mission and statutory mandate of the Forest Service is inconsistent
with the BLM's mission and statutory mandate. Changes should not be
made to Forest Service regulations to more align with an agency whose
interests and aims are different than its own.
Agency Response: The term ``supplemental use plan'' in the existing
regulations has the same meaning and function as the term ``sundry
notice'' used in 43 CFR part 3170, subpart 3171 and other relevant the
BLM regulations and has not been changed.
33. Comment: A commenter recommends that language in paragraph (b)
be modified to also encourage the operator to coordinate with the State
wildlife agency concerning local wildlife activities and wildlife
recreation resources and uses. The commenter contends that the State
wildlife agencies have the best data and information regarding wildlife
and wildlife related recreational activities. Other comments state this
section implies that there is no requirement to, nor expectation that,
the lessee or operator will base a surface use plan on the best
available information from the Forest Service nor any other appropriate
Federal or State natural resource management agencies. These comments
suggest that ``encourage'' should be ``require'' instead.
Agency Response: The Department agrees with the premise that an
operator's coordination with State agencies responsible for wildlife
resources, or any resources, is advisable to ensure the best
information available is used to develop its surface use plan of
operation. The ``encourage'' language is consistent with 43 CFR part
3170, subpart 3171 and serves as guidance to the operator for their
benefit in avoiding unnecessary delays. A Forest Service regulation
directing one agency to cooperate with another is not appropriate and
the language has not been changed in the final rule. The Forest Service
will continue its current practice of coordinating and consulting with
agencies including the sharing of information.
34. Comment: A commenter suggested deleting this section since its
primary purpose is for implementing Onshore Order 1 and the section
should not duplicate or confuse the regulatory requirements of the
Order.
Agency Response: The final rule retains this section as it provides
direction that is supplemental to 43 CFR part 3170, subpart 3171.
Section 228.107 Review and Approval of Surface Use Plan of Operations
35. Comment: Comments express opposition to proposed revisions in
section 228.107 that would eliminate requirements that the authorized
Forest Service officer give public notice of the Forest Service's
decision on a surface use plan of operations and include in the notice
that the decision is subject to appeal. Other commenters viewed the
removal of the Forest Service's notification of decision on the surface
use plan of operation as ceding authority to the BLM.
Agency Response. In consideration of the first comment, new
language has been added in paragraphs (b) and (e) to the final rule
directing the Forest Service officer to give public notice of proposed
and final decisions on a surface use plan of operation including the
availability of an objection or appeal. The proposed rule in no way
diminishes Forest Service's decision-making role. The regulation at 43
CFR part 3170, subpart 3171specifically requires Forest Service
approval of the surface use plan of operation before the BLM can
approve an application for permit to drill. Additionally, the BLM
cannot approve an application for permit to drill until any objection
or appeal to the Forest Service of its decision on a surface use plan
of operation is resolved.
36. Comment: A commenter stated that the Forest Service must be
able to add additional [lease] stipulations or other environmentally
protective measures or requirements at the time of review and approval
of surface use plan of operations and master surface use plans of
operations. This allows the Forest Service to require up-to-date
technology or best management practices that will protect public lands
and to incorporate into the plans of operations protection for new
sensitive species, locations of species, or sensitive ecosystems that
have been found since the stipulations were submitted.
Agency Response: There is no process where the BLM can unilaterally
add stipulations to a lease once it is issued; except as provided by
the lease itself.

[[Page 3654]]

Otherwise, lease holders must agree to an added stipulation. The
leasing process provides considerable protection for various resources
before, during, and after the surface use plan of operations review and
approval process. First, the Forest Service uses the best available
information when making leasing decisions. Second, at the time specific
tracts are to be offered for lease, the Forest Service conducts an
administrative review of the leasing decision. The review ensures that
if there is significant new information or a circumstance that requires
additional environmental analysis be conducted, or leasing would not be
consistent with the applicable land management plan, the leasing
consent would be withdrawn. Finally, once a lease is issued, regardless
of the lack of a stipulation, the BLM, Forest Service, and operators
are still responsible for compliance with the Endangered Species Act,
National Historic Preservation Act, among other environmental laws.
Compliance with these and other laws may lead to specific actions that
on operator would need to take (or not take) in its conduct of
operations.
Section 228.108 Sundry Notices
37. Comment: Comments state that the proposed rule should provide
specific language that (1) addresses what surface-disturbing activities
must be considered; and (2) provides provisions requiring protection of
these resources, including fisheries, wildlife, and plant habitat, and
a requirement that the discovery of possible historical or cultural
resources be reported to the Agency (as the current rule does at
section 228.108(d)), and requirements for protection of habitat for all
federally listed and proposed species, and Forest Service sensitive
species and species of conservation concern.
Agency Response: As required by 228.108(a), any activities that
would cause effects on surface resources would require the Sundry
notice to include a surface use plan of operations that is subject to
the same Forest Service review and approval. The second part of the
comment has been addressed in other responses to comments, including
Comment 36.
38. Comment: The proposed rule revises the sundry notices section
to grant more authority to the BLM and removes oversight by the Forest
Service. Again, the proposed rule changes Forest Service regulations to
better align with--or in some instances mirror--the BLM regulations.
This grants more authority over the use of forest land to an agency
that was not established for the purpose of preserving the health and
quality of forests and wildlife.
Agency Response: The ``supplemental use plan'' in the existing
regulation has the same meaning and function as the term ``sundry
notice'' used in the final rule, 43 CFR part 3170, subpart 3171, and
other relevant BLM regulations. The final rule's change in terminology
from ``supplemental use plan'' to ``sundry notice'' and the
reorganization for a stand-alone section 228.109 Sundry Notices do not
change the roles and responsibilities of the Forest Service or the BLM.
Section 228.109 Bonds
39. Comment: A commenter noted that the bond requirement is covered
by Onshore Order 1 and much in this section is ``how to'' and is more
appropriate for a Forest Service Manual or Handbook.
Agency Response: The bonding requirements and procedures in this
section are specific to the Forest Service and supplemental to 43 CFR
part 3170, subpart 3171 and are responsive to the 1987 Reform Act. No
changes have been made to the section from proposed to final rule.
40. Comment: Many form letter comments stated that the proposed
rule should require bonds to be posted up front and at sufficient value
to cover the full cost of reclamation.
Agency Response: The proposed and final regulation adequately
provides for both the bond adequacy and posting requirement prior to
ground-disturbing activities.
Section 228.110 Temporary Cessation of Operations
41. Comment: A commenter suggested that the cessation of operations
notification should occur after 30 days, not 45 days, and under (b) the
Forest Service must require not ``may require'' that ``interim
measures'' are implemented to protect public lands.
Agency Response: Operators must notify the Forest Service when it
becomes apparent that cessation of operations would last longer than 45
days and that the notification occurs well before operations have
actually been ceased for 45 days. The language in paragraph (b) has
been modified, changing the ``may require'' to ``shall require as
necessary'' interim measures to [protect resources] to remove the
appearance that the authorize Forest Service officer can make arbitrary
decisions regarding protection of resources.
Section 228.111 Compliance and Inspection and Section 228.112 Notice of
Noncompliance
42. Comment: The Forest Service must maintain a robust inspection
and compliance regime to protect our resources from oil and gas
pollution on Forest Service lands. This proposed rule substantially
absolves both the Forest Service and the oil and gas operators from
critical aspects of inspections, compliance, and enforcement.
Troublingly, proposed new 36 CFR 228.111 removes the existing law's
(228.112(c)) directive that operators must also comply with laws other
agencies administer. These include many major environmental statutes
like the Clean Water Act, Clean Air Act, and the Endangered Species
Act, as well as cultural protection and oil and gas leasing laws. While
removing this section does not change whether operators must still
comply, it signals the Forest Service's intent to help operators who
may be noncompliant with other agency statutes.
Agency Response: The Department disagrees with this interpretation.
The inspection and compliance protocols in the proposed regulation are
clearer, more efficient, and will result in better outcomes. The
section has been left largely unchanged from the proposed to final
rules. The minor changes that were made are described in the section-
by-section discussion of changes from proposed to final rule.
43. Comment: Commenters supported that the proposed rule moves
notification of noncompliance ``from a two-step process to a one-step
process'' and supported clarifications to an operator's remedial and
appeal rights.
Agency Response: As in our response to the previous comment, the
Department expects the inspection and compliance protocols in the
proposed regulation will result in better compliance administration.
44. Comment: Comments state that the proposed revisions to section
228.112 should not allow operators to request extensions of compliance
deadlines when noncompliance results from factors that are within the
operator's control.
Agency Response: Noting that the Forest Service has sole discretion
to extend a compliance deadline, the consideration of extension is
based on risk of more damage to resources and the logistical ability to
correct the noncompliance and not so much on the underlying cause.
45. Comment: Comments state that the Forest Service must be in
charge of noncompliance cases.

[[Page 3655]]

Agency Response: Forest Service plays an important role in
noncompliance issues related to surface uses, but the BLM remains the
agency that issues and enforces permits.
46. Comment: Acknowledging that this is a comment related to the
Forest Service Manual or Handbook, a commenter suggested that in
addition to a notice of noncompliance, a letter of ``appreciation for
good compliance'' should be used as a positive management tool. If
fully compliant operations are noticed and acknowledged, it often leads
to an exceeding of ``basic compliance.'' Bragging rights in the oil
patch are a large motivator for marginal operators to improve and
compete.
Agency Response: The Department agrees that the concept does not
belong in this regulation and notes that the majority of operators on
National Forest System lands diligently comply with the applicable laws
and regulations and conditions of their permits. At times, operators
undertake activities not required of them that serve the public's
interests.
47. Comment: Comments state that when noncompliance is likely to
result in danger to public health or safety or in irreparable resource
damage, operations shall be suspended, and the shut down shall remain
in effect until operations are in compliance ``or it is unlikely that
any remaining noncompliance will result in danger to public health,
safety, or irreparable resource damage.'' The term ``or'' suggests that
an operator may resume operations without fully coming into compliance
with the requirements identified in the notice of noncompliance.
Agency Response: The Department has modified text in the final rule
to the effect that operations will remain shut down until the
applicable requirements identified in the notice of noncompliance have
been achieved.
48. Comment: Comments express concern that the proposed rule
removes penalties for continued non-compliance and allows for damage
without punitive consequences. If operators fail to comply with their
surface use plan, the proposed regulation establishes a no-harm-no-foul
penalty structure. This structure is devoid of any substantive punitive
measure and full of grace for noncompliant operators.
Agency Response: For the very small percentage of noncompliant
operators that cannot or will not come into compliance, their continued
noncompliance could result in civil and criminal penalties under both
the BLM and Forest Service regulations per paragraphs (e)(1) and (2)
referrals. The objectives of avoidance of unnecessary impacts and
diligent correction of violations that do occur can be achieved without
establishing additional punitive measures.
49. Comment: A State agency requested that the State wildlife
agency also be notified of noncompliance for matters that have the
potential to affect the statutory authority and public trust
responsibility to manage wildlife. This could also include
noncompliance for matters that have the potential to affect multiple
use on Forest Service lands, namely wildlife related recreation (such
as hunting, angling, and wildlife watching).
Agency Response: The Forest Service is committed to cooperating
with all State agencies to ensure that operations are conducted in
compliance with all Federal, State, and local laws and regulations.
This cooperation would include engaging State resource specialists when
their agencies' authorities or responsibilities are relevant to oil and
gas activities on National Forest System lands. The cooperation often
occurs in the form of sharing of information and professional opinions.
Section 228.113 Material Noncompliance
50. Comment: Comments state that proposed revisions to section
228.113 unduly favor oil and gas by 1) reducing the factors considered
in determining material non-compliance, and 2) making materiality
determination and compliance referral largely discretionary. Comments
also request language in section 228.113(a)(1) to clarify how
irreparable resource damage will be addressed.
Agency Response: The 1990 procedures in the existing regulation for
oil and gas material noncompliance proceedings were designed to be
consistent with other debarment procedures of the agency that are now
defunct, thus prompting their replacement. The final rule's procedures
are fair, reasonable, and consistent with both Forest Service and BLM
policy. The final rule provides clarity to the procedures to be
followed for determining if an operator is in material noncompliance
with reclamation or other requirements or standards to better reflect
the requirements and consequences established in the Mineral Leasing
Act. The final rule does not materially change an operator's
requirements and responsibilities.
51. Comment: Referring to section 228.113 (c), in cases of material
noncompliance, ``the Forest Service shall advise the BLM not to issue
or approve the assignment of any lease to the entity determined to be
in material noncompliance,'' a commenter suggested the proposed rule
should be modified to clarify that this advisement is binding until the
operator comes into compliance. Additionally, relating to section
228.113 (c) and (d), the commenter suggested a minimum time period
should be applied during which the operating entity may not be approved
for a lease, regardless of when they come back into compliance.
Agency Response: The comment prompted us to review the language of
the paragraph. The final rule removes the ``advise'' language and
simply requires the Forest Service to notify the BLM of its findings.
Per statute, the BLM administers the ineligibility of an entity to
acquire a new lease. Notably, section 17(g) of the Mineral Leasing Act
of 1920 as amended (MLA), 30 U.S.C. 226(g), provides: ``The Secretary
shall not issue a lease or leases or approve the assignment of any
lease or leases under the terms of this section to any person,
association, corporation, or any subsidiary, affiliate, or person
controlled by or under common control with such person, association, or
corporation, during any period in which, as determined by the Secretary
of the Interior or Secretary of Agriculture, such entity has failed or
refused to comply in any material respect with the reclamation
requirements and other standards established under this section for any
prior lease to which such requirements and standards applied.'' For the
second part of the comment, the ``minimum time period'' suggestion
appears punitive and unnecessary as discussed in our response to
comment 48.-.
Section 228.114 Posting Requirements
52. Comment: The proposed posting requirements will no longer
provide direction about posting decisions. The Agency's explanation is
that the National Environmental Policy Act regulations direct that
action. Again, this is a situation where the Agency removes a required
internal procedure in favor of meeting the bare minimum required by the
National Environmental Policy Act.
Agency Response: Changes to the minimum posting durations are in
alignment with BLM's processes. The Department anticipates that the
public will not perceive any reduction of notifications concerning
these actions or the ability to engage with the Forest Service.

[[Page 3656]]

Section 228.115 Information Collection Requirements
53. Comment: USDA requested comments on whether the proposed rule
would lessen the burden of collecting and reporting information and
data as advocated by the Paperwork Reduction Act of 1995. Industry
commenters generally appeared to believe that aligning Forest Service
oil and gas leasing regulations with BLM regulations, as proposed,
should decrease the paperwork burdens on lessees, operators and small
businesses in the oil and gas industry.
Agency Response: The Department expects there to be some
efficiencies gained, though small and unquantifiable.

Conforming Technical Amendments

This final rule makes minor, non-substantive changes to two other
regulations for purposes of conforming with the modifications being
made to 36 CFR part 228, subpart E.
In 36 CFR 214.4(b)(3), the phrase ``request to supplement a surface
use plan of operation'' is changed to ``requests concerning the surface
use portion of a sundry notice'' to track language in the final rule.
The final rule also adds two additional appealable decisions: (1)
requests for a waiver or exemption from, or modification to, an oil and
gas lease stipulation, and (2) requests for an extension of the time
period for taking action in response to a notice of noncompliance.
In 36 CFR 261.2, which includes definitions applicable to the
Agency's law enforcement regulations, the definition of ``operating
plan'' is changed by replacing the phrase ``supplemental surface use
plan of operation'' with ``surface use portion of a sundry notice.''

Regulatory Certifications

Executive Order 12866 Regulatory Planning and Impact Analysis (Analysis
of Costs and Benefits)

Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs in the Office of Management and
Budget (OMB) will review all significant regulatory actions. The Office
of Information and Regulatory Affairs has determined that this rule is
significant pursuant to section 3(f) of E.O. 12866. Therefore, a
regulatory impact analysis analyzing the costs and benefits of the
proposed regulation was needed to comply with E.O. 12866. The potential
benefits and costs, as well as distributional impacts, associated with
the proposed rule were analyzed to fulfill the regulatory impact
analysis requirements, consistent with E.O.12866 and OMB Circular A-4.
The regulatory impact analysis considers costs and benefits
associated with updates, modifications, or clarifications to different
sections of 36 CFR part 228, subpart E, as they relate to key
procedural steps for oil and gas leasing and permitting on National
Forest System lands. Changes in costs and benefits are discussed in a
primarily qualitative manner due to the challenges with quantifying
costs and benefits at a programmatic level. Quantitative proxies were
used when feasible to help describe the potential frequency or
magnitude of activities and corresponding costs affected by the
proposed rule.
The direct benefits of the proposed rule identified were reduced
costs and time spent on identifying available lease areas, approving
operations, and addressing compliance actions, including costs and time
incurred by the Agency as well as by proponents engaged in or pursuing
oil and gas operations on National Forest System lands. Indirect
benefits can result from expedited access to leasable oil and gas
resources on National Forest System lands, including time-valued oil
and gas revenue or returns to operators as well as time-valued bids,
lease rentals, and royalties paid by operators to the Federal
government and public.
Some operators may have to apply for special use authorizations or
pay an administrative fee to mitigate emergency non-compliance
situations under the rule; however, these situations are expected to be
infrequent or involve relatively small incremental costs. Rule
provisions clarifying considerations for establishing bonds that cover
the full cost of reclamation, consistent with the existing rule, may
result in increases in bonds and increases in operator costs for
obtaining financial guarantees (such as surety bonds) to cover
incremental bond amounts. The financial risks associated with
reclamation default are currently borne by the Agency or public when
bonds do not reflect full reclamation costs, implying this rule helps
transfer the burden of those financial risks to the operators and
administer reclamation in a fiscally responsible manner, consistent
with the intent of the existing rule. These analyses are updated using
fiscal year 2022 data. The updates do not change the conclusions of the
draft rule analysis. The final rule is not expected to have a
significant or measurable impact on rates of oil and gas production on
National Forest System lands; oil and gas prices and other market
factors are likely to drive future changes in growth of development and
production. Because of minimal impacts on production, the rule is
equally unlikely to have significant distributional impacts on jobs or
income contributions from oil and gas activities on National Forest
System lands.
The rule is expected to result in positive net benefits. Most
provisions of the rule are expected to reduce the times for reviewing
and approving leases and permits, thereby saving operator and Agency
costs and expediting opportunities for production and revenue.
Exceptions might include cases where some operators may have to apply
for special use authorizations, pay an administrative fee to mitigate
emergency non-compliance situations under the rule, or be faced with
increases in reclamation bond amounts. However, these situations are
expected to be infrequent, involve relatively small incremental costs,
or consist of payments that shift financial risk of reclamation default
back to the operators and away from the public, consistent with the
intent of the existing rule. The regulatory impact analysis is
available with the supporting documents at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.

Executive Order 14192 Unleashing Prosperity Through Deregulation

Executive Order 14192 requires that any new incremental costs
associated with significant new regulations ``shall, to the extent
permitted by law, be offset by the elimination of existing costs
associated with at least 10 prior regulations.'' This final rule is
expected to be deregulatory under E.O. 14192.

Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs has determined that
this rule is not a major rule as defined by 5 U.S.C. 804(2). Findings
in the regulatory impact analysis for the rule indicate that it is
unlikely to have significant impacts on job or income contributions
from oil and gas activities on National Forest System lands. Therefore,
the revised regulation is not classified as major.

Energy Effects

The rule was reviewed under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The rule is not expected to have a measurable
effect (positive or negative) on oil and/or gas supply or distribution.
The Agency regulation does not make decisions about which lands are
open or closed to

[[Page 3657]]

leasing and subsequent development but instead manages the process. The
rule streamlines the oil and gas leasing process and clarifies
processing procedures for the surface use plan of operation portion of
an application for permit to drill on National Forest System lands. The
streamlining should reduce time and costs of permitting or leasing.
The rule is not expected to have a significant adverse effect on
the supply, distribution, or use of energy; on competition or prices;
or on other agency actions related to energy. The rule is not expected
to raise novel issues regarding adverse effects on energy. The rule is
therefore not expected to be a significant energy action or to require
a statement of energy effects, consistent with Office of Management and
Budget guidance for implementing Executive Order 13211.

Reducing Regulation and Controlling Regulatory Costs (Executive Order
13771)

The Agency has reviewed this rule under U.S. Department of
Agriculture procedures and Executive Order 13771, issued January 30,
2017. The Office of Management and Budget has reviewed this rule and
designated it as significant per Executive Order 12866. Executive Order
13771 requires that agencies account for the incurred costs that a
significant regulatory action may have on the public and offset such
costs with the removal of two other significant regulatory actions.
The total or aggregate net benefits associated with the rule cannot
be quantified; however, they are expected to be small or slightly more
than the estimated Agency cost savings. Thus, the rule is considered a
deregulatory action per Executive Order 13771.

National Environmental Policy Act

The Agency prepared a programmatic environmental assessment to
determine whether this rule would have a significant impact on the
quality of the human environment under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.). The programmatic
environmental assessment describes and analyzes two alternatives: the
rule (proposed action) and continuing with the existing regulations (no
action). The programmatic environmental assessment is available for
review with the supporting documents for this regulation at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. The final programmatic environmental assessment
supports a finding of no significant impact for the rule; therefore,
preparation of an environmental impact statement pursuant to the
National Environmental Policy Act is not required.

Consultation and Coordination With Indian Tribal Governments (Executive
Order 13175)

This rule has been reviewed in accordance with the requirements of
Executive Order 13175. Executive Order 13175 requires Federal agencies
to consult and coordinate with Tribes on a government-to-government
basis on policies that have Tribal implications (including regulations,
legislative comments or proposed legislation, and other policy
statements or actions) that have substantial direct effects on one or
more Indian Tribes, on the relationship between the Federal government
and Indian Tribes, or on the distribution of power and responsibilities
between the Federal government and Indian Tribes. To ensure Tribal
perspectives were heard and fully considered during rulemaking, the
Agency contacted all federally recognized Indian Tribes and Alaska
Native Corporations in accordance with Executive Order 13175,
(Consultation and Coordination with Indian Tribal Governments); USDA
Departmental Regulation 1350-02 (Tribal Consultation, Coordination and
Collaboration); and Forest Service Handbook 1509.13, chapter 10
(Consultation with Indian Tribes and Alaska Native Corporations). The
Agency initiated formal consultation on the rulemaking by contacting
the Indian Tribes and Alaska Native Corporations by mail.
The consultation period began in September 2018 and continued until
January 2, 2021, or 60-days beyond the close of the 60-day public
comment period on the proposed rule. Consultation materials included
the advance notice of proposed rulemaking, briefing documents that
outline possible revisions of the existing regulations and the reasons
why these changes are being proposed, a list of frequently asked
questions, and two webinars.
The consultation process included two in-person regional Tribal
consultation meetings in the Forest Service's Southwest Region: one was
held on October 29, 2018, in Albuquerque, New Mexico, and the other on
October 31, 2018, in Flagstaff, Arizona. During the consultation
meeting on October 31, 2018, the Hopi Tribe requested additional face-
to-face consultation with the Regional Forester. The Agency also
received written comments from the Hopi Tribe and the Rincon Band of
Luiseno Indians by letter and from the Federated Indians of Graton
Rancheria by email. Most comments stated that the Tribes will be
provided additional review and comment once the Agency releases the
proposed rule, as part of the consultation process.
An invitation to consult on the proposed revisions to our Oil and
Gas Resources regulations was sent to all Tribal leaders or their
representative on the September 1, 2020, date of the proposed rule's
publication. The invitation included information about two upcoming
webinars on September 22 and 23, 2020, as well as a 228E change
comparison table and a summary analysis of the proposed rule.
Tribal comments were received and considered on the proposed rule
through consultation efforts. Tribal communications centered around
acknowledgement of the proposed regulations and included requests for
extension of the public comment time. Though the Forest Service
declined to extend the 60-day public comment period, the Agency
responded to requests for an extension by clarifying that the Tribal
consultation period was open until January 2, 2021, or 60-days beyond
the 60-day public comment period. Additional comments were not
submitted during that time.
The Director of the Office of Tribal Relations certified by
signature that the review and analysis of the 228E regulation revision
was conducted in accordance with Departmental Regulation 1350-002,
Tribal Consultation and Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments.

Regulatory Flexibility Act and Small Business Analysis

The Agency considered the impacts of the rule on small entities,
consistent with requirements of the Regulatory Flexibility Act, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, and Executive Orders 13272 and 13563 (Proper Consideration of
Small Entities in Agency Rulemaking). Under the Regulatory Flexibility
Act, whenever an agency is required to publish a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effects of the rule on small entities (such as small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. Small entities potentially
impacted by the proposed rule include small

[[Page 3658]]

businesses (firms) involved in oil and gas extraction operations (North
American Industry Classification System (NAICS) 211120 (crude petroleum
extraction) and NAICS 211130 (natural gas extraction)), drilling oil
and gas wells (NAICS 213111), and support activities for oil and gas
operations (NAICS 213112). The rule does not affect the terms,
conditions, and stipulation of existing leases. The rule can impact
businesses that express interest in or decide to bid on new leases or
otherwise decide to engage in oil and gas development and operations on
National Forest System lands currently under lease or that may come
under lease in the future. The rule provides both direct and indirect
benefits to small businesses depending on whether the business holds
leases or provides drilling and other support services.
There were 260 different firms operating oil and gas producing
wells on National Forest System lands as of September 2022, of which
249 (96 percent) are estimated to be small businesses based on the
Small Business Administration small business criterion of 1,250
employees for NAICS 211120 and NAICS 211130. The rule will primarily
impact a subset of operators that express interest in leasing National
Forest System lands or applying for permits to drill new wells on lands
managed by the Forest Service in the future. As an estimate for the
subset of affected small businesses, the Forest Service used the
average of 75 surface plans of operations for new wells that were
approved annually, from 2018 through 2022, and assumed each new surface
use plan of operations is submitted by a different firm (which is
unlikely and provides a high side estimate). Other aspects of the rule
will likely go unnoticed by operators. For example, compliant operators
will likely experience no effects from new procedures that the Agency
will follow to monitor for compliance. For comparison to the effect on
75 small businesses annually, the estimated number of small firms
associated with the oil and gas extraction sector (NAICS 211120 and
NAICS 211130) for the Nation is approximately 4,500 based on Census
Bureau, 2020 statistics for U.S. businesses. Therefore, the percent of
small businesses impacted by the rule on an annual basis is projected
to be small (75 of 4,500 is 1.7 percent).
The aggregate impact of the rule, compared to baseline regulatory
conditions, is expected to be positive for a majority of the entities
involved in oil and gas leasing, development, and operations on
National Forest System lands, as noted in the regulatory impact
analysis. Provisions of the rule are expected to reduce the times for
reviewing and approving leases and permits, thereby saving operator
costs and expediting opportunities for production and revenue.
Exceptions might include cases where some operators (i) may be faced
with increases in costs to obtain financial guarantees (such as surety
bonds) to cover incremental increases in bond amounts to help cover
full reclamation costs consistent with the existing rule, (ii) have to
apply for special use authorizations, or (iii) pay an administrative
fee to mitigate emergency non-compliance situations under the rule
(however, these situations are expected to be infrequent, involve
relatively small incremental costs, or reflect transfers of financial
risk back to operators as intended by the existing rule). Based on the
evidence summarized above, the rule is expected to increase
opportunities for net benefits to small entities on average. The number
of small entities that would be impacted is not likely to be
substantial. The Department therefore certifies that this rule will not
have a significant economic impact on a substantial number of small
entities indicating that an initial regulatory flexibility analysis is
not required.
More information on the Regulatory Flexibility Act and Small
Business Regulatory Enforcement Fairness Act determination is available
with the supporting documents for this regulation at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.

Federalism

The Agency considered this rule under the requirements of Executive
Order 13132, Federalism. The Agency has concluded that the rule
conforms to the federalism principles set out in this Executive Order.
It will not impose any compliance costs on the States and will not have
substantial direct effects on the States or the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government. Therefore,
the Agency has determined that no further assessment of federalism
implications is necessary.

Taking of Private Property (Executive Order 12630)

This rule has been analyzed in accordance with the principles and
criteria contained in Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights, and it
has been determined that the rule does not pose the risk of a taking of
protected private property. This rule affects management of Federal oil
and gas resources and does not apply to privately held oil and gas
rights.

Civil Justice Reform (Executive Order 12988)

This rule complies with the requirements of Executive Order 12988.
More specifically, this rule meets the criteria of section 3(a), which
requires agencies to review all regulations to eliminate errors and
ambiguity and to write all regulations to minimize litigation. This
rule also meets the criteria of section 3(b)(2), which requires
agencies to write all regulations in clear language with clear legal
standards.

Unfunded Mandates Reform Act

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the Agency has assessed the effects of the rule on
State, local, and Tribal governments, and on the private sector. This
rule would not compel the expenditure of $100 million or more by State,
local, or Tribal governments, in the aggregate, or by the private
sector. Therefore, this rule is not subject to the requirements of
sections 202 and 205 of the Unfunded Mandates Reform Act.

Paperwork Reduction Act

This final rule contains a collection of information for which the
Agency is following the requirements of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.). The final rule does not establish any new
information collection requirements.

List of Subjects

36 CFR Part 214

Administrative practice and procedure, National forests.

36 CFR Part 228

Environmental protection, Mines, National forests, Oil and gas
exploration, Lands--mineral resources, Public lands--rights-of-way,
Reporting and recordkeeping requirements, Surety bonds, Wilderness
areas.

36 CFR Part 261

Law enforcement, National forests.

Therefore, for the reasons set forth in the preamble, the Forest
Service is amending chapter II of title 36 of the Code of Federal
Regulations as follows:

[[Page 3659]]

PART 214--POST-DECISIONAL ADMINISTRATIVE REVIEW PROCESS FOR
OCCUPANCY OR USE OF NATIONAL FOREST SYSTEM LANDS AND RESOURCES

0
1. The authority citation for part 214 continues to read as follows:

Authority: 7 U.S.C. 1011(f); 16 U.S.C. 472, 551.

0
2. Amend Sec. 214.4 by revising paragraph (b)(3) to read as follows:

Sec. 214.4 Decisions that are appealable.

* * * * *
(b) * * *
(3) Approval or denial of a surface use plan of operations, request
concerning the surface use portion of a sundry notice, request for a
waiver or exception from or modification to an oil and gas lease
stipulation, shut down of oil and gas operations, issuance of a notice
of noncompliance, or denial of a request for noncompliance notice
deadline extension pursuant to 36 CFR part 228, subpart E;
* * * * *

PART 228--MINERALS

0
3. The authority citation for part 228 continues to read as follows:

Authority: 16 U.S.C. 478, 551; 30 U.S.C. 226, 352, 601, 611; 94
Stat. 2400.

0
4. Revise subpart E to read as follows:
Subpart E--Oil and Gas Resources
Sec.
228.100 Scope and applicability.
228.101 Definitions.
228.102 Issuance of notices to lessees and operators.
228.103 Leasing analysis and consent decision.
228.104 Consideration of requests to waive, except, or modify lease
stipulations.
228.105 Responsibilities of operators.
228.106 Operator's submission of surface use plan of operations.
228.107 Review and approval of surface use plan of operations.
228.108 Sundry notices.
228.109 Bonds.
228.110 Temporary cessation of operations.
228.111 Compliance and inspection.
228.112 Notice of noncompliance.
228.113 Material noncompliance.
228.114 Posting requirements.
228.115 Information collection requirements.

Authority: 16 U.S.C. 478, 551; 30 U.S.C. 226, 352, 601, 611.

Subpart E--Oil and Gas Resources

Sec. 228.100 Scope and applicability.

(a) Scope. This subpart sets forth the rules and procedures by
which the Forest Service, United States Department of Agriculture will
carry out its statutory responsibilities for the conservation of
surface resources associated with oil and gas leasing on National
Forest System lands, for approving surface use requirements related to
exploration and development on National Forest System lands, for
inspecting surface-disturbing operations on such leases, and for
enforcing surface use and reclamation requirements. This subpart also
establishes requirements for lessees and/or operators to minimize,
mitigate, or prevent unnecessary or unreasonable impacts on National
Forest System lands and resources.
(b) Applicability. The rules of this subpart apply to National
Forest System lands subject to Federal oil and gas leases, and to
operations that are conducted within such leases. The regulations in
this subpart do not apply to the development of non-Federal oil and gas
interests pursuant to reserved and outstanding rights.
(c) Applicability of other rules. Other rules that apply are:
(1) Application requirements for proposing oil or gas wells, along
with the procedures the Federal agencies follow for approving oil and
gas wells, certain subsequent well operations, and abandonment, are
established in the Forest Service and Bureau of Land Management joint
rule, Onshore Oil and Gas Order Number 1, now codified in 43 CFR part
3170, subpart 3171.
(2) The Bureau of Land Management regulations at 43 CFR parts 3160
and 3170, and Bureau of Land Management-issued Notices to Lessees and
Operators also apply to oil and gas leasing and operations on National
Forest System lands, where applicable.
(3) Surface uses associated with oil and gas activities that are
conducted on National Forest System lands outside a lease or agreement
are subject to Forest Service authorization under regulations set forth
elsewhere in this chapter, including but not limited to the regulations
set forth in 36 CFR part 251, subpart B, and 36 CFR part 261.

Sec. 228.101 Definitions.

For the purposes of this subpart, the terms listed in this section
have the following meaning:
Acquired lands. Lands that are obtained by purchase, donation, or
other mechanism, and which have previously been patented and which have
been reacquired by the United States.
Agreement. A Bureau of Land Management-approved Oil and Gas Unit
Agreement or Communitization Agreement (see 43 CFR 3100.5).
Authorized Forest Service officer. The Forest Service line officer
who has the delegated authority to take the action described in this
subpart is generally, depending on the scope and level of the duty to
be performed, a regional forester; a forest, grassland, or prairie
supervisor; or a district ranger.
Compliance Officer. The Deputy Chief, National Forest System; or
the Associate Deputy Chief, or other line officer designated to act in
the absence of the Deputy Chief.
Conditions of approval. Site-specific requirements shall be
included with the approval of a surface use plan of operations where
necessary to limit or modify the specific activities covered in the
plan. Conditions of approval minimize, mitigate, or prevent impacts on
National Forest System lands, resources, and interests.
Consent. For the purposes of this subpart means to notify the
Bureau of Land Management that either the Forest Service does not
object to leasing specific National Forest System lands reserved from
the public domain or consents to leasing on specific acquired lands,
subject to general terms and conditions and specified stipulations.
Final Abandonment Notice (FAN). An operator submits a FAN to notify
the Bureau of Land Management and the surface management agency that
final reclamation has been completed, that the surface has been
reclaimed in accordance with previous approval(s), and that the well
site or other facility is ready for inspection and consideration for
release from liability under the bond.
Infrastructure or facilities. The basic physical components (such
as buildings, roads, power supply, equipment, pipelines, storage tanks)
associated with the development and production of oil and gas, whether
located within or outside a lease or agreement boundary.
Lease. Any contract or other agreement issued or approved by the
United States under a mineral leasing law that authorizes exploration
for, extraction of, or removal of oil or gas.
Lessee. A person or entity holding record title in a lease issued
by the United States. A lessee also may be an operating rights owner if
the operating rights in a lease or portion thereof have not been
severed from record title (see 43 CFR 3100.5).
Master development plan. A plan submitted by an operator(s) to the
Bureau of Land Management that contains information common to multiple
planned wells, including drilling plans, surface use plans of
operations, and plans for future production.
Master surface use plan of operations. A plan for surface use,
disturbance, and reclamation for two or more wells.

[[Page 3660]]

Material noncompliance. A Forest Service determination that an
operator or lessee has materially failed or refused to take necessary
corrective actions, complete reclamation, maintain required bonds, or
reimburse the Agency for the costs of abating an emergency, as further
described in Sec. 228.113, in a timely manner.
National Forest System lands. All lands, waters, or interests
therein administered by the U.S. Department of Agriculture (USDA)
Forest Service as provided in 16 U.S.C. 1609.
Notices to Lessees and Operators. A written notice issued by the
authorized Forest Service officer or the Bureau of Land Management.
Notices to Lessees and Operators serve as requirements related to
specific item(s) of importance within a State, Forest Service region,
national forest, grassland or prairie, or ranger district, or other
area.
Operator. Any person or entity, including, but not limited to, the
lessee or operating rights owner, who has stated in writing to the
authorized officer of the Bureau of Land Management that the person or
entity is responsible under the terms and conditions of the lease for
the operations conducted on the leased lands or a portion thereof.
Reasonably Foreseeable Development Scenario (RFDS). A projection of
oil and gas exploration, development, production, and reclamation
activity. The RFDS estimates the oil and gas activity in a defined area
for a specified period of time. The RFDS projects a baseline scenario
of activity assuming all potentially productive areas are open to lease
under standard lease terms, except those areas designated as closed to
leasing by statute or regulation or areas withdrawn by the Secretary of
the Interior.
Stipulation. A provision that modifies standard lease terms and is
attached to, and made a part of, the lease by the Bureau of Land
Management. The Forest Service may include stipulations as part of its
consent to lease determination to conserve surface resources and to
minimize, mitigate, or prevent adverse impacts on lands and resources.
Stipulations constrain where, when, or how the surface lands may be
used for exploration and development activities.
Sundry notice. An operator's request submitted to the Bureau of
Land Management to perform work or conduct lease operations not covered
by another type of permit or authorization, or to change operations in
a previously approved permit; or a subsequent report of completed
activities; or a final abandonment notice.
Surface use plan of operations. A plan for surface use,
disturbance, and reclamation, and is a component of an application for
permit to drill or sundry notice. The requirements for the surface use
plan of operations are described in detail in 36 CFR 228.107, as well
as 43 CFR part 3170, subpart 3171.
Waiver, exception, or modification. Refers to a change to a lease
stipulation including:
(1) Waiver. Permanent exemption from a lease stipulation. The
stipulation no longer applies anywhere within the lease.
(2) Exception. Case-by-case exemption from a lease stipulation. The
stipulation continues to apply to all other sites within the lease to
which the restrictive criteria, as described in the lease stipulation,
apply.
(3) Modification. A change to the provisions of a lease
stipulation, either temporarily or for the term of the lease. A
modification may, therefore, include an exemption from or alteration to
a stipulated requirement. Depending on the specific modification, the
stipulation may or may not apply to all other sites on the lease to
which the restrictive criteria, as described in the lease stipulation,
apply.

Sec. 228.102 Issuance of notices to lessees and operators.

The authorized Forest Service officer may issue Notices to Lessees
and Operators necessary to implement the regulations of this subpart
either independently with notification to the Bureau of Land Management
or jointly with the Bureau of Land Management. Notices to Lessees and
Operators apply to all operations conducted by Federal lessees on
National Forest System lands supervised by the authorized Forest
Service officer who issued such notice.

Sec. 228.103 Leasing analysis and consent decision.

(a) Scheduling leasing consent analysis. The Forest Service
Washington Office shall develop, in cooperation with the Bureau of Land
Management, Forest Service regional offices, and national forest and
grassland units, a schedule for analyzing all National Forest System
lands with oil and gas resource potential for leasing in consideration
of the following:
(1) The schedule shall identify whether each analysis will be part
of a land management plan or will be a separate leasing analysis.
(2) Scheduling shall consider the level of leasing interest
expressed by the public.
(3) The Forest Service shall review, revise, or make additions to
the schedule at least annually.
(b) Leasing consent analysis. The authorized Forest Service officer
shall conduct a forest-wide or area-specific leasing analysis in either
a land management plan or a separate leasing analysis. The Bureau of
Land Management shall be invited to participate as a cooperating agency
in the leasing consent analysis. In determining lands open or closed
for leasing, the authorized Forest Service officer shall:
(1) Identify and exclude from further review the lands which are
ineligible for leasing by statute, regulation, or withdrawal by the
Secretary of the Interior.
(2) Consider a Reasonably Foreseeable Development Scenario that
projects the type/amount of post-leasing activity that is reasonably
foreseeable on eligible lands within the analysis area.
(3) Develop reasonable alternatives, including a no-leasing
alternative. The alternatives must include lease stipulations that
would be applied.
(4) Analyze the impacts of post-leasing activity projected under
this paragraph (b)(4).
(5) Develop lease stipulations that are consistently applied and
coordinated between agencies and are only as restrictive as necessary
to protect the resource or resources for which the stipulations are
applied.
(6) Include, in the analysis, maps showing lands open to leasing,
lands closed to leasing, and applicable stipulations for each
alternative.
(c) Leasing consent decision. (1) Upon completion of the leasing
consent analysis, the authorized Forest Service officer shall issue a
leasing consent decision to the authorized officer of the Bureau of
Land Management that identifies all National Forest System lands
covered by the leasing consent analysis as:
(i) Open to leasing, 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 leasing, subject to constraints that will require the
use of lease stipulations; or
(iii) Closed to leasing, distinguishing between those areas that
are being closed through exercise of management direction and those
areas that are closed by virtue of a statute, regulation, or
withdrawal.
(2) Leasing consent decisions made pursuant to this subpart shall
be subject to a predecisional objection process conducted in accordance
with the procedures set forth in 36 CFR part 219, subpart B, whether
the leasing consent

[[Page 3661]]

decision is made as part of a land management plan or separately.
(d) Effect of leasing consent decision. An authorized Forest
Service officer's identification of lands as open to leasing does not
commit the Bureau of Land Management to future leasing actions, nor
does it constitute an irretrievable or irreversible commitment of
resources.
(e) Review of leasing consent availability decision for specific
lands. (1) At the time specific lands identified under paragraph (c) of
this section are scheduled for leasing by the Bureau of Land
Management, the Forest Service shall review the leasing consent
availability decision to:
(i) Verify that oil and gas leasing of the specific lands has been
adequately addressed in a National Environmental Policy Act (NEPA)
document and is consistent with the applicable land management plan;
(ii) Ensure lease stipulations are applied consistent with the
leasing consent decision and reflect resource conditions on the lands
in the nomination; and
(iii) Determine that operations and development could be allowed
somewhere on each proposed lease, except where stipulations will
prohibit all surface occupancy.
(2) If there is significant new information or a circumstance that
requires additional environmental analysis be conducted, or leasing
would not be consistent with the applicable land management plan,
leasing consent will not be provided or will be withdrawn.
(3) The Forest Service will provide notification to the Bureau of
Land Management of results of the review confirming the Forest Service
consent decision for specific lands or withdrawing its leasing consent
for specific parcels. If the consent is withdrawn, the notification
will describe the reasons for the withdrawal and provide an anticipated
course of action, including any additional environmental analysis to be
conducted of the leasing consent analysis decision as expeditiously as
possible consistent with paragraph (a) of this section.
(4) Verification or withdrawal of a leasing consent determination
made pursuant to this paragraph (e) is not subject administrative
appeal or objection.

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

(a) General. (1) The Bureau of Land Management's oil and gas
leasing regulations at 43 CFR 3101.14 and 3171.24 outline requirements
for the lessee or their designated operators to request waivers,
exceptions, or modifications to lease stipulations.
(2) Where the request involves stipulations included in the lease
as prescribed by the Forest Service, the Bureau of Land Management must
obtain approval from the Forest Service before granting a request for a
waiver, exception, or modification.
(b) Requesting a waiver, exception, or modification. Requests to
waive, except, or modify a lease stipulation are subject to procedures
in 43 CFR part 3170, subpart 3171. In addition to information required
in 43 CFR part 3170, subpart 3171, the operator should submit any
information that might assist the authorized Forest Service officer in
assessing whether or not to approve a waiver, exception, or
modification.
(c) Criteria for approval. A request for a waiver, exception, or
modification to a lease stipulation may be approved by the authorized
Forest Service officer if the officer determines the following, after
reviewing the present condition of the surface resources involved and
the nature, location, timing, and design of the proposed operations:
(1) The action would be consistent with applicable Federal laws.
(2) The action would be consistent with the current land management
plan.
(3) The management objectives which led the Forest Service to
require the inclusion of the stipulation in the lease can be met if the
waiver, exception, or modification is granted.
(4) The action is acceptable to the authorized Forest Service
officer based upon a review of the environmental consequences.
(d) Coordination with other agencies. If a lease stipulation was
included in a lease by the Forest Service at the request of another
agency, or if another agency has specific jurisdiction over the
specific resource, the authorized Forest Service officer shall
coordinate with that agency prior to approving a waiver, exception, or
modification. This paragraph (d) does not require the consent of such
an agency to the waiver, exception, or modification unless such consent
is independently required by statute or regulation.
(e) Notice of determination. The authorized Forest Service officer
shall notify the Bureau of Land Management in writing whether or not
the request should be granted and shall provide all information used to
make the determination.

Sec. 228.105 Responsibilities of operators.

(a) General. The lessee or operator shall conduct operations on
National Forest System lands in a manner that minimizes effects on
surface resources and reduces conflicts with other land uses by
avoiding unnecessary or unreasonable surface resource disturbance.
(1) At a minimum, the operator must:
(i) Control soil erosion and mitigate land instability caused by
their operations;
(ii) Control water runoff from their operations;
(iii) Remove, or control, solid wastes, toxic substances, and
hazardous substances attributable to their operations;
(iv) Reshape and revegetate areas disturbed by their operations;
(v) Remove structures, improvements, facilities, and equipment no
longer needed in the conduct of operations, unless otherwise
authorized;
(vi) Take measures to preclude introduction of nonnative invasive
species that could otherwise result from their operations;
(vii) Take measures to reclaim surface areas disturbed by their
operations;
(viii) Unless otherwise approved by the authorized Forest Service
officer, initiate interim reclamation activity within 1 year of
completion of operations on the affected area. Interim reclamation
shall be conducted concurrently with other operations; and
(ix) Promptly clean up and remove from National Forest System
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) any released oil,
produced water, toxic substances, or other contaminating substances
attributable to their operations in accordance with all applicable
Federal, State, and local laws and regulations.
(2) Operators shall use existing roads and utility corridors
wherever possible.
(3) All spills or leakages of oil, gas, produced water, toxic
liquids, or waste materials; blowouts; fires; personal injuries; and
fatalities that are reported to the Bureau of Land Management according
to applicable orders, notices to lessee, and/or approved surface use
plan of operations shall also be reported to the authorized Forest
Service officer.
(b) Compliance with other statutes and regulations. The operator is
responsible for complying with applicable Federal and State laws and
regulations. The operator must also comply with notices to lessees
issued pursuant to this subpart.
(c) Access. Operators must allow authorized Forest Service
employees access to drilling and production sites and to any other
locations on National Forest System lands where operations pursuant to
a lease are being conducted.

[[Page 3662]]

(d) Other Forest Service authorizations. To the extent required by
applicable statutes and regulations, the operator shall obtain other
Forest Service authorizations such as timber contracts, road use
permits, or special use authorizations for other uses of National
Forest System lands.
(e) Safety measures. (1) The operator must maintain structures,
facilities, improvements, and equipment located on the area of
operation in a safe and well-maintained manner and in accordance with
the applicable approval(s).
(2) The operator must take appropriate measures in accordance with
applicable Federal and State laws and regulations to protect the public
from hazardous sites or conditions resulting from the operations. Such
measures may include, but are not limited to, posting signs, building
fences, or otherwise identifying a hazardous site or condition.
(3) The operator shall conduct its activities in a manner that
avoids the cause or minimizes the spread of fire.
(f) Liability. The operator and lessee are jointly and severally
liable in accordance with Federal and State laws to the United States
for:
(1) Injury, loss, or damage, including fire suppression costs,
incurred by the United States as a result of the operations; and
(2) Payments made by the United States in satisfaction of claims,
demands, or judgments for an injury, loss, or damage, including fire
suppression costs, incurred as a result of the operations.

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

(a) General. (1) The provisions of this section apply to both
surface use plans of operations and master surface use plans of
operations. Operators shall submit Applications for Permit to Drill or
master development plans in accordance with 43 CFR part 3170, subpart
3171, to the Bureau of Land Management. The application for permit to
drill or master development plan shall include the surface use plan of
operations or master surface use plan of operations.
(2) A master surface use plan of operations can be submitted with a
master development plan or with an individual application for permit to
drill. If a master surface use plan of operations has been submitted,
then subsequent Applications for Permit to Drill can reference the
master surface use plan of operations if they are consistent with the
master surface use plan of operations.
(b) Preparation of the surface use plan of operations. In preparing
a surface use plan of operations, the operator must ensure that it
contains the mandatory components of 43 CFR part 1370, subpart 3171,
and provisions of Sec. 228.105. The operator is also 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, standard conditions of approval, environmental
considerations, and local reclamation procedures. The surface use plan
of operations must be consistent with lease terms and stipulations.
(c) Content of surface use plan of operations. The type, size, and
intensity of the proposed operations and the sensitivity of the
affected surface resources by the proposed operations determine the
level of detail and the amount of information which the operator
includes in a proposed surface use plan of operations. The surface use
plan of operations shall also include planned infrastructure or
facilities, to the extent known, to be used to execute the surface use
plan of operations. This submission should specify what facilities or
infrastructure are located within lease or agreement boundaries, and
those that are located outside lease or agreement boundaries.

Sec. 228.107 Review and approval of surface use plan of operations.

(a) General. The provisions of this section apply to both surface
use plans of operations and master surface use plans of operations. An
operator must obtain an approved application for permit to drill from
the Bureau of Land Management before conducting operations. No permit
to drill on National Forest System lands may be granted without a
Forest Service-approved surface use plan of operations covering
proposed surface-disturbing activities. Approval or denial of a surface
use plan of operations proposed to be documented in a Decision Notice
or Record of Decision is subject to the predecisional objection process
set forth in 36 CFR part 218 and post-decisional appeal process as
provided in 36 CFR 214.4(b)(3).
(b) Review. The authorized Forest Service officer shall give public
notice of any proposed decision on a surface use plan of operations to
be documented in a Decision Notice or Record of Decision and identify
that the proposed decision is subject to the 36 CFR part 218 pre
decisional objection process. The authorized Forest Service officer
shall review the surface use plan of operations following the
procedures in 43 CFR part 3170, subpart 3171, to ensure that:
(1) The surface use plan of operations contains the mandatory
components of 43 CFR part 1370, subpart 3171, and Sec. 228.105;
(2) The surface use plan of operations is consistent with the
lease, including the lease stipulations, and applicable Federal laws;
and
(3) To the extent consistent with the rights conveyed by the lease,
the surface use plan of operations is consistent with, or can be
modified to be consistent with, the applicable land management plan.
(c) Analysis and decision. When the review of the surface use plan
of operations is completed, the authorized Forest Service officer
shall:
(1) Approve the surface use plan of operations as submitted; or
(2) Approve the surface use plan of operations subject to specified
conditions of approval; or,
(3) Deny the surface use plan of operations for the reasons stated.
(d) Timing of decision. If a decision on a surface use plan of
operation cannot be made within 30 days of a complete application, the
authorized Forest Service officer shall advise the appropriate Bureau
of Land Management office as soon as it becomes apparent that
additional time will be needed to process the plan. The authorized
Forest Service officer shall follow procedures described in 43 CFR part
1370, subpart 3171, to explain why additional time is needed and
project the date by which a decision on the surface use plan of
operation will likely be made. The authorized Forest Service officer
shall also notify the applicant of any action the applicant could take
that would enable the Forest Service officer to issue a final decision
on the surface use plan of operations.
(e) Notice of decision. The authorized Forest Service officer shall
give public notice of the final decision on a surface use plan of
operations and identify in the notice that the decision may only be
appealed by the applicant under 36 CFR part 214.
(f) Notifying the Bureau of Land Management. The authorized Forest
Service officer shall promptly notify the Bureau of Land Management if
a surface use plan of operations is approved, including conditions of
approval, if any, or whether it has been denied. This transmittal shall
include the estimated additional surface use bond amount to be required
(Sec. 228.109), if any.

Sec. 228.108 Sundry notices.

(a) General. For activities that require a sundry notice under
Bureau of Land

[[Page 3663]]

Management regulations (43 CFR 3162.3-2), the operator must submit the
sundry notice to and obtain approval from the Bureau of Land
Management. If the activity would cause effects on surface resources,
the sundry notice must include a surface use plan of operations that is
subject to Forest Service approval. The sundry notice need only address
those operations that differ from those authorized by the current
approved surface use plan of operations.
(b) Review and approval. If Forest Service approval is required,
the authorized Forest Service officer shall determine whether the
activity would be subject to additional environmental review or
analysis. If the activity would cause effects on surface resources not
authorized by the currently approved surface use plan of operations,
the sundry notice is subject to the same requirements of Sec. Sec.
228.106 and 228.107. Following review or analysis, the authorized
Forest Service officer shall notify the Bureau of Land Management
whether the Forest Service approves the new surface use plan of
operations.

Sec. 228.109 Bonds.

(a) General. (1) As part of the review of a proposed surface use
plan of operations, the authorized Forest Service officer shall review
existing bond amount(s) to determine if they are sufficient to ensure
complete and timely reclamation of surface disturbances and restoration
of any lands or surface waters adversely affected by lease operations.
The review shall include a determination of whether the performance
bond held by the Bureau of Land Management is adequate to meet the
requirements of this paragraph (a)(1).
(2) If at any time prior to, or during the conduct of operations,
the authorized Forest Service officer determines that the performance
bond amount held by the Bureau of Land Management is not adequate to
ensure complete and timely reclamation and restoration of National
Forest System lands, the authorized Forest Service officer may review
and require a bond amount specifically for reclaiming surface
disturbance.
(b) Considerations for reviewing bond adequacy. In assessing
whether a bond is sufficient, the authorized Forest Service officer:
(1) Shall consider the scope and full extent of the operator's
proposed operations, associated surface disturbance, and
infrastructure, and performance history and risk posed by the operator.
(2) Shall consider the costs to the Forest Service to undertake
reclamation or restoration actions in case of operator default.
(c) Determining level of bond amount. If additional bonding is
determined necessary, the authorized Forest Service officer may specify
a bond amount to any level, provided that the amount does not exceed
the total estimated cost of reclamation based on surface disturbance.
(d) Posting bonds. If the authorized Forest Service officer
determines that additional bonding is necessary, the officer shall give
the operator the option of either increasing the bond held by the
Bureau of Land Management or filing a separate reclamation bond with
the Forest Service in the amount deemed adequate. The Forest Service
must notify the Bureau of Land Management if the operator chooses to
increase its Bureau of Land Management bond. If an additional surface
use bond is determined to be necessary, the bond must be posted prior
to commencing any surface-disturbing activities.
(e) Bond release. When the Forest Service holds a bond, the
operator may request that the Forest Service authorize an incremental
reduction in bond amount at any time during operations as restoration
or reclamation activities are completed. When the Bureau of Land
Management holds the bond, an operator may request the authorized
Forest Service officer to notify the Bureau of Land Management to
reduce the bond amount. The authorized Forest Service officer shall, if
appropriate, notify the Bureau of Land Management of the amount by
which the bond may be reduced.

Sec. 228.110 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 written statement
with the authorized Forest Service 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) Interim measures. The authorized Forest Service officer shall
require, as necessary, the operator to take reasonable interim
reclamation or erosion control measures to protect surface resources
during temporary cessation of operations, including during cessation of
operations resulting from adverse weather conditions.
(c) Notice of operations. The operator shall notify the authorized
Forest Service officer at least 48 hours prior to resuming operations
following a temporary cessation of 45 days or more.

Sec. 228.111 Compliance and inspection.

(a) General. Operations must be conducted in accordance with this
subpart, the applicable lease (including stipulations made part of the
lease at the direction of the Forest Service), an approved surface use
plan of operations, applicable Bureau of Land Management regulations at
43 CFR part 3170, and applicable Notices to Lessees and Operators
(Sec. 228.102).
(b) Inspection of operations. The Forest Service shall periodically
inspect the area of operations to determine and document whether
operations are being conducted in compliance with the requirements in
paragraph (a) of this section.
(c) Inspection of reclamation. The Forest Service shall inspect
sites for reclamation compliance when a Final Abandonment Notice is
submitted. The Forest Service shall ensure that reclamation meets the
requirements of the approved surface use plan of operations and Sec.
228.105. The Forest Service shall promptly notify the Bureau of Land
Management in writing when reclamation is satisfactory.
(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 entity conducting those operations is
subject to the applicable prohibitions and penalties under 36 CFR part
261 (see also Sec. 228.112).

Sec. 228.112 Notice of noncompliance.

(a) General. When an authorized Forest Service officer finds that
operations are not being conducted in accordance with regulations of
this subpart, the lease (including stipulations made part of the lease
at the direction of the Forest Service), an approved surface use plan
of operations, applicable Bureau of Land Management regulations at 43
CFR part 3170, and applicable Notices to Lessees and Operators, the
operator shall be notified and given opportunity to come into
compliance according to paragraph (b) of this section. The Forest
Service shall provide courtesy copies to the local Bureau of Land
Management office when a written notice of noncompliance is sent to an
operator.
(b) Notice of noncompliance. Upon finding that an operator is in
noncompliance, the authorized Forest

[[Page 3664]]

Service officer shall send the operator written notification by
certified mail that:
(1) Describes the requirement(s) with which the operator is in
noncompliance;
(2) Describes the measure(s) that are required to correct the
noncompliance;
(3) Specifies a reasonable period of time within which the
noncompliance(s) must be corrected;
(4) Describes the possible consequences of continued noncompliance
as described in paragraph (e) of this section; and
(5) Provides notification that the authorized Forest Service
officer is willing to work cooperatively with the operator to resolve
the noncompliance.
(c) 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 by the deadline. The operator must
provide written rationale for delaying compliance. The authorized
Forest Service officer has sole discretion to extend compliance
deadlines, subject to provisions for appeal as noted in paragraph (d)
of this section.
(d) Appeal. An operator may appeal a notice of noncompliance issued
under paragraph (b) of this section or a denial of a request for
extension under paragraph (c) of this section, as provided for in 36
CFR part 214.
(e) Continued noncompliance. If an operator fails or refuses to
comply with a notice of noncompliance, the authorized Forest Service
officer may take action in one or more of the following ways:
(1) Refer the issue to the local Bureau of Land Management office
for action under 43 CFR part 3163.
(2) Refer the issue to a Forest Service law enforcement officer if
the noncompliance also constitutes a violation of the prohibitions in
36 CFR part 261.
(3) Refer the issue to the Compliance Officer for a determination
of material noncompliance per Sec. 228.113.
(f) Shut down of operations. When the noncompliance is likely to
result in danger to public health or safety or in irreparable resource
damage, the authorized Forest Service officer shall, in coordination
with the Bureau of Land Management, shut down the operations, in whole
or in part.
(1) The authorized Forest Service officer shall serve decisions
shutting down operations upon the operator in person, by certified
mail, electronic mail or by telephone. If notice is initially provided
in person, by electronic mail, or by telephone, the authorized Forest
Service officer shall send the operator written confirmation of the
decision by certified mail.
(2) Shut down of operations shall remain in effect until the
authorized Forest Service officer determines that the operations are in
compliance with the applicable requirement(s) identified in the notice
of noncompliance.
(g) Abatement of emergencies. When the noncompliance is resulting
in an emergency, the authorized Forest Service 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.
(1) Emergency situations include, but are not limited to, imminent
dangers to public health or safety or irreparable resource damage.
(2) The authorized Forest Service officer shall promptly serve a
bill for such costs upon the operator by certified mail.

Sec. 228.113 Material noncompliance.

(a) General. The authorized Forest Service officer shall refer
actions to the Compliance Officer for a determination of material
noncompliance when the operator or lessee has failed or refused to:
(1) Comply with necessary corrective actions directed according to
the procedures in Sec. 228.112 in cases where the noncompliance
resulted in danger to public health or safety; caused irreparable
resource damage; or resulted in an emergency;
(2) Complete reclamation;
(3) Maintain an additional bond in the amount required by the
authorized Forest Service officer during the period of operation; and
(4) Reimburse the Forest Service in a timely manner for the cost of
abating an emergency.
(b) Compliance Officer determination of material noncompliance.
When determining whether an operator or lessee has failed or refused to
comply in a material respect with reclamation requirements or other
requirements or standards identified in paragraph (a) of this section,
the Compliance Officer shall:
(1) Inform the operator or lessee by certified mail of the
authorized Forest Service officer's material noncompliance referral and
the Compliance Officer's intent to proceed with a material
noncompliance review.
(2) Inform the operator or lessee of the opportunity to submit a
written response to the referral and/or to request an oral presentation
with the Compliance Officer within 30 calendar days of receipt of the
certified letter.
(3) Ensure that:
(i) Opportunities for corrective action according to Sec.
228.112(b) have been pursued;
(ii) Consideration is given to the status of any noncompliance
referrals sent to the Bureau of Land Management for action per Sec.
228.112(e); and
(iii) Consideration is given to the seriousness of the effects
caused by the operator's failure or refusal to comply.
(4) Consider any pending judicial or administrative appeals
involving the operator, including those within the purview of the
Bureau of Land Management.
(5) Notify the operator or lessee by certified mail of the outcome
of the material noncompliance referral review. If material
noncompliance was determined, the notice shall inform the operator that
the Bureau of Land Management may not issue a lease or approve the
assignment of any lease to the entity. The notification shall also
state that the decision is the final administrative determination of
the Department of Agriculture.
(c) Notifying the Bureau of Land Management. Upon completion of a
material noncompliance review, the Compliance Officer shall notify the
Bureau of Land Management in writing of the outcome of the review.
(d) Notification that material compliance has occurred. If an
entity found to be in material noncompliance subsequently comes into
material compliance with reclamation requirements or other requirements
or standards identified in paragraph (a) of this section, the
Compliance Officer shall advise the Bureau of Land Management that the
entity has come into material compliance.

Sec. 228.114 Posting requirements.

The affected National Forest or Grassland ranger district office
shall promptly post notices provided by the Bureau of Land Management
of:
(a) Competitive lease sales which the Bureau of Land Management
plans to conduct that include National Forest System lands. These must
be posted for a minimum of 45 days prior to the sale;
(b) Substantial modifications in the terms which the Bureau of Land
Management proposes to make for leases on National Forest System lands
(43 CFR 3101.14). These must be posted for a minimum of 30 days; and,
(c) Applications for Permits to Drill, which the Bureau of Land
Management has received involving leases or agreements located on
National Forest System lands according to provisions of 43 CFR part
3170, subpart 3171. These must be posted for a minimum of 30 days.

[[Page 3665]]

Sec. 228.115 Information collection requirements.

The Office of Management and Budget (OMB) reviewed and approved the
information collection requirements contained in this subpart and
assigned OMB Control No. 0596-0101. The collection of information
allows the Forest Service to approve or take other appropriate actions
on surface use plans of operations; requests to waive, except, or
modify lease stipulations; requests for reduction in reclamation
liability; noncompliance issues; and notices of cessation of
operations. The information collection requirements of this subpart are
supplemental to the Bureau of Land Management's various Office of
Management and Budget information collection approvals for issuing and
managing Federal oil and gas leases, but primarily to the following:
OMB Control No. 1004-0134 for 43 CFR 3162.3; and OMB Control No. 1004-
0136 for Form 3160-3, Application for Permit to Drill.

PART 261--PROHIBITIONS

0
5. The authority citation for part 261 continues to read as follows:

Authority: 7 U.S.C. 1011(f); 16 U.S.C. 460l-6d, 472, 551,
620(f), 1133(c)-(d)(1), 1246(i).

0
6. Amend Sec. 261.2 by revising the definition for ``Operating plan''
to read as follows:

Sec. 261.2 Definitions.

* * * * *
Operating plan means the following documents, providing that the
document has been issued or approved by the Forest Service: A plan of
operations as provided for in 36 CFR part 228, subparts A and D, and 36
CFR part 292, subparts C and G; a supplemental plan of operations as
provided for in 36 CFR part 228, subpart A, and 36 CFR part 292,
subpart G; an operating plan as provided for in 36 CFR part 228,
subpart C, and 36 CFR part 292, subpart G; an amended operating plan
and a reclamation plan as provided for in 36 CFR part 292, subpart G; a
surface use plan of operations as provided for in 36 CFR part 228,
subpart E; a surface use portion of a sundry notice as provided for in
36 CFR part 228, subpart E; a permit as provided for in 36 CFR 251.15;
and an operating plan and a letter of authorization as provided for in
36 CFR part 292, subpart D.
* * * * *

Courtney Stevens,
Acting Deputy Under Secretary, Natural Resources and Environment.
[FR Doc. 2026-01655 Filed 1-27-26; 8:45 am]
BILLING CODE 3411-15-P

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