Last updated on March 14th, 2023 at 02:15 pm
Title 43 – Public Lands: Interior–Volume 2
Subtitle B – Regulations Relating to Public Lands (Continued)
CHAPTER II – BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR
SUBCHAPTER A – GENERAL MANAGEMENT (1000)
PARTS 1000-1599 [RESERVED]
PART 1600 – PLANNING, PROGRAMMING, BUDGETING
Subpart 1601 – Planning
§ 1601.0-1 Purpose.
The purpose of this subpart is to establish in regulations a process for the development, approval, maintenance, amendment and revision of resource management plans, and the use of existing plans for public lands administered by the Bureau of Land Management.
§ 1601.0-2 Objective.
The objective of resource management planning by the Bureau of Land Management is to maximize resource values for the public through a rational, consistently applied set of regulations and procedures which promote the concept of multiple use management and ensure participation by the public, state and local governments, Indian tribes and appropriate Federal agencies. Resource management plans are designed to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses.
§ 1601.0-3 Authority.
These regulations are issued under the authority of sections 201 and 202 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1711-1712); the Public Rangelands Improvement Act of 1978 (43 U.S.C. 1901); section 3 of the Federal Coal Leasing Amendments Act of 1976 (30 U.S.C. 201(a)); sections 522, 601, and 714 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.); and the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
§ 1601.0-4 Responsibilities.
(a) National level policy and procedure guidance for planning shall be provided by the Secretary and the Director.
(b) State Directors will provide quality control and supervisory review, including plan approval, for plans and related environmental impact statements and provide additional guidance, as necessary, for use by Field Managers. State Directors will file draft and final environmental impact statements associated with resource management plans and amendments.
(c) Field Managers will prepare resource management plans, amendments, revisions and related environmental impact statements. State Directors must approve these documents.
§ 1601.0-5 Definitions.
As used in this part, the term:
(a) Areas of Critical Environmental Concern or ACEC means areas within the public lands where special management attention is required (when such areas are developed or used or where no development is required) to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources, or other natural systems or processes, or to protect life and safety from natural hazards. The identification of a potential ACEC shall not, of itself, change or prevent change of the management or use of public lands.
(b) Conformity or conformance means that a resource management action shall be specifically provided for in the plan, or if not specifically mentioned, shall be clearly consistent with the terms, conditions, and decisions of the approved plan or plan amendment.
(c) Consistent means that the Bureau of Land Management plans will adhere to the terms, conditions, and decisions of officially approved and adopted resource related plans, or in their absence, with policies and programs, subject to the qualifications in § 1615.2 of this title.
(d) Eligible cooperating agency means:
(1) A Federal agency other than a lead agency that is qualified to participate in the development of environmental impact statements as provided in 40 CFR 1501.6 and 1508.5 or, as necessary, other environmental documents that BLM prepares, by virtue of its jurisdiction by law as defined in 40 CFR 1508.15, or special expertise as defined in 40 CFR 1508.26; or
(2) A federally recognized Indian tribe, a state agency, or a local government agency with similar qualifications.
(e) Cooperating agency means an eligible governmental entity that has entered into a written agreement with the BLM establishing cooperating agency status in the planning and NEPA processes. BLM and the cooperating agency will work together under the terms of the agreement. Cooperating agencies will participate in the various steps of BLM’s planning process as feasible, given the constraints of their resources and expertise.
(f) Field Manager means a BLM employee with the title “Field Manager” or “District Manager.”
(g) Guidance means any type of written communication or instruction that transmits objectives, goals, constraints, or any other direction that helps the Field Managers and staff know how to prepare a specific resource management plan.
(h) Local government means any political subdivision of the State and any general purpose unit of local government with resource planning, resource management, zoning, or land use regulation authority.
(i) Multiple use means the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; making the most judicious use of the lands for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some lands for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long term needs of future generations for renewable and non-renewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values; and harmonious and coordinated management of the various resources without permanent impairment of the productivity of the lands and the quality of the environment with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.
(j) Officially approved and adopted resource related plans means plans, policies, programs and processes prepared and approved pursuant to and in accordance with authorization provided by Federal, State or local constitutions, legislation, or charters which have the force and effect of State law.
(k) Public means affected or interested individuals, including consumer organizations, public land resource users, corporations and other business entities, environmental organizations and other special interest groups and officials of State, local, and Indian tribal governments.
(l) Public lands means any lands or interest in lands owned by the United States and administered by the Secretary of the Interior through the Bureau of Land Management, except lands located on the Outer Continental Shelf and lands held for the benefit of Indians, Aleuts and Eskimos.
(m) Resource area or field office means a geographic portion of a Bureau of Land Management district. It is the administrative subdivision whose manager has primary responsibility for day-to-day resource management activities and resource use allocations and is, in most instances, the area for which resource management plans are prepared and maintained.
(n) Resource management plan means a land use plan as described by the Federal Land Policy and Management Act. The resource management plan generally establishes in a written document:
(1) Land areas for limited, restricted or exclusive use; designation, including ACEC designation; and transfer from Bureau of Land Management Administration;
(2) Allowable resource uses (either singly or in combination) and related levels of production or use to be maintained;
(3) Resource condition goals and objectives to be attained;
(4) Program constraints and general management practices needed to achieve the above items;
(5) Need for an area to be covered by more detailed and specific plans;
(6) Support action, including such measures as resource protection, access development, realty action, cadastral survey, etc., as necessary to achieve the above;
(7) General implementation sequences, where carrying out a planned action is dependent upon prior accomplishment of another planned action; and
(8) Intervals and standards for monitoring and evaluating the plan to determine the effectiveness of the plan and the need for amendment or revision.
It is not a final implementation decision on actions which require further specific plans, process steps, or decisions under specific provisions of law and regulations.
§ 1601.0-6 Environmental impact statement policy.
Approval of a resource management plan is considered a major Federal action significantly affecting the quality of the human environment. The environmental analysis of alternatives and the proposed plan shall be accomplished as part of the resource management planning process and, wherever possible, the proposed plan and related environmental impact statement shall be published in a single document.
§ 1601.0-7 Scope.
(a) These regulations apply to all public lands.
(b) These regulations also govern the preparation of resource management plans when the only public land interest is the mineral estate.
§ 1601.0-8 Principles.
The development, approval, maintenance, amendment and revision of resource management plans will provide for public involvement and shall be consistent with the principles described in section 202 of the Federal Land Policy and Management Act of 1976. Additionally, the impact on local economies and uses of adjacent or nearby non-Federal lands and on non-public land surface over federally-owned mineral interests shall be considered.
Subpart 1610 – Resource Management Planning
§ 1610.1 Resource management planning guidance.
(a) Guidance for preparation and amendment of resource management plans may be provided by the Director and State Director, as needed, to help the Field Manager and staff prepare a specific plan. Such guidance may include the following:
(1) National level policy which has been established through legislation, regulations, executive orders or other Presidential, Secretarial or Director approved documents. This policy may include appropriately developed resource management commitments, such as a right-of-way corridor crossing several resource or field office areas, which are not required to be reexamined as part of the planning process.
(2) Analysis requirements, planning procedures and other written information and instructions required to be considered in the planning process.
(3) Guidance developed at the State Director level, with necessary and appropriate governmental coordination as prescribed by § 1610.3 of this title. Such guidance shall be reconsidered by the State Director at any time during the planning process that the State Director level guidance is found, through public involvement or other means, to be inappropriate when applied to a specific area being planned.
(b) A resource management plan shall be prepared and maintained on a resource or field office area basis, unless the State Director authorizes a more appropriate area.
(c) An interdisciplinary approach shall be used in the preparation, amendment and revision of resource management plans as provided in 40 CFR 1502.6. The disciplines of the preparers shall be appropriate to the values involved and the issues identified during the issue identification and environmental impact statement scoping stage of the planning process. The Field Manager may use any necessary combination of Bureau of Land Management staff, consultants, contractors, other governmental personnel, and advisors to achieve an interdisciplinary approach.
§ 1610.2 Public participation.
(a) The public shall be provided opportunities to meaningfully participate in and comment on the preparation of plans, amendments and related guidance and be given early notice of planning activities. Public involvement in the resource management planning process shall conform to the requirements of the National Environmental Policy Act and associated implementing regulations.
(b) The Director shall, early in each fiscal year, publish a planning schedule advising the public of the status of each plan in process of preparation or to be started during that fiscal year, the major action on each plan during that fiscal year and projected new planning starts for the 3 succeeding fiscal years. The notice shall call for public comments on projected new planning starts so that such comments can be considered in refining priorities for those years.
(c) When BLM starts to prepare, amend, or revise resource management plans, we will begin the process by publishing a notice in the
(1) Description of the proposed planning action;
(2) Identification of the geographic area for which the plan is to be prepared;
(3) The general types of issues anticipated;
(4) The disciplines to be represented and used to prepare the plan;
(5) The kind and extent of public participation opportunities to be provided;
(6) The times, dates and locations scheduled or anticipated for any public meetings, hearings, conferences or other gatherings, as known at the time;
(7) The name, title, address and telephone number of the Bureau of Land Management official who may be contacted for further information; and
(8) The location and availability of documents relevant to the planning process.
(d) A list of individuals and groups known to be interested in or affected by a resource management plan shall be maintained by the Field Manager and those on the list shall be notified of public participation activities. Individuals or groups may ask to be placed on this list. Public participation activities conducted by the Bureau of Land Management shall be documented by a record or summary of the principal issues discussed and comments made.
The documentation together with a list of attendees shall be available to the public and open for 30 days to any participant who wishes to clarify the views he/she expressed.
(e) At least 15 days’ public notice shall be given for public participation activities where the public is invited to attend. Any notice requesting written comments shall provide for at least 30 calendar days for response. Ninety days shall be provided for review of the draft plan and draft environmental impact statement. The 90-day period shall begin when the Environmental Protection Agency publishes a notice of the filing of the draft environmental impact statement in the
(f) Public notice and opportunity for participation in resource management plan preparation shall be appropriate to the areas and people involved and shall be provided at the following specific points in the planning process:
(1) General notice at the outset of the process inviting participation in the identification of issues (See §§ 1610.2(c) and 1610.4-1);
(2) Review of the proposed planning criteria (§§ 1610.4-2);
(3) Publication of the draft resource management plan and draft environmental impact statement (See § 1610.4-7);
(4) Publication of the proposed resource management plan and final environmental impact statement which triggers the opportunity for protest (See §§ 1610.4-8 and 1610.5-1(b)); and
(5) Public notice and comment on any significant change made to the plan as a result of action on a protest (See § 1610.5-1(b)).
(g) BLM will make copies of an approved resource management plan and amendments reasonably available for public review. Upon request, we will make single copies available to the public during the public participation process. After BLM approves a plan, amendment, or revision we may charge a fee for additional copies. We will also have copies available for public review at the:
(1) State Office that has jurisdiction over the lands,
(2) Field Office that prepared the plan; and
(3) District Office, if any, having jurisdiction over the Field Office that prepared the plan.
(h) Supporting documents to a resource management plan shall be available for public review at the office where the plan was prepared.
(i) Fees for reproducing requested documents beyond those used as part of the public participation activities and other than single copies of the printed plan amendment or revision may be charged according to the Department of the Interior schedule for Freedom of Information Act requests in 43 CFR part 2.
(j) When resource management plans involve areas of potential mining for coal by means other than underground mining, and the surface is privately owned, the Bureau of Land Management shall consult with all surface owners who meet the criteria in § 3400.0-5 of this title. Contact shall be made in accordance with subpart 3427 of this title and shall provide time to fully consider surface owner views. This contact may be made by mail or in person by the Field Manager or his/her appropriate representative. A period of at least 30 days from the time of contact shall be provided for surface owners to convey their preference to the Field Manager.
(k) If the plan involves potential for coal leasing, a public hearing shall be provided prior to the approval of the plan, if requested by any person having an interest which is, or may be, adversely affected by implementation of such plan. The hearing shall be conducted as prescribed in § 3420.1-5 of this title and may be combined with a regularly scheduled public meeting. The authorized officer conducting the hearing shall:
(1) Publish a notice of the hearing in a newspaper of general circulation in the affected geographical area at least once a week for 2 consecutive weeks;
(2) Provide an opportunity for testimony by anyone who so desires; and
(3) Prepare a record of the proceedings of the hearing.
§ 1610.3 Coordination with other Federal agencies, State and local governments, and Indian tribes.
§ 1610.3-1 Coordination of planning efforts.
(a) In addition to the public involvement prescribed by § 1610.2, the following coordination is to be accomplished with other Federal agencies, state and local governments, and federally recognized Indian tribes. The objectives of the coordination are for the State Directors and Field Managers to:
(1) Keep apprised of non-Bureau of Land Management plans;
(2) Assure that BLM considers those plans that are germane in the development of resource management plans for public lands;
(3) Assist in resolving, to the extent practicable, inconsistencies between Federal and non-Federal government plans;
(4) Provide for meaningful public involvement of other Federal agencies, State and local government officials, both elected and appointed, and federally recognized Indian tribes, in the development of resource management plans, including early public notice of final decisions that may have a significant impact on non-Federal lands; and
(5) Where possible and appropriate, develop resource management plans collaboratively with cooperating agencies.
(b) When developing or revising resource management plans, BLM State Directors and Field Managers will invite eligible Federal agencies, state and local governments, and federally recognized Indian tribes to participate as cooperating agencies. The same requirement applies when BLM amends resource management plans through an environmental impact statement. State Directors and Field Managers will consider any requests of other Federal agencies, state and local governments, and federally recognized Indian tribes for cooperating agency status. Field Managers who deny such requests will inform the State Director of the denial. The State Director will determine if the denial is appropriate.
(c) State Directors and Field Managers shall provide other Federal agencies, State and local governments, and Indian tribes opportunity for review, advice, and suggestion on issues and topics which may affect or influence other agency or other government programs. To facilitate coordination with State governments, State Directors should seek the policy advice of the Governor(s) on the timing, scope and coordination of plan components; definition of planning areas; scheduling of public involvement activities; and the multiple use opportunities and constraints on public lands. State Directors may seek written agreements with Governors or their designated representatives on processes and procedural topics such as exchanging information, providing advice and participation, and timeframes for receiving State government participation and review in a timely fashion. If an agreement is not reached, the State Director shall provide opportunity for Governor and State agency review, advice and suggestions on issues and topics that the State Director has reason to believe could affect or influence State government programs.
(d) In developing guidance to Field Manager, in compliance with section 1611 of this title, the State Director shall:
(1) Ensure that it is as consistent as possible with existing officially adopted and approved resource related plans, policies or programs of other Federal agencies, State agencies, Indian tribes and local governments that may be affected, as prescribed by § 1610.3-2 of this title;
(2) Identify areas where the proposed guidance is inconsistent with such policies, plans or programs and provide reasons why the inconsistencies exist and cannot be remedied; and
(3) Notify the other Federal agencies, State agencies, Indian tribes or local governments with whom consistency is not achieved and indicate any appropriate methods, procedures, actions and/or programs which the State Director believes may lead to resolution of such inconsistencies.
(e) A notice of intent to prepare, amend, or revise a resource management plan shall be submitted, consistent with State procedures for coordination of Federal activities, for circulation among State agencies. This notice shall also be submitted to Federal agencies, the heads of county boards, other local government units and Tribal Chairmen or Alaska Native Leaders that have requested such notices or that the responsible line manager has reason to believe would be concerned with the plan or amendment. These notices shall be issued simultaneously with the public notices required under § 1610.2(b) of this title.
(f) Federal agencies, State and local governments and Indian tribes shall have the time period prescribed under § 1610.2 of this title for review and comment on resource management plan proposals. Should they notify the Field Manager, in writing, of what they believe to be specific inconsistencies between the Bureau of Land Management resource management plan and their officially approved and adopted resources related plans, the resource management plan documentation shall show how those inconsistencies were addressed and, if possible, resolved.
(g) When an advisory council has been formed under section 309 of the Federal Land Policy and Management Act of 1976 for the area addressed in a resource management plan or plan amendment, BLM will inform that council, seek its views, and consider them throughout the planning process.
§ 1610.3-2 Consistency requirements.
(a) Guidance and resource management plans and amendments to management framework plans shall be consistent with officially approved or adopted resource related plans, and the policies and programs contained therein, of other Federal agencies, State and local governments and Indian tribes, so long as the guidance and resource management plans are also consistent with the purposes, policies and programs of Federal laws and regulations applicable to public lands, including Federal and State pollution control laws as implemented by applicable Federal and State air, water, noise, and other pollution standards or implementation plans.
(b) In the absence of officially approved or adopted resource-related plans of other Federal agencies, State and local governments and Indian tribes, guidance and resource management plans shall, to the maximum extent practical, be consistent with officially approved and adopted resource related policies and programs of other Federal agencies, State and local governments and Indian tribes. Such consistency will be accomplished so long as the guidance and resource management plans are consistent with the policies, programs and provisions of Federal laws and regulations applicable to public lands, including, but not limited to, Federal and State pollution control laws as implemented by applicable Federal and State air, water, noise and other pollution standards or implementation plans.
(c) State Directors and Field Managers shall, to the extent practicable, keep apprised of State and local governmental and Indian tribal policies, plans, and programs, but they shall not be accountable for ensuring consistency if they have not been notified, in writing, by State and local governments or Indian tribes of an apparent inconsistency.
(d) Where State and local government policies, plans, and programs differ, those of the higher authority will normally be followed.
(e) Prior to the approval of a proposed resource management plan, or amendment to a management framework plan or resource management plan, the State Director shall submit to the Governor of the State(s) involved, the proposed plan or amendment and shall identify any known inconsistencies with State or local plans, policies or programs. The Governor(s) shall have 60 days in which to identify inconsistencies and provide recommendations in writing to the State Director. If the Governor(s) does not respond within the 60-day period, the plan or amendment shall be presumed to be consistent. If the written recommendation(s) of the Governor(s) recommend changes in the proposed plan or amendment which were not raised during the public participation process on that plan or amendment, the State Director shall provide the public with an opportunity to comment on the recommendation(s). If the State Director does not accept the recommendations of the Governor(s), the State Director shall notify the Governor(s) and the Governor(s) shall have 30 days in which to submit a written appeal to the Director of the Bureau of Land Management. The Director shall accept the recommendations of the Governor(s) if he/she determines that they provide for a reasonable balance between the national interest and the State’s interest. The Director shall communicate to the Governor(s) in writing and publish in the
§ 1610.4 Resource management planning process.
§ 1610.4-1 Identification of issues.
At the outset of the planning process, the public, other Federal agencies, State and local governments and Indian tribes shall be given an opportunity to suggest concerns, needs, and resource use, development and protection opportunities for consideration in the preparation of the resource management plan. The Field Manager, in collaboration with any cooperating agencies, will analyze those suggestions and other available data, such as records of resource conditions, trends, needs, and problems, and select topics and determine the issues to be addressed during the planning process. Issues may be modified during the planning process to incorporate new information. The identification of issues shall also comply with the scoping process required by regulations implementing the National Environmental Policy Act (40 CFR 1501.7).
§ 1610.4-2 Development of planning criteria.
(a) The Field Manager will prepare criteria to guide development of the resource management plan or revision, to ensure:
(1) It is tailored to the issues previously identified; and
(2) That BLM avoids unnecessary data collection and analyses.
(b) Planning criteria will generally be based upon applicable law, Director and State Director guidance, the results of public participation, and coordination with any cooperating agencies and other Federal agencies, State and local governments, and federally recognized Indian tribes.
(c) BLM will make proposed planning criteria, including any significant changes, available for public comment prior to being approved by the Field Manager for use in the planning process.
(d) BLM may change planning criteria as planning proceeds if we determine that public suggestions or study and assessment findings make such changes desirable.
§ 1610.4-3 Inventory data and information collection.
The Field Manager, in collaboration with any cooperating agencies, will arrange for resource, environmental, social, economic and institutional data and information to be collected, or assembled if already available. New information and inventory data collection will emphasize significant issues and decisions with the greatest potential impact. Inventory data and information shall be collected in a manner that aids application in the planning process, including subsequent monitoring requirements.
§ 1610.4-4 Analysis of the management situation.
The Field Manager, in collaboration with any cooperating agencies, will analyze the inventory data and other information available to determine the ability of the resource area to respond to identified issues and opportunities. The analysis of the management situation shall provide, consistent with multiple use principles, the basis for formulating reasonable alternatives, including the types of resources for development or protection. Factors to be considered may include, but are not limited to:
(a) The types of resource use and protection authorized by the Federal Land Policy and Management Act and other relevant legislation;
(b) Opportunities to meet goals and objectives defined in national and State Director guidance;
(c) Resource demand forecasts and analyses relevant to the resource area;
(d) The estimated sustained levels of the various goods, services and uses that may be attained under existing biological and physical conditions and under differing management practices and degrees of management intensity which are economically viable under benefit cost or cost effectiveness standards prescribed in national or State Director guidance;
(e) Specific requirements and constraints to achieve consistency with policies, plans and programs of other Federal agencies, State and local government agencies and Indian tribes;
(f) Opportunities to resolve public issues and management concerns;
(g) Degree of local dependence on resources from public lands;
(h) The extent of coal lands which may be further considered under provisions of § 3420.2-3(a) of this title; and
(i) Critical threshold levels which should be considered in the formulation of planned alternatives.
§ 1610.4-5 Formulation of alternatives.
At the direction of the Field Manager, in collaboration with any cooperating agencies, BLM will consider all reasonable resource management alternatives and develop several complete alternatives for detailed study. Nonetheless, the decision to designate alternatives for further development and analysis remains the exclusive responsibility of the BLM. The alternatives developed shall reflect the variety of issues and guidance applicable to the resource uses. In order to limit the total number of alternatives analyzed in detail to a manageable number for presentation and analysis, all reasonable variations shall be treated as sub-alternatives. One alternative shall be for no action, which means continuation of present level or systems of resource use. The plan shall note any alternatives identified and eliminated from detailed study and shall briefly discuss the reasons for their elimination.
§ 1610.4-6 Estimation of effects of alternatives.
The Field Manager, in collaboration with any cooperating agencies, will estimate and display the physical, biological, economic, and social effects of implementing each alternative considered in detail. The estimation of effects shall be guided by the planning criteria and procedures implementing the National Environmental Policy Act. The estimate may be stated in terms of probable ranges where effects cannot be precisely determined.
§ 1610.4-7 Selection of preferred alternatives.
The Field Manager, in collaboration with any cooperating agencies, will evaluate the alternatives, estimate their effects according to the planning criteria, and identify a preferred alternative that best meets Director and State Director guidance. Nonetheless, the decision to select a preferred alternative remains the exclusive responsibility of the BLM. The resulting draft resource management plan and draft environmental impact statement shall be forwarded to the State Director for approval, publication, and filing with the Environmental Protection Agency. This draft plan and environmental impact statement shall be provided for comment to the Governor of the State involved, and to officials of other Federal agencies, State and local governments and Indian tribes that the State Director has reason to believe would be concerned. This action shall constitute compliance with the requirements of § 3420.1-7 of this title.
§ 1610.4-8 Selection of resource management plan.
After publication of the draft resource management plan and draft environmental impact statement, the Field Manager shall evaluate the comments received and select and recommend to the State Director, for supervisory review and publication, a proposed resource management plan and final environmental impact statement. After supervisory review of the proposed resource management plan, the State Director shall publish the plan and file the related environmental impact statement.
§ 1610.4-9 Monitoring and evaluation.
The proposed plan shall establish intervals and standards, as appropriate, for monitoring and evaluation of the plan. Such intervals and standards shall be based on the sensitivity of the resource to the decisions involved and shall provide for evaluation to determine whether mitigation measures are satisfactory, whether there has been significant change in the related plans of other Federal agencies, State or local governments, or Indian tribes, or whether there is new data of significance to the plan. The Field Manager shall be responsible for monitoring and evaluating the plan in accordance with the established intervals and standards and at other times as appropriate to determine whether there is sufficient cause to warrant amendment or revision of the plan.
§ 1610.5 Resource management plan approval, use and modification.
§ 1610.5-1 Resource management plan approval and administrative review.
(a) The proposed resource management plan or revision shall be submitted by the Field Manager to the State Director for supervisory review and approval. When the review is completed the State Director shall either publish the proposed plan and file the related environmental impact statement or return the plan to the Field Manager with a written statement of the problems to be resolved before the proposed plan can be published.
(b) No earlier than 30 days after the Environmental Protection Agency publishes a notice of the filing of the final environmental impact statement in the
§ 1610.5-2 Protest procedures.
(a) Any person who participated in the planning process and has an interest which is or may be adversely affected by the approval or amendment of a resource management plan may protest such approval or amendment. A protest may raise only those issues which were submitted for the record during the planning process.
(1) The protest shall be in writing and shall be filed with the Director. The protest shall be filed within 30 days of the date the Environmental Protection Agency published the notice of receipt of the final environmental impact statement containing the plan or amendment in the
(2) The protest shall contain:
(i) The name, mailing address, telephone number and interest of the person filing the protest;
(ii) A statement of the issue or issues being protested;
(iii) A statement of the part or parts of the plan or amendment being protested;
(iv) A copy of all documents addressing the issue or issues that were submitted during the planning process by the protesting party or an indication of the date the issue or issues were discussed for the record; and
(v) A concise statement explaining why the State Director’s decision is believed to be wrong.
(3) The Director shall promptly render a decision on the protest. The decision shall be in writing and shall set forth the reasons for the decision. The decision shall be sent to the protesting party by certified mail, return receipt requested.
(b) The decision of the Director shall be the final decision of the Department of the Interior.
§ 1610.5-3 Conformity and implementation.
(a) All future resource management authorizations and actions, as well as budget or other action proposals to higher levels in the Bureau of Land Management and Department, and subsequent more detailed or specific planning, shall conform to the approved plan.
(b) After a plan is approved or amended, and if otherwise authorized by law, regulation, contract, permit, cooperative agreement or other instrument of occupancy and use, the Field Manager shall take appropriate measures, subject to valid existing rights, to make operations and activities under existing permits, contracts, cooperative agreements or other instruments for occupancy and use, conform to the approved plan or amendment within a reasonable period of time. Any person adversely affected by a specific action being proposed to implement some portion of a resource management plan or amendment may appeal such action pursuant to 43 CFR 4.400 at the time the action is proposed for implementation.
(c) If a proposed action is not in conformance, and warrants further consideration before a plan revision is scheduled, such consideration shall be through a plan amendment in accordance with the provisions of § 1610.5-5 of this title.
(d) More detailed and site specific plans for coal, oil shale and tar sand resources shall be prepared in accordance with specific regulations for those resources: Group 3400 of this title for coal; Group 3900 of this title for oil shale; and part 3140 of this title for tar sand. These activity plans shall be in conformance with land use plans prepared and approved under the provisions of this part.
§ 1610.5-4 Maintenance.
Resource management plans and supporting components shall be maintained as necessary to reflect minor changes in data. Such maintenance is limited to further refining or documenting a previously approved decision incorporated in the plan. Maintenance shall not result in expansion in the scope of resource uses or restrictions, or change the terms, conditions, and decisions of the approved plan. Maintenance is not considered a plan amendment and shall not require the formal public involvement and interagency coordination process described under §§ 1610.2 and 1610.3 of this title or the preparation of an environmental assessment or environmental impact statement. Maintenance shall be documented in plans and supporting records.
§ 1610.5-5 Amendment.
A resource management plan may be changed through amendment. An amendment shall be initiated by the need to consider monitoring and evaluation findings, new data, new or revised policy, a change in circumstances or a proposed action that may result in a change in the scope of resource uses or a change in the terms, conditions and decisions of the approved plan. An amendment shall be made through an environmental assessment of the proposed change, or an environmental impact statement, if necessary, public involvement as prescribed in § 1610.2 of this title, interagency coordination and consistency determination as prescribed in § 1610.3 of this title and any other data or analysis that may be appropriate. In all cases, the effect of the amendment on the plan shall be evaluated. If the amendment is being considered in response to a specific proposal, the analysis required for the proposal and for the amendment may occur simultaneously.
(a) If the environmental assessment does not disclose significant impact, a finding of no significant impact may be made by the Field Manager. The Field Manager shall then make a recommendation on the amendment to the State Director for approval, and upon approval, the Field Manager shall issue a public notice of the action taken on the amendment. If the amendment is approved, it may be implemented 30 days after such notice.
(b) If a decision is made to prepare an environmental impact statement, the amending process shall follow the same procedure required for the preparation and approval of the plan, but consideration shall be limited to that portion of the plan being considered for amendment. If several plans are being amended simultaneously, a single environmental impact statement may be prepared to cover all amendments.
§ 1610.5-6 Revision.
A resource management plan shall be revised as necessary, based on monitoring and evaluation findings (§ 1610.4-9), new data, new or revised policy and changes in circumstances affecting the entire plan or major portions of the plan. Revisions shall comply with all of the requirements of these regulations for preparing and approving an original resource management plan.
§ 1610.5-7 Situations where action can be taken based on another agency’s plan, or a land use analysis.
These regulations authorize the preparation of a resource management plan for whatever public land interests exist in a given land area. There are situations of mixed ownership where the public land estate is under non-Federal surface, or administration of the land is shared by the Bureau of Land Management with another Federal agency. The Field Manager may use the plans or the land use analysis of other agencies when split or shared estate conditions exist in any of the following situations:
(a) Another agency’s plan (Federal, State, or local) may be used as a basis for an action only if it is comprehensive and has considered the public land interest involved in a way comparable to the manner in which it would have been considered in a resource management plan, including the opportunity for public participation.
(b) After evaluation and review, the Bureau of Land Management may adopt another agency’s plan for continued use as a resource management plan if an agreement is reached between the Bureau of Land Management and the other agency to provide for maintenance and amendment of the plan, as necessary, to comply with law and policy applicable to public lands.
(c) A land use analysis may be used to consider a coal lease when there is no Federal ownership interest in the surface or when coal resources are insufficient to justify plan preparation costs. The land use analysis process, as authorized by the Federal Coal Leasing Amendments Act, consists of an environmental assessment or impact statement, public participation as required by § 1610.2 of this title, the consultation and consistency determinations required by § 1610.3 of this title, the protest procedure prescribed by § 1610.5-2 of this title and a decision on the coal lease proposal. A land use analysis meets the planning requirements of section 202 of the Federal Land Policy and Management Act. The decision to approve the land use analysis and to lease coal is made by the Departmental official who has been delegated the authority to issue coal leases.
§ 1610.6 Management decision review by Congress.
The Federal Land Policy and Management Act requires that any Bureau of Land Management management decision or action pursuant to a management decision which totally eliminates one or more principal or major uses for 2 or more years with respect to a tract of 100,000 acres or more, shall be reported by the Secretary to Congress before it can be implemented. This report shall not be required prior to approval of a resource management plan which, if fully or partially implemented, would result in such an elimination. The required report shall be submitted as the first action step in implementing that portion of a resource management plan which would require elimination of such a use.
§ 1610.7 Designation of areas.
§ 1610.7-1 Designation of areas unsuitable for surface mining.
(a)(1) The planning process is the chief process by which public land is reviewed to assess whether there are areas unsuitable for all or certain types of surface coal mining operations under section 522(b) of the Surface Mining Control and Reclamation Act. The unsuitability criteria to be applied during the planning process are found in § 3461.1 of this title.
(2) When petitions to designate land unsuitable under section 522(c) of the Surface Mining Control and Reclamation Act are referred to the Bureau of Land Management for comment, the resource management plan, or plan amendment if available, shall be the basis for review.
(3) After a resource management plan or plan amendment is approved in which lands are assessed as unsuitable, the Field Manager shall take all necessary steps to implement the results of the unsuitability review as it applies to all or certain types of coal mining.
(b)(1) The resource management planning process is the chief process by which public lands are reviewed for designation as unsuitable for entry or leasing for mining operations for minerals and materials other than coal under section 601 of the Surface Mining Control and Reclamation Act.
(2) When petitions to designate lands unsuitable under section 601 of the Surface Mining Control and Reclamation Act are received by the Bureau of Land Management, the resource management plan, if available, shall be the basis for determinations for designation.
(3) After a resource management plan or plan amendment in which lands are designated unsuitable is approved, the Field Manager shall take all necessary steps to implement the results of the unsuitability review as it applies to minerals or materials other than coal.
§ 1610.7-2 Designation of areas of critical environmental concern.
Areas having potential for Areas of Critical Environmental Concern (ACEC) designation and protection management shall be identified and considered throughout the resource management planning process (see §§ 1610.4-1 through 1610.4-9).
(a) The inventory data shall be analyzed to determine whether there are areas containing resources, values, systems or processes or hazards eligible for further consideration for designation as an ACEC. In order to be a potential ACEC, both of the following criteria shall be met:
(1) Relevance. There shall be present a significant historic, cultural, or scenic value; a fish or wildlife resource or other natural system or process; or natural hazard.
(2) Importance. The above described value, resource, system, process, or hazard shall have substantial significance and values. This generally requires qualities of more than local significance and special worth, consequence, meaning, distinctiveness, or cause for concern. A natural hazard can be important if it is a significant threat to human life or property.
(b) The State Director, upon approval of a draft resource management plan, plan revision, or plan amendment involving ACECs, shall publish a notice in the
§ 1610.8 Transition period.
(a) Until superseded by resource management plans, management framework plans may be the basis for considering proposed actions as follows:
(1) The management framework plan shall be in compliance with the principle of multiple use and sustained yield and shall have been developed with public participation and governmental coordination, but not necessarily precisely as prescribed in §§ 1610.2 and 1610.3 of this title.
(2) No sooner than 30 days after the Environmental Protection Agency publishes a notice of the filing of a final court-ordered environmental impact statement – which is based on a management framework plan – proposed actions may be initiated without any further analysis or processes included in this subpart.
(3) For proposed actions other than those described in paragraph (a)(2) of this section, determination shall be made by the Field Manager whether the proposed action is in conformance with the management framework plan. Such determination shall be in writing and shall explain the reasons for the determination.
(i) If the proposed action is in conformance, it may be further considered for decision under procedures applicable to that type of action, including requirements of regulations for implementing the procedural provisions of the National Environmental Policy Act in 40 CFR parts 1500-1508.
(ii) If the proposed action is not in conformance with the management framework plan, and if the proposed action warrants further favorable consideration before a resource management plan is scheduled for preparation, such consideration shall be through a management framework plan amendment using the provisions of § 1610.5-5 of this title.
(b)(1) If an action is proposed where public lands are not covered by a management framework plan or a resource management plan, an environmental assessment and an environmental impact statement, if necessary, plus any other data and analysis necessary to make an informed decision, shall be used to assess the impacts of the proposal and to provide a basis for a decision on the proposal.
(2) A land disposal action may be considered before a resource management plan is scheduled for preparation, through a planning analysis, using the process described in § 1610.5-5 of this title for amending a plan.
PART 1780 – COOPERATIVE RELATIONS
Subpart 1784 – Advisory Committees
§ 1784.0-1 Purpose.
This subpart contains standards and procedures for the creation, operation and termination of advisory committees to advise the Secretary of the Interior and Bureau of Land Management on matters relating to public lands and resources under the administrative jurisdiction of the Bureau of Land Management.
§ 1784.0-2 Objectives.
The objective of advisory committees established under these regulations is to make available to the Department of the Interior and Bureau of Land Management the expert counsel of concerned, knowledgeable citizens and public officials regarding both the formulation of operating guidelines and the preparation and execution of plans and programs for the use and management of public lands, their natural and cultural resources, and the environment.
§ 1784.0-3 Authority.
(a) The Federal Advisory Committee Act (5 U.S.C. Appendix 1) requires establishment of a system governing advisory committees in the Executive Branch of the Federal Government and specifies policies, procedures, and responsibilities for committee creation, management and termination.
(b) The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), as amended by the Public Rangelands Improvement Act of 1978 (43 U.S.C. 1901 et seq.), requires establishment of advisory councils representative of major citizen interests concerned with resource management planning or the management of public lands.
(c) Section 2 of the Reorganization Plan No. 3 of 1950 (5 U.S.C. Appendix, as amended; 64 Stat. 1262), authorizes the Secretary of the Interior to make provisions deemed appropriate authorizing the performance by any other officer, or by any agency or employee or the Department of the Interior of any Departmental function. The establishment of advisory committees is deemed an appropriate action.
§ 1784.0-4 [Reserved]
§ 1784.0-5 Definitions.
As used in this subpart, the term:
(a) Advisory committee means any committee, council, or board established or utilized for purposes of obtaining advice or recommendations.
(b) Secretary means Secretary of the Interior.
(c) Director means the Director of the Bureau of Land Management.
(d) Designated Federal officer means the Federal officer or employee designated by an advisory committee charter who approves meeting agendas and attends all meetings of the committee and its subcommittees, if any.
(e) Public lands means any lands and interest in lands owned by the United States administered by the Secretary of the Interior through the Bureau of Land Management, except:
(1) Lands located on the Outer Continental Shelf; and
(2) Lands held for the benefit of Indians, Aleuts, and Eskimos.
§ 1784.0-6 Policy.
As part of the Department’s program for public participation, it is the policy of the Secretary to establish and employ committees representative of major citizens’ interests, or where required by law, of special citizen interests, to advise the Secretary and Director regarding policy formulation, program planning, decisionmaking, attainment of program objectives, and achievement of improved program coordination and economies in the management of public lands and resources; to regularly ensure that such committees are being optimally employed; and to limit the number of advisory committees to that essential to the conduct of the public’s business.
§ 1784.1 Establishment, duration, termination, and renewal.
§ 1784.1-1 Establishment.
(a) An advisory committee required by statute is established or renewed upon the filing of a charter, signed by the Secretary, with the Committee on Energy and Natural Resources of the United States Senate and the Committee on Interior and Insular Affairs of the United States House of Representatives.
(b) An advisory committee not specifically required by statute shall be established only when the Secretary has –
(1) Determined as a matter of formal record, after consultation with the General Services Administration, that establishment of the committee is in the public interest in connection with duties required of the Department of the Interior by law;
(2) Signed and filed the committee charter; and
(3) Published in the
(c) An advisory committee shall not meet or take any action until the Committee’s charter has been signed by the Secretary and copies filed with the appropriate committees of the Senate and House of Representatives and the Library of Congress.
§ 1784.1-2 Duration, termination, and renewal.
(a) An advisory committee not mandated by statute, i.e., established at the discretion of the Secretary, shall terminate not later than 2 years after its establishment unless, prior to that time, it is rechartered by the Secretary and copies of the new charter are filed with the appropriate committees of the Senate and House of Representatives. Any committee so renewed shall continue for not more than 2 additional years unless, prior to expiration of such period, it is again rechartered.
(b) Any advisory committee mandated by statute shall terminate not later than 2 years after the date of its establishment unless its duration is otherwise provided by law. Upon the expiration of each successive two-year period following date of establishment, a new charter shall be prepared and, after Secretarial approval, filed with the appropriate committees of the Senate and House of Representatives for any statutory advisory committee being continued.
§ 1784.2 Composition, avoidance of conflict of interest.
§ 1784.2-1 Composition.
(a) Each advisory committee shall be structured to provide fair membership balance, both geographic and interest-specific, in terms of the functions to be performed and points of view to be represented, as prescribed by its charter. Each shall be formed with the objective of providing representative counsel and advice about public land and resource planning, retention, management and disposal. No person is to be denied an opportunity to serve because of race, age, sex, religion or national origin.
(b) Individuals shall qualify to serve on an advisory committee because their education, training, or experience enables them to give informed and objective advice regarding an industry, discipline, or interest specified in the committee’s charter; they have demonstrated experience or knowledge of the geographical area under the purview of the advisory committee; and they have demonstrated a commitment to collaborate in seeking solutions to resource management issues.
§ 1784.2-2 Avoidance of conflict of interest.
(a) Persons or employees of organizations who hold leases, licenses, permits, contracts or claims which involve lands or resources administered by the Bureau of Land Management normally shall not serve on advisory committees except –
(1) Holders of grazing permits and leases may serve on advisory committees, including resource advisory councils, and may serve on subgroups of such advisory councils;
(2) That the lack of candidates make them the only available candidates; or
(3) When they have special knowledge or experience which is needed to accomplish the committee functions to be performed.
(b) No advisory committee members, including members of resource advisory councils, and no members of subgroups of such advisory committees, shall participate in any matter in which the members have a direct interest.
(c) Members of advisory committees shall be required to disclose their direct or indirect interest in leases, licenses, permits, contracts, or claims and related litigation which involve lands or resources administered by the Bureau of Land Management. For the purposes of this paragraph, indirect interest includes holdings of a spouse or a dependent child.
§ 1784.3 Member service.
(a) Appointments to advisory committees shall be for 2-year terms unless otherwise specified in the charter or the appointing document. Terms of service normally coincide with duration of the committee charter. Members may be appointed to additional terms at the discretion of the authorized appointing official.
(1) The term of the member of a council who has been appointed on the basis of his status as an elected official of general purpose government serving the people of the geographical area for which the council is established shall end upon that person’s departure from such elective office if such departure occurs before his or her term of appointment or reappointment to the council would otherwise expire. However, the Secretary, in his discretion, may permit the member to complete the term in another vacant position on the council, provided that the member is qualified to represent one of the other categories of major citizens’ interests set forth in the charter of the council;
(2) A vacancy occurring by reason of removal, resignation, death, or departure from elective office shall be filled for the balance of the vacating member’s term using the same method by which the original appointment was made;
(b) Committee members advise and report only to the official(s) specified in the charter. Service as an advisor, however, does not limit the rights of a member acting as a private citizen or as a member or official of another organization.
(c) The Secretary or the designated Federal officer may, after written notice, terminate the service of an advisor if, in the judgment of the Secretary or the designated Federal officer, such removal is in the public interest, or if the advisor –
(1) No longer meets the requirements under which elected or appointed;
(2) Fails or is unable to participate regularly in committee work; or
(3) Has violated Federal law or the regulations of the Secretary.
(d) For purposes of compensation, members of advisory committees shall be reimbursed for travel and per diem expenses when on advisory committee business, as authorized by 5 U.S.C. 5703. No reimbursement shall be made for expenses incurred by members of subgroups selected by established committees, except that the designated Federal officer may reimburse travel and per diem expenses to members of subgroups who are also members of the parent committee.
§ 1784.4 Public participation.
§ 1784.4-1 Calls for nominations.
Except where otherwise provided, candidates for appointment to advisory committees are sought through public calls for public nominations. Such calls shall be published in the
§ 1784.4-2 Notice of meetings.
(a) Notices of meetings of advisory committees and any subcommittees that may be formed shall be published in the
(b) Notices shall set forth meeting locations, topics or issues to be discussed, and times and places for the public to be heard.
§ 1784.4-3 Open meetings.
(a) All advisory committee and subcommittee meetings and associated field examinations shall be open to the public and news media.
(b) Anyone may appear before or file a statement with a committee or subcommittee regarding matters on a meeting agenda.
(c) The scheduling of meetings and the preparation of agendas shall be done in a manner that will encourage and facilitate public attendance and participation. The amount of time scheduled for public presentations and meeting times may be extended when the authorized representative considers it necessary to accommodate all who seek to be heard regarding matters on the agenda.
§ 1784.5 Operating procedures.
§ 1784.5-1 Functions.
The function of an advisory committee is solely advisory, and recommendations shall be made only to the authorized representative specified in its charter. Determinations of actions to be taken on the reports and recommendations of a committee shall be made only by the Secretary or the designated Federal officer.
§ 1784.5-2 Meetings.
(a) Advisory committees shall meet only at the call of the Secretary or the designated Federal officer.
(b) No meeting shall be held in the absence of the Secretary or the designated Federal officer.
(c) Each meeting shall be conducted with close adherence to an agenda which has been approved in advance by the authorized representative.
(d) The authorized representative may adjourn an advisory committee meeting at any time when –
(1) Continuance would be inconsistent with either the purpose for which the meeting was called or the established rules for its conduct; or
(2) Adjournment is determined to be in the public interest.
§ 1784.5-3 Records.
(a) Detailed records shall be kept of each meeting of an advisory committee and any subcommittees that may be formed. These records shall include as a minimum –
(1) The time and place of the meeting;
(2) Copies of the
(3) A list of advisors and Department or Bureau employees present;
(4) A list of members of the public present and who each represented;
(5) The meeting agenda;
(6) A complete and accurate summary description of matters discussed and conclusions reached;
(7) A list of recommendations made by the advisory committee;
(8) Copies of all reports received, issued, or approved by the Committee or subcommittee; and
(9) A description of the nature of public participation. The Chairperson of the advisory committee shall certify to the accuracy of meeting records.
(b) All records, reports, transcripts, minutes, recommendations, studies, working papers, and other documents prepared by or submitted to an advisory committee shall be available for public inspection and copying in the Bureau of Land Management office responsible for support of that committee. Upon request, copies shall be provided at the cost of duplication as established by the regulations in 43 CFR part 2 (Appendix A).
§ 1784.6 Membership and functions of resource advisory councils and sub-groups.
§ 1784.6-1 Resource advisory councils – requirements.
(a) Resource advisory councils shall be established to cover all lands administered by the Bureau of Land Management, except where –
(1) There is insufficient interest in participation to ensure that membership can be fairly balanced in terms of the points of view represented and the functions to be performed; or
(2) The location of the public lands with respect to the population of users and other interested parties precludes effective participation.
(b) A resource advisory council advises the Bureau of Land Management official to whom it reports regarding the preparation, amendment and implementation of land use plans for public lands and resources within its area. Except for the purposes of long-range planning and the establishment of resource management priorities, a resource advisory council shall not provide advice on the allocation and expenditure of funds. A resource advisory council shall not provide advice regarding personnel actions.
(c) The Secretary shall appoint the members of each resource advisory council. The Secretary shall appoint at least 1 elected official of general purpose government serving the people of the area to each council. An individual may not serve concurrently on more than 1 resource advisory council. Council members and members of a rangeland resource team or other local general purpose subgroup must reside in 1 of the States within the geographic jurisdiction of the council or subgroup, respectively. Council members and members of general purpose subgroups shall be representative of the interests of the following 3 general groups:
(1) Persons who –
(i) Hold Federal grazing permits or leases within the area for which the council is organized;
(ii) Represent interests associated with transportation or rights-of-way;
(iii) Represent developed outdoor recreation, off-highway vehicle users, or commercial recreation activities;
(iv) Represent the commercial timber industry; or
(v) Represent energy and mineral development.
(2) Persons representing –
(i) Nationally or regionally recognized environmental organizations;
(ii) Dispersed recreational activities;
(iii) Archeological and historical interests; or
(iv) Nationally or regionally recognized wild horse and burro interest groups.
(3) Persons who –
(i) Hold State, county or local elected office;
(ii) Are employed by a State agency responsible for management of natural resources, land, or water;
(iii) Represent Indian tribes within or adjacent to the area for which the council is organized;
(iv) Are employed as academicians in natural resource management or the natural sciences; or
(v) Represent the affected public-at-large.
(d) In appointing members of a resource advisory council from the 3 categories set forth in paragraphs (c)(1), (c)(2), and (c)(3) of this section, the Secretary shall provide for balanced and broad representation from within each category.
(e) In making appointments to resource advisory councils the Secretary shall consider nominations made by the Governor of the State or States affected and nominations received in response to public calls for nominations pursuant to § 1784.4-1. Persons interested in serving on resource advisory councils may nominate themselves. All nominations shall be accompanied by letters of reference from interests or organizations to be represented.
(f) Persons appointed to resource advisory councils shall attend a course of instruction in the management of rangeland ecosystems that has been approved by the Bureau of Land Management State Director.
(g) A resource advisory council shall meet at the call of the designated Federal officer and elect its own officers. The designated Federal officer shall attend all meetings of the council.
(h) Council charters must include rules defining a quorum and establishing procedures for sending recommendations forward to BLM. A quorum of council members must be present to constitute an official meeting of the council. Formal recommendations shall require agreement of at least a majority of each of the 3 categories of interest from which appointments are made.
(i) Where the resource advisory council becomes concerned that its advice is being arbitrarily disregarded, the council may request that the Secretary respond directly to such concerns within 60 days of receipt. Such a request can be made only upon the agreement of all council members. The Secretary’s response shall not constitute a decision on the merits of any issue that is or might become the subject of an administrative appeal, and shall not be appealable.
(j) Administrative support for a resource advisory council shall be provided by the office of the designated Federal officer.
§ 1784.6-2 Resource advisory councils – optional features.
(a) Resource advisory councils must be established consistent with any 1 of the 3 models in paragraphs (a)(1), (a)(2), and (a)(3) of this section. The model type and boundaries for resource advisory councils shall be established by the BLM State Director(s) in consultation with the Governors of the affected States and other interested parties.
(i) Council jurisdiction. The geographic jurisdiction of a council shall coincide with BLM District or ecoregion boundaries. The Governor of the affected States or existing resource advisory councils may petition the Secretary to establish a resource advisory council for a specified Bureau of Land Management resource area. The councils will provide advice to the Bureau of Land Management official to whom they report regarding the preparation, amendment and implementation of land use plans. The councils will also assist in establishing other long-range plans and resource management priorities in an advisory capacity, including providing advice on the development of plans for range improvement or development programs.
(ii) Membership. Each council shall have 15 members, distributed equally among the 3 interest groups specified in § 1784.6-1(c).
(iii) Quorum and voting requirements. At least 3 council members from each of the 3 categories of interest from which appointments are made pursuant to § 1784.6-1(c) must be present to constitute an official meeting of the council. Formal recommendations shall require agreement of at least 3 council members from each of the 3 categories of interest from which appointments are made.
(iv) Subgroups. Local rangeland resource teams may be formed within the geographical area for which a resource advisory council provides advice, down to the level of a single allotment. These teams may be formed by a resource advisory council on its own motion or in response to a petition by local citizens. Rangeland resource teams will be formed for the purpose of providing local level input to the resource advisory council regarding issues pertaining to the administration of grazing on public land within the area for which the rangeland resource team is formed.
(A) Rangeland resource teams will consist of 5 members selected by the resource advisory council. Membership will include 2 persons holding Federal grazing permits or leases. Additional members will include 1 person representing the public-at-large, 1 person representing a nationally or regionally recognized environmental organization, and 1 person representing national, regional, or local wildlife or recreation interests. Persons selected by the council to represent the public-at-large, environmental, and wildlife or recreation interests may not hold Federal grazing permits or leases. At least 1 member must be selected from the membership of the resource advisory council.
(B) The resource advisory council will be required to select rangeland resource team members from nominees who qualify by virtue of their knowledge or experience of the lands, resources, and communities that fall within the area for which the team is formed. All nominations must be accompanied by letters of recommendation from the groups or interests to be represented.
(C) All members of rangeland resource teams will attend a course of instruction in the management of rangeland ecosystems that has been approved by the BLM State Director. Rangeland resource teams will have opportunities to raise any matter of concern with the resource advisory council and to request that BLM form a technical review team, as described below, to provide information and options to the council for their consideration.
(D) Technical review teams can be formed by the BLM authorized officer on the motion of BLM or in response to a request by the resource advisory council or a rangeland resource team. The purpose of such teams is to gather and analyze data and develop recommendations to aid the decisionmaking process, and functions will be limited to tasks assigned by the authorized officer. Membership will be limited to Federal employees and paid consultants. Members will be selected based upon their knowledge of resource management or their familiarity with the specific issues for which the technical review team has been formed. Technical review teams will terminate upon completion of the assigned task.
(i) Council jurisdiction. The jurisdiction of the council shall be Statewide, or on an ecoregion basis. The purpose of the council is to promote federal, state, and local cooperation in the management of natural resources on public lands, and to coordinate the development of sound resource management plans and activities with other states. It will provide an opportunity for meaningful public participation in land management decisions at the state level and will foster conflict resolution through open dialogue and collaboration.
(ii) Membership. The council shall have 15 members, distributed equally among the 3 interest groups specified in § 1784.6-1(c), and will include at least one representative from wildlife interest groups, grazing interests, minerals and energy interests, and established environmental/conservation interests. The Governor shall chair the council.
(iii) Quorum and voting requirements. The charter of the council shall specify that 80% or 12 members must be present to constitute a quorum and conduct official business, and that 80% or 12 members of the council must vote affirmatively to refer an issue to BLM Federal officer.
(iv) Subgroups. Local rangeland resource teams may be formed by the Statewide council, down to the level of a 4th order watershed. Rangeland resource teams will be formed for the purpose of providing local level input to the resource advisory council. They will meet at least quarterly and will promote a decentralized administrative approach, encourage good stewardship, emphasize coordination and cooperation among agencies, permittees and the interested public, develop proposed solutions and management plans for local resources on public lands, promote renewable rangeland resource values, develop proposed standards to address sustainable resource uses and rangeland health, address renewable rangeland resource values, propose and participate in the development of area-specific National Environmental Policy Act documents, and develop range and wildlife education and training programs. As with the resource advisory council, an 80% affirmative vote will be required to send a recommendation to the resource advisory council.
(A) Rangeland resource teams will not exceed 10 members and will include at least 2 persons from environmental or wildlife groups, 2 grazing permittees, 1 elected official, 1 game and fish district representative, 2 members of the public or other interest groups, and a Federal officer from BLM. Members will be appointed for 2 year terms by the resource advisory council and may be reappointed. No member may serve on more than 1 rangeland resource team.
(B) Technical review teams can be formed by the BLM authorized officer on the motion of BLM or in response to a request by the resource advisory council or a rangeland resource team. The purpose of such teams is to gather and analyze data and develop recommendations to aid the decisionmaking process, and functions will be limited to tasks assigned by the authorized officer. Membership will be limited to Federal employees and paid consultants. Members will be selected based upon their knowledge of resource management or their familiarity with the specific issues for which the technical review team has been formed. Technical review teams will terminate upon completion of the assigned task.
(i) Council jurisdiction. The jurisdiction of the council shall be on the basis of ecoregion, State, or BLM district boundaries.
(ii) Membership. Membership of the council shall be 10 to 15 members, distributed in a balanced fashion among the 3 interest groups defined in § 1784.6-1(c).
(iii) Quorum and voting requirements. The charter of each council shall specify that a majority of each interest group must be present to constitute a quorum and conduct official business, and that a majority of each interest group must vote affirmatively to refer an issue to BLM Federal officer.
(iv) Subgroups. Resource advisory councils may form more local teams to provide general local level input to the resource advisory council on issues necessary to the successful functioning of the council. Such subgroups can be formed in response to a petition from local citizens or on the motion of the resource advisory council. Membership in any subgroup formed for the purpose of providing general input to the resource advisory council on grazing administration should be constituted in accordance with provisions for membership in § 1784.6-1(c).
(A) Technical review teams can be formed by the BLM authorized officer on the motion of BLM or in response to a request by the resource advisory council or a local team. The purpose of such technical review teams is to gather and analyze data and develop recommendations to aid the decisionmaking process, and functions will be limited to tasks assigned by the authorized officer. Membership will be limited to Federal employees and paid consultants. Members will be selected based upon their knowledge of resource management or their familiarity with the specific issues for which the technical review team has been formed. Technical review teams will terminate upon completion of the assigned task.
(B) [Reserved]
PART 1810 – INTRODUCTION AND GENERAL GUIDANCE
Subpart 1810 – General Rules
§ 1810.1 Rules of construction; words and phrases.
Except where the context of the regulation or of the Act of the Congress on which it is based, indicates otherwise, when used in the regulations of this chapter:
(a) Words importing the singular include and apply to the plural also;
(b) Words importing the plural include the singular;
(c) Words importing the masculine gender include the feminine as well;
(d) Words used in the present tense include the future as well as the present;
(e) The words person and whoever include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;
(f) Officer and authorized officer include any person authorized by law or by lawful delegation of authority to perform the duties described;
(g) Signature or subscription includes a mark when the person making the same intended it as such;
(h) Oath includes affirmation, and sworn includes affirmed;
(i) Writing includes printing and typewriting as well as holographs, and copies include all types of reproductions on paper, including photographs, multigraphs, mimeographs and manifolds;
(j) The word company or association, when used in reference to a corporation, shall be deemed to embrace the words successors and assigns of such company or association, in like manner as if these last-named words, or words of similar import, were expressed.
§ 1810.2 Communications by mail; when mailing requirements are met.
(a) Where the regulations in this chapter provide for communication by mail by the authorized officer, the requirement for mailing is met when the communication, addressed to the addressee at his last address of record in the appropriate office of the Bureau of Land Management, is deposited in the mail.
(b) Where the authorized officer uses the mails to send a notice or other communication to any person entitled to such a communication under the regulations of this chapter, that person will be deemed to have received the communication if it was delivered to his last address of record in the appropriate office of the Bureau of Land Management, regardless of whether it was in fact received by him. An offer of delivery which cannot be consummated at such last address of record because the addressee had moved therefrom without leaving a forwarding address or because delivery was refused or because no such address exists will meet the requirements of this section where the attempt to deliver is substantiated by post office authorities.
(a) The authority of the United States to enforce a public right or protect a public interest is not vitiated or lost by acquiescence of its officers or agents, or by their laches, neglect of duty, failure to act, or delays in the performance of their duties.
(b) The United States is not bound or estopped by the acts of its officers or agents when they enter into an arrangement or agreement to do or cause to be done what the law does not sanction or permit.
(c) Reliance upon information or opinion of any officer, agent or employee or on records maintained by land offices cannot operate to vest any right not authorized by law.
§ 1810.4 Information required by forms.
Whenever a regulation in this chapter requires a form approved or prescribed by the Director of the Bureau of Land Management, the Director may in that form require the submission of any information which he considers to be necessary for the effective administration of that regulation.
Subpart 1812 – Qualifications of Practitioners
§ 1812.1 General.
§ 1812.1-1 Regulations governing practice before the Department.
Every individual who wishes to practice before the Department of the Interior, including the Bureau, must comply with the requirements of part 1 of this title.
§ 1812.1-2 Inquiries.
No person other than officers or employees of the Department of the Interior shall direct any inquiry to any employee of the Bureau with respect to any matter pending before it other than to the head of the unit in which the matter is pending, to a superior officer, or to an employee of the unit authorized by the unit head to answer inquiries.
Subpart 1815 – Disaster Relief
§ 1815.0-3 Authority.
Disaster Relief Act of 1970 (84 Stat. 1744).
§ 1815.0-5 Definitions.
Major disaster means any hurricane, tornado, storm, flood, high water, winddriven water, tidal wave, earthquake, drought, fire, or other catastrophe in any part of the United States, which, in the determination of the President, is or threatens to be of sufficient severity and magnitude to warrant disaster assistance by the Federal Government to supplement the efforts and available resources of States, local governments, and relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby, and with respect to which the Governor of any State in which such catastrophe occurs or threatens to occur certifies the need for Federal disaster assistance and gives assurance of the expenditure of a reasonable amount of the funds of such State, its local governments, or other agencies for alleviating the damage, loss, hardship or suffering resulting from such catastrophe.
§ 1815.1 Timber sale contracts.
§ 1815.1-1 Relief granted.
(a) Where an existing timber sale contract does not provide relief to the timber purchaser from major physical change, not due to negligence of the purchaser, prior to approval of construction of any section of specified road or other specified development facility and, as a result of a major disaster, a major physical change results in additional construction work in connection therewith, the United States will bear a share of the increased construction costs. The United States’ share will be determined by the authorized officer as follows:
(1) For sales of less than 1 million board feet, costs over $1,000;
(2) For sales of from 1 to 3 million board feet, costs over the sum of $1 per thousand board feet;
(3) For sales of over 3 million board feet, costs over $3,000.
(b) Where the authorized officer determines that the damages caused by such major physical change are so great that restoration, reconstruction, or construction is not practical under this cost-sharing arrangement, he may cancel the timber sale contract notwithstanding any provisions thereof.
§ 1815.1-2 Applications.
(a) Place of filing. The application for relief shall be filed in the office which issued the contract.
(b) Form of application. No special form of application is necessary.
(c) Contents of application. (1) The date of issuance of the contract and any identification number.
(2) The particular disaster and its effect upon contract performance.
(3) An estimate of the damages suffered.
(4) A statement of the relief requested.
(5) An estimate of time which will be needed to overcome the delay in performance caused by the disaster.
PART 1820 – APPLICATION PROCEDURES
Subpart 1821 – General Information
§ 1821.10 Where are BLM offices located?
(a) In addition to the Headquarters Office in Washington, D.C. and seven national level support and service centers, BLM operates 12 State Offices each having several subsidiary offices called Field Offices. The addresses of the State Offices and their respective geographical areas of jurisdiction are as follows:
(b) A list of the names, addresses, and geographical areas of jurisdiction of all Field Offices of the Bureau of Land Management can be obtained at the above addresses or any office of the Bureau of Land Management, including the Washington Office, Bureau of Land Management, 1849 C Street, NW, Washington, DC 20240.
§ 1821.11 During what hours may I file an application?
You may file applications or other documents or inspect official records during BLM office hours. Each BLM office will prominently display a notice of the hours during which that particular office will be open. Except for offices which are open periodically, for example, every Wednesday or the 3rd Wednesday of the month, all offices will be open Monday through Friday, excluding Federal holidays, at least from 9 a.m. to 3 p.m., local time.
§ 1821.12 Are these the only regulations that will apply to my application or other required document?
No. These general regulations are supplemented by specific program regulations. You should consult the regulations applying to the specific program.
§ 1821.13 What if the specific program regulations conflict with these regulations?
If there is a conflict, the specific program regulations will govern and the conflicting portion of these regulations will not apply.
Subpart 1822 – Filing a Document with BLM
§ 1822.10 How should my name appear on applications and other required documents that I submit to BLM?
Your legal name and current address should appear on your application and other required documents.
§ 1822.11 What must I do to make an official filing with BLM?
You must file your application and any other required documents during regular office hours at the appropriate BLM office having jurisdiction over the lands or records involved. You must file any document with BLM through personal delivery or by mailing via the United States Postal Service or other delivery service, except for those applications that may be filed electronically under § 1822.13, unless a more specific regulation or law specifies the mode of delivery. The date of mailing is not the date of filing.
§ 1822.12 Where do I file my application or other required documents?
You should file your application or other required documents at the BLM office having jurisdiction over the lands or records involved. The specific BLM office where you are to file your application is usually referenced in the BLM regulations which pertain to the filing you are making. If the regulations do not name the specific office, or if you have questions as to where you should file your application or other required documents, contact your local BLM office for information and we will tell you which BLM office to file your application.
§ 1822.13 May I file electronically?
For certain types of applications, BLM will accept your electronic filing if an original signature is not required. If BLM requires your signature, you must file your application or document by delivery or by mailing. If you have any questions regarding which types of applications can be electronically filed, you should check with the BLM office where you intend to file your application. When you file an application electronically, it will not be considered filed until BLM receives it.
§ 1822.14 What if I try to file a required document on the last day of the stated period for filing, but the BLM office where it is to be filed is officially closed all day?
BLM considers the document timely filed if we receive it in the office on the next day it is officially open.
§ 1822.15 If I miss filing a required document or payment within the specified period, can BLM consider it timely filed anyway?
BLM may consider it timely filed if:
(a) The law does not prohibit BLM from doing so;
(b) No other BLM regulation prohibits doing so; and
(c) No intervening third party interests or rights have been created or established during the intervening period.
§ 1822.16 Where do I file an application that involves lands under the jurisdiction of more than one BLM State Office?
You may file your application with any BLM State Office having jurisdiction over the subject lands. You should consult the regulations of the particular BLM resource program involved for more specific information.
§ 1822.17 When are documents considered filed simultaneously?
(a) BLM considers two or more documents simultaneously filed when:
(1) They are received at the appropriate BLM office on the same day and time; or
(2) They are filed in conjunction with an order that specifies that documents received by the appropriate office during a specified period of time will be considered as simultaneously filed.
(b) An application or document that arrives at the BLM office where it is to be filed when the office is closed for the entire day will be considered as filed on the day and hour the office next officially opens.
(c) Nothing in this provision will deny any preference right granted by applicable law or regulation or validate a document which is invalid under applicable law or regulation.
§ 1822.18 How does BLM decide in which order to accept documents that are simultaneously filed?
BLM makes this decision by a drawing open to the public.
Subpart 1823 – Payments and Refunds
§ 1823.10 How may I make my payments to BLM?
Unless specific regulations provide otherwise, you may pay by:
(a) United States currency; or
(b) Checks, money orders, or bank drafts made payable to the Bureau of Land Management; or
(c) Visa or Master Card credit charge, except as specified by pertinent regulation(s).
BLM can issue you a refund under the authority of section 304(c) of the Federal Land Policy and Management Act, 43 U.S.C. 1734.
§ 1823.12 When and how may I obtain a refund?
(a) In making a payment to BLM, if the funds or fees you submitted to BLM exceed the amount required or if the regulations provide that fees submitted to BLM must be returned in certain situations, you may be entitled to a full or partial refund.
(b) If you believe you are due a refund, you may request it from the BLM office where you previously submitted your payment. You should state the reasons you believe you are entitled to a refund and include a copy of the appropriate receipt, canceled check, or other relevant documents.
§ 1823.13 Is additional documentation needed when a third party requests a refund?
Yes. When refund requests are made by heirs, executors, administrators, assignees, or mortgagees, BLM may require additional documentation sufficient to establish your entitlement to a refund. If you are an heir, executor, administrator, assignee or mortgagee, you should contact the BLM office where you will file your refund application for information regarding appropriate documentation.
Subpart 1824 – Publication and posting of notices
§ 1824.10 What is publication?
Publication means publishing a notice announcing an event or a proposed action in the
§ 1824.11 How does BLM choose a newspaper in which to publish a notice?
BLM bases its choice of newspapers on their reputation and frequency and level of circulation in the vicinity of the public or private lands involved.
§ 1824.12 How many times must BLM publish a notice?
The number of times that BLM will publish or cause to be published a notice depends on the publication requirements for the particular action involved. You should see the applicable law and the regulations governing specific BLM resource programs for information on the requirements for publication for a particular action.
§ 1824.13 Who pays for publication?
The cost of publication is the responsibility of the claimant or applicant.
§ 1824.14 Does the claimant or applicant pay for an error by the printer of the paper in which the notice appears?
No. The claimant or applicant is not responsible for costs involved in correcting an error by the printer.
§ 1824.15 What does it mean to post a notice?
Posting a notice is similar to publishing a notice except that the notice is displayed at the appropriate BLM office, local courthouse or similar prominent local government building or on a prominent fixture such as a building, tree or post located on the particular public lands involved.
§ 1824.16 Why must I post a notice?
The posting of a notice informs those persons who may be interested in the lands or resources described, who have relevant information to provide, or who may wish to oppose the proposal.
§ 1824.17 If I must post a notice on the land, what are the requirements?
The posted notice must be visible throughout the time period for posting specified in the regulations governing the relevant program. BLM or its regulations may require additional posting, such as in a post office or city hall. For any additional posting requirements, you should see applicable Federal and State law, the regulations of the particular BLM resource program and any additional BLM requirements associated with your application.
Subpart 1825 – Relinquishments
§ 1825.10 If I relinquish my interest (such as a claim or lease) in public lands, am I relieved of all further responsibility associated with that interest?
No. You are still responsible for fulfilling any regulatory, statutory, lease, permit and other contractual obligations that apply, such as performance of reclamation and payment of rentals accruing before the time of relinquishment. You should see the regulations relating to the specific BLM resource program involved for more detailed information.
§ 1825.11 When are relinquishments effective?
Generally, BLM considers a relinquishment to be effective when it is received, along with any required fee, in the BLM office having jurisdiction of the lands being relinquished. However, the specific program regulations govern effectiveness of relinquishments.
§ 1825.12 When does relinquished land become available again for other application or appropriation?
Relinquished land may not again become available until BLM notes the filed relinquishment of an interest on the land records maintained by the BLM office having jurisdiction over the lands involved. If you have any questions regarding the availability of a particular tract of land, you should contact the BLM office having jurisdiction over the lands or records.
PART 1840 – APPEALS PROCEDURES
§ 1840.1 Cross reference.
For special procedural rules applicable to appeals from decisions of Bureau of Land Management officers or of administrative law judges, within the jurisdiction of the Board of Land Appeals, Office of Hearings and Appeals, see subpart E of part 4 of this title. Subpart A of part 4 and all of the general rules in subpart B of part 4 of this title not inconsistent with the special rules in subpart E of part 4 of this title are also applicable to such appeals procedures.
PART 1850 – HEARINGS PROCEDURES
Subpart 1850 – Hearing Procedures; General
§ 1850.1 Cross reference.
For special procedural rules applicable to hearings in public lands cases, including hearings under the Federal Range Code for Grazing Districts and hearings in both Government and private contest proceedings, within the jurisdiction of the Board of Land Appeals, Office of Hearings and Appeals, see subpart E of part 4 of this title. Subpart A of part 4 and all of the general rules in subpart B of part 4 of this title not inconsistent with the special rules in subpart E of part 4 of this title are also applicable to such hearings, contest, and protest procedures.
PART 1860 – CONVEYANCES, DISCLAIMERS AND CORRECTION DOCUMENTS
Subpart 1862 [Reserved]
Subpart 1863 – Other Title Conveyances
§ 1863.5 Title transfer to the Government.
§ 1863.5-1 Evidence of title.
Evidence of title, when required by the regulations, must be submitted in such form and by such abstracter or company as may be satisfactory to the Bureau of Land Management. A policy of title insurance, or a certificate of title, may be accepted in lieu of an abstract, in proper cases, when issued by a title company. A policy of title insurance when furnished must be free from conditions and stipulations not acceptable to the Department of the Interior. A certificate of title will be accepted only where the certificate is made to the Government, or expressly for its benefit and where the interests of the Government will be sufficiently protected thereby.
For evidence of title in mining cases, see § 3862.1-3 of this chapter.
Subpart 1864 – Recordable Disclaimers of Interest in Land
§ 1864.0-1 Purpose.
The Secretary of the Interior has been granted discretionary authority by section 315 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1745) to issue recordable disclaimers of interests in lands. In general, a disclaimer may be issued if the disclaimer will help remove a cloud on the title to lands and there is a determination that such lands are not lands of the United States or that the United States does not hold a valid interest in the lands. These regulations implement this statutory authority of the Secretary.
§ 1864.0-2 Objectives.
(a) The objective of the disclaimer is to eliminate the necessity for court action or private legislation in those instances where the United States asserts no ownership or record interest, based upon a determination by the Secretary of the Interior that there is a cloud on the title to the lands, attributable to the United States, and that:
(1) A record interest of the United States in lands has terminated by operation of law or is otherwise invalid; or
(2) The lands lying between the meander line shown on a plat of survey approved by the Bureau of Land Management or its predecessors and the actual shoreline of a body of water are not lands of the United States; or
(3) Accreted, relicted, or avulsed lands are not lands of the United States.
(b) A disclaimer has the same effect as a quitclaim deed in that it operates to estop the United States from asserting a claim to an interest in or the ownership of lands that are being disclaimed. However, a disclaimer does not grant, convey, transfer, remise, quitclaim, release or renounce any title or interest in lands, nor does it operate to release or discharge any tax, judgement or other lien, or any other mortgage, deed or trust or other security interest in lands that are held by or for the benefit of the United States or any instrumentality of the United States.
(c) The regulations in this subpart do not apply to any disclaimer, release, quitclaim or other similar instrument or declaration, that may be issued pursuant to any provision of law other than section 315 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1745).
§ 1864.0-3 Authority.
Section 315 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1745), authorizes the Secretary of the Interior to issue a recordable disclaimer, where the disclaimer will help remove a cloud on the title of such lands, if certain determinations are made and conditions are met.
§ 1864.0-5 Definitions.
As used in this subpart, the term:
(a) Authorized officer means any employee of the Bureau of Land Management who has been delegated the authority to perform the duties described in this subpart.
(b) Accreted lands have the meaning imparted to them by applicable law. In general, they are lands that have been gradually and imperceptibly formed along the banks of a body of water by deposition of water-borne soil.
(c) Avulsed lands have the meaning imparted to them by applicable law. In general, they are lands that have been uncovered by a relatively sudden change in alignment of the channel of a river, or by a comparable change in some other body of water, or that remain as uplands following such a change, or that are located in the bed of the new channel.
(d) Actual shoreline means the line which is washed by the water wherever it covers the bed of a body of water at its mean high water level.
(e) Lands means lands and interests in lands now or formerly forming a part of the reserved or unreserved public lands of the contiguous 48 States and Alaska and as to any coastal State, includes submerged lands inside of the seaward boundary of the State.
(f) Meander line means a survey line established for the purpose of representing the location of the actual shoreline of a permanent natural body of water, without showing all the details of its windings and irregularities. A meander line rarely runs straight for any substantial distance. It is established not as a boundary line but in order to permit calculation of the quantity of lands in the fractional sections remaining after segregation of the water area.
(g) Relicted lands have the meaning imparted that term by applicable law. In general, they are lands gradually uncovered when water recedes permanently.
(h) State means “the state and any of its creations including any governmental instrumentality within a state, including cities, counties, or other official local governmental entities.”
§ 1864.1 Application for issuance of a document of disclaimer.
§ 1864.1-1 Filing of application.
(a) Any entity claiming title to lands may file an application to have a disclaimer of interest issued if there is reason to believe that a cloud exists on the title to the lands as a result of a claim or potential claim of the United States and that such lands are not subject to any valid claim of the United States.
(b) Before you actually file an application you should meet with BLM to determine if the regulations in this subpart apply to you.
(c) You must file your application for a disclaimer of interest with the proper BLM office as listed in § 1821.10 of this title.
§ 1864.1-2 Form of application.
(a) No specific form of application is required.
(b) A nonrefundable fee of $100 shall accompany the application.
(c) Each application shall include:
(1) A legal description of the lands for which a disclaimer is sought. The legal description shall be based on either an official United States public land survey or, in the absence of or inappropriateness (irregularly shaped tracts) of an offical public land survey, a metes and bounds survey (whenever practicable, tied to the nearest corner of an official public land survey), duly certified in accordance with State law, by the licensed civil engineer or surveyor who executed or supervised the execution of the metes and bounds survey. A true copy of the field notes and plat of survey shall be attached to and made a part of the application. If reliance is placed in whole or in part on an official United States public land survey, such survey shall be adequately identified for record retrieval purposes;
(2) The applicant’s name, mailing address, and telephone number and the names addresses and telephone numbers of others known or believed to have or claim an interest in the lands;
(3) All documents which show to the satisfaction of the authorized officer the applicant’s title to the lands;
(4) As complete a statement as possible concerning:
(i) The nature and extent of the cloud on the title, and
(ii) The reasons the applicant believes:
(A) The record title interest of the United States in the lands included in the application has terminated by operation of law or is otherwise invalid, including a copy or legal citation of relevant provisions of law; or
(B) The lands between the meander line shown on the plat of survey approved by the Bureau of Land Management or its predecessors and the actual shoreline of a body of water are not lands of the United States, including as documentation an official plat of survey or a reference to a date of filing or approval and, if the applicant elects, any non-Federal survey plats related to the issue; or
(C) The lands are accreted, relicted or avulsed and are no longer lands of the United States, including submission for the uplands portion of the body of water affected a copy of an official plat of survey or a reference to it by date of filing or approval and, if the applicant elects, any non-Federal survey plats related to the issue;
(5) Any available documents or title evidence, such as historical and current maps, photographs, and water movement data, that support the application;
(6) The name, mailing address, and telephone number of any known adverse claimant or occupant of the lands included in the application;
(7) Any request the applicant may have that the disclaimer be issued in a particular form suitable for use in the jurisdiction in which it will be recorded; and
(d) Based on prior discussions with the applicant, the authorized officer may waive any or all of the aforementioned items if in his/her opinion they are not needed to properly adjudicate that application.
§ 1864.1-3 Action on application.
(a) BLM will not approve an application, except for applications filed by a state, if more than 12 years have elapsed since the applicant knew, or should have known, of the claim of the United States.
(b) BLM will not approve an application if:
(1) The application pertains to a security interest or water rights; or
(2) The application pertains to trust or restricted Indian lands.
(c) BLM will, if the application meets the requirements for further processing, determine the amount of deposit we need to cover the administrative costs of processing the application and issuing a disclaimer.
(d) The applicant must submit a deposit in the amount BLM determines.
(e) If the application includes what may be omitted lands, BLM will process it in accordance with the applicable provisions of part 9180 of this title. If BLM determines the application involves omitted lands, BLM will notify the applicant in writing.
§ 1864.1-4 Consultation with other Federal agencies.
BLM will not issue a recordable disclaimer of interest over the valid objection of another land managing agency having administrative jurisdiction over the affected lands. A valid objection must present a sustainable rationale that the objecting agency claims United States title to the lands for which a recordable disclaimer is sought.
§ 1864.2 Decision on application.
(a) The authorized officer shall notify the applicant and any party adverse to the application, in writing, on the determination of the authorized officer on whether or not to issue a disclaimer. Prior to such notification, the authorized officer shall issue to the applicant a billing that includes a full and complete statement of the cost incurred in reaching such determination, including any sum due the United States or that may be unexpended from the deposit made by the applicant. If the administrative costs exceed the amount of the deposit required of the applicant under this subpart, the applicant shall be informed that a payment is required for the difference between the actual costs and the deposit. The notification shall also require that payment be made within 120 days from the date of mailing of the notice. If the deposit exceeds the administrative costs of issuing the disclaimer, the applicant shall be informed that a credit for or a refund of the excess will be made. Failure to pay the required amount within the allotted time shall constitute grounds for rejection of the application. Before the authorized officer makes a determination to issue a disclaimer, he/she shall publish notice of the application, including the grounds supporting it, in the
§ 1864.3 Issuance of document of disclaimer.
Upon receipt of the payment required by §§ 1864.1-2(b), 1864.1-3(c) and 1864.2 of this title and following, by not less than 90 days, the publication required by § 1864.2 of this title, the authorized officer shall make a decision upon the application, and if the application is allowed, shall issued to the applicant an instrument of disclaimer.
§ 1864.4 Appeals.
An applicant or claimant adversely affected by a written decision of the authorized officer made pursuant to the provisions of this subpart shall have a right of appeal pursuant to 43 CFR part 4.
Subpart 1865 – Correction of Conveyancing Documents
§ 1865.0-1 Purpose.
The purpose of these regulations is to implement section 316 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1746), which affords to the Secretary of the Interior discretionary authority to correct errors in patents and other documents of conveyance pertaining to the disposal of the public lands of the United States under laws administered through the Bureau of Land Management or its predecessors.
§ 1865.0-2 Objective.
The objective of a correction document is to eliminate from the chain of title errors in patents or other documents of conveyance that have been issued by the United States under laws administered by the Bureau of Land Management or its predecessors and that pertain to the disposal of the public lands or of an interest therein.
§ 1865.0-3 Authority.
Section 316 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1746) authorizes the Secretary of the Interior to correct patents and other documents of conveyance issued at any time pursuant to the laws relating to the disposal of the public lands where the Secretary of the Interior deems it necessary or appropriate to do so in order to eliminate errors.
§ 1865.0-5 Definitions.
As used in this subpart, the term:
(a) Authorized officer means any employee of the Bureau of Land Management to whom has been delegated the authority to perform the duties described in this subpart.
(b) Error means the inclusion of erroneous descriptions, terms, conditions, covenants, reservations, provisions and names or the omission of requisite descriptions, terms, conditions, covenants, reservations, provisions and names either in their entirety or in part, in a patent or document of conveyance as a result of factual error. This term is limited to mistakes of fact and not of law.
(c) Patents or other documents of conveyance means a land patent, a deed or some other similar instrument in the chain of title to realty that has been issued by the United States under laws administered by the Bureau of Land Management or its predecessors pertaining to the disposal of the public lands of the United States or of an interest therein. It also includes interim conveyances issued under the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601 et seq.), and approvals and tentative approvals issued under the Act of July 7, 1958, as amended (72 Stat. 339).
(d) Lands mean lands or interest in lands.
§ 1865.1 Application for correction of conveyancing documents.
§ 1865.1-1 Filing of application.
(a) Any claimant asserting ownership of lands described in and based upon a patent or other document of conveyance containing an alleged error may file an application to correct the alleged error.
(b) An application shall be filed in writing with the proper Bureau of Land Management office as listed in § 1821.2-1(d) of this title.
§ 1865.1-2 Form of application.
(a) No specific form of application is required.
(b) A non-refundable fee of $100 shall accompany the application.
(c) Each application shall include:
(1) The name, mailing address, and telephone number of the applicant and any others known to the applicant that hold or purport to hold any title or other interest in, lien on or claim to the lands described in the patent or other document of conveyance containing the alleged error as to which the corrective action is requested, and if the error involves a misdescription, the land that would be affected by the corrective action requested;
(2) All documents which show the applicant’s title to the lands included in the application;
(3) A certified copy of any patent or other document conveying any lands included in the application to the applicant or predecessor(s) in interest; and
(4) As complete a statement as possible concerning:
(i) The nature and extent of the error;
(ii) The manner in which the error can be corrected or eliminated; and
(iii) The form in which it is recommended the corrected patent or document of conveyance be issued.
§ 1865.1-3 Action on application.
The authorized officer, upon review of the factual data and information submitted with the application, and upon a finding that an error was made in the patent or document of conveyance and that the requested relief is warranted and appropriate, shall give written notification to the applicant and make a reasonable effort to give written notification to any others known to have or believed to have or claim an interest in the lands that a corrected patent or document of conveyance shall be issued. The notification shall include a description of how the error is to be corrected or eliminated in the patent or document of conveyance. The notice shall require the applicant to surrender the original patent or other document of conveyance to be corrected. Where such original document is unavailable, a statement setting forth the reasons for its unavailability shall be submitted in lieu of the original document. The notice may include a requirement for quitclaiming to the United States the lands erroneously included, and shall specify any terms and conditions required for the quitclaim.
§ 1865.2 Issuance of corrected patent or document of conveyance.
Upon the authorized officer’s determination that all of the requirements of the Act for issuance of a corrected patent or document of conveyance have been met, the authorized officer shall issue a corrected patent or document of conveyance.
The authorized officer may initiate and make corrections in patents or other documents of conveyance on his/her own motion, if all existing owners agree.
§ 1865.4 Appeals.
An applicant or claimant adversely affected by a decision of the authorized officer made pursuant to the provisions of this subpart shall have a right of appeal pursuant to 43 CFR part 4.
PART 1870 – ADJUDICATION PRINCIPLES AND PROCEDURES
Subpart 1871 – Principles
§ 1871.0-3 Authority.
The Act of September 20, 1922 (42 Stat. 857; 43 U.S.C. 1161-1163), as modified by section 403 of Reorganization Plan No. 3 of 1946 (60 Stat. 1100), reads as follows:
§ 1871.1 Equitable adjudication.
§ 1871.1-1 Cases subject to equitable adjudication.
The cases subject to equitable adjudication by the Director, Bureau of Land Management, cover the following:
(a) Substantial compliance: All classes of entries in connection with which the law has been substantially complied with and legal notice given, but the necessary citizenship status not acquired, sufficient proof not submitted, or full compliance with law not effected within the period authorized by law, or where the final proof testimony, or affidavits of the entryman or claimant were executed before an officer duly authorized to administer oaths but outside the county or land district, in which the land is situated, and special cases deemed proper by the Director, Bureau of Land Management, where the error or informality is satisfactorily explained as being the result of ignorance, mistake, or some obstacle over which the party had no control, or any other sufficient reason not indicating bad faith there being no lawful adverse claim.
PART 1880 – FINANCIAL ASSISTANCE, LOCAL GOVERNMENTS
Subpart 1882 – Mineral Development Impact Relief Loans
§ 1882.0-1 Purpose.
The purpose of this subpart is to establish procedures to be followed in the implementation of a program under section 317 of the Federal Land Policy and Management Act to make loans to qualified States and their political subdivisions.
§ 1882.0-2 Objective.
The objective of the program is to provide financial relief through loans to those States and their political subdivisions that are experiencing adverse social and economic impacts as a result of the development of Federal mineral deposits leased under the provisions of the Act of February 25, 1920, as amended.
§ 1882.0-3 Authority.
Section 317(c) of the Federal Land Policy and Management Act of 1976, as amended (43 U.S.C. 1744), authorizes the Secretary of the Interior to make loans to States and their political subdivisions to relieve social or economic impacts resulting from the development of Federal minerals leased under the Act of February 25, 1920 (30 U.S.C. 181 et seq.).
§ 1882.0-5 Definitions.
As used in this subpart, the term:
(a) Secretary means the Secretary of the Interior.
(b) Director means the Director, Bureau of Land Management.
(c) Act means the Act of February 25, 1920, as amended (30 U.S.C. 181).
§ 1882.1 Loan fund, general.
Funds appropriated by Congress for loans for relief of adverse social and economic impacts resulting from the development of Federal mineral deposits leased and developed under the Act may be loaned to those States and their political subdivisions who qualify under this subpart. Such loans may be used for: (a) Planning, (b) construction and maintenance of public facilities, and (c) provisions for public services.
§ 1882.2 Qualifications.
(a) Any State receiving payments from the Federal Government under the provisions of section 35 of the Act or any political subdivision of such a State that can document to the satisfaction of the Director that it has suffered or will suffer adverse social and economic impacts as a result of the leasing and development of Federal mineral deposits under the provisions of the Act shall be considered qualified to receive loans made under this subpart.
(b) A loan to a qualified political subdivision of a State receiving payment from the Federal Government under the provisions of section 35 of the Act shall be conditioned upon a showing of proof, satisfactory to the Director, by the political subdivision that it has legal authority to pledge funds payable to the State under section 35 of the Act in sufficient amounts to secure the payment of the loan.
§ 1882.3 Application procedures.
No later than October 1 of the fiscal year in which a loan is to be made, the State or its political subdivision shall submit to the Director a letter signed by the authorized agent requesting a loan. The authorized agent shall furnish proof of authority to act for the State or political subdivision with the application. Such letter shall constitute a formal application for a loan under this subpart and shall contain the following:
(a) The name of the State or political subdivision requesting the loan.
(b) The amount of the loan requested.
(c) The name, address, and position of the person in the State or political subdivision who is to serve as contact on all matters concerning the loan.
(d) A description and documentation of the adverse social and economic impacts suffered as a result of the leasing and development of Federal mineral deposits.
(e) An analysis and documentation of the additional expenses generated as a result of the leasing and development of Federal minerals.
(f) Proposed uses of the funds derived from the loan.
(g) Evidence that the loan and repayment provisions are authorized by State law.
(h) The Director may request any additional information from the applicant that is needed to properly act on the loan application. The applicant shall furnish such additional information in any form acceptable to the applicant and the Director. No loan shall be granted unless such additional information is timely received by the Director.
§ 1882.4 Allocation of funds.
If applications for loans exceed the funds appropriated for such purpose, loans shall be allocated among the States and their political subdivisions in a fair and equitable manner, after consultation with the Governors of the affected States, giving priority to those States and political subdivisions suffering the most severe social and economic impacts. The allocation of funds under this section shall be the final action of the Department of the Interior.
§ 1882.5 Terms and conditions.
§ 1882.5-1 Tenure of loan.
Loans shall be for a period not to exceed 10 years. Loan documents shall include a schedule of repayment showing the amount of the principal and interest due on each installment.
§ 1882.5-2 Interest rate.
Loans shall bear interest at a rate equivalent to the lowest interest rate paid on an issue of at least $1 million of bonds exempt from Federal taxes of the applicant State or any agency thereof within the calendar year immediately preceding the year of the loan. Proof of each rate shall be furnished by an applicant with its application.
§ 1882.5-3 Limitation on amount of loans.
Total outstanding loans under this program for qualified States or their political subdivisions shall not exceed the total amount of the qualified State’s projected mineral revenues under the Act for the 10 years following. The total outstanding loans shall be the sum of the unpaid balance on all such loans made to a qualified State and all of its qualified political subdivisions.
§ 1882.5-4 Loan repayment.
Loan repayment shall be by withholding mineral revenues payable to the qualified State for itself or its political subdivisions under the Act until the full amount of the loan and interest have been recovered.
§ 1882.5-5 Security for a loan.
The only security for loans made under this subpart shall be the mineral revenues received by a qualified State or its political subdivisions under the Act. Loans made under this subpart shall not constitute an obligation upon the general property or taxing authority of the qualified recipient.
§ 1882.5-6 Use of loan.
A loan made under this subpart may be used for the non-Federal share of the aggregate cost of any project or program otherwise funded by the Federal Government which requires a non-Federal share for such project or program and which provides planning or public facilities otherwise eligible for assistance under the Act.
§ 1882.5-7 Nondiscrimination.
No person shall, on the grounds of race, color, religion, national origin or sex be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity funded in whole or part with funds made available under this subpart.
§ 1882.5-8 Additional terms and conditions.
The Director may impose any terms and conditions that he determines necessary to assure the achievement of the purpose of the loans made under this subsection.
§ 1882.6 Loan renegotiation.
The Secretary may, upon application of a qualified State or one of its qualified political subdivisions, take any steps he determines necessary and justified by the failure of anticipated mineral development or related revenues to materialize as expected when the loan was made under this subpart to renegotiate the loan, including restructuring of the loan. All applications submitted under this section shall set forth in detail the basis for the renegotiation of the loan. The renegotiated loan shall meet the requirements of this subpart to the extent possible.
§ 1882.7 Inspection and audit.
Upon receipt of a loan under this subpart, the grantee of the loan shall establish accounts and related records necessary to record the transactions relating to receipt and disposition of such loan. These accounts and related records shall be sufficiently detailed to provide an adequate inspection and audit by the Secretary and the Comptroller General of the United States. The loan funds shall not be commingled with other funds of the recipient.
SUBCHAPTER B – LAND RESOURCE MANAGEMENT (2000)
PART 2090 – SPECIAL LAWS AND RULES
Subpart 2091 – Segregation and Opening of Lands
§ 2091.0-1 Purpose.
The purpose of this subpart is to provide a general restatement of the regulatory provisions in title 43 of the Code of Federal Regulations dealing with the segregation and opening of public lands administered by the Secretary of the Interior through the Bureau of Land Management and summarize the existing procedures covering opening and closing of lands as they relate to the filing of applications. The provisions of this subpart do not replace or supersede any provisions of title 43 covering opening and closing of public lands.
§ 2091.0-3 Authority.
Section 2478 of the Revised Statutes (43 U.S.C. 1201), sections 2275 and 2276 of the Revised Statutes (43 U.S.C. 851, 852), the Recreation and Public Purposes Act, as amended (43 U.S.C. 869 et seq.), section 4 of the Act of August 18, 1894, as amended (43 U.S.C. 641 et seq.), the Act of March 3, 1877 (43 U.S.C. 321-323), as amended by the Act of March 3, 1891 (43 U.S.C. 231, 321, 323, 325, 327-329), section 4 of the General Allotment Act of February 8, 1887 (25 U.S.C. 334), as amended by the Act of February 28, 1891 (26 Stat. 794) and section 17 of the Act of June 25 1910 (25 U.S.C. 336), the Act of March 20, 1922, as amended (16 U.S.C. 485), the Act of July 7, 1958 (72 Stat. 339-340), the Act of January 21, 1929, as supplemented (43 U.S.C. 852 Note), section 24 of the Federal Power Act, as amended (16 U.S.C. 818), section 7 of the Act of June 28, 1934, as amended (43 U.S.C. 315f), the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601 et seq.), the Alaska National Interest Lands Conservation Act (16 U.S.C. 3101 et seq.) and the Federal Land Policy and Management Act of 1976, as amended, (43 U.S.C. 1701 et seq.).
§ 2091.0-5 Definitions.
As used in this subpart, the term:
(a) Authorized officer means any employee of the Bureau of Land Management who has been delegated the authority to perform the duties described in this subpart.
(b) Segregation means the removal for a limited period, subject to valid existing rights, of a specified area of the public lands from the operation of some or all of the public land laws, including the mineral laws, pursuant to the exercise by the Secretary of regulatory authority for the orderly administration of the public lands.
(c) Land or public lands means any lands or interest in lands owned by the United States within the several States and administered by the Secretary of the Interior through the Bureau of Land Management, without regard to how the United States acquired ownership, except: (1) Lands located on the Outer Continental Shelf; and (2) lands held for the benefit of Indians, Aleuts and Eskimos.
(d) Mineral laws means those laws applicable to the mineral resources administered by the Bureau of Land Management. They include, but are not limited to, the mining laws, the mineral leasing laws, the material disposal laws and the Geothermal Steam Act.
(e) Public lands records means the Tract Books, Master Title Plats and Historical Indices maintained by the Bureau of Land Management, or automated representation of these books, plats and indices on which are recorded information relating to the status and availability of the public lands. The recorded information may include, but is not limited to, withdrawals, restorations, reservations, openings, classifications applications, segregations, leases, permits and disposals.
(f) Opening means the restoration of a specified area of public lands to operation of the public land laws, including the mining laws, and, if appropriate, the mineral leasing laws, the material disposal laws and the Geothermal Steam Act, subject to valid existing rights and the terms and provisions of existing withdrawals, reservations, classifications, and management decisions. Depending on the language in the opening order, an opening may restore the lands to the operation of all or some of the public land laws.
(g) Opening order means an order issued by the Secretary or the authorized officer and published in the
(h) Public land laws means that body of laws dealing with the administration, use and disposition of the public lands, but does not include the mineral laws.
(i) Revocation means the cancellation of a Public Land Order, but does not restore public lands to operation of the public land laws.
(j) Secretary means the Secretary of the Interior or a secretarial officer subordinate to the Secretary who has been appointed by the President with the advice and consent of the Senate, and to whom has been delegated the authority of the Secretary to perform the duties described in this part as being performed by the Secretary.
§ 2091.07 Principles.
(a) Generally, segregated lands are not available for application, selection, sale, location, entry, claim or settlement under the public land laws, including the mining laws, but may be open to the operation of the discretionary mineral leasing laws, the material disposal laws and the Geothermal Steam Act, if so specified in the document that segregates the lands. The segregation is subject to valid existing rights and is, in most cases, for a limited period which is specified in regulations or in the document that segregates the lands. Where there is an administrative appeal or review action on an application pursuant to part 4 or other subparts of this title, the segregative period continues in effect until publication of an opening order.
(b) Opening orders may be issued at any time but are required when the opening date is not specified in the document creating the segregation, or when an action is taken to terminate the segregative effect and open the lands prior to the specified opening date.
§ 2091.1 Action on applications and mining claims.
(a) Except where the law and regulations provide otherwise, all applications shall be accepted for filing. However, applications which are accepted for filing shall be rejected and cannot be held pending possible future availability of the lands or interests in lands, except those that apply to selections made by the State of Alaska under section 906(e) of the Alaska National Interest Land Conservation Act and selections made by Alaska Native Corporations under section 3(e) of the Alaska Native Claims Settlement Act, when approval of the application is prevented by:
(1) A withdrawal, reservation, classification, or management decision applicable to the lands;
(2) An allowed entry or selection of lands;
(3) A lease which grants the lessee exclusive use of the lands;
(4) Classifications existing under appropriate law:
(5) Segregation due to an application previously filed under appropriate law and regulations;
(6) Segregation resulting from a notice of realty action previously published in the
(7) The fact that, for any reason, the lands have not been made subject to, restored or opened to operation of the public land laws, including the mineral laws.
(b) Lands may not be appropriated under the mining laws prior to the date and time of restoration and opening. Any such attempted appropriation, including attempted adverse possession under 30 U.S.C. 38, vests no rights against the United States. Actions required to establish a mining claim location and to initiate a right of possession are governed by State laws where those laws are not in conflict with Federal law. The Bureau of Land Management does not intervene in disputes between rival locators over possessory rights because Congress has provided for the resolution of these matters in local courts.
§ 2091.2 Segregation and opening resulting from publication of a Notice of Realty Action.
§ 2091.2-1 Segregation.
The publication of a Notice of Realty Action in the
(a) The Recreation and Public Purposes Act, as amended (43 U.S.C. 869-4), for a period of 18 months (See part 2740 and subpart 2912);
(b) The sales provisions of section 203 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1713) for a period of 270 days (See part 2710). The sales provisions of section 43 CFR 2711.1-2(d) provide for a segregation period, not to exceed two years unless, on a case-by-case basis, the BLM State Director determines that the extension is necessary and documents, in writing, why the extension is needed. Such an extension will not be renewable and cannot be extended beyond the additional two years.
§ 2091.2-2 Opening.
(a) The segregative effect of a Notice of Realty Action automatically terminates either:
(1) At the end of the periods set out in § 2091.2-1 of this title (See part 2740); or
(2) As of the date specified in an opening order published in the
(3) Upon issuance of a patent or other document of conveyance; whichever occurs first.
(b) [Reserved]
§ 2091.3 Segregation and opening resulting from a proposal or application.
§ 2091.3-1 Segregation.
(a) If a proposal is made to exchange public lands administered by the Bureau of Land Management or lands reserved from the public domain for National Forest System purposes, such lands may be segregated by a notation on the public land records for a period not to exceed 5 years from the date of notation (See 43 CFR 2201.1-2 and 36 CFR 254.6).
(b) The filing of an application for lands for selection by a State (exclusive of Alaska) segregates the lands included in the application for a period of 2 years from the date the application is filed. (See subparts 2621 and 2622)
(c) The filing of an application and publication of the notice of the filing of an application in the
(d) The filing of an application for an airport lease under the Act of May 24, 1928, as amended (49 U.S.C. Appendix 211-213), or the filing of a request for an airport conveyance under the Airport and Airway Improvement Act of 1982 (49 U.S.C. 2215), segregates the lands as of the date of filing with the authorized officer. (See part 2640 and subpart 2911)
(e)(1) The Bureau of Land Management may segregate, if it finds it necessary for the orderly administration of the public lands, lands included in a right-of-way application under 43 CFR subpart 2804 for the generation of electrical energy from wind or solar sources. In addition, the Bureau of Land Management may also segregate lands that it identifies for potential rights-of-way for electricity generation from wind or solar sources when initiating a competitive process for solar or wind development on particular lands. Upon segregation, such lands will not be subject to appropriation under the public land laws, including location under the Mining Law of 1872, (30 U.S.C. 22 et seq.), but would remain open under the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq.) or the Materials Act of 1947 (30 U.S.C. 601 et seq.). The BLM will effect a segregation by publishing a
(2) The effective date of segregation is the date of publication of the notice in the
(i) When the BLM issues a decision granting, granting with modifications, or denying the application for a right-of-way;
(ii) Automatically at the end of the segregation period stated in the
(iii) Upon publication of a
(3) The segregation period may not exceed 2 years from the date of publication in the
§ 2091.3-2 Opening.
(a) If a proposal or an application described in § 2091.3-1 of this part is not denied, modified, or otherwise terminated prior to the end of the segregative periods set out in § 2091.3-1 of this part, the segregative effect of the proposal or application automatically terminates upon the occurrence of either of the following events, whichever occurs first:
(1) Issuance of a patent or other document of conveyance to the affected lands; or
(2) The expiration of the applicable segregation period set out in § 2091.3-1 of this part.
(b) If the proposal or application described in § 2091.3-1 of this part is denied, modified, or otherwise terminated prior to the end of the segregation periods, the lands shall be opened promptly by publication in the
(c) Subject to valid existing rights, non-Federal lands acquired through exchange by the United States shall be segregated automatically from appropriation under the public land laws and mineral laws for 90 days after acceptance of title by the United States, and the public land records shall be noted accordingly. Except to the extent otherwise provided by law, the lands shall be open to the operation of the public land laws and mineral laws at midnight 90 days after the day title was accepted unless otherwise segregated pursuant to part 2300 of this title. (See 43 CFR 2201.9(b))
§ 2091.4 Segregation and opening resulting from the allowance of entries, leases, grants or contracts.
§ 2091.4-1 Segregation and opening: Desert-land entries and Indian allotments.
(a) Lands covered by an application for a desert land entry or Indian allotment become segregated on the date of allowance or approval of entry or allotment by the authorized officer. (See parts 2520 and 2530).
(b) If an entry or allotment is cancelled or relinquished, the lands become open to the operation of the public land laws by publication in the
§ 2091.4-2 Segregation and opening: Airport leases and grants.
(a) The issuance of a lease for airport purposes under the authority of the Act of May 24, 1928 or a patent or document of conveyance for airport and airway purposes under the authority of the Act of September 3, 1982, as amended (49 U.S.C. 2215), continues to segregate the lands. (See part 2640 and subpart 2911)
(b) If an airport lease is terminated, the lands are opened by publication in the
(c) The lands covered by an airport lease or grant remain open to the operation of the mineral leasing laws, the material disposal laws and the Geothermal Steam Act, but are segregated from the operation of the mining laws pending the issuance of such regulations as the Secretary may prescribe (See part 2640 and subpart 2911).
§ 2091.4-3 Segregation and opening: Carey Act.
(a) For lands covered by a Carey Act grant, publication of a notice in the
(b) If the contract under the Carey Act is terminated, the lands are opened by publication in the
§ 2091.5 Withdrawals.
§ 2091.5-1 Segregation of lands resulting from withdrawal applications filed on or after October 21, 1976.
(a) Publication in the
(b) Segregations resulting from applications and proposals filed on or after October 21, 1976, terminate:
(1) Automatically upon the expiration of a 2 year period from the date of publication in the
(2) Upon the publication in the
(3) Upon the publication in the
(4) Publication in the
§ 2091.5-2 Segregation of lands resulting from withdrawal applications filed prior to October 21, 1976.
(a)(1) Lands covered by a withdrawal application or withdrawal proposal filed prior to October 21, 1976, were segregated on the date the application was properly filed and remain segregated through October 20, 1991, to the extent specified in notices published in the
(2) Any amendment made to a withdrawal application filed prior to October 21, 1976, for the purpose of adding lands modifies the term of segregation for all lands covered by the amended application to conform with the provision of § 2091.5-1 of this title.
(b) Segregations resulting from applications filed under this section terminate in accordance with procedures in § 2091.5-1 of this title.
§ 2091.5-3 Segregative effect and opening: Emergency withdrawals.
(a) When the Secretary determines that an emergency exists and extraordinary measures need to be taken to preserve values that would otherwise be lost, a withdrawal is made immediately in accordance with § 2310.5 of this title. Emergency withdrawals are effective on the date the Public Land Order making the withdrawal is signed, and cannot exceed 3 years in duration and may not be extended.
(b) The lands covered by an emergency withdrawal are opened automatically on the date of expiration of the withdrawal unless segregation is effected by the publication in the
§ 2091.5-4 Segregative effect and opening: Water power withdrawals.
(a) Lands covered by powersite reserves, powersite classifications, and powersite designations are considered withdrawn and are segregated from operation of the public land laws, but are not withdrawn and segregated from the operation of the mineral laws.
(b) These lands may be opened to operation of the public land laws after a revocation or cancellation order issued by the Department of the Interior or after a determination to open the lands is made by the Federal Energy Regulatory Commission under section 24 of the Federal Power Act. (See subpart 2320) Mining claims may be located on such lands under procedures in subpart 3730 of this title. These lands are opened by publication in the
§ 2091.5-5 Segregative effect and opening: Federal Power Act withdrawals.
(a)(1) The filing of an application for a power project with the Federal Energy Regulatory Commission withdraws the lands covered by the application from the operation of the public land laws; however, the lands remain open to the location, lease or disposal of the mineral estate.
(2) The issuance of a permit or license for a project by the Federal Energy Regulatory Commission withdraws the lands from the operation of the mining laws. (See part 3730).
(b) Lands withdrawn under section 24 of the Federal Power Act remain withdrawn until the withdrawal is vacated and the lands opened by proper authority.
(c) After a withdrawal has been vacated, the lands are opened to the operation of the public land laws by notation of the lands records to that effect.
§ 2091.5-6 Congressional withdrawals and opening of lands.
(a) Congressional withdrawals become effective and are terminated as specified in the statute making the withdrawal. If the statute does not specify the date, duration and extent of segregation, the Secretary shall publish in the
(b) If the statute does not specify when and to what extent the lands are to be opened, the Secretary publishes in the
§ 2091.6 Opening of withdrawn lands: General.
The term of a withdrawal ends upon expiration under its own terms, or upon revocation or termination by the Secretary by publication in the
§ 2091.7 Segregation and opening of lands classified for a specific use.
§ 2091.7-1 Segregative effect and opening: Classifications.
(a)(1) Lands classified under the authority of the Recreation and the Public Purposes Act, as amended (43 U.S.C. 869-4), and the Small Tract Act (43 U.S.C. 682a) are segregated from the operation of the public land laws, including the mining laws, but not the mineral leasing laws, the material disposal laws, and the Geothermal Steam Act, except as provided in the notice of realty action.
(2) Lands classified under the authority of the Classification and Multiple Use Act (43 U.S.C. 1411-18) are segregated to the extent described in the notice of classification.
(b) The segregative effect of the classification described in § 2091.7-1 of this title terminates and the lands are opened under the following procedures:
(1) Recreation and Public Purposes Act classifications; (i) Made after the effective date of these regulations terminate and the lands automatically become open at the end of the 18-month period of segregation specified in part 2740 of this title, unless an application is filed; (ii) made prior to the effective date of these regulations where the 18-month period of segregation specified in part 2740 of this title is in effect on the effective date of these regulations, expire and the lands automatically become open at the end of the 18-month period of segregation unless an application is filed; (iii) made prior to the effective date on these regulations where the 18-month period of segregation has expired prior to the effective date of these regulations, terminate by publication in the
(2) Small Tract Act classifications terminate by publication in the
(3) Classification and Multiple Use Act classification shall be terminated by publication in the
§ 2091.7-2 Segregative effect and opening: Taylor Grazing Act.
Lands classified under section 7 of the Act of June 28, 1934, as amended (43 U.S.C. 315f), are segregated to the extent described in the classification notice. The segregative effect for Desert Land entries, Indian allotments, State selections (exclusive of Alaska) and Carey Act grants made after the effective date of these regulations remains in effect until terminated by publication in the
§ 2091.8 Status of gift lands.
Upon acceptance by the United States, through the Secretary of the Interior, of a deed of conveyance as a gift, the lands or interests so conveyed will become property of the United States but will not become subject to applicable land and mineral laws of this title unless and until an order to that effect is issued by BLM.
§ 2091.9 Segregation and opening resulting from laws specific to Alaska.
§ 2091.9-1 Alaska Native selections.
The segregation and opening of lands authorized for selection and selected by Alaska Natives under the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601 et seq.), are covered by part 2650 of this title.
§ 2091.9-2 Selections by the State of Alaska.
The segregation and opening of lands authorized for selection and selected by the State of Alaska under the various statutes granting lands to the State of Alaska are covered by subpart 2627 of this title.
§ 2091.9-3 Lands in Alaska under grazing lease.
The segregation and opening of lands covered by the Act of March 4, 1927 (43 U.S.C. 316, 316a-316o) are covered by part 4200 of this title.
Subpart 2094 – Special Resource Values; Shore Space
§ 2094.0-3 Authority.
Section 1 of the Act of May 14, 1898 (30 Stat. 409) as amended by the Acts of March 3, 1903 (32 Stat. 1028) and August 3, 1955 (69 Stat. 444; 48 U.S.C. 371) provides that no entry shall be allowed extending more than 160 rods along the shore of any navigable water. Section 10 of the Act of May 14, 1898, as amended by the Acts of March 3, 1927 (44 Stat. 1364), May 26, 1934 (48 Stat. 809), and August 3, 1955 (69 Stat. 444), provides that trade and manufacturing sites, rights-of-way for terminals and junction points, and homesites and headquarters sites may not extend more than 80 rods along the shores of any navigable water.
§ 2094.0-5 Definitions.
The term navigable waters is defined in section 2 of the Act of May 14, 1898 (30 Stat. 409; 48 U.S.C. 411), to include all tidal waters up to the line of ordinary high tide and all nontidal waters navigable in fact up to the line of ordinary highwater mark.
§ 2094.1 Methods of measuring; restrictions.
(a) In the consideration of applications to enter lands shown upon plats of public surveys in Alaska, as abutting upon navigable waters, the restriction as to length of claims shall be determined as follows: The length of the water front of a subdivision will be considered as represented by the longest straight-line distance between the shore corners of the tract, measured along lines parallel to the boundaries of the subdivision; and the sum of the distances of each subdivision of the application abutting on the water, so determined, shall be considered as the total shore length of the application. Where, so measured, the excess of shore length is greater than the deficiency would be if an end tract or tracts were eliminated, such tract or tracts shall be excluded, otherwise the application may be allowed if in other respects proper.
(b) The same method of measuring shore space will be used in the case of special surveys, where legal subdivisions of the public lands are not involved.
(c) The following sketch shows the method of measuring the length of shore space, the length of line A or line B, whichever is the longer, representing the length of shore space which is chargeable to the tract:
§ 2094.2 Waiver of 160-rod limitation.
(a) The Act of June 5, 1920 (41 Stat. 1059; 48 U.S.C. 372) provides that the Secretary of the Interior in his discretion, may upon application to enter or otherwise, waive the restriction that no entry shall be allowed extending more than 160 rods along the shore of any navigable waters as to such lands as he shall determine are not necessary for harborage, landing, and wharf purposes. The act does not authorize the waiver of the 80-rod restriction, mentioned in § 2094.0-3.
(b) Except as to trade and manufacturing sites, and home and headquarters sites, any applications to enter and notices of settlement which cover lands extending more than 160 rods along the shore of any navigable water will be considered as a petition for waiver of the 160-rod limitation mentioned in paragraph (a) of this section, provided that it is accompanied by a showing that the lands are not necessary for harborage, landing and wharf purposes and that the public interests will not be injured by waiver of the limitation.
PART 2200 – EXCHANGES: GENERAL PROCEDURES
Subpart 2200 – Exchanges – General
§ 2200.0-2 Objective.
The objective is to encourage and expedite the exchange of Federal lands for non-Federal lands, found to be in the public interest, in accordance with applicable statutory policies, standards and requirements.
§ 2200.0-4 Responsibilities.
The Director of the Bureau of Land Management has the responsibility of carrying out the functions of the Secretary of the Interior under these regulations.
§ 2200.0-5 Definitions.
As used in this part:
(a) Adjustment to relative values means compensation for exchange-related costs, or other responsibilities or requirements assumed by one party, which ordinarily would be borne by the other party. These adjustments do not alter the agreed upon value of the lands involved in an exchange.
(b) Agreement to initiate means a written, nonbinding statement of present intent to initiate and pursue an exchange, which is signed by the parties and which may be amended by the written consent of the parties or terminated at any time upon written notice by any party.
(c) Appraisal or Appraisal report means a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion as to the market value of the lands or interests in lands as of a specific date(s), supported by the presentation and analysis of relevant market information.
(d) Approximately equal value determination means a decision that the lands involved in an exchange have readily apparent and substantially similar elements of value, such as location, size, use, physical characteristics, and other amenities.
(e) Arbitration means a process to resolve a disagreement among the parties as to appraised value, performed by an arbitrator appointed by the Secretary from a list recommended by the American Arbitration Association.
(f) Assembled land exchange means the consolidation of multiple parcels of Federal and/or non-Federal lands for purposes of one or more exchange transactions over a period of time.
(g) Authorized officer means any employee of the Bureau of Land Management who has been delegated the authority and responsibility to make decisions and perform the duties described in this part.
(h) Bargaining means a process, other than arbitration, by which parties attempt to resolve a dispute concerning the appraised value of the lands involved in an exchange.
(i) Federal lands means any lands or interests in lands, such as mineral or timber interests, that are owned by the United States and administered by the Secretary of the Interior through the Director of the Bureau of Land Management, without regard to how the United States acquired ownership, except: (1) Lands located on the Outer Continental Shelf; and (2) lands held for the benefit of Indians, Aleuts and Eskimos.
(j) Hazardous substances means those substances designated under Environmental Protection Agency regulations at 40 CFR part 302.
(k) Highest and best use means the most probable legal use of a property, based on market evidence as of the date of valuation, expressed in an appraiser’s supported opinion.
(l) Lands means any land and/or interests in land.
(m) Ledger account means an accounting mechanism that tracks the differential in dollar value of lands conveyed throughout a series of transactions. A ledger reports each transaction by date, value of Federal land, value of non-Federal land, the difference between these values upon completion of each transaction, and a cumulative balance and differential.
(n) Market value means the most probable price in cash, or terms equivalent to cash, that lands or interests in lands should bring in a competitive and open market under all conditions requisite to a fair sale, where the buyer and seller each acts prudently and knowledgeably, and the price is not affected by undue influence.
(o) Mineral laws means the mining laws, mineral leasing laws, and the Geothermal Steam Act, but not the Materials Sales Act, administered by the Secretary of the Interior through the Bureau of Land Management.
(p) Outstanding interests means rights or interests in property held by an entity other than a party to an exchange.
(q) Party means the United States or any person, State or local government who enters into an agreement to initiate an exchange.
(r) Person means any individual, corporation, or other legal entity legally capable to hold title to and convey land. An individual must be a citizen of the United States and a corporation must be subject to the laws of the United States or of the State where the land is located or the corporation is incorporated.
(s) Public land laws means that body of general land laws administered by the Secretary of the Interior through the Bureau of Land Management, excepting, however, the mineral laws.
(t) Reserved interest means an interest in real property retained by a party from a conveyance of the title to that property.
(u) Resource values means any of the various commodity values (e.g., timber or minerals) or non-commodity values (e.g., wildlife habitat or scenic vistas), indigenous to particular land areas, surface and subsurface.
(v) Secretary means the Secretary of the Interior or the individual to whom the authority and responsibilities of that official, as to matters considered in this part, have been delegated.
(w) Segregation means the removal for a limited period, subject to valid existing rights, of a specified area of the Federal lands from appropriation under the public land laws and mineral laws, pursuant to the authority of the Secretary of the Interior to allow for the orderly administration of the Federal lands.
(x) Statement of value means a written report prepared by a qualified appraiser that states the appraiser’s conclusion(s) of value.
§ 2200.0-6 Policy.
(a) Discretionary nature of exchanges. The Secretary is not required to exchange any Federal lands. Land exchanges are discretionary, voluntary real estate transactions between the Federal and non-Federal parties. Unless and until the parties enter into a binding exchange agreement, any party may withdraw from and terminate an exchange proposal or an agreement to initiate an exchange at any time during the exchange process, without any obligation to reimburse, or incur any liability to, any party, person or other entity.
(b) Determination of public interest. The authorized officer may complete an exchange only after a determination is made that the public interest will be well served. When considering the public interest, the authorized officer shall give full consideration to the opportunity to achieve better management of Federal lands, to meet the needs of State and local residents and their economies, and to secure important objectives, including but not limited to: Protection of fish and wildlife habitats, cultural resources, watersheds, wilderness and aesthetic values; enhancement of recreation opportunities and public access; consolidation of lands and/or interests in lands, such as mineral and timber interests, for more logical and efficient management and development; consolidation of split estates; expansion of communities; accommodation of land use authorizations; promotion of multiple-use values; and fulfillment of public needs. In making this determination, the authorized officer must find that:
(1) The resource values and the public objectives that the Federal lands or interests to be conveyed may serve if retained in Federal ownership are not more than the resource values of the non-Federal lands or interests and the public objectives they could serve if acquired, and
(2) The intended use of the conveyed Federal lands will not, in the determination of the authorized officer, significantly conflict with established management objectives on adjacent Federal lands and Indian trust lands. Such finding and the supporting rationale shall be made part of the administrative record.
(c) Equal value exchanges. Except as provided in § 2201.5 of this part, lands or interests to be exchanged shall be of equal value or equalized in accordance with the methods set forth in § 2201.6 of this part. An exchange of lands or interests shall be based on market value as determined by the Secretary through appraisal(s), through bargaining based on appraisal(s), or through arbitration.
(d) Same-State exchanges. The Federal and non-Federal lands involved in an exchange authorized pursuant to the Federal Land Policy and Management Act of 1976, as amended, shall be located within the same State.
(e) O and C land exchanges. Non-Federal lands acquired in exchange for revested Oregon and California Railroad Company Grant lands or reconveyed Coos Bay Wagon Road Grant lands are required to be located within any one of the 18 counties in which the original grants were made, and, upon acquisition by the United States, automatically shall assume the same status as the lands for which they were exchanged.
(f) Congressional designations. Upon acceptance of title by the United States, lands acquired by an exchange that are within the boundaries of any unit of the National Forest System, National Park System, National Wildlife Refuge System, National Wild and Scenic Rivers System, National Trails System, National Wilderness Preservation System, or any other system established by Act of Congress; the California Desert Conservation Area; or any national conservation or national recreation area established by Act of Congress, immediately are reserved for and become part of the unit or area within which they are located, without further action by the Secretary, and thereafter shall be managed in accordance with all laws, rules, regulations, and land use plans applicable to such unit or area.
(g) Land and resource management planning. The authorized officer shall consider only those exchange proposals that are in conformance with land use plans or plan amendments, where applicable. Lands acquired by an exchange within a Bureau of Land Management district shall automatically become public lands as defined in 43 U.S.C. 1702 and shall become part of that district. The acquired lands shall be managed in accordance with existing regulations and provisions of applicable land use plans and plan amendments. Lands acquired by an exchange that are located within the boundaries of areas of critical environmental concern or any other area having an administrative designation established through the land use planning process shall automatically become part of the unit or area within which they are located, without further action by the Bureau of Land Management, and shall be managed in accordance with all laws, rules, regulations, and land use plans applicable to such unit or area.
(h) Environmental analysis. After an agreement to initiate an exchange is signed, an environmental analysis shall be conducted by the authorized officer in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4371), the Council on Environmental Quality regulations (40 CFR parts 1500-1508), and the environmental policies and procedures of the Department of the Interior and the Bureau of Land Management. In making this analysis, the authorized officer shall consider timely written comments received in response to the published exchange notice, pursuant to § 2201.2 of this part.
(i) Reservations or restrictions in the public interest. In any exchange, the authorized officer shall reserve such rights or retain such interests as are needed to protect the public interest or shall otherwise restrict the use of Federal lands to be exchanged, as appropriate. The use or development of lands conveyed out of Federal ownership are subject to any restrictions imposed by the conveyance documents and all laws, regulations, and zoning authorities of State and local governing bodies.
(j) Hazardous substances – (1) Federal lands. The authorized officer shall determine whether hazardous substances may be present on the Federal lands involved in an exchange and shall provide notice of known storage, release, or disposal of hazardous substances on the Federal lands to the other parties in accordance with the provisions of 40 CFR part 373. The authorized officer shall provide this notice in the exchange agreement. The authorized officer shall also provide such notice, to the extent information is readily available, in the agreement to initiate an exchange. Unless the non-Federal party is a potentially responsible party under 42 U.S.C. 9607(a), the conveyance document from the United States shall contain a covenant in accordance with 42 U.S.C. 9620(h)(3). Where the non-Federal party is a potentially responsible party with respect to the property, it may be appropriate to enter into an agreement, as referenced in 42 U.S.C. 9607(e), whereby that party would indemnify the United States and hold the United States harmless against any loss or cleanup costs after conveyance.
(2) Non-Federal lands. The non-Federal party shall notify the authorized officer of any known, suspected and/or reasonably ascertainable storage, release, or disposal of hazardous substances on the non-Federal land pursuant to § 2201.1 of this part. Notwithstanding such notice, the authorized officer shall determine whether hazardous substances are known to be present on the non-Federal land involved in an exchange. If hazardous substances are known or believed to be present on the non-Federal land, the authorized officer shall reach an agreement with the non-Federal party regarding the responsibility for appropriate response action concerning the hazardous substances before completing the exchange. The terms of this agreement and any appropriate “hold harmless” agreement shall be included in an exchange agreement, pursuant to § 2201.7-2 of this part.
(k) Legal description of properties. All lands subject to an exchange shall be properly described on the basis of either a survey executed in accordance with the Public Land Survey System laws and standards of the United States or, if those laws and standards cannot be applied, the lands shall be properly described and clearly locatable by other means as may be prescribed or allowed by law.
(l) Unsurveyed school sections. For purposes of exchange only, unsurveyed school sections, which would become State lands upon survey by the Secretary, are considered as “non-Federal” lands and may be used by the State in an exchange with the United States. However, minerals shall not be reserved by the State when unsurveyed sections are used in an exchange. As a condition of the exchange, the State shall have waived, in writing, all rights to unsurveyed sections used in the exchange.
(m) Coordination with State and local governments. At least 60 days prior to the conveyance of and upon issuance of the deed or patent for Federal lands, the authorized officer will notify the Governor of the State within which the Federal lands covered by the notice are located and the head of the governing body of any political subdivision having zoning or other land use regulatory authority in the geographical area within which the Federal lands are located.
(n) Fee coal exchanges. As part of the consideration of whether public interest would be served by the acquisition of fee coal through exchange, the provisions of subpart 3461 of this title shall be applied and shall be evaluated as a factor and basis for the exchange.
§ 2200.0-7 Scope.
(a) These rules set forth the procedures for conducting exchanges of Federal lands. The procedures in these rules are supplemented by the Bureau of Land Management Manuals and Handbooks 2200 and 9310. The contents of these supplemental materials are not considered to be a part of these rules.
(b) The rules contained in this part apply to all land exchanges, made under the authority of the Secretary, involving Federal lands, as defined in 43 CFR 2200.0-5(i). Apart from the Federal Land Policy and Management Act of 1976 (FLPMA), as amended, 43 U.S.C. 1701 et seq., there are a variety of statutes, administered by the Secretary, that authorize land trades which may include Federal lands, as for example, certain National Wildlife Refuge System and National Park System exchange acts. The procedures and requirements associated with or imposed by any one of these other statutes may not be entirely consistent with the rules in this part, as the rules in this part are intended primarily to implement the FLPMA land exchange provisions. If there is any such inconsistency, and if Federal lands are involved, the inconsistent procedures or statutory requirements will prevail. Otherwise, the regulations in this part will be followed. The rules in this part also apply to the exchange of interests in either Federal or non-Federal lands including, but not limited to, minerals, water rights, and timber.
(c) The application of these rules to exchanges made under the authority of the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1621) or the Alaska National Interest Lands Conservation Act (16 U.S.C. 3192), shall be limited to those provisions that do not conflict with the provisions of these Acts.
(d) Pending exchanges initiated prior to December 17, 1993 shall proceed in accordance with this rule unless:
(1) In the judgment of the authorized officer, it would be more expeditious to continue following the procedures in effect prior to December 17, 1993; or
(2) A binding agreement to exchange was in effect prior to December 17, 1993; and
(3) To proceed as provided in paragraphs (d) (1) or (2) of this section would not be inconsistent with applicable law.
(e) Exchanges proposed by persons holding fee title to coal deposits that qualify for exchanges under the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1260(b)(5)) and as provided in subpart 3436 of this title shall be processed in accordance with this part, except as otherwise provided in subpart 3436 of this title.
§ 2200.0-9 Information collection.
(a) The collection of information contained in part 2200 of Group 2200 has been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1004-0056. The information will be used to initiate and complete land exchanges with the Bureau of Land Management. Responses are required to obtain benefits in accordance with the Federal Land Policy and Management Act of 1976, as amended.
(b) Public reporting burden for this information is estimated to average 4 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, should be sent to the Division of Information Resources Management (870), Bureau of Land Management, 1849 C Street, NW., Washington, DC 20240; and the Paperwork Reduction Project (1004-0056), Office of Management and Budget, Washington, DC 20503.
Subpart 2201 – Exchanges – Specific Requirements
§ 2201.1 Agreement to initiate an exchange.
(a) Exchanges may be proposed by the Bureau of Land Management or by any person, State, or local government. Initial exchange proposals should be directed to the authorized officer responsible for the management of Federal lands involved in an exchange.
(b) To assess the feasibility of an exchange proposal, the prospective parties may agree to obtain a preliminary estimate of the values of the lands involved in the proposal. The preliminary estimate is generally not an appraisal but shall be prepared by a qualified appraiser.
(c) If the authorized officer agrees to proceed with an exchange proposal, a nonbinding agreement to initiate an exchange shall be executed by all prospective parties. At a minimum, the agreement shall include:
(1) The identity of the parties involved in the proposed exchange and the status of their ownership or ability to provide title to the land;
(2) A description of the lands or interest in lands being considered for exchange;
(3) A statement by each party, other than the United States and State and local governments, certifying that the party is a citizen of the United States or a corporation or other legal entity subject to the laws of the United States or a State thereof;
(4) A description of the appurtenant rights proposed to be exchanged or reserved; any authorized uses including grants, permits, easements, or leases; and any known unauthorized uses, outstanding interests, exceptions, adverse claims, covenants, restrictions, title defects or encumbrances;
(5) A time schedule for completing the proposed exchange;
(6) An assignment of responsibility for performance of required functions and for costs associated with processing the exchange;
(7) A statement specifying whether compensation for costs assumed will be allowed pursuant to the provisions of § 2201.1-3 of this part;
(8) Notice of any known release, storage, or disposal of hazardous substances on involved Federal or non-Federal lands, and any commitments regarding responsibility for removal or other remedial actions concerning such substances on involved non-Federal lands. All such terms and conditions regarding non-Federal lands shall be included in a land exchange agreement pursuant to § 2201.7-2 of this part;
(9) A grant of permission by each party to conduct a physical examination of the lands offered by the other party;
(10) The terms of any assembled land exchange arrangement, pursuant to § 2201.1-1 of this part;
(11) A statement as to any arrangements for relocation of any tenants occupying non-Federal land, pursuant to § 2201.8 (c)(1)(iv) of this part;
(12) A notice to an owner-occupant of the voluntary basis for the acquisition of the non-Federal lands, pursuant to § 2201.8 (c)(1)(iv) of this part; and
(13) A statement as to the manner in which documents of conveyance will be exchanged, should the exchange proposal be successfully completed.
(d) Unless the parties agree to some other schedule, no later than 90 days from the date of the executed agreement to initiate an exchange, the parties shall arrange for appraisals, which are to be completed within timeframes and under such terms as are negotiated. In the absence of current market information reliably supporting value, the parties may agree to use other acceptable and commonly recognized methods to estimate value.
(e) An agreement to initiate an exchange may be amended by written consent of the parties or terminated at any time upon written notice by any party.
(f) Entering into an agreement to initiate an exchange does not legally bind any party to proceed with processing or to consummate a proposed exchange, or to reimburse or pay damages to any party to a proposed exchange that is delayed or is not consummated or to anyone assisting in any way, or doing business with, any such party.
(g) The withdrawal from, and termination of, an exchange proposal, or an agreement to initiate an exchange, by the authorized officer at any time prior to the notice of decision, pursuant to § 2201.7-1 of this part, is not protestable or appealable under 43 CFR part 4.
§ 2201.1-1 Assembled land exchanges.
(a) Whenever the authorized officer determines it to be practicable, an assembled land exchange arrangement may be used to facilitate exchanges and reduce costs.
(b) The parties to an exchange may agree to such an arrangement where multiple parcels of Federal and/or non-Federal lands are consolidated into a package for the purpose of completing one or more exchange transactions over a period of time.
(c) An assembled land exchange arrangement shall be documented in the agreement to initiate an exchange, pursuant to § 2201.1 of this part.
(d) Values of the Federal and non-Federal lands involved in an assembled exchange arrangement shall be estimated pursuant to § 2201.3 of this part.
(e) If more than one transaction is necessary to complete the exchange package, the parties shall establish a ledger account under which the Federal and non-Federal lands can be exchanged. When a ledger account is used, the authorized officer shall:
(1) Assure that the value difference between the Federal and non-Federal lands does not exceed 25 percent of the total value of the Federal lands conveyed in the assembled land exchange up to and including the current transaction;
(2) Assure that the values of the Federal and non-Federal lands conveyed are balanced with land and/or money at least every 3 years pursuant to § 2201.6 of this part; and
(3) If necessary, require from the non-Federal party a deposit of cash, bond or other approved surety in an amount equal to any outstanding value differential.
(4) Assembled land exchanges are subject to the value equalization and cash equalization waiver provisions of § 2201.6 of this part. Cash equalization waiver shall only be used in conjunction with the final transaction of the assembled land exchange and the termination of any ledger account used.
(f) The assembled exchange arrangement may be terminated unilaterally at any time upon written notice by any party or upon depletion of the Federal or non-Federal lands assembled. Prior to termination, values shall be equalized pursuant to § 2201.6 of this part.
§ 2201.1-2 Segregative effect.
(a) If a proposal is made to exchange Federal lands, the authorized officer may direct the appropriate State Office of the Bureau of Land Management to segregate the Federal lands by a notation on the public land records. Subject to valid existing rights, the Federal lands shall be segregated from appropriation under the public land laws and mineral laws for a period not to exceed 5 years from the date of record notation.
(b) Any interests of the United States in the non-Federal lands that are covered by the exchange proposal may be segregated from appropriation under the mineral laws for a period not to exceed 5 years from the date of notation by noting the public land status records.
(c) The segregative effect shall terminate upon the occurrence of any of the following events, whichever occurs first:
(1) Automatically, upon issuance of a patent or other document of conveyance to the affected lands;
(2) On the date and time specified in an opening order, such order to be promptly issued and published by the appropriate State Office of the Bureau of Land Management in the
(3) Automatically, at the end of the segregation period not to exceed 5 years from the date of notation of the public land records.
(d) The provisions of this section apply equally to proposals to exchange National Forest System lands under the authority and provisions of the Act of March 20, 1922, 42 Stat. 465, as amended, 16 U.S.C. 485, and the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1701 et seq., except that if a proposal is made to exchange National Forest System lands, which proposal shall be filed in compliance with 36 CFR part 254, the authorized officer may request that the appropriate BLM State Office segregate such lands by a notation on the public land records.
§ 2201.1-3 Assumption of costs.
(a) Generally, parties to an exchange will bear their own costs of the exchange. However, if the authorized officer finds it is in the public interest, subject to the conditions and limitations specified in paragraphs (b) and (c) of this section, an agreement to initiate an exchange may provide that:
(1) One or more of the parties may assume, without compensation, all or part of the costs or other responsibilities or requirements that the authorized officer determines would ordinarily be borne by the other parties; or
(2) The parties may agree to make adjustments to the relative values involved in an exchange transaction in order to compensate parties for assuming costs or other responsibilities or requirements that the authorized officer determines would ordinarily be borne by the other parties. These costs or services may include but are not limited to: Land surveys, appraisals, mineral examinations, timber cruises, title searches, title curative actions, cultural resource surveys and mitigation, hazardous substance surveys and controls, removal of encumbrances, arbitration including all fees, bargaining, cure of deficiencies preventing highest and best use of the land, conduct of public hearings, assemblage of non-Federal parcels from multiple ownerships, expenses of complying with laws, regulations, and policies applicable to exchange transactions, and expenses that are necessary to bring the Federal and non-Federal lands involved in the exchange to their highest and best use for appraisal and exchange purposes.
(b) The authorized officer may agree to assume without compensation costs ordinarily borne under local custom or practice by the non-Federal party or to compensate the non-Federal party for costs ordinarily borne under local custom or practice by the United States but incurred by the non-Federal party, but only when it is clearly in the public interest and the authorized officer determines and documents that each of the following circumstances exist:
(1) The amount of the cost assumed or compensation is reasonable and accurately reflects the value of the goods and services received;
(2) The proposed exchange is a high priority of the agency;
(3) The land exchange must be expedited to protect important Federal resource values, such as congressionally designated areas or endangered species habitat;
(4) Cash equalization funds are available for compensating the non-Federal party; and
(5) There are no other practicable means available to the authorized officer of meeting Federal exchange processing costs, responsibilities, or requirements.
(c) The total amount of adjustment agreed to as compensation for costs incurred pursuant to this section shall not exceed the limitations set forth in § 2201.6 of this part.
§ 2201.2 Notice of exchange proposal.
(a) Upon entering into an agreement to initiate an exchange, the authorized officer shall publish a notice once a week for 4 consecutive weeks in newspapers of general circulation in the counties in which the Federal and non-Federal lands or interests proposed for exchange are located. The authorized officer shall notify authorized users, jurisdictional State and local governments, and the congressional delegation, and shall make other distribution of the notice as appropriate. At a minimum, the notice shall include:
(1) The identity of the parties involved in the proposed exchange;
(2) A description of the Federal and non-Federal lands being considered for exchange;
(3) A statement as to the effect of segregation from appropriation under the public land laws and mineral laws, if applicable;
(4) An invitation to the public to submit in writing any comments on or concerns about the exchange proposal, including advising the authorized officer as to any liens, encumbrances, or other claims relating to the lands being considered for exchange; and
(5) The deadline by which comments must be received, and the name, title, and address of the official to whom comments must be sent.
(b) To be assured of consideration in the environmental analysis of the proposed exchange, all comments shall be made in writing to the authorized officer and postmarked or delivered within 45 days after the initial date of publication.
(c) The authorized officer is not required to republish descriptions of any lands excluded from the final exchange transaction, provided such lands were identified in the notice of exchange proposal. In addition, minor corrections of land descriptions and other insignificant changes do not require republication.
§ 2201.3 Appraisals.
The Federal and non-Federal parties to an exchange shall comply with the appraisal standards set forth in §§ 2201.3-1 through 2201.3-4 of this part and, to the extent appropriate, with the Department of Justice “Uniform Appraisal Standards for Federal Land Acquisitions” when appraising the values of the Federal and non-Federal lands involved in an exchange.
§ 2201.3-1 Appraiser qualifications.
(a) A qualified appraiser(s) shall provide to the authorized officer appraisals estimating the market value of Federal and non-Federal properties involved in an exchange. A qualified appraiser may be an employee or a contractor to the Federal or non-Federal exchange parties. At a minimum, a qualified appraiser shall be an individual, approved by the authorized officer, who is competent, reputable, impartial, and has training and experience in appraising property similar to the property involved in the appraisal assignment.
(b) Qualified appraisers shall possess qualifications consistent with State regulatory requirements that meet the intent of title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) (12 U.S.C. 3331). In the event a State does not have approved policies, practices and procedures regulating the activities of appraisers, the Bureau of Land Management may establish appraisal qualification standards commensurate with those adopted by other States meeting the requirements of FIRREA.
§ 2201.3-2 Market value.
(a) In estimating market value, the appraiser shall:
(1) Determine the highest and best use of the property to be appraised;
(2) Estimate the value of the lands and interests as if in private ownership and available for sale in the open market;
(3) Include historic, wildlife, recreation, wilderness, scenic, cultural, or other resource values or amenities that are reflected in prices paid for similar properties in the competitive market;
(4) Consider the contributory value of any interest in land such as minerals, water rights, or timber to the extent they are consistent with the highest and best use of the property; and
(5) Estimate separately, if stipulated in the agreement to initiate in accordance with § 2201.1 of this part, the value of each property optioned or acquired from multiple ownerships by the non-Federal party for purposes of exchange, pursuant to § 2201.1-1 of this part. In this case, the appraiser shall estimate the value of the Federal and non-Federal properties in a similar manner.
(b) In estimating market value, the appraiser may not independently add the separate values of the fractional interests to be conveyed, unless market evidence indicates the following:
(1) The various interests contribute their full value (pro rata) to the value of the whole; and
(2) The valuation is compatible with the highest and best use of the property.
(c) In the absence of current market information reliably supporting value, the authorized officer may use other acceptable and commonly recognized methods to determine market value.
§ 2201.3-3 Appraisal report standards.
Appraisals prepared for exchange purposes shall contain, at a minimum, the following information:
(a) A summary of facts and conclusions;
(b) The purpose and/or the function of the appraisal, a definition of the estate being appraised, and a statement of the assumptions and limiting conditions affecting the appraisal assignment, if any;
(c) An explanation of the extent of the appraiser’s research and actions taken to collect and confirm information relied upon in estimating value;
(d) An adequate description of the physical characteristics of the lands being appraised; a statement of all encumbrances; title information, location, zoning, and present use; an analysis of highest and best use; and at least a 5-year sales history of the property;
(e) A disclosure of any condition that is observed during the inspection of the property or becomes known to the appraiser through normal research that would lead the appraiser to believe that hazardous substances may be present on the property being appraised;
(f) A comparative market analysis and, if more than one method of valuation is used, an analysis and reconciliation of the methods used to support the appraiser’s estimate of value;
(g) A description of comparable sales, including a description of all relevant physical, legal, and economic factors such as parties to the transaction, source and method of financing, effect of any favorable financing on sale price, and verification by a party involved in the transaction;
(h) An estimate of market value;
(i) The effective date of valuation, date of appraisal, signature, and certification of the appraiser;
(j) A certification by the appraiser signing the report to the following:
(1) The appraiser personally contacted the property owner or designated representative and offered the owner an opportunity to be present during inspection of the property;
(2) The appraiser personally examined the subject property and all comparable sale properties relied upon in the report;
(3) The appraiser has no present or prospective interest in the appraised property; and
(4) The appraiser has not, and will not, receive compensation that was contingent on the analysis, opinions, or conclusions contained in the appraisal report; and
(k) Copies of relevant written reports, studies, or summary conclusions prepared by others in association with the appraisal assignment that were relied upon by the appraiser to estimate value, which may include but is not limited to current title reports, mineral reports, or timber cruises prepared by qualified specialists.
§ 2201.3-4 Appraisal review.
(a) Appraisal reports shall be reviewed by a qualified review appraiser meeting the qualifications set forth in § 2201.3-1 of this part. Statements of value prepared by agency appraisers are not subject to this review.
(b) The review appraiser shall determine whether the appraisal report:
(1) Is complete, logical, consistent, and supported by a market analysis;
(2) Complies with the standards prescribed in § 2201.3-3 of this part; and
(3) Reasonably estimates the probable market value of the lands appraised.
(c) The review appraiser shall prepare a written review report, containing at a minimum:
(1) A description of the review process used;
(2) An explanation of the adequacy, relevance, and reasonableness of the data and methods used by the appraiser to estimate value;
(3) The reviewing appraiser’s statement of conclusions regarding the appraiser’s estimate of market value; and
(4) A certification by the review appraiser to the following:
(i) The review appraiser has no present or prospective interest in the property that is the subject of the review report; and
(ii) The review appraiser has not, and will not, receive compensation that was contingent on the approval of the appraisal report.
§ 2201.4 Bargaining; arbitration.
(a) Unless the parties to an exchange agree in writing to suspend or modify the deadlines contained in paragraphs (a)(1) through (a)(4) of this section, the parties shall adhere to the following schedule:
(1) Within 180 days from the date of receipt of the appraisal(s) for review and approval by the authorized officer, the parties to an exchange may agree on the appraised values of the lands involved in an exchange. If the parties cannot agree on the appraised values, they may agree to initiate a process of bargaining or some other process to resolve the dispute over values. Bargaining or any other process shall be based on an objective analysis of the valuation in the appraisal report(s) and shall be a means of reconciling differences in such reports. Bargaining or another process to determine values may involve one or more of the following actions:
(i) Submission of the disputed appraisal(s) to another qualified appraiser for review;
(ii) Request for additional appraisals;
(iii) Involvement of an impartial third party to facilitate resolution of the value disputes; or
(iv) Use of some other acceptable and commonly recognized practice for resolving value disputes.
(2) If within 180 days from the date of receipt of the appraisal(s) for review and approval by the authorized officer, the parties to an exchange cannot agree on values but wish to continue with the land exchange, the appraisal(s) may, at the option of either party, be submitted to arbitration unless, in lieu of arbitration, the parties have employed a process of bargaining or some other process to determine values. If arbitration occurs, it shall be conducted in accordance with the real estate valuation arbitration rules of the American Arbitration Association. The Secretary or an official to whom such authority has been delegated shall appoint an arbitrator from a list provided by the American Arbitration Association.
(3) Within 30 days after completion of arbitration, the parties involved in the exchange shall determine whether to proceed with the exchange, modify the exchange to reflect the findings of the arbitration or any other factors, or withdraw from the exchange. A decision to withdraw from the exchange may be made upon written notice by either party at this time or at any other time prior to entering into a binding exchange agreement.
(4) If the parties agree to proceed with an exchange after arbitration, the values established by arbitration are binding upon all parties for a period not to exceed 2 years from the date of the arbitration decision.
(b) Arbitration is limited to the disputed valuation of the lands involved in a proposed exchange, and an arbitrator’s award decision shall be limited to the value estimate(s) of the contested appraisal(s). An award decision shall not include recommendations regarding the terms of a proposed exchange, nor shall an award decision infringe upon the authority of the Secretary to make all decisions regarding management of Federal lands and to make public interest determinations.
§ 2201.5 Exchanges at approximately equal value.
(a) The authorized officer may exchange lands that are of approximately equal value when it is determined that:
(1) The exchange is in the public interest and the consummation of the proposed exchange will be expedited;
(2) The value of the lands to be conveyed out of Federal ownership is not more than $150,000 as based upon a statement of value prepared by a qualified appraiser and approved by the authorized officer;
(3) The Federal and non-Federal lands are substantially similar in location, acreage, use, and physical attributes; and
(4) There are no significant elements of value requiring complex analysis.
(b) The authorized officer shall determine that the Federal and non-Federal lands are approximately equal in value and shall document how the determination was made.
§ 2201.6 Value equalization; cash equalization waiver.
(a) To equalize the agreed upon values of the Federal and non-Federal lands involved in an exchange, either with or without adjustments of relative values as compensation for various costs, the parties to an exchange may agree:
(1) To modify the exchange proposal by adding or excluding lands; and/or
(2) To use cash equalization after making all reasonable efforts to equalize values by adding or excluding lands.
(b) The combined amount of any cash equalization payment and/or the amount of adjustments agreed to as compensation for costs under § 2201.1-3 of this part may not exceed 25 percent of the value of the Federal lands to be conveyed.
(c) The parties may agree to waive a cash equalization payment if the amount to be waived does not exceed 3 percent of the value of the lands being exchanged out of Federal ownership or $15,000, whichever is less. This provision shall not be applied to exchanges where the value differential is in excess of $15,000.
(d) A cash equalization payment may be waived only after the authorized officer determines in writing how the waiver will expedite the exchange and why the public interest will be better served by the waiver.
§ 2201.7 Approval of exchanges.
§ 2201.7-1 Notice of decision.
(a) Upon completion of all environmental analyses and appropriate documentation, appraisals, and all other supporting studies and requirements to determine if a proposed exchange is in the public interest and in compliance with applicable law and regulations, the authorized officer shall decide whether to approve an exchange proposal.
(1) When a decision to approve or disapprove an exchange is made, the authorized officer shall publish a notice of the availability of the decision in newspapers of general circulation. A notice also may be published in the
(i) The date of decision;
(ii) A concise description of the decision;
(iii) The name and title of the deciding official;
(iv) Directions for obtaining a copy of the decision; and
(v) The date of the beginning of the protest period.
(2) The authorized officer shall distribute notices to State and local governmental subdivisions having authority in the geographical area within which the lands covered by the notice are located pursuant to § 2200.0-6(m) of this part, the non-Federal exchange parties, authorized users of involved Federal lands, the congressional delegation, individuals who requested notification or filed written objections, and others as appropriate.
(b) For a period of 45 days after the date of publication of a notice of the availability of a decision to approve or disapprove an exchange proposal, such decision shall be subject to protest.
(c) A right of appeal from a protest decision of the authorized officer may be pursued in accordance with the applicable appeal procedures of 43 CFR part 4.
§ 2201.7-2 Exchange agreement.
(a) The parties to a proposed exchange may enter into an exchange agreement subsequent to a decision by the authorized officer to approve the exchange, pursuant to § 2201.7-1 of this part. Such an agreement is required if hazardous substances are present on the non-Federal lands. An exchange agreement shall contain the following:
(1) Identification of the parties, a description of the lands and interests to be exchanged, identification of all reserved and outstanding interests, the amount of any necessary cash equalization, and all other terms and conditions necessary to complete the exchange;
(2) The terms regarding responsibility for removal, indemnification (“hold harmless” agreement), or other remedial actions concerning any hazardous substances on the involved non-Federal lands;
(3) A description of the goods and services and their corresponding costs for which the noncomplying party is liable in the event of failure to perform or to comply with the terms of the exchange agreement; and
(4) The agreed upon values of the involved lands.
(b) An exchange agreement, as described in paragraph (a) of this section, is legally binding on all parties, subject to the terms and conditions thereof, provided:
(1) Acceptable title can be conveyed;
(2) No substantial loss or damage occurs to either property from any cause;
(3) No undisclosed hazardous substances are found on the involved Federal or non-Federal lands prior to conveyance;
(4) In the event of a protest, or of an appeal from a protest decision under 43 CFR part 4, a decision to approve an exchange pursuant to § 2201.7-1 is upheld; and
(5) The agreement is not terminated by mutual consent or upon such terms as may be provided in the agreement.
(c) Absent an executed legally binding exchange agreement, any action taken by one or more of the parties, or a failure of one or more of the parties to take any action, prior to consummation of an exchange does not create any legal obligation or right enforceable against or enjoyed by any party.
§ 2201.8 Title standards.
(a) Title evidence. (1) Unless otherwise specified by the Office of the Solicitor of the Department of the Interior, evidence of title for the non-Federal lands being conveyed to the United States shall be in conformance with the Department of Justice regulations and “Standards for the Preparation of Title Evidence in Land Acquisitions by the United States” in effect at the time of conveyance.
(2) The United States is not required to furnish title evidence for the Federal lands being exchanged.
(b) Conveyance documents. (1) Unless otherwise specified by the Office of the Solicitor of the Department of the Interior, all conveyances to the United States shall be prepared, executed, and acknowledged in recordable form and in accordance with the Department of Justice regulations and “Standards for the Preparation of Title Evidence in Land Acquisition by the United States” in effect at the time of conveyance.
(2) Conveyances of lands from the United States shall be by patent, quitclaim deed, or deed without express or implied warranties, except as to hazardous substances pursuant to § 2200.0-6(j)(1) of this title.
(c) Title encumbrances – (1) Non-Federal lands. (i) Title to the non-Federal lands must be acceptable to the United States. For example, encumbrances such as taxes, judgment liens, mortgages, and other objections or title defects shall be eliminated, released, or waived in accordance with requirements of the preliminary title opinion of the Office of the Solicitor of the Department of the Interior or the Department of Justice, as appropriate.
(ii) The United States shall not accept lands in which there are reserved or outstanding interests that would interfere with the use and management of land by the United States or would otherwise be inconsistent with the authority under which, or the purpose for which, the lands are to be acquired. Reserved interests of the non-Federal landowner are subject to agreed upon covenants or conditions included in the conveyance documents.
(iii) Any personal property owned by the non-Federal party that is not a part of the exchange proposal should be removed by the non-Federal party prior to acceptance of title by the United States, unless the authorized officer and the non-Federal party to the exchange previously agree upon a specified period to remove the personal property. If the personal property is not removed prior to acceptance of title or within the otherwise prescribed time, it shall be deemed abandoned and shall become vested in the United States.
(iv) The exchange parties must reach agreement on the arrangements for the relocation of any tenants. Qualified tenants occupying non-Federal lands affected by a land exchange may be entitled to benefits under 49 CFR 24.2. Unless otherwise provided by law or regulation (49 CFR 24.101(a)(1)), relocation benefits are not applicable to owner-occupants involved in exchanges with the United States provided the owner-occupants are notified in writing that the non-Federal lands are being acquired by the United States on a voluntary basis.
(2) Federal lands. If Federal lands proposed for exchange are occupied under grant, permit, easement, or non-mineral lease by a third party who is not a party to the exchange, the third party holder of such authorization and the non-Federal party to the exchange may reach agreement as to the disposition of the existing use(s) authorized under the terms of the grant, permit, easement, or lease. The non-Federal exchange party shall submit documented proof of such agreement prior to issuance of a decision to approve the land exchange, as instructed by the authorized officer. If an agreement cannot be reached, the authorized officer shall consider other alternatives to accommodate the authorized use or shall determine whether the public interest will be best served by terminating such use in accordance with the terms and provisions of the instrument authorizing the use.
§ 2201.9 Case closing.
(a) Title transfers. Unless otherwise agreed, and notwithstanding the decision in United States v. Schurz, 102 U.S. 378 (1880), or any other law or ruling to the contrary, title to both the non-Federal and Federal lands simultaneously shall pass and be deemed accepted by the United States and the non-Federal landowner, respectively, when the documents of conveyance are recorded in the county clerk’s or other local recorder’s office. Before recordation, all instructions, requirements, and conditions set forth by the United States and the non-Federal landowner shall be met. The requirements and conditions necessary for recordation at a minimum will include the following, as appropriate:
(1) The determination by the authorized officer that the United States will receive possession, acceptable to it, of such lands; and
(2) The issuance of title evidence as of the date and time of recordation, which conforms to the instructions and requirements of the Office of the Solicitor’s preliminary title opinion.
(b) Automatic segregation of lands. Subject to valid existing rights, non-Federal lands acquired through exchange by the United States automatically shall be segregated from appropriation under the public land laws and mineral laws until midnight of the 90th day after acceptance of title by the United States, and the public land records shall be noted accordingly. Except to the extent otherwise provided by law, the lands shall be open to the operation of the public land laws and mineral laws at midnight 90 days after the day title was accepted unless otherwise segregated pursuant to part 2300 of this title.
(c) Notice to State and local governments. Following the transfer of title to the Federal lands involved in an exchange, notice will be given to State and local officials as prescribed in § 2200.0-6(m) of this part.
Subpart 2203 – Exchanges Involving Fee Federal Coal Deposits
§ 2203.0-6 Policy.
When determining whether a fee exchange of the Federal coal deposits is in the public interest, it is the policy of the Department of the Interior to consider whether the exchange will create or maintain a situation inconsistent with the Federal anti-trust laws. The Bureau of Land Management, in making the determination of public interest, shall consider the advice of the Attorney General of the United States concerning whether the exchange will create or maintain a situation inconsistent with the Federal antitrust laws.
§ 2203.0-9 Cross references.
The authorized officer shall implement a fee exchange of Federal coal deposits in compliance with the requirements of subparts 2200 and 2201 on this title.
§ 2203.1 Opportunity for public comment and public meeting on exchange proposal.
Upon acceptance of a proposal for a fee exchange of Federal coal deposits, the authorized officer shall publish and distribute a notice of exchange proposal as set forth in § 2201.2 of this title.
§ 2203.2 Submission of information concerning proposed exchange.
(a) Any person submitting a proposal for a fee exchange of Federal coal deposits shall submit information concerning the coal reserves presently held in each geographic area involved in the exchange along with a description of the reserves that would be added or eliminated by the proposed exchange. In addition, the person filing a proposed exchange under this section shall furnish any additional information requested by the authorized officer in connection with the consideration of the antitrust consequences of the proposed exchange.
(b) The authorized officer shall transmit a copy of the information required by paragraph (a) of this section to the Attorney General upon its receipt.
(c) All non-proprietary information submitted under paragraph (a) of this section shall be made a part of the public record on each proposed exchange. With respect to proprietary information submitted under paragraph (a) of this section, only a description of the type of information submitted shall be included in the public record.
(d) Where the entity proposing a fee coal exchange has previously submitted information, a reference to the date of submission and to the serial number of the record in which it is filed, together with a statement of any and all changes in holdings since the date of the previous submission, shall be accepted.
§ 2203.3 Public meeting.
Upon completion of an environmental analysis, but prior to the issuance of a notice of decision, the authorized officer shall publish a notice in the
(a) Follow procedures established by the authorized officer, which shall be announced prior to the meeting; and
(b) Be recorded and a transcript prepared, with the transcript and all written submissions being made a part of the public record of the proposed exchange.
§ 2203.4 Consultation with the Attorney General.
(a) The authorized officer shall, at the conclusion of the comment period and public meeting provided for in § 2203.3 of this title, forward to the Attorney General copies of the comments received in response to the request for public comments and the transcript and copies of the written comments received at the public meeting.
(b) The authorized officer shall allow the Attorney General 90 days within which the Attorney General may advise, in writing, on the anti-trust consequences of the proposed exchange.
(c) If the Attorney General requests additional information concerning the proposed exchange, the authorized officer shall request, in writing, such information from the person proposing the exchange, allowing a maximum period of 30 days for the submission of the requested information. The 90-day period provided in paragraph (b) of this section shall be extended for the period required to obtain and submit the requested information, or 30 days, whichever is sooner.
(d) If the Attorney General notifies the authorized officer, in writing, that additional time is needed to review the anti-trust consequences of the proposed exchange, the time provided in paragraph (b) of this section, including any additional time provided under paragraph (c) of this section, shall be extended for the period requested by the Attorney General. If the Attorney General has not responded to the request for anti-trust review within the time granted for such review, including any extensions thereof, the authorized officer may proceed with the exchange without the advice of the Attorney General.
§ 2203.5 Action on advice of the Attorney General.
(a) The authorized officer shall make any advice received from the Attorney General a part of the public record on the proposed exchange.
(b) Except as provided in § 2203.4(d) of this title, the authorized officer shall not make a final decision on the proposed exchange and whether it is in the public interest until the advice of the Attorney General has been considered. The authorized officer shall, in the record of decision on the proposed exchange, discuss the consideration given any advice received from the Attorney General in reaching the final decision on the proposed exchange.
PART 2300 – LAND WITHDRAWALS
Subpart 2300 – Withdrawals, General
§ 2300.0-1 Purpose.
(a) These regulations set forth procedures implementing the Secretary of the Interior’s authority to process Federal land withdrawal applications and, where appropriate, to make, modify or extend Federal land withdrawals. Procedures for making emergency withdrawals are also included.
(b) The regulations do not apply to withdrawals that are made by the Secretary of the Interior pursuant to an act of Congress which directs the issuance of an order by the Secretary. Likewise, procedures applicable to withdrawals authorized under the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1272(b); 1281), and procedures relating to the Secretary’s authority to establish Indian reservations or to add lands to the reservations pursuant to special legislation or in accordance with section 7 of the Act of June 18, 1934 (25 U.S.C. 467), as supplemented by section 1 of the Act of May 1, 1936 (25 U.S.C. 473a), are not included in these regulations.
(c) General procedures relating to the processing of revocation of withdrawals and relating to the relinquishment of reserved Federal land areas are not included in this part.
§ 2300.0-3 Authority.
(a)(1) Section 204 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1714) gives the Secretary of the Interior general authority to make, modify, extend or revoke withdrawals, but only in accordance with the provisions and limitations of that section. Among other limitations, the Federal Land Policy and Management Act of 1976 provides that the Secretary of the Interior does not have authority to:
(i) Make, modify or revoke any withdrawal created by an Act of Congress;
(ii) Make a withdrawal which can be made only by an Act of Congress;
(iii) Modify or revoke any withdrawal creating national monuments under the Act of June 8, 1906 (16 U.S.C. 431-433), sometimes referred to as the Antiquities Act;
(iv) Modify or revoke any withdrawal which added lands to the National Wildlife Refuge System prior to October 21, 1976, the date of approval of the Federal Land Policy and Management Act of 1976 or which thereafter adds lands to that System under the terms of that Act. In this connection, nothing in the Federal Land Policy and Management Act of 1976 is intended to modify or change any provision of the Act of February 27, 1976 (16 U.S.C. 668 dd(a)).
(2) Executive Order 10355 of May 26, 1952 (17 FR 4831), confers on the Secretary of the Interior all of the delegable authority of the President to make, modify and revoke withdrawals and reservations with respect to lands of the public domain and other lands owned and controlled by the United States in the continental United States or Alaska.
(3) The Act of February 28, 1958 (43 U.S.C. 155-158), sometimes referred to as the Engle Act, places on the Secretary of the Interior the responsibility to process Department of Defense applications for national defense withdrawals, reservations or restrictions aggregating 5,000 acres or more for any one project or facility. These withdrawals, reservations or restrictions may only be made by an act of Congress, except in time of war or national emergency declared by the President or the Congress and except as otherwise expressly provided in the Act of February 28, 1958.
(4) Section 302(b) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1732(b)) authorizes the Secretary of the Interior to regulate the management of the public lands as defined in the Act through instruments, such as memorandum of understanding, which the Secretary deems appropriate.
(5) Section 1326(a) of the Alaska National Interest Lands Conservation Act (Pub. L. 96-487), authorizes the President and the Secretary to make withdrawals exceeding 5,000 acres, in the aggregate, in the State of Alaska subject to the provisions that such withdrawals shall not become effective until notice is provided in the
(b) The following references do not afford either withdrawal application processing or withdrawal authority but are provided as background information.
(1) Executive Order 6910 of November 26, 1934, and E.O. 6964 of February 5, 1935, as modified, withdrew sizable portions of the public lands for classification and conservation. These lands and the grazing districts estalished under the Taylor Grazing Act of 1934, as amended, are subject to the classification and opening procedures of section 7 of the Taylor Grazing Act of June 28, 1934, as amended (43 U.S.C. 315f); however, they are not closed to the operation of the mining or mineral leasing laws unless separately withdrawn or reserved, classified for retention from disposal, or precluded from mineral leasing or mining location under other authority.
(2) The Classification and Multiple Use Act of September 19, 1964 (43 U.S.C. 1411-1418), authorized the Secretary of the Interior through the Bureau of Land Management for retention or disposal under Federal ownership and management. Numerous classification decisions based upon this statutory authority were made by the Secretary of the Interior. For the effect of these classification with regard to the disposal and leasing laws of the United States, see subparts 2440 and 2461 of this title.
(3) Section 202 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1712) provides for land use planning and resultant management decisions which may operate to totally eliminate a particular land use, including one or more principal or major uses, as defined in the Act. Withdrawals made pursuant to section 204 of the Federal Land Policy and Management Act of 1976 may be used in appropriate cases, to carry out management decisions, except that public lands, as defined in the Act, can be removed from or restored to the operation of the Mining Law of 1872, as amended, or transferred to another department, agency or office, only by withdrawal action pursuant to section 204 of the Federal Land Policy and Management Act of 1976 or other action pursuant to applicable law.
(4) The first proviso of section 302(b) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1732(b)) provides, in part, that unless otherwise provided for by law, the Secretary of the Interior may permit Federal departments and agencies to use, occupy and develop public lands only through rights-of-way under section 507 of the Act (43 U.S.C. 1767); withdrawals under section 204 of the Act (43 U.S.C. 1714); and, where the proposed use and development are similar or closely related to the programs of the Secretary for the public lands involved, cooperative agreements under section 307(b) of the Act (43 U.S.C. 1737(b)).
(5) Section 701(c) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 note) provides that all withdrawals, reservations, classifications and designations in effect on October 21, 1976, the effective date of the Act, shall remain in full force and effect until modified under the provisions of the Act or other applicable law.
§ 2300.0-5 Definitions.
As used in this part, the term:
(a) Secretary means the Secretary of the Interior or a secretarial officer subordinate to the Secretary who has been appointed by the President by and with the advice and consent of the Senate and to whom has been delegated the authority of the Secretary to perform the duties described in this part to be performed by the Secretary.
(b) Authorized officer means any employee of the Bureau of Land Management to whom has been delegated the authority to perform the duties described in this part to be performed by the authorized officer.
(c) Act means the Federal Land Policy and Management Act of 1976, as amended (43 U.S.C. 1701 et seq.), unless otherwise specified.
(d) Lands includes both upland and submerged land areas and any right or interest in such areas. To the extent provided in section 1 of the Act of February 28, 1958 (43 U.S.C. 155), the term also includes offshore waters.
(e) Cultural resources means those fragile and nonrenewable physical remains of human activity found in districts, sites, structures, burial mounds, petroglyphs, artifacts, objects, ruins, works of art, architecture or natural settings or features which were important to prehistoric, historic or other land and resource use events.
(f) Archeological areas/resources means sites or areas containing important evidence or the physical remains of former but now extinct cultural groups, their skeletons, settlements, implements, artifacts, monuments and inscriptions.
(g) Resource use means a land use having as its primary objective the preservation, conservation, enhancement or development of:
(1) Any renewable or nonrenewable natural resource indigenous to a particular land area, including, but not limited to, mineral, timber, forage, water, fish or wildlife resources, or
(2) Any resource value associated with a particular land area, including, but not limited to, watershed, power, scenic, wilderness, clean air or recreational values. The term does not include military or other governmental activities requiring land sites only as an incidental means to achieving an end not related primarily to the preservation, conservation, enhancement or development of natural resources or resource values indigenous to or associated with a particular land area.
(h) Withdrawal means withholding an area of Federal land from settlement, sale, location, or entry under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program; or transferring jurisdiction over an area of Federal land, other than property governed by the Federal Property and Administrative Services Act (40 U.S.C. 472), from one department, bureau or agency to another department, bureau or agency.
(i) Department means a unit of the Executive branch of the Federal Government which is headed by a member of the President’s Cabinet.
(j) Agency means a unit of the Executive branch of the Federal Government which is not within a Department.
(k) Office means an office or bureau of the Department of the Interior.
(l) Applicant means any Federal department, agency or office.
(m) Segregation means the removal for a limited period, subject to valid existing rights, of a specified area of the public lands from the operation of the public land laws, including the mining laws, pursuant to the exercise by the Secretary of regulatory authority to allow for the orderly administration of the public lands.
(n) Legal description means a written land description based upon either an approved and filed Federal land survey executed as a part of the United States Public Land Survey System or, where specifically authorized under Federal law, upon a protraction diagram. In the absence of the foregoing, the term means a written description, approved by the authorized officer, which defines the exterior boundaries of a tract of land by reference to a metes and bounds survey or natural or other monuments.
(o) Modify or modification does not include, for the purposes of section 204 of the Act (43 U.S.C. 1714), the addition of lands to an existing withdrawal or the partial revocation of a withdrawal.
(p) Withdrawal petition means a request, originated within the Department of the Interior and submitted to the Secretary, to file an application for withdrawal.
(q) Withdrawal proposal means a withdrawal petition approved by the Secretary.
Subpart 2310 – Withdrawals, General: Procedure
§ 2310.1 Procedures: General.
(a) The basic steps leading up to the making, modification or extension of a withdrawal, except emergency withdrawals, are:
(1) Preapplication consultation;
(2) Obtaining Secretarial approval of a withdrawal petition in appropriate cases;
(3) Submission for filing of an application for a requested withdrawal action;
(4) Publication in the
(5) Negotiations between the applicant and the authorized officer as well as the accomplishment of investigations, studies and analyses which may be required to process an application.
(6) Preparation of the case file to be considered by the Secretary, including the authorized officer’s findings and recommendations;
(7) Transmittal of the case file to the Director, Bureau of Land Management, for the Director’s review and decision regarding the findings and recommendations of the authorized officer;
(8) Transmittal of the case file to the Secretary.
(9) Publication of a public land order or a notice of denial signed by the Secretary. If the application seeks a national defense withdrawal that may only be made by an Act of Congress, the Secretary will transmit to the Congress proposed legislation along with the Secretary’s recommendations, and documentation relating thereto.
§ 2310.1-1 Preapplication consultation.
A potential applicant should contact the appropriate State office of the Bureau of Land Management well in advance of the anticipated submission date of an application. Early consultation can familiarize the potential applicant with the responsibilities of an applicant, the authorized officer and the Secretary. Early consultation also will assist in determining the need for a withdrawal, taking possible alternatives into account, increase the likelihood that the applicant’s needs will be considered in ongoing land use planning, assist in determining the extent to which any public lands that may be involved would have to be segregated if an application is submitted; and result in preliminary determinations regarding the scheduling of various investigations, studies, analyses, public meetings and negotiations that may be required for a withdrawal. Studies and analyses should be programmed to ensure their completion in sufficient time to allow the Secretary or the Congress adequate time to act on the application before the expiration of the segregation period.
§ 2310.1-2 Submission of applications.
(a) Applications for the making, modification or extension of a withdrawal shall be submitted for filing, in duplicate, in the proper Bureau of Land Management office, as set forth in § 1821.2-1 of this title, except for emergency withdrawal requests and applications that are classified for national security reasons. Requests for emergency withdrawals and applications that are classified for national security reasons shall be submitted, in duplicate, in the Office of the Secretary, Department of the Interior, Washington, D.C. 20240.
(b) Before the authorized officer can take action on a withdrawal proposal, a withdrawal application in support thereof shall be submitted. The application may be submitted simultaneously with the making of a withdrawal proposal, in which case only the notice required by § 2310.3-1(a) of this title, referencing both the application and the withdrawal proposal, shall be published.
(c) No specific form is required, but, except as otherwise provided in § 2310.3-6(b) of this title, the application shall contain at least the following information:
(1) The name and address of the applicant. Where the organization intending to use the lands is different from the applicant, the name and address of such using agency shall also be included.
(2) If the applicant is a department or agency other than the Department of the Interior or an office thereof, a statement of the delegation or delegations of authority of the official acting on behalf of the department or agency submitting the application, substantiating that the official is empowered to act on behalf of the head of the department or agency in connection with all matters pertaining to the application.
(3) If the lands which are subject to an application are wholly or partially under the administration of any department or agency other than the Department of the Interior, the Secretary shall make or modify a withdrawal only with the consent of the head of the department or agency concerned, except in the case of an emergency withdrawal. In such case, a copy of the written consent shall accompany the application. The requirements of section (e) of E.O. 10355 (17 FR 4831), shall be complied with in those instances where the Order applies.
(4) The type of withdrawal action that is being requested (See § 2300.0-5(h) of this title) and whether the application pertains to the making, extension or modification of a withdrawal.
(5) A description of the lands involved in the application, which shall consist of the following:
(i) A legal description of the entire land area that falls within the exterior boundaries of the affected area and the total acreage of such lands;
(ii) A legal description of the lands, Federal or otherwise, within the exterior boundaries that are to be excepted from the requested action, and after deducting the total acreage of all the excepted lands, the net remaining acreage of all Federal lands (as well as all non-Federal lands which, if they should be returned to or should pass to Federal ownership, would become subject to the withdrawal) within the exterior boundaries of the affected land areas;
(iii) In the case of a national defense withdrawal which can only be made by an Act of Congress, sections 3(2) and 3(3) of the Act of February 28, 1958 (43 U.S.C. 157 (2), (3)) shall be complied with in lieu of paragraphs (c)(5) (i) and (ii) of this section.
(6) If the application is for a withdrawal that would overlap, or that would add lands to one or more existing withdrawals, the application shall also contain:
(i) An identification of each of the existing withdrawals, including the project name, if any, the date of the withdrawal order, the number and type of order, if known, or, in lieu of the foregoing, a copy of the order;
(ii) As to each existing withdrawal that would be overlapped by the requested withdrawal, the total area and a legal description of the area that would be overlapped; and
(iii) The total acreage, Federal or otherwise, that would be added to the existing withdrawal, if the new application is allowed.
(7) The public purpose or statutory program for which the lands would be withdrawn. If the purpose or program for which the lands would be withdrawn is classified for national security reasons, a statement to that effect shall be included; but, if at all possible, a general description of the use to which the lands would be devoted, if the requested withdrawal is allowed, should be included. In the case of applications that are not classified for national security reasons, an analysis of the manner in which the lands as well as their natural resources and resource values would be used to implement the purpose or program shall be provided.
(8) The extent to which the lands embraced in the application are requested to be withheld from settlement, sale, location or entry under the public land laws, including the mining laws, together with the extent to which, and the time during which, the lands involved in the application would be temporarily segregated in accordance with § 2310.2 of this subpart.
(9) The type of temporary land use that, at the discretion of the authorized officer, may be permitted or allowed during the segregation period, in accordance with § 2310.2 of this subpart.
(10) An analysis and explanation of why neither a right-of-way under section 507 of the Act (43 U.S.C. 1767), nor a cooperative agreement under sections 302(b) (43 U.S.C. 1732(b)) and 307(b) (43 U.S.C. 1737(b)) of the act would adequately provide for the proposed use.
(11) The duration of the withdrawal, with a statement in justification thereof (see § 2310.3-4 of this title). Where an extension of an existing withdrawal is requested, its duration may not exceed the duration of the existing withdrawal.
(12) A statement as to whether any suitable alternative sites are available for the proposed use or for uses which the requested withdrawal action would displace. The statement shall include a study comparing the projected costs of obtaining each alternative site in suitable condition for the intended use, as well as the projected costs of obtaining and developing each alternative site for uses that the requested withdrawal action would displace.
(13) A statement as to whether water will or will not be needed to fulfill the purpose of the requested withdrawal action.
(14) The place where records relating to the application can be examined by interested persons.
(d) Except in the case of an emergency withdrawal, if the preceding application requirements have not been met, or if an application seeks an action that is not within the scope of the Secretary’s authority, the application may be rejected by the authorized officer as a defective application.
§ 2310.1-3 Submission of withdrawal petitions.
(a) Withdrawal petitions shall be submitted to the Director, Bureau of Land Management, for transmittal to the Secretary.
(b) No specific form is required, but the petition shall contain at least the following information:
(1) The office originating the petition;
(2) The type and purpose of the proposed withdrawal action (See § 2300.0-5(h) of this title) and whether the petition pertains to the making, extension or modification of a withdrawal;
(3) A legal description of the entire land area that falls within the exterior boundaries affected by the petition, together with the total acreage of such lands, and a map of the area;
(4) The extent to which and the time during which any public lands that may be involved in the petition would be temporarily segregated and the temporary land uses that may be permitted during the segregation period, in accordance with § 2310.2 of this title; and
(5) A preliminary identification of the mineral resources in the area.
(c) Except in the case of petitions seeking emergency withdrawals, if a petition is submitted simultaneously with a withdrawal application, the information requirements pertaining to withdrawal applications (See § 2310.1-2 of this title), shall supersede the requirements of this section.
(d) If a petition seeks an emergency withdrawal under the provisions of section 204(e) of the act, the petition shall be filed simultaneously with an application for withdrawal. In such instances, the petition/application shall provide as much of the information required by §§ 2310.1-2(c) and 2310.3-2(b) of this title as is available to the petitioner when the petition is submitted.
(e) Upon the approval by the Secretary of a petition for withdrawal, the petition shall be considered as a Secretarial proposal for withdrawal, and notice of the withdrawal proposal shall be published immediately in the
§ 2310.1-4 Cancellation of withdrawal applications or withdrawal proposals and denial of applications.
(a) Withdrawal or extension applications and proposals shall be amended promptly to cancel the application or proposal, in whole or in part, with respect to any lands which the applicant, in the case of applications, or the office, in the case of proposals, determines are no longer needed in connection with a requested or proposed action. The filing of a cancellation notice in each such case shall result in the termination of the segregation of the public lands that are to be eliminated from the withdrawal application or withdrawal proposal. (See § 2310.2-1 of this title)
(b) The Secretary may deny an application if the costs (as defined in section 304(b) of the Act (43 U.S.C. 1734(b)) estimated to be incurred by the Department of the Interior would, in the judgment of the Secretary, be excessive in relation to available funds appropriated for processing applications requesting a discretionary withdrawal, or a modification or extension of a withdrawal.
§ 2310.2 Segregative effect of withdrawal applications or withdrawal proposals.
The following provisions apply only to applications or proposals to withdraw lands and not to applications or proposals seeking to modify or extend withdrawals.
(a) Withdrawal applications or withdrawal proposals submitted on or after October 21, 1976. Within 30 days of the submission for filing of a withdrawal application, or whenever a withdrawal proposal is made, a notice stating that the application has been submitted or that the proposal has been made, shall be published in the
(b) Withdrawal applications submitted before October 21, 1976. The public lands described in a withdrawal application filed before October 21, 1976, shall remain segregated through October 20, 1991, from settlement, sale, location or entry under the public land laws, including the mining laws, to the extent specified in the
(c) Applications for licenses, permits, cooperative agreements or other discretionary land use authorizations of a temporary nature that are filed on or after October 21, 1976, regarding lands involved in a withdrawal application or a withdrawal proposal and that are listed in the notices required by § 2310.3-2 of this title as permissible during the segregation period, may be approved by the authorized officer while the lands remain segregated.
(d) Except as provided in paragraph (c) of this section, applications for the use of lands involved in a withdrawal application or a withdrawal proposal, the allowance of which is discretionary, shall be denied.
(e) The temporary segregation of lands in connection with a withdrawal application or a withdrawal proposal shall not affect in any respect Federal agency administrative jurisdiction of the lands, and the segregation shall not have the effect of authorizing or permitting any use of the lands by the applicant or using agency.
§ 2310.2-1 Termination of the segregative effect of withdrawal applications or withdrawal proposals.
(a) The publication in the
(b) The denial of a withdrawal application, in whole or in part, shall result in the termination of the segregative effect of the application or proposal as to those lands where the withdrawal is disallowed. Within 30 days following the decision to disallow the application or proposal, in whole or in part, the authorized officer shall publish a notice in the
(c) The cancellation, in whole or in part, of a withdrawal application or a withdrawal proposal shall result in the termination of the segregative effect of the application or proposal, as to those lands deleted from the application or proposal. The authorized officer shall publish a notice in the
(d) The segregative effect resulting from the publication on or after October 21, 1976, of a
(e) The segregative effect resulting from the submission of a withdrawal application or withdrawal proposal before October 21, 1976, shall terminate on October 20, 1991, unless the segregation is terminated sooner by other provisions of this part. A notice specifying the date and time of termination shall be published in the
§ 2310.3 Action on withdrawal applications and withdrawal proposals, except for emergency withdrawals.
§ 2310.3-1 Publication and public meeting requirements.
(a) When a withdrawal proposal is made, a notice to that effect shall be published immediately in the
(b)(1) Except for emergency withdrawals and except as otherwise provided in paragraph (a) of this section, within 30 days of the submission for filing of a withdrawal, extension or modification application, the authorized officer shall publish in the
(2) The notice shall contain, in summary form, the information required by § 2310.1-2 of this title, except that the authorized officer may exclude the information required by § 2310.1-2(c)(2) of this title, and as much of the descriptive information required by § 2310.1-2(c) (5) and (6) of this title as the authorized officer considers appropriate. The notice shall:
(i) Provide a legal description of the lands affected by the application, together with the total acreage of such lands;
(ii) Specify the extent to which and the time during which any lands that may be involved may be segregated in accordance with § 2310.2 of this title;
(iii) Identify the temporary land uses that may be permitted or allowed during the segregation period as provided for in § 2310.2(c) of this title;
(iv) Provide for a suitable period of at least 90 days after publication of the notice, for public comment on the requested action;
(v) Solicit written comments from the public as to the requested action and provide for one or more public meetings in relation to requested actions involving 5,000 or more acres in the aggregate and, as to requested actions involving less than 5,000 acres, solicit and evaluate the written comments of the public as to the requested action and as to the need for public meetings;
(vi) State, in the case of a national defense withdrawal which can only be made by an Act of Congress, that if the withdrawal is to be made, it will be made by an Act of Congress;
(vii) Provide the address of the Bureau of Land Management office in which the application and the case file pertaining to it are available for public inspection and to which the written comments of the public should be sent;
(viii) State that the application will be processed in accordance with the regulations set forth in part 2300 of this title;
(ix) Reference, if appropriate, the
(x) Provide such additional information as the authorized officer deems necessary or appropriate.
(c)(1) In determining whether a public meeting will be held on applications involving less than 5,000 acres of land, the authorized officer shall consider whether or not:
(i) A large number of persons have expressed objections to or suggestions regarding the requested action;
(ii) The objections or suggestions expressed appear to have merit without regard to the number of persons responding;
(iii) A public meeting can effectively develop information which would otherwise be difficult or costly to accumulate;
(iv) The requested action, because of the amount of acreage involved, the location of the affected lands or other relevant factors, would have an important effect on the public, as for example, the national or regional economy;
(v) There is an appreciable public interest in the lands or their use, as indicated by the records of the Bureau of Land Management;
(vi) There is prevailing public opinion in the area that favors public meetings or shows particular concern over withdrawal actions; and
(vii) The applicant has requested a public meeting.
(2) A public meeting, whether required or determined by the authorized officer to be necessary, shall be held at a time and place convenient to the interested public, the applicant and the authorized officer. A notice stating the time and place of the meeting, shall be published in the
§ 2310.3-2 Development and processing of the case file for submission to the Secretary.
(a) Except as otherwise provided in § 2310.3-6(b) of this title, the information, studies, analyses and reports identified in this paragraph that are required by applicable statutes, or which the authorized officer determines to be required for the Secretary or the Congress to make a decision or recommendation on a requested withdrawal, shall be provided by the applicant. The authorized officer shall assist the applicant to the extent the authorized officer considers it necessary or appropriate to do so. The qualifications of all specialists utilized by either the authorized officer or the applicant to prepare the information, studies, analyses and reports shall be provided.
(b) The information, studies, analyses and reports which, as appropriate, shall be provided by the applicant shall include:
(1) A report identifying the present users of the lands involved, explaining how the users will be affected by the proposed use and analyzing the manner in which existing and potential resource uses are incompatible with or conflict with the proposed use of the lands and resources that would be affected by the requested action. The report shall also specify the provisions that are to be made for, and an economic analysis of, the continuation, alteration or termination of existing uses. If the provisions of § 2310.3-5 of this title are applicable to the proposed withdrawal, the applicant shall also furnish a certification that the requirements of that section shall be satisfied promptly if the withdrawal is allowed or authorized.
(2) If the application states that the use of water in any State will be necessary to fulfill the purposes of the requested withdrawal, extension or modification, a report specifying that the applicant or using agency has acquired, or proposes to acquire, rights to the use of the water in conformity with applicable State laws and procedures relating to the control, appropriation, use and distribution of water, or whether the withdrawal is intended to reserve, pursuant to Federal law, sufficient unappropriated water to fulfill the purposes of the withdrawal. Water shall be reserved pursuant to Federal law for use in carrying out the purposes of the withdrawal only if specifically so stated in the relevant withdrawal order, as provided in § 2310.3-3(b) of this title and only to the extent needed for the purpose or purposes of the withdrawal as expressed in the withdrawal order. The applicant shall also provide proof of notification of the involved State’s department of water resources when a land use needed to carry out the purposes of the requested withdrawal will involve utilization of the water resources in a State. As a condition to the allowance of an order reserving water, the applicant shall certify to the Secretary that it shall quantify the amount of water to be reserved by the order.
(3) An environmental assessment, an environmental impact statement or any other documents as are needed to meet the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)), and the regulations applicable thereto. The authorized officer shall participate in the development of environmental assessments or impact statements. The applicant shall designate the Bureau of Land Management as a cooperating agency and shall comply with the requirements of the regulations of the Council on Environmental Quality. The Bureau of Land Management shall, at a minimum, independently evaluate and review the final product. The following items shall either be included in the assessment or impact statement, or they may be submitted separately, with appropriate cross references.
(i) A report on the identification of cultural resources prepared in accordance with the requirements of 36 CFR part 800, and other applicable regulations.
(ii) An identification of the roadless areas or roadless islands having wilderness characteristics, as described in the Wilderness Act of 1964 (16 U.S.C. 1131, et seq.), which exist within the area covered by the requested withdrawal action.
(iii) A mineral resource analysis prepared by a qualified mining engineer, engineering geologist or geologist which shall include, but shall not be limited to, information on: General geology, known mineral deposits, past and present mineral production, mining claims, mineral leases, evaluation of future mineral potential and present and potential market demands.
(iv) A biological assessment of any listed or proposed endangered or threatened species, and their critical habitat, which may occur on or in the vicinity of the involved lands, prepared in accordance with the provisions of section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1536), and regulations applicable thereto, if the Secretary determines that assessment is required by law.
(v) An analysis of the economic impact of the proposed uses and changes in use associated with the requested action on individuals, local communities, State and local government interests, the regional economy and the Nation as a whole.
(vi) A statement as to the extent and manner in which the public participated in the environmental review process.
(4) A statement with specific supporting data, as to:
(i) Whether the lands involved are floodplains or are considered wetlands; and
(ii) Whether the existing and proposed uses would affect or be affected by such floodplains or wetlands and, if so, to what degree and in what manner. The statement shall indicate whether, if the requested action is allowed, it will comply with the provisions of Executive Orders 11988 and 11990 of May 24, 1977 (42 FR 26951; 26961).
(5) A statement of the consultation which has been or will be conducted with other Federal departments or agencies; with regional, State and local Government bodies; and with individuals and nongovernmental groups regarding the requested action.
(c) Prior to final action being taken in connection with an application, the applicant shall prepare, with the guidance and participation of the authorized officer, and subject to the approval of the authorized officer, the Secretary and other affected departments, agencies or offices, a resource management plan and implementation program regarding the use and management of any public lands with their related resources uses. Consideration shall be given to the impact of the proposed reservation on access to and the use of the land areas that are located in the vicinity of the lands proposed to be withdrawn. Where appropriate, the plan and program will be implemented by means of a memorandum of understanding between the affected agencies. Any allocation of jurisdiction between the agencies shall be effected in the public land order or legislation. In those cases where the Secretary, acting through the Bureau of Land Management, would continue to exercise partial jurisdiction, resource management of withdrawn areas may be governed by the issuance of management decisions by the Bureau of Land Management to implement land use plans developed or revised under the land use planning requirements of section 202 of the Act (43 U.S.C. 1712).
(d) In regard to national defense withdrawals that can only be made by an Act of Congress, and to the extent that they are not otherwise satisfied by the information, studies, analyses and reports provided in accordance with the provisions of this section, the provisions of section 3(7) of the Act of February 28, 1958 (43 U.S.C. 157(7)), shall be complied with.
(e) The authorized officer shall develop preliminary findings and recommendations to be submitted to the Secretary, advise the applicant of the findings and recommendations, and provide the applicant an opportunity to discuss any objections thereto which the applicant may have.
(f) Following the discussion process, or in the absence thereof, the authorized officer shall prepare the findings, keyed specifically to the relevant portions of the case file, and the recommendations to the Secretary in connection with the application. The authorized officer also shall prepare, for consideration by the Secretary, a proposed order or notice of denial. In the case of a national defense withdrawal which can only be made by an Act of Congress, the authorized officer shall prepare, with the cooperation of the applicant, a draft legislative proposal to implement the applicant’s withdrawal request, together with proposed recommendations for submission by the Secretary to the Congress. The findings and recommendations of the authorized officer, and the other documents previously specified in this section to be prepared by the authorized officer shall be made a part of the case file. The case file shall then be sent to the Director, Bureau of Land Management. At the same time, a copy of the findings and recommendations of the authorized officer shall be sent to the applicant.
(1) If the applicant objects to the authorized officer’s findings and recommendations to the Secretary, the applicant may, within 30 days of the receipt by the applicant of notification thereof, state its objections in writing and request the Director to review the authorized officer’s findings and recommendations. The applicant shall be advised of the Director’s decision within 30 days of receipt of the applicant’s statement of objections in the Bureau of Land Management’s Washington office. The applicant’s statement of objections and the Director’s decision shall be made a part of the case file and thereafter the case file shall be submitted to the Secretary.
(2) If the applicant disagrees with the decision of the Director, Bureau of Land Management, the applicant may, within 30 days of receipt by the applicant of the Director’s decision, submit to the Secretary a statement of reasons for disagreement. The statement shall be considered by the Secretary together with the findings and recommendations of the authorized officer, the applicant’s statement of objections, the decision of the Director, the balance of the case file and such additional information as the Secretary may request.
§ 2310.3-3 Action by the Secretary: Public land orders and notices of denial.
(a) Except for national defense withdrawals which can only be made by an Act of Congress, and except as may be otherwise provided in section 1(d) of Executive Order 10355 (17 FR 4833), for applications that are subject to that order, the allowance or denial, in whole or in part, of a withdrawal, modification or extension application, may only be made by the Secretary.
(b)(1) Before the allowance of an application, in whole or in part, the Secretary shall first approve all applicable memoranda of understanding and the applicant shall make all certifications required in this part. When an application has been finally allowed, in whole or in part, by the Secretary, an order to that effect shall be published promptly in the
(2) On the same day an order withdrawing 5,000 or more acres in the aggregate is signed, the Secretary shall advise, in writing, each House of the Congress, or in the case of an emergency withdrawal, the appropriate Committee of each House, of the withdrawal action taken. Pursuant to the Secretary’s authority under the act, the notices that are sent to the Congress shall be accompanied by the information required by section 204(c)(2) of the Act (43 U.S.C. 1714(c)(2)), except in the case of an emergency withdrawal, transmittal of the required information may be delayed as provided in § 2310.5(c) of this title.
(c) When the action sought in an application involves the exercise by the Secretary of authority delegated by Executive Order 10355 (17 FR 4831) and the Secretary denies the application in whole or in part, the applicant shall be notified of the reasons for the Secretary’s decision. The decision shall be subject to further consideration only if the applicant informs the Secretary, in writing, within 15 days of the receipt by the applicant of the Secretary’s decision, that the applicant has submitted the matter to the Office of Management and Budget for consideration and adjustment, as provided for in section 1(d) of the Executive Order.
(d) A withdrawal application shall be denied, if, in the opinion of the Secretary, the applicant is attempting to circumvent the Congressional review provisions of section 204(c)(1) of the Act (43 U.S.C. 1714(c)(1)) concerning withdrawals of 5,000 or more acres in the aggregate.
(e) When an application is denied in its entirety by the Secretary, a notice to that effect, signed by the Secretary, shall be published promptly in the
(f) In the case of a national defense withdrawal that may only be made by an Act of Congress, the Secretary shall transmit to the Congress proposed legislation effecting the withdrawal requested, together with the recommendations of the Secretary which may or may not support the proposed legislation in whole or in part. The proposed legislation shall contain such provisions for continued operation of the public land laws as to the public land areas included in the requested withdrawal as shall be determined by the Secretary to be compatible with the intended military use.
§ 2310.3-4 Duration of withdrawals.
(a) An order initially withdrawing 5,000 or more acres of land in the aggregate, on the basis of the Secretary’s authority under section 204 of the Act (43 U.S.C. 1714), may be made for a period not to exceed 20 years from the date the order is signed, except that withdrawals exceeding 5,000 acres in the State of Alaska shall not become effective until notice is provided in the
(1) A National Wildlife Refuge System withdrawal may not be terminated as provided in section 204(c)(1) of the Act (43 U.S.C 1714(c)(1)) other than by an Act of Congress; or
(2) A withdrawal exceeding 5,000 acres in the State of Alaska shall terminate unless Congress passes a Joint Resolution of approval within 1 year after the notice of such withdrawal has been submitted to the Congress.
(b) An order initially withdrawing less than 5,000 acres of land, in the aggregate, on the basis of the Secretary’s authority under section 204 of the Act (43 U.S.C. 1714), may be made:
(1) For such time as the Secretary determines desirable for a resource use;
(2) For not more than 20 years for any other use, including, but not limited to, the use of lands for non-resource uses, related administrative sites and facilities or for other proprietary purposes; or
(3) For not more than 5 years to preserve the lands for a specific use then under consideration by either House of Congress.
(c) An order withdrawing lands on the basis of an emergency as provided for in section 204(e) of the Act (43 U.S.C. 1714(e)) may be made for not more than 3 years.
(d) Except for emergency withdrawals, withdrawals of specific duration may be extended, as provided for in § 2310.4 of this title.
§ 2310.3-5 Compensation for improvements.
(a) When an application is allowed, the applicant shall compensate the holder of record of each permit, license or lease lawfully terminated or revoked after the allowance of an application, for all authorized improvements placed on the lands under the terms and conditions of the permit, license or lease, before the lands were segregated or withdrawn. The amount of such compensation shall be determined by an appraisal as of the date of revocation or termination of the permit, license or lease, but shall not exceed fair market value. To the extent such improvements were constructed with Federal funds, they shall not be compensable unless the United States has been reimbursed for such funds prior to the allowance of the application and then only to the extent of the sum that the United States has received.
(b) When an application is allowed that affects public lands which are subject to permits or leases for the grazing of domestic livestock and that is required to be terminated, the applicant shall comply with the cancellation notice and compensation requirements of section 402(g) of the Act (43 U.S.C. 1752(g)), to the extent applicable.
§ 2310.3-6 Transfer of jurisdiction.
A public land order that reserves lands for a department, agency or office, shall specify the extent to which jurisdiction over the lands and their related resource uses will be exercised by that department, agency or office. (See § 2310.3-2(c) of this title).
§ 2310.4 Review and extensions of withdrawals.
(a) Discretionary withdrawals of specific duration, whether made prior to or after October 21, 1976, shall be reviewed by the Secretary commencing at least 2 years before the expiration date of the withdrawal. When requested, the department, agency or office benefitting from the withdrawal shall promptly provide the Secretary with the information required by § 2310.1-2(c) of this title, and the information required by § 2310.3-2(b) of this title, in the form of a withdrawal extension application with supplemental information. If the concerned department, agency or office is delinquent in responding to such request, the deliquency shall constitute a ground for not extending the withdrawal. Such withdrawals may be extended or further extended only upon compliance with these regulations, and only if the Secretary determines that the purpose for which the withdrawal was first made requires the extension, and then only for a period that shall not exceed the duration of the original withdrawal period. In allowing an extension, the Secretary shall comply with the provisions of section 204(c) of the Act (43 U.S.C. 1714(c)), or section 204(d) of the Act (43 U.S.C. 1714(d)), whichever is applicable; and, whether or not an extension is allowed, the Secretary shall report promptly on the decision for each pending extension to the Congressional Committees that are specified in section 204(f) of the Act (43 U.S.C. 1714(f)).
(b) Notwithstanding the provisions of this section, if the Secretary determines that a National Wildlife Refuge System withdrawal of specific duration shall not be extended, the Secretary shall nevertheless extend or reextend the withdrawal until such time as the withdrawal is terminated by an Act of Congress.
§ 2310.5 Special action on emergency withdrawals.
(a) When the Secretary makes an emergency withdrawal under Section 204(e) of the Act (43 U.S.C. 1714(e)), the withdrawal will be made immediately and will be limited in scope and duration to the emergency. An emergency withdrawal will be effective when signed, will not exceed 3 years in duration, and may not be extended by the Secretary. If it is determined that the lands involved in an emergency withdrawal should continue to be withdrawn, a withdrawal application should be submitted to the Bureau of Land Management in keeping with the normal procedures for processing a withdrawal as provided for in this subpart. Such applications will be subject to the provisions of Section 204(c) of the Act (43 U.S.C. 1714(c)), or Section 204(d) of the Act (43 U.S.C. 1714(d)), whichever is applicable, as well as Section 204(b)(1) of the Act (43 U.S.C. 1714(b)(1)).
(b) When an emergency withdrawal is signed, the Secretary must, on the same day, send a notice of the withdrawal to the two Committees of the Congress that are specified for that purpose in Section 204(e) of the Act (43 U.S.C. 1714(e)).
(c) The Secretary must forward a report to each of the aforementioned committees within 90 days after filing with them the notice of Secretarial emergency withdrawal. Reports for all such withdrawals, regardless of the amount of acreage withdrawn, will contain the information specified in Section 204(c)(2) of the Act (43 U.S.C. 1714(c)(2)).
Subpart 2320 – Federal Energy Regulatory Commission Withdrawals
§ 2320.0-3 Authority.
(a) Section 24 of the Federal Power Act of June 10, 1920, as amended (16 U.S.C. 818), provides that any lands of the United States included in an application for power development under that Act shall, from the date of filing of an application therefor, be reserved from entry, location or other disposal under the laws of the United States until otherwise directed by the Federal Energy Regulatory Commission or by Congress. This statute also provides that whenever the Commission shall determine that the value of any lands of the United States withdrawn or classified for power purposes shall not be injured or destroyed for such purposes by location, entry or selection under the public land laws, the Secretary of the Interior shall declare such lands open to location, entry or selection for such purposes under such restrictions as the Commission may determine are necessary, and subject to and with a reservation of the right of the United States or its permittees or licensees to enter upon, occupy and use any and all of the lands for power purposes. Before any lands are declared open to location, entry or selection, the Secretary shall give notice of his intention to make this declaration to the Governor of the State within which such lands are located, and the State shall have a preference for a period of 90 days from the date of this notice to file under any applicable law or regulation an application of the State, or any political subdivision thereof, for any lands required as a right-of-way for a public highway or as a source of materials for the construction and maintenance of such highways. The 90-day preference does not apply to lands which remain withdrawn for national forest or other purposes.
(b) The Mining Claims Rights Restoration Act of 1955 (30 U.S.C. 621 et seq.), opened public lands which were then, or thereafter, withdrawn or classified for power purposes, with specified exceptions, to mineral location and development under certain circumstances.
§ 2320.1 Lands considered withdrawn or classified for power purposes.
The following classes of lands of the United States are considered as withdrawn or classified for the purposes of section 24 of the Federal Power Act (16 U.S.C. 818): Lands withdrawn for powersite reserves under sections 1 and 2 of the Act of June 25, 1910, as amended (43 U.S.C. 141-148); lands included in an application for power development under the Federal Power Act (16 U.S.C. 818); lands classified for powersite purposes under the Act of March 3, 1879 (43 U.S.C. 31); lands designated as valuable for power purposes under the Act of June 25, 1910, as amended (43 U.S.C. 148); the Act of June 9, 1916 (39 Stat. 218, 219), and the Act of February 26, 1919 (40 Stat. 1178, 1180); lands within final hydroelectric power permits under the Act of February 15, 1901 (43 U.S.C. 959); and lands within transmission line permits or approved rights-of-way under the aforementioned Act of February 15, 1901, or the Act of March 4, 1911 (43 U.S.C. 961).
§ 2320.2 General determinations under the Federal Power Act.
(a) On April 22, 1922, the Federal Power Commission (as predecessor to the Federal Energy Regulatory Commission) made a general determination “that where lands of the United States have heretofore been or hereafter may be reserved or classified as powersites, such reservation or classification being made solely because such lands are either occupied by power transmission lines or their occupancy and use for such purposes have been applied for or authorized under appropriate laws of the United States, and such lands have otherwise no value for power purposes, and are not occupied in trespass, the Commission determines that the value of such lands so reserved or classified or so applied for or authorized, shall not be injured or destroyed for the purposes of power development by location, entry or selection under the public land laws, subject to the reservation of section 24 of the Federal Power Act.”
(b) The regulations governing mining locations on lands withdrawn or classified for power purposes, including lands that have been restored and opened to mining locations under section 24 of the Federal Power Act, are contained in subpart 3730 and in Group 3800 of this title.
§ 2320.3 Applications for restoration.
(a) Other than with respect to national forest lands, applications for restoration and opening of lands withdrawn or classified for power purposes under the provisions of section 24 of the Federal Power Act shall be filed, in duplicate, in the proper office of the Bureau of Land Management as set forth in § 2321.2-1 of this title. No particular form of application is required, but it shall be typewritten or in legible handwriting, and it shall contain the information required by 18 CFR 25.1. Each application shall be accompanied by a service charge of $10 which is not returnable.
(b) Favorable action upon an application for restoration shall not give the applicant any preference right when the lands are opened.
PART 2360 – NATIONAL PETROLEUM RESERVE IN ALASKA
Subpart 2361 – Management and Protection of the National Petroleum Reserve in Alaska
§ 2361.0-1 Purpose.
The purpose of the regulations in this subpart is to provide procedures for the protection and control of environmental, fish and wildlife, and historical or scenic values in the National Petroleum Reserve in Alaska pursuant to the provisions of the Naval Petroleum Reserves Production Act of 1976 (90 Stat. 303; 42 U.S.C. 6501 et seq.).
§ 2361.0-2 Objectives.
The objective of this subpart is to provide for the protection of the environmental, fish and wildlife, and historical or scenic values of the Reserve so that activities which are or might be detrimental to such values will be carefully controlled to the extent consistent with the requirements of the Act for petroleum exploration of the reserve.
§ 2361.0-3 Authority.
The Naval Petroleum Reserve Production Act of 1976 (90 Stat. 303, 42 U.S.C. 6501, et seq.) is the statutory authority for these regulations.
§ 2361.0-4 Responsibility.
(a) The Bureau of Land Management (BLM) is responsible for the surface management of the reserve and protection of the surface values from environmental degradation, and to prepare rules and regulations necessary to carry out surface management and protection duties.
(b) The U.S. Geological Survey is responsible for management of the continuing exploration program during the interim between the transfer of jurisdiction from the U.S. Navy to the U.S. Department of the Interior and the effective date of any legislation for a permanent development and production program to enforce regulations and stipulations which relate to the exploration of petroleum resources of the Reserve, and to operate the South Barrow gas field or such other fields as may be necessary to supply gas at reasonable and equitable rates to the Native village of Barrow and other communities and installations at or near Point Barrow, Alaska, and to installations of the Department of Defense and other agencies of the U.S. located at or near Point Barrow, Alaska.
§ 2361.0-5 Definitions.
As used in this subpart, the following terms shall have the following meanings:
(a) Act means the Naval Petroleum Reserves Production Act of 1976 (90 Stat. 303, 42 U.S.C. 6501, et seq.).
(b) Authorized officer means any employee of the Bureau of Land Management who has been delegated the authority to perform the duties of this subpart.
(c) Exploration means activities conducted on the Reserve for the purpose of evaluating petroleum resources which include crude oil, gases of all kinds (natural gas, hydrogen, carbon dioxide, helium, and any others), natural gasoline, and related hydrocarbons (tar sands, asphalt, propane butane, etc.), oil shale and the products of such resources.
(d) Reserve means those lands within the National Petroleum Reserve in Alaska (prior to June 1, 1977, designated Naval Petroleum Reserve No. 4) which was established by Executive order of the President, dated February 27, 1923, except for tract Numbered 1 as described in Public Land Order 2344 (the Naval Arctic Research Laboratory – surface estate only) dated April 24, 1961.
(e) Secretary means the Secretary of the Interior.
(f) Special areas means areas within the reserve identified by the Secretary of the Interior as having significant subsistence, recreational, fish and wildlife, or historical or scenic value and, therefore, warranting maximum protection of such values to the extent consistent with the requirements of the Act for the exploration of the Reserve.
(g) Use authorization means a written approval of a request for use of land or resources.
§ 2361.0-6 [Reserved]
§ 2361.0-7 Effect of law.
(a) Subject to valid existing rights, all lands within the exterior boundaries of the Reserve are reserved and withdrawn from all forms of entry and disposition under the public land laws, including the mining and mineral leasing laws, and all other Acts.
(b) Notwithstanding the provisions of paragraph (a) of this section, the Secretary is authorized to:
(1) Make dispositions of mineral materials pursuant to the Act of July 31, 1947 (61 Stat. 681), as amended (30 U.S.C. 601), for appropriate use by Alaska Natives.
(2) Make such dispositions of mineral materials and grant such rights-of-way, licenses, and permits as may be necessary to carry out his responsibilities under the Act.
(3) Convey the surface of lands properly selected on or before December 18, 1975, by Native village corporations pursuant to the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1601, et seq.).
(c) All other provisions of law heretofore enacted and actions heretofore taken reserving such lands as a Reserve shall remain in full force and effect to the extent not inconsistent with the Act.
(d) To the extent not inconsistent with the Act, all other public land laws are applicable.
§ 2361.1 Protection of the environment.
(a) The authorized officer shall take such action, including monitoring, as he deems necessary to mitigate or avoid unnecessary surface damage and to minimize ecological disturbance throughout the reserve to the extent consistent with the requirements of the Act for the exploration of the reserve.
(b) The Cooperative Procedures of January 18, 1977, for National Petroleum Reserve in Alaska between the Bureau of Land Management (BLM) and the U.S. Geological Survey (GS) (42 FR 4542, January 25, 1977) provides the procedures for the mutual cooperation and interface of authority and responsibility between GS and BLM concerning petroleum exploration activities (i.e., geophysical and drilling operations), the protection of the environment during such activities in the Reserve, and other related activities.
(c) Maximum protection measures shall be taken on all actions within the Utikok River Uplands, Colville River, and Teshekpuk Lake special areas, and any other special areas identified by the Secretary as having significant subsistence, recreational, fish and wildlife, or historical or scenic value. The boundaries of these areas and any other special areas identified by the Secretary shall be identified on maps and be available for public inspection in the Fairbanks District Office. In addition, the legal description of the three special areas designated herein and any new areas identified hereafter will be published in the
(1) Rescheduling activities and use of alternative routes, (2) types of vehicles and loadings, (3) limiting types of aircraft in combination with minimum flight altitudes and distances from identified places, and (4) special fuel handling procedures.
(d) Recommendations for additional special areas may be submitted at any time to the authorized officer. Each recommendation shall contain a description of the values which make the area special, the size and location of the area on appropriate USGS quadrangle maps, and any other pertinent information. The authorized officer shall seek comments on the recommendation(s) from interested public agencies, groups, and persons. These comments shall be submitted along with his recommendation to the Secretary. Pursuant to section 104(b) of the Act, the Secretary may designate that area(s) which he determines to have special values requiring maximum protection. Any such designated area shall be identified in accordance with the provision of § 2361.1(c) of this subpart.
(e)(1) To the extent consistent with the requirements of the Act and after consultation with appropriate Federal, State, and local agencies and Native organizations, the authorized officer may limit, restrict, or prohibit use of and access to lands within the Reserve, including special areas. On proper notice as determined by the authorized officer, such actions may be taken to protect fish and wildlife breeding, nesting, spawning, lambing of calving activity, major migrations of fish and wildlife, and other environmental, scenic, or historic values.
(2) The consultation requirement in § 2361.1(e)(1) of this subpart is not required when the authorized officer determines that emergency measures are required.
(f) No site, structure, object, or other values of historical archaelogical, cultural, or paleontological character, including but not limited to historic and prehistoric remains, fossils, and artifacts, shall be injured, altered, destroyed, or collected without a current Federal Antiquities permit.
(a) Except for petroleum exploration which has been authorized by the Act, use authorizations must be obtained from the authorized officer prior to any use within the Reserve. Only those uses which are consistent with the purposes and objectives of the Act will be authorized.
(b) Except as may be limited, restricted, or prohibited by the authorized officer pursuant to § 2361.1 of this subpart or otherwise, use authorizations are not required for (1) subsistence uses (e.g., hunting, fishing, and berry picking) and (2) recreational uses (e.g., hunting, fishing, backpacking, and wildlife observation).
(c) Applications for use authorizations shall be filed in accordance with applicable regulations in this chapter. In the absence of such regulation, the authorized officer may make such dispositions absence of such regulations, the author-of mineral materials and grant such rights-of-way, licenses, and permits as may be necessary to carry out his responsibilities under the Act.
(d) In addition to other statutory or regulatory requirements, approval of applications for use authorizations shall be subject to such terms and conditions which the authorized officer determines to be necessary to protect the environmental, fish and wildlife, and historical or scenic values of the Reserve.
Any person who violates or fails to comply with regulations of this subpart is subject to prosecution, including trespass and liability for damages, pursuant to the appropriate laws.
PART 2370 – RESTORATIONS AND REVOCATIONS
Subpart 2370 – Restorations and Revocations; General
§ 2370.0-1 Purpose.
The regulations of this part 2370 apply to lands and interests in lands withdrawn or reserved from the public domain, except lands reserved or dedicated for national forest or national park purposes, which are no longer needed by the agency for which the lands are withdrawn or reserved.
§ 2370.0-3 Authority.
The Federal Property and Administrative Services Act of 1949 (63 Stat. 377), as amended, governs the disposal of surplus Federal lands or interests in lands. Section 3 of that Act (40 U.S.C. 472), as amended, February 28, 1958 (72 Stat. 29), excepts from its provisions the following:
(a) The public domain.
(b) Lands reserved or dedicated for national forest or national park purposes.
(c) Minerals in lands or portions of lands withdrawn or reserved from the public domain which the Secretary of the Interior determines are suitable for disposition under the public land mining and mineral leasing laws.
(d) Lands withdrawn or reserved from the public domain, but not including lands or portions of lands so withdrawn or reserved which the Secretary of the Interior, with the concurrence of the Administrator of the General Services Administration, determines are not suitable for return to the public domain for disposition under the general public-land laws, because such lands are substantially changed in character by improvements or otherwise.
Subpart 2372 – Procedures
§ 2372.1 Notice of intention to relinquish action by holding agency.
(a) Agencies holding withdrawn or reserved lands which they no longer need will file, in duplicate, a notice of intention to relinquish such lands in the proper office (see § 1821.2-1 of this chapter).
(b) No specific form of notice is required, but all notices must contain the following information:
(1) Name and address of the holding agency.
(2) Citation of the order which withdrew or reserved the lands for the holding agency.
(3) Legal description and acreage of the lands, except where reference to the order of withdrawal or reservation is sufficient to identify them.
(4) Description of the improvements existing on the lands.
(5) The extent to which the lands are contaminated and the nature of the contamination.
(6) The extent to which the lands have been decontaminated or the measures taken to protect the public from the contamination and the proposals of the holding agency to maintain protective measures.
(7) The extent to which the lands have been changed in character other than by construction of improvements.
(8) The extent to which the lands or resources thereon have been disturbed and the measures taken or proposed to be taken to recondition the property.
(9) If improvements on the lands have been abandoned, a certification that the holding agency has exhausted General Services Administration procedures for their disposal and that the improvements are without value.
(10) A description of the easements or other rights and privileges which the holding agency or its predecessors have granted covering the lands.
(11) A list of the terms and conditions, if any, which the holding agency deems necessary to be incorporated in any further disposition of the lands in order to protect the public interest.
(12) Any information relating to the interest of other agencies or individuals in acquiring use of or title to the property or any portion of it.
(13) Recommendations as to the further disposition of the lands, including where appropriate, disposition by the General Services Administration.
§ 2372.2 Report to General Services Administration.
The holding agency will send one copy of its report on unneeded lands to the appropriate regional office of the General Services Administration for its information.
§ 2372.3 Return of lands to the public domain; conditions.
(a) When the authorized officer of the Bureau of Land Management determines the holding agency has complied with the regulations of this part, including the conditions specified in § 2374.2 of this subpart, and that the lands or interests in lands are suitable for return to the public domain for disposition under the general public land laws, he will notify the holding agency that the Department of the Interior accepts accountability and responsibility for the property, sending a copy of this notice to the appropriate regional office of the General Services Administration.
(b) [Reserved]
Subpart 2374 – Acceptance of Jurisdiction by BLM
§ 2374.1 Property determinations.
(a) When the authorized officer of the Bureau of Land Management determines that the holding agency has complied with the regulations of this part and that the lands or interests in lands other than minerals are not suitable for return to the public domain for disposition under the general public land laws, because the lands are substantially changed in character by improvements or otherwise, he will request the appropriate officer of the General Services Administration, or its delegate, to concur in his determination.
(b) When the authorized officer of the Bureau of Land Management determines that minerals in lands subject to the provisions of paragraph (a) of this section are not suitable for disposition under the public land mining or mineral leasing laws, he will notify the appropriate officer of the General Services Administration or its delegate of this determination.
(c) Upon receipt of the concurrence specified in paragraph (a) of this section, the authorized officer of the Bureau of Land Management will notify the holding agency to report as excess property the lands and improvements therein, or interests in lands to the General Services Administration pursuant to the regulations of that Administration. The authorized officer of the Bureau of Land Management will request the holding agency to include minerals in its report to the General Services Administration only when the provisions of paragraph (b) of this section apply. He will also submit to the holding agency, for transmittal with its report to the General Services Administration, information of record in the Bureau of Land Management on the claims, if any, by agencies other than the holding agency of primary, joint, or secondary jurisdiction over the lands and on any encumbrances under the public land laws.
§ 2374.2 Conditions of acceptance by BLM.
Agencies will not be discharged of their accountability and responsibility under this section unless and until:
(a) The lands have been decontaminated of all dangerous materials and have been restored to suitable condition or, if it is uneconomical to decontaminate or restore them, the holding agency posts them and installs protective devices and agrees to maintain the notices and devices.
(b) To the extent deemed necessary by the authorized officer of the Bureau of Land Management, the holding agency has undertaken or agrees to undertake or to have undertaken appropriate land treatment measures correcting, arresting, or preventing deterioration of the land and resources thereof which has resulted or may result from the agency’s use or possession of the lands.
(c) The holding agency, in respect to improvements which are of no value, has exhausted General Services Administration’s procedures for their disposal and certifies that they are of no value.
(d) The holding agency has resolved, through a final grant or denial, all commitments to third parties relative to rights and privileges in and to the lands or interests therein.
(e) The holding agency has submitted to the appropriate office mentioned in paragraph (a) of § 2372.1 a copy of, or the case file on, easements, leases, or other encumbrances with which the holding agency or its predecessors have burdened the lands or interests therein.
PART 2400 – LAND CLASSIFICATION
Subpart 2400 – Land Classification; General
§ 2400.0-2 Objectives.
The statutes cited in § 2400.0-3 authorize the Secretary of the Interior to classify or otherwise take appropriate steps looking to the disposition of public lands, and on an interim basis, to classify public lands for retention and management, subject to requirements of the applicable statutes. In addition to any requirements of law, it is the policy of the Secretary (a) to specify those criteria which will be considered in the exercise of his authority and (b) to establish procedures which will permit the prompt and efficient exercise of his authority with, as far as is practicable, the knowledge and participation of the interested parties, including the general public. Nothing in these regulations is meant to affect applicable State laws governing the appropriation and use of water, regulation of hunting and fishing or exercise of any police power of the State.
§ 2400.0-3 Authority.
(a) All vacant public lands, except those in Alaska, have been, with certain exceptions, withdrawn from entry, selection, and location under the nonmineral land laws by Executive Order 6910, of November 26, 1934, and Executive Order 6964 of February 5, 1935, and amendments thereto, and by the establishment of grazing districts under section 1 of the Act of June 28, 1934 (48 Stat. 1269), as amended (43 U.S.C. 315). Section 7 of the Act of June 28, 1934 (48 Stat. 1272), as amended (43 U.S.C. 315f), authorizes the Secretary of the Interior in his discretion to examine and classify and open to entry, selection, or location under applicable law any lands withdrawn or reserved by Executive Order 6910 of November 26, 1934, or Executive Order 6964 of February 5, 1935, and amendments thereto, or within a grazing district established under that act which he finds are more valuable or suitable for the production of agricultural crops than for the production of native grasses and forage plants, or more valuable or suitable for any other use than for the use provided for under said act, or proper for acquisition in satisfaction of any outstanding lieu, exchange, or scrip rights or land grant. Classification under section 7 is a prerequisite to the approval of all entries, selections, or locations under the following subparts of this chapter, except as they apply to Alaska and with certain other exceptions: Original, Additional, Second, and Adjoining Farm Homesteads – subparts 2511, 2512, and 2513; Enlarged Homestead – subpart 2514; Indian Allotments – part 2530; Desert Land Entries – part 2520; Recreation and Public Purposes Act – part 2740 and subpart 2912; State Grants for Educational, Institutional, and Park Purposes – part 2620; Scrip Selections – part 2610 and Exchanges for the Consolidation or Extension of National Forests, Indian Reservations or Indian Holdings – Group 2200.
(b) Section 8(b) of the Act of June 28, 1934 (48 Stat. 1272), as amended (43 U.S.C. 315g), authorizes the Secretary of the Interior, when public interests will be benefited thereby, to accept on behalf of the United States title to any privately owned lands within or without the boundaries of a grazing district established under that act and in exchange therefor to issue patent for not to exceed an equal value of surveyed grazing district land or of unreserved surveyed public land in the same State or within a distance of not more than 50 miles within the adjoining State nearest the base lands. The regulations governing such exchanges are contained in Group 2200 of this chapter.
(c) Section 2455 of the Revised Statutes, as amended (43 U.S.C. 1171), authorizes the Secretary of the Interior in his discretion to order into market and sell at public auction isolated or disconnected tracts of public land not exceeding 1,520 acres, and tracts not exceeding 760 acres the greater part of which are mountainous or too rough for cultivation. The regulations governing such sales are contained in part 2710 of this chapter.
(d) Section 3 of the Act of August 28, 1937 (50 Stat. 875, 43 U.S.C. 1181c), authorizes the Secretary of the Interior to classify, either on application or otherwise, and restore to homestead entry, or purchase under the provisions of section 2455 of the Revised Statutes, as amended, any of the revested Oregon and California Railroad or reconveyed Coos Bay Wagon Road grant land which, in his judgment, is more suitable for agricultural use than for afforestation, reforestation, stream-flow protection, recreation, or other public purposes. The regulations governing disposal under this act are contained in part 2710 of this chapter.
(e) The Small Tract Act of June 1, 1938 (52 Stat. 609), as amended (43 U.S.C. 682a-e), authorizes the Secretary of the Interior, in his discretion, to lease or sell certain classes of public lands which he classifies as chiefly valuable for residence, recreation, business or community site purposes. The regulations governing leases and sales under this act are contained in part 2730 and subpart 2913 of this chapter.
(f) The Recreation and Public Purposes Act of June 14, 1926 (44 Stat. 741), as amended (43 U.S.C. 869-869-4), requires the Secretary of the Interior, in the exercise of his discretion to make a determination that land is to be used for an established or definitely proposed project, and in the case of Alaska authorizes him to classify certain classes of public lands for lease or sale for recreation or other public purposes. The regulations governing lease and sale of land under this act are contained in part 2740 and subpart 2912 of this chapter.
(g) The Act of July 31, 1939 (53 Stat. 1144), authorizes and empowers the Secretary of the Interior, in the administration of the Act of August 28, 1937 (supra), in his discretion, to exchange any land formerly granted to the Oregon & California Railroad Co., title to which was revested in the United States pursuant to the provisions of the Act of June 9, 1916 (39 Stat. 218), and any land granted to the State of Oregon, title to which was reconveyed to the United States by the Southern Oregon Co. pursuant to the provisions of the Act of February 26, 1919 (40 Stat. 1179), for lands of approximately equal aggregate value held in private, State, or county ownership, either within or contiguous to the former limits of such grants, when by such action the Secretary of the Interior will be enabled to consolidate advantageously the holdings of lands of the United States. The regulations governing exchanges under this act are contained in part 2260 of this chapter.
(h) The Alaska Public Sales Act of August 30, 1949 (63 Stat. 679), as amended (48 U.S.C. 364a-f), authorizes the Secretary of the Interior in his discretion to classify certain classes of public lands in Alaska for public sale for industrial or commercial purposes. The regulations governing sales of land under this act are contained in part 2770 of this chapter.
(i) The Public Land Sale Act of September 19, 1964 (78 Stat. 988, 43 U.S.C. 1421-27), authorizes and directs the Secretary of the Interior to sell public lands in tracts not exceeding 5,120 acres, that have been classified for sale in accordance with a determination that (1) the lands are required for the orderly growth and development of a community or (2) the lands are chiefly valuable for residential, commercial, agricultural (which does not include lands chiefly valuable for grazing or raising forage crops), industrial, or public uses or development. The regulations governing such sales are contained in part 2720 of this chapter.
(j) The Classification and Multiple Use Act of September 19, 1964 (78 Stat. 986, 43 U.S.C. 1411-18), authorizes the Secretary of the Interior to determine which of the public lands (and other Federal lands), including those situated in the State of Alaska exclusively administered by him through the Bureau of Land Management shall be (1) sold because they are (i) required for the orderly growth and development of a community or (ii) are chiefly valuable for residential, commercial, agricultural (which does not include lands chiefly valuable for grazing or raising forage crops), industrial, or public uses or development or (2) retained, at least for the time being, in Federal ownership and managed for (i) domestic livestock grazing, (ii) fish and wildlife development and utilization, (iii) industrial development, (iv) mineral production, (v) occupancy, (vi) outdoor recreation, (vii) timber production, (viii) watershed protection, (ix) wilderness preservation, or (x) preservation of public values that would be lost if the land passed from Federal ownership.
§ 2400.0-4 Responsibility.
(a) Except where specified to the contrary in this group, the authority of the Secretary of the Interior to classify lands and make other determinations in accordance with the regulations of this part has been delegated to persons authorized to act in his name; to the Director, Bureau of Land Management and persons authorized to act in his name; to State Directors of the Bureau of Land Management and to any person authorized to act in the name of a State Director.
(b) Classifications and other determinations in accordance with the regulations of this group may be made by the authorized officer whether or not applications or petitions have been filed for the lands.
§ 2400.0-5 Definitions.
As used in the regulations of this group –
(a) Residential refers to single or multi-family dwellings or combinations thereof, and related community facilities, both seasonal and year-round.
(b) Commercial refers to the sale, exchange, or distribution of goods and services.
(c) Industrial refers to the manufacture, processing, and testing of goods and materials, including the production of power. It does not refer to the growing of agricultural crops, or the raising of livestock, or the extraction or severance of raw materials from the land being classified, but it does include activities incidental thereto.
(d) Agricultural refers to the growing of cultivated crops.
(e) Community refers to a village, town or city, or similar subdivision of a State, whether or not incorporated.
(f) Domestic livestock refers to cattle, horses, sheep, goats and other grazing animals owned by livestock operators, provided such operators meet the qualification set forth in § 4111.1-1 or § 4131.1-3 of this chapter. This definition includes animals raised for commercial purposes and also domestic livestock within the meaning of § 4111.3-1(d)(1) of this chapter.
(g) Fish and wildlife refers to game, fish and other wild animals native or adaptable to the public lands and waters.
(h) Mineral refers to any substance that (1) is recognized as mineral, according to its chemical composition, by the standard authorities on the subject, or (2) is classified as mineral product in trade or commerce, or (3) possesses economic value for use in trade, manufacture, the sciences, or in the mechanical or ornamental arts.
(i) Occupancy refers to use of lands as a site for any type of useful structure whatsoever.
(j) Outdoor recreation includes, but is not limited to, hunting, fishing, trapping, photography, horseback riding, picnicking, hiking, camping, swimming, boating, rock and mineral collecting, sightseeing, mountain climbing, and skiing.
(k) Timber production refers to the growth of trees in forests and woodlands.
(l) Watershed protection refers to maintenance of the stability of soil and soil cover and the control of the natural flow of water.
(m) Wilderness refers to areas in a native condition or reverted to a native condition, substantially free of man-made structures and human habitation.
(n) Public value refers to an asset held by, or a service performed for, or a benefit accruing to the people at large.
(o) Multiple use means the management of the various surface and subsurface resources so that they are utilized in the combination that will best meet the present and future needs of the American people; the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; and harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output.
(p) Sustained yield of the several products and services means the achievement and maintenance of a high-level annual or regular periodic output of the various renewable resources of land without impairment of the productivity of the land.
PART 2410 – CRITERIA FOR ALL LAND CLASSIFICATIONS
Subpart 2410 – General Criteria
§ 2410.1 All classifications.
All classifications under the regulations of this part will give due consideration to ecology, priorities of use, and the relative values of the various resources in particular areas. They must be consistent with all the following criteria:
(a) The lands must be physically suitable or adaptable to the uses or purposes for which they are classified. In addition, they must have such physical and other characteristics as the law may require them to have to qualify for a particular classification.
(b) All present and potential uses and users of the lands will be taken into consideration. All other things being equal, land classifications will attempt to achieve maximum future uses and minimum disturbance to or dislocation of existing users.
(c) All land classifications must be consistent with State and local government programs, plans, zoning, and regulations applicable to the area in which the lands to be classified are located, to the extent such State and local programs, plans, zoning, and regulations are not inconsistent with Federal programs, policies, and uses, and will not lead to inequities among private individuals.
(d) All land classifications must be consistent with Federal programs and policies, to the extent that those programs and policies affect the use or disposal of the public lands.
§ 2410.2 Relative value, disposal or retention.
When, under the criteria of this part, a tract of land has potential for either retention for multiple use management or for some form of disposal, or for more than one form of disposal, the relative scarcity of the values involved and the availability of alternative means and sites for realization of those values will be considered. Long-term public benefits will be weighed against more immediate or local benefits. The tract will then be classified in a manner which will best promote the public interests.
PART 2420 – MULTIPLE-USE MANAGEMENT CLASSIFICATIONS
Subpart 2420 – Criteria for Multiple-Use Management Classifications
§ 2420.1 Use of criteria.
In addition to the general criteria in subpart 2410, the following criteria will be used to determine whether public lands will be retained, in Federal ownership and managed for domestic livestock grazing, fish and wildlife development and utilization, industrial development, mineral production, occupancy, outdoor recreation, timber production, watershed protection, wilderness preservation, or preservation of public values that would be lost if the land passed from Federal ownership.
§ 2420.2 Criteria.
Lands may be classified for retention under the Classification and Multiple Use Act of September 19, 1964 (78 Stat. 986, 43 U.S.C. 1411-18), if they are not suitable for disposal under the criteria set forth in part 2430 and such classification will do one or more of the following:
(a) Assist in effective and economical administration of the public lands in furtherance of the several objectives of such administration as expressed in the various public land laws.
(b) Further the objectives of Federal natural resource legislation directed, among other things towards:
(1) Stabilization and development of the livestock industry dependent upon Federal lands, such as sections 1 and 15 of the Taylor Grazing Act (43 U.S.C. 315 and 315m), and the Alaska Grazing Act (48 U.S.C. 471-471o).
(2) Provision or preservation of adequate areas of public hunting and fishing grounds and public access thereto, and maintenance of habitat and food supplies for the fish and wildlife dependent upon the public lands and maintained under Federal and State programs, such as section 9 of the Taylor Grazing Act (43 U.S.C. 315h) and the Fish and Wildlife Coordination Act (16 U.S.C. 661-666c).
(3) Fostering the economy of the nation by industrial and mineral development, such as through the materials sales and mineral leasing laws (Group 3000 of this chapter) and the rights-of-way laws (Group 2800 of this chapter).
(4) Realization of the beneficial utilization of the public lands through occupancy leases, such as under the Recreation and Public Purposes Act (43 U.S.C. 869-869-4) and the Small Tract Act (43 U.S.C. 682a-682e).
(5) Provision of needed recreation, conservation, and scenic areas and open space (42 U.S.C. 1500-1500e) and assurance of adequate outdoor recreation resources for present and future generations of Americans (16 U.S.C. 460-1 et seq.).
(6) Stabilization of the timber industry and dependent communities and sustained-yield production of timber and other forest products, such as the Materials Sales Act (30 U.S.C. 601-604), and, in connection with management of other Federal lands, the O and C Act (43 U.S.C. 1181a-1181f, 1181g-1181j).
(7) Protection of frail lands, conservation of productive soils and water supplies, and prevention of damage and loss due to excessive runoff, flooding, salination, and siltation, such as the Soil and Moisture Conservation Act (16 U.S.C. 590a et seq.) and section 2 of the Taylor Grazing Act (43 U.S.C. 315a).
(c) Preservation of public values that would be lost if the land passed from Federal ownership (43 U.S.C. 1411-1418) such as where
(1) The lands are needed to protect or enhance established Federal programs, by such means as provision of buffer zones, control of access, maintenance of water supplies, reduction and prevention of water pollution, exclusion of nonconforming inholdings, maintenance of efficient management areas, provision of research areas, and maintenance of military areas or sites for other government activities.
(2) The lands should be retained in Federal ownership pending enactment of Federal legislation, which would affect them.
(3) The lands should be retained in Federal ownership pending their acquisition by a State or local government.
(4) The lands are best suited for multiple use management and require management for a mixture of uses in order to best benefit the general public and such management could not be achieved if the lands were in private ownership.
(5) The lands contain scientific, scenic, historic, or wilderness values which would be lost to the general public if they were transferred out of Federal ownership.
(6) Transfer of the lands would be inconsistent with national objectives for the preservation of natural beauty of the country and the proper utilization of open space.
PART 2430 – DISPOSAL CLASSIFICATIONS
Subpart 2430 – Criteria for Disposal Classifications
§ 2430.1 Use of criteria.
In addition to the general criteria in subpart 2410 the following criteria will govern classifications under the authorities listed in § 2400.0-3 for sale, selection, grant or other disposal under the Public Land Sale Act (78 Stat. 988, 43 U.S.C. 1421-1427) and other laws authorizing the Secretary of the Interior to dispose of public lands. The criteria are set forth in terms of land use classes. Where appropriate, the applicability of specific disposal laws to lands in each use class is discussed.
§ 2430.2 General criteria for disposal classification.
The general approach to determine the act under which lands are to be classified and disposed of is as follows:
(a) Consideration under criteria listed in this part will first be given to whether the lands can be classified for retention for multiple use management, for disposal, or for both. If, under these criteria, they could be classified for both, the principles of § 2410.2 will be applied.
(b) If the lands are found to be suitable for disposal, consideration under the criteria of this part will be given to whether the lands are needed for urban or suburban purposes or whether they are chiefly valuable for other purposes. Lands found to be valuable for public purposes will be considered chiefly valuable for public purposes, except in situations where alternate sites are available to meet the public needs involved.
§ 2430.3 Additional criteria for classification of lands needed for urban or suburban purposes.
(a) To be needed for urban or suburban purposes it must be anticipated that a community will embrace the lands within 15 years.
(b) Lands determined to be needed for urban or suburban purposes may be classified for sale pursuant to the Public Land Sale Act as being required for the orderly growth and development of a community, if (1) adequate zoning regulations are in effect and (2) adequate local governmental comprehensive plans have been adopted.
(c) Lands determined to be needed for urban or suburban purposes may be classified for disposal under any appropriate law other than the Public Land Sale Act, if disposal under such other authority would be consistent with local comprehensive plans, or in the absence of such plans, with the views of local governmental authorities.
(d) Where more than one form of disposal is possible, the authorized officer will select that course of action which will best promote development of the land for urban or suburban purposes.
§ 2430.4 Additional criteria for classification of lands valuable for public purposes.
(a) To be valuable for public purposes, lands must be suitable for use by a State or local governmental entity or agency for some noncommercial and nonindustrial governmental program or suitable for transfer to a non-Federal interest in a transaction which will benefit a Federal, State, or local governmental program.
(b) Lands found to be valuable for public purposes may be classified for sale pursuant to the Public Land Sale Act as chiefly valuable for public uses or development or for transfer in satisfaction of a State land grant, or for transfer to a State or local governmental agency in exchange for other property, or for transfer to a governmental agency under any applicable act of Congress other than the Recreation and Public Purposes Act (44 Stat. 741), as amended (43 U.S.C. 869-869-4), if (1) the proposed use includes profit activities or if the interested, qualified governmental agency and the authorized officer agree that there is no need for the perpetual dedication of the lands to public uses required by the Recreation and Public Purposes Act, and (2) in the case of sales under the Public Land Sale Act, adequate zoning regulations exist in the area in which the lands are located.
(c) Lands found to be valuable for public purposes will ordinarily be classified for sale or lease under the Recreation and Public Purposes Act (see part 2740 and subpart 2912 of this chapter) if the proposed use involves nonprofit activities and if it is determined by the authorized officer that the provisions of that Act are required to insure the continued dedication of the lands to such uses, or otherwise to carry out the purposes of the Act.
(d) Lands may be classified for exchange under appropriate authority where they are found to be chiefly valuable for public purposes because they have special values, arising from the interest of exchange proponents, for exchange for other lands which are needed for the support of a Federal program.
§ 2430.5 Additional criteria for classification of lands valuable for residential, commercial, agricultural, or industrial purposes.
(a) Lands which have value for residential, commercial, agricultural, or industrial purposes, or for more than one of such purposes, will be considered chiefly valuable for that purpose which represents the highest and best use of the lands, i.e., their most profitable legal use in private ownership.
(b) Lands may be classified for sale pursuant to the Public Land Sale Act as being chiefly valuable for residential, commercial, agricultural, or industrial uses or development (other than grazing use or use for raising native forage crops), if (1) adequate zoning regulations are in effect, and, where the lands also are needed for urban or suburban development, (2) adequate local governmental comprehensive plans have been adopted.
(c) Lands determined to be valuable for residential, commercial, agricultural, or industrial purposes may be classified for disposal under any appropriate authority other than the Public Land Sale Act if (1) disposal under such other authority would be consistent with local governmental comprehensive plans, or (2) in the absence of such plans, with the views of local governmental authorities.
(d) Lands outside of Alaska may be classified as suitable for homestead entry under part 2510 of this chapter if they are (1) chiefly valuable for agricultural purposes, and (2) suitable for development as a home and farm for a man and his family, and (3) the anticipated return from agricultural use of the land would support the residents. If it is determined that the irrigation of land otherwise suitable for homestead entry would endanger the supply of adequate water for existing users or cause the dissipation of water reserves, such land will not be classified for entry. Land may be classified for homestead entry only if rainfall is adequate, or if under State law, there is available to the land sufficient irrigation water, to permit agricultural development of its cultivable portions.
(e) Lands may be classified as suitable for desert land entry under part 2520 of this chapter if (1) the lands are chiefly valuable for agricultural purposes, and (2) all provisions concerning irrigation water set forth in § 2430.5(d) are met.
(f) Lands outside of Alaska may be classified as suitable for Indian allotment under part 2530 of this chapter if (1) the lands are valuable for agricultural purposes, and (2) the lands are on the whole suitable for a home for an Indian and his family, and (3) the anticipated return from agricultural use of the land would support the residents, and (4) the requirements for water supplies set forth in § 2430.5(d) are met.
(g) Lands determined to be valuable for purposes other than public purposes may be determined to be suitable for exchange if the acquisition of the offered lands, the disposition of the public lands, and the anticipated costs of consummating the exchange will not disrupt governmental operations.
§ 2430.6 Additional criteria for lands valuable for other purposes.
Lands may be classified for disposal under any applicable authority where they are found to be chiefly valuable for purposes other than those described in §§ 2430.2-2430.5 of this section and to be not suitable for retention for multiple use management.
PART 2440 – SEGREGATION BY CLASSIFICATION
Subpart 2440 – Criteria for Segregation
§ 2440.1 Use of criteria.
The following criteria will govern the determination of the extent to which classifications and proposed classifications will segregate the affected lands from settlement, location, sale, selection, entry, lease, or other forms of disposal under the public land laws, including the mining and mineral leasing laws. The segregative effect of each classification or proposed classification will be governed by applicable laws and regulations, and will be stated in the classification notice or decision.
§ 2440.2 General criterion.
The public lands classified or proposed to be classified under the regulations of this part will be kept open to (i.e., not segregated from) as many forms of disposal as possible consistent with the purposes of the classification and the resource values of the lands.
§ 2440.3 Specific criteria for segregative effect of classification for retention.
(a) Public lands classified or proposed to be classified for retention for multiple-use management will be segregated from those forms of disposal which, if the lands remain open thereto, could:
(1) Interfere significantly with the management of the lands under principles of multiple use and sustained yield, or
(2) Impair or prevent, to an appreciable extent, realization of public values in the lands, or
(3) Impair or prevent, to an appreciable extent, realization of the objectives of retention and management set forth in part 2420, or
(4) Lead to unnecessary expenditures of public or private funds arising out of individual efforts to acquire public lands under laws, which are in fact not applicable, because of the nature of the resources of the lands.
(b) In applying the criteria in paragraph (b)(1) of this section, land shall not be closed to mining location unless the nonmineral uses would be inconsistent with and of greater importance to the public interest than the continued search for a deposit of valuable minerals.
§ 2440.4 Specific criteria for segregative effect of classification for disposal.
Public lands classified or proposed to be classified for disposal will be segregated from those forms of disposal which, if the lands remained open thereto, could interfere with the orderly disposal of the lands pursuant to appropriate law. Public lands classified or proposed to be classified for sale under the Public Land Sale Act (78 Stat. 988, 43 U.S.C. 1411-18) will be segregated from all forms of disposal under the mining and mineral leasing laws.
PART 2450 – PETITION-APPLICATION CLASSIFICATION SYSTEM
Subpart 2450 – Petition-Application Procedures
§ 2450.1 Filing of petition.
(a) When (1) land must be classified or designated pursuant to the authorities cited in § 2400.0-3 before an application may be approved and (2) the filing of applications is permitted prior to classification, the application together with a petition for classification on a form approved by the Director (hereinafter referred to collectively as a petition-application) must be filed in accordance with the provisions of § 1821.2 of this chapter. Lists indicating the proper office for filing of applications may be obtained from the Director or any other officer of the Bureau of Land Management. Copies of the petition for classification form and the application forms may be obtained from the proper offices or from the Bureau of Land Management, Washington, DC 20240.
§ 2450.2 Preliminary determination.
Upon the filing of a petition-application, the authorized officer shall make a preliminary determination as to whether it is regular upon its face and, where there is no apparent defect, shall proceed to investigate and classify the land for which it has been filed. No further consideration will be given to the merits of an application or the qualifications of an applicant unless or until the land has been classified for the purpose for which the petition-application has been filed.
§ 2450.3 Proposed classification decision.
(a) The State Director shall make and issue a proposed classification decision which shall contain a statement of reasons in support thereof. Such decisions shall be served upon (1) each petitioner-applicant for the land, (2) any grazing permittee, licensee, or lessee on the land, or his representative, (3) the District Advisory Board, (4) the local governing board, planning commission, State coordinating committee, or other official or quasi-official body having jurisdiction over zoning in the geographic area within which the lands are located, and (5) any governmental officials or agencies from whom the record discloses comments on the classification have been received. If the decision affects more than 2,560 acres and would lead to the disposal of the lands, the decision will also be published in accordance with the provisions of subpart 2462.
(b) When there are multiple petition-applications for the same land, the proposed classification decision shall state which petition-application, if any, will be entitled to preference under applicable law; or where no petition-application has been filed for the purpose for which the land is proposed to be classified, the decision shall so state.
(1) When multiple petition-applications have been filed for the same land, the one first filed for the purpose for which the land is classified will be entitled to preference under applicable law.
(2) When two or more petition-applications have been simultaneously filed for the purpose for which the land is classified, the petition-application entitled to preference will be the first to be selected by drawing.
(3) If no petition-application has been filed for the purpose for which it is proposed to classify the land, the proposed decision shall state that the land will be opened to application by all qualified individuals on an equal-opportunity basis after public notice.
§ 2450.4 Protests: Initial classification decision.
(a) For a period of 30 days after the proposed classification decision has been served upon the parties listed in § 2450.3(a), protests thereto may be filed by an interested party with the State Director. No particular form of protest is required under this subparagraph, it being the intent of this procedure to afford the State Director the opportunity to review the proposed classification decision in the light of such protests.
(b) If no protests are filed within the time allowed, the proposed classification action shall be issued as the initial classification decision of the State Director, and shall be served on the petitioner-applicants and upon grazing permittees, licensees, or lessees.
(c) If protests are timely filed, they shall be reviewed by the State Director, who may require statements or affidavits, take testimony, or conduct further field investigations as are deemed necessary to establish the facts. At the conclusion of such review, the State Director shall issue an initial classification decision, either revised or as originally proposed, which shall be served on all interested parties.
§ 2450.5 Administrative review.
(a) For a period of 30 days after service thereof upon all parties in interest, the initial classification decision of the State Director shall be subject to the exercise of supervisory authority by the Secretary of the Interior for the purpose of administrative review.
(b) If, 30 days from receipt by parties in interest of the initial decision of the State Director, the Secretary has not either on his own motion, or motion of any protestant, petitioner-applicant, or the State Director, exercised supervisory authority for review, the initial classification decision shall become the final order of the Secretary.
(c) The exercise of supervisory authority by the Secretary shall automatically vacate the initial classification decision and the final Departmental decision shall be issued by the Secretary of the Interior and served upon all parties in interest.
(d) No petitioner-applicant or protestant to a proposed classification decision of a State Director to whom the provisions of this section are applicable shall be entitled to any administrative review other than that provided by this section or to appeal under provisions of parts 1840 and 1850 of this chapter.
§ 2450.6 Effect of final order.
(a) A final order of the Secretary shall continue in full force and effect so long as the lands remain subject to classification under the authorities cited in subpart 2400 until an authorized officer revokes or modifies it. Until it is so revoked or modified, all applications and petition-applications for the lands not consistent with the classification of the lands will not be allowed. Any payments submitted therewith will be returned. If the order is revoked or modified, the land will be opened to entry on an equal-opportunity basis after public notice in accordance with applicable regulations for the purpose for which it may be classified.
(b) Nothing in this section, however, shall prevent the Secretary of the Interior, personally and not through a delegate, from vacating or modifying a final order of the Secretary. In the event that the Secretary vacates or modifies a final order within sixty days of the date it became final, any preference right of a petitioner-applicant will be restored.
§ 2450.7 Right to occupy or settle.
The filing of a petition-application gives no right to occupy or settle upon the land. A person shall be entitled to the possession and use of land only after his entry, selection, or location has been allowed, or a lease has been issued. Settlement on the land prior to that time constitutes a trespass.
§ 2450.8 Preference right of petitioner-applicant.
Where public land is classified for entry under section 7 of the Taylor Grazing Act or under the Small Tract Act pursuant to a petition-application filed under this part, the petitioner-applicant is entitled to a preference right of entry, if qualified. If, however, it should be necessary thereafter for any reason to reject the application of the preference right claimant, the next petitioner-applicant in order of filing shall succeed to the preference right. If there is no other petitioner-applicant the land may be opened to application by all qualified individuals on an equal-opportunity basis after public notice or the classification may be revoked by the authorized officer.
PART 2460 – BUREAU INITIATED CLASSIFICATION SYSTEM
Subpart 2461 – Multiple-Use Classification Procedures
§ 2461.0-1 Purpose.
Formal action to classify land for retention for multiple use management will be governed by the following procedures
§ 2461.1 Proposed classifications.
(a) Proposed classifications will be clearly set forth on a map by the authorized officer, and on the Land Office records.
(1) Notice of proposed classifications involving more than 2,560 acres will be, and those involving 2,560 acres or less may be, published in the
(2) Notice of the proposals will be sent to authorized users, licensees, lessees, and permittees, or their selected representatives, the head of the governing body of the political subdivision of the State, if any, having jurisdiction over zoning in the geographic area in which the lands are located, the governor of that State, the BLM multiple use advisory board in that State, and the District advisory board and to any other parties indicating interest in such classifications.
(3) The notice will indicate where and when the map and Land Office records may be examined. The notice will specify the general location of the lands, the acreage involved, and the extent to which the land is proposed to be segregated from settlement, location, sale, selection, entry, lease, or other form of disposal under the public land laws, including the mining and mineral leasing laws. The notice of proposed classification will specify the period during which comments will be received, which will not be less than 60 days from date of publication of the notice.
(4) The authorized officer will hold a public hearing on the proposal if (i) the proposed classification will affect more than 25,000 acres or (ii) he determines that sufficient public interest exists to warrant the time and expense of a hearing.
§ 2461.2 Classifications.
Not less than 60 days after publication of the proposed classification, a classification will be made by the authorized officer, and a notice of classification published in the
§ 2461.3 Administrative review.
For a period of 30 days after publication of the classification in the
§ 2461.4 Changing classifications.
Classifications may be changed, using the procedures specified in this subpart.
§ 2461.5 Segregative effect.
Segregative effect of classifications and proposed classifications:
(a) Publication in the
(b) The segregative effect of a proposed classification will terminate in one of the following ways:
(1) Classification of the lands within 2 years of publication of the notice of proposed classification in the
(2) Publication in the
(3) An Act of Congress;
(4) Expiration of a 2-year period from the date of publication of the notice of proposed classification without continuance as prescribed by the Classification and Multiple Use Act, or expiration of an additional period, not exceeding 2 years, if the required notice of proposed continuance is given.
(c) The segregative effect of a classification for retention will terminate in one of the following ways:
(1) Reclassification of the lands for some form of disposal;
(2) Publication in the
(3) An Act of Congress;
(4) Expiration of the classification.
Subpart 2462 – Disposal Classification Procedure: Over 2,560 Acres
§ 2462.0-3 Authority.
Section 2 of the Classification and Multiple Use Act of September 19, 1964 (78 Stat. 986, 43 U.S.C. 1412), requires the Secretary of the Interior to take certain actions when he proposes the classification for sale or other disposal under any statute of a tract of land in excess of 2,560 acres.
§ 2462.1 Publication of notice of, and public hearings on, proposed classification.
The authorized officer shall publish a notice of his proposed classification in the
§ 2462.2 Publication of notice of classification.
After having considered the comments received as the result of publication, the authorized officer may classify the lands any time after the expiration of 60 days following the publication of the proposed classification in the
§ 2462.3 Administrative review.
For a period of 30 days after publication in the
§ 2462.4 Segregative effect of publication.
(a) Publication in the
(b) The segregative effect of a proposed classification will terminate in one of the following ways:
(1) Classification of the lands within 2 years of publication of the notice of proposed classification in the
(2) Publication in the
(3) An Act of Congress;
(4) Expiration of a 2-year period from the date of publication of the notice of proposed classification without continuance as prescribed by the Classification and Multiple Use Act of September 19, 1964 (78 Stat. 986, 43 U.S.C. 1411-18), or expiration of an additional period, not exceeding 2 years, if the required notice of proposed continuance is given.
(c) The segregative effect of a classification for sale or other disposal will terminate in one of the following ways:
(1) Disposal of the lands;
(2) Publication in the
(3) An Act of Congress;
(4) Expiration of 2 years from the date of publication of the proposed classification without disposal of the land and without the notice of proposed continuance as prescribed by the Classification and Multiple Use Act; or
(5) Expiration of an additional period, not exceeding 2 years, if the required notice of proposed continuance is given.
PART 2470 – POSTCLASSIFICATION ACTIONS
Subpart 2470 – Opening and Allowance
§ 2470.1 Opening of lands to disposal.
After lands have been classified for disposal, the authorized officer shall, at the appropriate time, open the lands to those forms of disposal consistent with the classification.
§ 2470.2 Allowance and entry.
(a) After lands are classified pursuant to the regulations of this part, and opened for entry or other disposal, all the laws and regulations governing the particular kind of entry, location, selection, or other disposal must be complied with in order for title to vest or other interests to pass.
(b) After lands are classified for disposal under the regulations of this subpart, the lands shall be offered for sale or other disposal consistent with the classification. If a petitioner-applicant does not have a preference right under § 2450.8, the lands shall be opened on an equal-opportunity basis.
The information collection requirements contained in parts 2520, 2530, 2540 and 2560 of Group 2500 have been approved by the Office of Management and Budget under 44 U.S.C. 3507 and assigned clearance numbers 1004-0004, 1004-1010, 1004-0011, 1004-0023, 1004-0026, 1004-0028, 1004-0029 and 1004-0069. The information is being collected to permit the authorized officer to determine whether certain petitions or applications for use and occupancy of the public lands should be granted. The information will be used to make that determination. A response is required to obtain a benefit.
PART 2520 – DESERT-LAND ENTRIES
Subpart 2520 – Desert-Land Entries: General
§ 2520.0-1 Purpose.
(a) It is the purpose of the statutes governing desert-land entries to encourage and promote the reclamation, by irrigation, of the arid and semiarid public lands of the Western States through individual effort and private capital, it being assumed that settlement and occupation will naturally follow when the lands have thus been rendered more productive and habitable.
§ 2520.0-3 Authority.
The Act of March 3, 1877 (19 Stat. 377; 43 U.S.C. 321-323) as amended by the Act of March 3, 1891 (26 Stat. 1096; 43 U.S.C. 231, 323, 325, 327-329), provides for the making of desert-land entries in the States of Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming.
§ 2520.0-5 Definitions.
(a) As used in the desert-land laws and the regulations of this subpart:
(1) Reclamation requires conducting water in adequate amounts and quality to the land so as to render it available for distribution when needed for irrigation and cultivation.
(2) Cultivation requires the operation, practice, or act of tillage or preparation of land for seed, and keeping the ground in a state favorable for the growth of crops.
(3) Irrigation requires the application of water to land for the purpose of growing crops.
(4) Crop includes any agricultural product to which the land under consideration is generally adapted and which would return a fair reward for the expense of producing it.
(5) Water supply, to be adequate, must be sufficient to irrigate successfully and to reclaim all of the irrigable land embraced in an entry.
(6) Water right means the authority, whether by prior ownership, contract, purchase, or appropriation in accordance with state law, to use water on the land to be irrigated.
§ 2520.0-7 Cross references.
(a) For assignment of desert-land entries within Government reclamation projects, see § 2524.5(a).
(b) For provisions under Appeals and Hearings see parts 1840 and 1850 of this chapter.
(c) For relinquishments, in general, see subpart 1825 of this chapter.
(d) For residence and cultivation requirements under the homestead laws, see § 2511.4-2(a).
§ 2520.0-8 Land subject to disposition.
(a) Land that may be entered as desert land. (1) As the desert-land law requires the artificial irrigation of any land entered thereunder, lands which are not susceptible of irrigation by practicable means are not deemed subject to entry as desert lands. The question as to whether any particular tract sought to be entered as desert land is in fact irrigable from the source proposed by the applicant will be investigated and determined before the application for entry is allowed. In order to be subject to entry under the desert-land law, public lands must be not only irrigable but also surveyed, unreserved, unappropriated, non-mineral (except lands withdrawn, classified, or valuable for coal, phosphate, nitrate, potash, sodium, sulphur, oil, gas or asphaltic minerals, which may be entered with a reservation of such mineral deposits, as explained in subpart 2093, nontimbered, and such as will not, without artificial irrigation, produce any reasonably remunerative agricultural crop by the usual means or methods of cultivation. In this latter class are those lands which, one year with another for a series of years, will not without irrigation produce paying crops, but on which crops can be successfully grown in alternate years by means of the so-called dry-farming system. (37 L.D. 522 and 42 L.D. 524.)
(2) Applications to make desert-land entries of lands embraced in applications, permits, or leases under the Act of February 25, 1920 (41 Stat. 437), if in all other respects complete, will be treated in accordance with §§ 2093.0-3 to 2093.0-7. Applications to make desert-land entries of lands within a naval petroleum reserve must be rejected, as no desert-land entry may be allowed for such lands.
(3) Land that has been effectually reclaimed is not subject to desert land entry.
(b) Quantity of lands that may be entered. An entry of lands under the Act of March 3, 1877, is limited to 320 acres, subject to the following additional limitations:
(1) An entry of lands within an irrigation district which the Secretary of the Interior or his delegate has approved under the Act of August 11, 1916 (39 Stat. 506; 43 U.S.C. 621-630), is limited to 160 acres.
(2) An entryman may have a desert-land entry for such a quantity of land as, taken together with all land acquired and claimed by him under the other agricultural land laws since August 30, 1890, does not exceed 320 acres in the aggregate, or 480 acres if he shall have made an enlarged homestead entry of 320 acres (Acts of August 30, 1890; 26 Stat. 391; 43 U.S.C. 212; and of February 27, 1917; 39 Stat. 946; 43 U.S.C. 330).
(c) Entries restricted to surveyed lands. Unsurveyed public land withdrawn by Executive Orders 6910 and 6964 of November 26, 1934, and February 5, 1935, respectively, is not subject to appropriation, under the desert-land laws, until such appropriation has been authorized by classification. (See parts 2410, 2420, and 2430.)
(d) Economic unit requirements, compactness. (1) One or more tracts of public lands may be included in a desert land entry and the tracts so entered need not be contiguous. All the tracts entered, however, shall be sufficiently close to each other to be managed satisfactorily as an economic unit. In addition, the lands in the entry must be in as compact a form as possible taking into consideration the character of available public lands and the effect of allowance of the entry on the remaining public lands in the area.
(2) In addition to the other requirements of the regulations in this part, applicants for desert land entry must submit with their applications information showing that the tracts applied for are sufficiently close to each other to be managed satisfactorily as an economic unit and that the lands in the application are as compact as possible in the circumstances.
(3) In determining whether an entry can be allowed in the form sought, the authorized officer of the Bureau of Land Management will take into consideration such factors as the topography of the applied for and adjoining lands, the availability of public lands near the lands sought, the private lands farmed by the applicant, the farming systems and practices common to the locality and the character of the lands sought, and the practicability of farming the lands as an economically feasible operating unit.
Subpart 2521 – Procedures
§ 2521.1 Who may make desert-land entry.
(a) Citizenship. (1) Any citizen of the United States 21 years of age, or any person of that age who has declared his intention of becoming a citizen of the United States, and who can truthfully make the statements specified in §§ 2520.0-8(c) and 2521.2(a) can make a desert-land entry. Thus, a woman, whether married or single, who possesses the necessary qualifications, can make a desert-land entry, and, if married, without taking into consideration any entries her husband may have made.
(2) At the time of making final proof claimants of alien birth must have been admitted to citizenship, but evidence of naturalization need not be furnished if it has already been filed in connection with the original declaration or with the proof of an assignment of the entry.
(b) Second and additional entries. A person’s right of entry under the desert-land law is exhausted either by filing an allowable application and withdrawing it prior to its allowance or by making an entry or by taking an assignment of an entry, in whole or in part, except under the conditions described in paragraphs (b)(1) and (2) of this section.
(1) Under the Act of September 5, 1914 (38 Stat. 712; 43 U.S.C. 182), if a person, otherwise duly qualified to make a desert-land entry, has previously filed an allowable application, or made such entry or entries and through no fault of his own has lost, forfeited, or abandoned the same, such person may make another entry. In such case, however, it must be shown that the prior application, entry, or entries were made in good faith, and were lost, forfeited, or abandoned because of matters beyond the applicant’s control, and that the applicant has not speculated in his right, nor committed a fraud or attempted fraud in connection with such prior entry or entries. As the assignment of an entry involves no loss, forfeiture, or abandonment thereof, but carries a benefit to the assignor, it is held to exhaust his right of entry under the desert-land law. Hence, no person who has assigned such entry, in whole or in part, will be permitted to make another entry or to take one or any part thereof by assignment except where paragraph (b)(2) of this section applies.
(2) The Act of June 16, 1955 (69 Stat. 138) authorizes any person who prior to June 16, 1955, made a valid desert-land entry on lands subject to the Acts of June 22, 1910 (36 Stat. 583; 30 U.S.C. 33-85), or of July 17, 1914 (38 Stat. 509; 30 U.S.C. 121-123), if otherwise qualified to enter as a personal privilege not assignable, an additional tract of desert land, providing such additional tract shall not, together with the original entry, exceed 320 acres. Applicants and entrymen under the Act of June 16, 1955, are subject to, and must comply with, all the regulations of this part, including the acreage limitations of § 2520.0-8(b).
§ 2521.2 Petitions and applications.
(a) Filing and fees. (1) A person who desires to enter public lands under the desert land laws must file an application together with a petition on forms approved by the Director, properly executed. However, if the lands described in the application have been already classified and opened for disposition under the desert land laws, no petition is required. The documents must be filed in the proper office (see § 1821.2-1 of this chapter).
(2) All applications must be accompanied by an application service fee of $15 which is not returnable, and the payment of 25 cents per acre for the lands therein described as required by law.
(b) Post-office addresses of applicants and witnesses. Applicants and witnesses must in all cases state their places of actual residence, their business or occupation, and their post-office addresses. It is not sufficient to name only the county or State in which a person lives, but the town or city must be named also; and where the residence is in a city the street and number must be given. It is especially important to claimants that upon changing their post-office addresses they promptly notify the authorizing officer of such change, for in case of failure to do so their entries may be canceled upon notice sent to the address of record but not received by them.
(c) Execution of applications and proofs; time for filing of applications. (1) Applications and proofs, except final proofs required by R.S. 2294 (43 U.S.C. 254), must be signed by the applicants but need not be under oath. Final proofs may be executed before any officer authorized to administer oaths in public land cases, as explained by § 1821.3-2 of this chapter.
(2) An application to make desert-land entry is not acceptable if dated more than 10 days before its filing at the land office.
(d) Evidence of water rights required with application. No desert-land application will be allowed unless accompanied by evidence satisfactorily showing either that the intending entryman has already acquired by appropriation, purchase, or contract a right to the permanent use of sufficient water to irrigate and reclaim all of the irrigable portion of the land sought, or that he has initiated and prosecuted, as far as then possible, appropriate steps looking to the acquisition of such a right, or, in States where no permit or right to appropriate water is granted until the land embraced within the application is classified as suitable for desert-land entry or the entry is allowed, a showing that the applicant is otherwise qualified under State law to secure such permit or right. If applicant intends to procure water from an irrigation district, corporation, or association, but is unable to obtain a contract for the water in advance of the allowance of his entry, then he must furnish, in lieu of the contract, some written assurance from the responsible officials of such district, corporation, or association that, if his entry be allowed, applicant will be able to obtain from that source the necessary water. The authorizing officer will examine the evidence submitted in such applications and either reject defective applications or require additional evidence.
§ 2521.3 Assignment.
(a) Lands which may be assigned. While by the Act of March 3, 1891 (26 Stat. 1096; 43 U.S.C. 329), assignments of desert-land entries were recognized, the Department of the Interior, largely for administrative reasons, held that a desert-land entry might be assigned as a whole or in its entirety, but refused to recognize the assignment of only a portion of an entry. The Act of March 28, 1908, however, provides for an assignment of such entries, in whole or in part, but this does not mean that less than a legal subdivision may be assigned. Therefore no assignment, otherwise than by legal subdivisions, will be recognized. The legal subdivisions assigned must be contiguous.
(b) Qualifications of assignees. (1) The Act of March 28, 1908, also provides that no person may take a desert-land entry by assignment unless he is qualified to enter the tract so assigned to him. Therefore, if a person is not at least 21 years of age and, excepting Nevada, a resident citizen of the State wherein the land involved is located; or if he is not a ciitzen of the United States, or a person who has declared his intention to become a citizen thereof; or, if he has made a desert-land entry in his own right and is not entitled under § 2521.1 to make a second or an additional entry, he cannot take such an entry by assignment. The language of the act indicates that the taking of an entry by assignment is equivalent to the making of an entry, and this being so, no person is allowed to take more than one entry by assignment, unless it be done as the exercise of a right of second or additional entry.
(2) A person who has the right to make a second or additional desert-land entry may exercise that right by taking an assignment of a desert-land entry, or part of such entry, if he is otherwise qualified to make a desert-land entry for the particular tract assigned.
(3) The Act of March 28, 1908, also provides that no assignment to or for the benefit of any corporation shall be authorized or recognized.
(c) Showing required of assignees; recognition of assignments. (1) As evidence of the assignment there should be transmitted to the authorizing officer the original deed of assignment or a certified copy thereof. Where the deed of assignment is recorded a certified copy may be made by the officer who has custody of the record. Where the original deed is presented to an officer qualified to take proof in desert-land cases, a copy certified by such officer will be accepted.
(2) An assignee must file with his deed of assignment, a statement on a form approved by the Director, showing his qualifications to take the entry assigned to him. He must show what applications or entries, if any, have been made by him or what entries assigned to him under the agricultural public land laws, and he must also show his qualifications as a citizen of the United States; that he is 21 years of age or over; and also that he is a resident citizen of the State in which the land assigned to him is situated, except in the State of Nevada, where citizenship of the United States only is required. If the assignee is not a native-born citizen of the United States, he should also furnish a statement as to his citizenship status in accordance with subpart 1811 of this chapter. If the assignee is a woman, she should in all cases state whether she is married, and if so, she must make the showing required by subpart 1811 of this chapter. Desert-land entries are initiated by the payment of 25 cents per acre, and no assignable right is acquired by the application prior to such payment. (6 L.D. 541, 33 L.D. 152.) An assignment made on the day of such payment, or soon thereafter, is treated as suggesting fraud, and such cases will be carefully scrutinized. The provisions of law authorizing the assignment of desert entries, in whole or in part, furnish no authority to a claimant under said law to make an executory contract to convey the land after the issuance of patent and thereafter to proceed with the submission of final proof in furtherance of such contract. (34 L.D. 383.) The sale of land embraced in an entry at any time before final payment is made must be regarded as an assignment of the entry, and in such cases the person buying the land must show that he possesses all the qualifications required of an assignee. (29 L.D. 453.) The assignor of a desert-land entry may execute the assignment before any officer authorized to take acknowledgements of deeds. The assignee must furnish a statement on a form approved by the Director as to his qualifications.
(3) No assignments of desert-land entries or parts of entries are conclusive until examined in the proper office and found satisfactory and the assignment recognized. When recognized, however, the assignee takes the place of the assignor as effectively as though he had made the entry, and is subject to any requirement that may be made relative thereto. The assignment of a desert-land entry to one disqualified to acquire title under the desert-land law, and to whom, therefore, recognition of the assignment is refused by the authorizing officer, does not of itself render the entry fraudulent, but leaves the right thereto in the assignor. In such connection, however, see 42 L.D. 90 and 48 L.D. 519.
(4) All applications for recognition of assignment of desert-land entries must be accompanied by an application service fee of $10 which will not be returnable.
§ 2521.4 When lands may be sold, taxed, or mortgaged.
(a) After final proof and payment have been made the land may be sold and conveyed to another person without the approval of the Bureau of Land Management, but all such conveyances are nevertheless subject to the superior rights of the United States, and the title so contained would fall if it should be finally determined that the entry was illegal or that the entryman had failed to comply with the law.
(b) Lands embraced in unperfected desert-land entries are not subject to taxation by the State authorities, nor to levy and sale under execution to satisfy judgments against the entrymen, except as hereinafter set forth in this section.
(c) Lands embraced in desert-land entries within an irrigation district which the Secretary of the Interior has approved under the Act of August 11, 1916 (39 Stat. 506; 43 U.S.C. 621-630), may be taxed and otherwise dealt with as provided by said act, and lands in desert-land entries within irrigation projects constructed under the Reclamation Act may be taxed as provided for by the Act of June 13, 1930 (46 Stat. 581; 43 U.S.C. 455, 455a-455c).
(d) A desert-land entryman may, however, mortgage his interest in the entered land if, by the laws of the State in which the land is situated, a mortgage of land is regarded as merely creating a lien thereon and not as a conveyance thereof. The purchaser at a sale had for the foreclosure of such mortgage may be recognized as assignee upon furnishing proof of his qualifications to take a desert-land entry by assignment. Transferees, after final proof, mortgagees, or other encumbrancers may file in the proper office written notice stating the nature of their claims, and they will there upon become entitled to receive notice of any action taken by the Bureau of Land Management with reference to the entry.
(e) The filing of all notices of recordation of claim by transferees, mortgagees or other encumbrancer under this section must be accompanied by a service charge of $10 which will not be returnable.
§ 2521.5 Annual proof.
(a) Showing required. (1) In order to test the sincerity and good faith of claimants under the desert-land laws and to prevent the segregation for a number of years of public lands in the interest of persons who have no intention to reclaim them, Congress, in the Act of March 3, 1891 (26 Stat. 1096; 43 U.S.C. 327, 328) made the requirement that a map be filed at the initiation of the entry showing the mode of contemplated irrigation and the proposed source of water supply, and that there be expended yearly for 3 years from the date of the entry not less than $1 for each acre of the tract entered, making a total of not less than $3 per acre, in the necessary irrigation, reclamation, and cultivation of the land, in permanent improvements thereon, and in the purchase of water rights for the irrigation thereof, and that at the expiration of the third year a map or plan be filed showing the character and extent of the improvements placed on the claim. Said act, however, authorizes the submission of final proof at an earlier date than 4 years from the time the entry is made in cases wherein reclamation has been effected and expenditures of not less than $3 per acre have been made.
(2) Yearly or annual proof of expenditures must consist of the statements of two or more credible witnesses, each of whom must have general knowledge that the expenditures were made for the purpose stated in the proof. Annual proofs must contain itemized statements showing the manner in which expenditures were made.
(b) Acceptable expenditures. (1) Expenditures for the construction and maintenance of storage reservoirs, dams, canals, ditches, and laterals to be used by claimant for irrigating his land; for roads where they are necessary; for erecting stables, corrals, etc.; for digging wells, where the water therefrom is to be used for irrigating the land; for stock or interest in an approved irrigation company, or for taxes paid to an approved irrigation district through which water is to be secured to irrigate the land; and for leveling and bordering land proposed to be irrigated, will be accepted. Expenditures for fencing all or a portion of the claim, for surveying for the purpose of ascertaining the levels for canals, ditches, etc., and for the first breaking or clearing of the soil are also acceptable.
(2) The value to be attached to, and the credit to be given for, an expenditure for works or improvements is the reasonable value of the work done or improvement placed upon the land, according to the market price therefor, or for similar work or improvements prevailing in the vicinity, and not the amount alleged by a claimant to have been expended nor the mere proof of expenditures, as exhibited by checks or other vouchers. (Bradley v. Vasold, 36 L.D. 106.)
(c) Expenditures not acceptable. (1) Expenditures for cultivation after the soil has been first prepared may not be accepted, because the claimant is supposed to be compensated for such work by the crops to be reaped as a result of cultivation. Expenditures for surveying the claim in order to locate the corners of same may not be accepted. The cost of tools, implements, wagons, and repairs to same, used in construction work, may not be computed in cost of construction. Expenditures for material of any kind will not be allowed unless such material has actually been installed or employed in and for the purpose for which it was purchased. For instances, if credit is asked for posts and wire for fences or for pump or other well machinery, it must be shown that the fence has been actually constructed or the well machinery actually put in place. No expenditures can be credited on annual proofs upon a desert-land entry unless made on account of that particular entry, and expenditures once credited can not be again applied. This rule applies to second entries as well as to original entries, and a claimant who relinquishes his entry and makes second entry of the same land under the Act of September 5, 1914, cannot receive credit on annual proofs upon the second entry for expenditures made on account of the former entry. (41 L.D. 601 and 42 L.D. 523.)
(2) Expenditures for the clearing of the land will not receive credit in cases where the vegetation or brush claimed to have been cleared away has not been actually removed by the roots. Therefore, expenditures for clearing, where as a matter of fact there has been only crushing, or rolling, or what is known in some localities as railing the land will not be accepted.
(3) No expenditures for stock or interest in an irrigation company, through which water is to be secured for irrigating the land, will be accepted as satisfactory annual expenditure until a field examiner, or other authorized officer, has submitted a report as to the resources and reliability of the company, including its actual water right, and such report has been favorably acted upon by the Bureau of Land Management. The stock purchased must carry the right to water, and it must be shown that payment in cash has been made at least to the extent of the amount claimed as expenditure for the purchase of such stock in connection with the annual proof submitted, and such stock must be actually owned by the claimants at the time of the submission of final proof.
(d) Procedure where proof is not made when due. Authorizing officers will examine their records frequently for the purpose of ascertaining whether all annual proofs due on pending desert-land entries have been made, and in every case where the claimant is in default in that respect they will send him notice and allow him 60 days in which to submit such proof. If the proof is not furnished as required the entry will be canceled. During the pendency of a Government proceeding initiated by such notice the entry will be protected against a private contest charging failure to make the required expenditures, and such contest will neither defeat the claimant’s right to equitably perfect the entry as to the matter of expenditures during the 60 days allowed in the notice nor secure to the contestant a preference right in event the entry be canceled for default under said notice.
(e) Desert land entry in more than one district. When a desert-land entry embraces land in more than one district, the required annual proofs may be filed in either district, provided proper reference is made to the portion of the entry in the adjoining district, and the entryman must notify the authorized officer of the adjoining district by letter of the date when the annual proof is filed.
(f) Extensions of time. (1) The law makes no provision for extensions of time in which to file annual proof becoming due subsequent to December 31, 1936, on desert-land entries not embraced within the exterior boundaries of any withdrawal or irrigation project under the Reclamation Act of June 17, 1902 (32 Stat. 388), and extensions for said purpose cannot therefore be granted. However, where a township is suspended from entry for the purpose of resurvey thereof the time between the date of suspension and the filing in the local office of the new plat of survey will be excluded from the period accorded by law for the reclamation of land under a desert entry within such township and the statutory life of the entry extended accordingly (40 L.D. 223). During the continuance of the extension the claimant may, at his option, defer the making of annual expenditures and proof thereof.
(2) Extensions of time for making desert-land proofs were authorized by the Acts of June 16, 1933 (48 Stat. 274; 43 U.S.C. 256a), July 26, 1935 (49 Stat. 504; 43 U.S.C. 256a), and June 16, 1937 (50 Stat. 303; 43 U.S.C. 256a). Such acts affect only proofs becoming due on or before December 31, 1936. For that reason, the regulations which were issued thereunder have not been included in this chapter.
(g) Submission of proof before due date. Nothing in the statutes or regulations should be construed to mean that the entryman must wait until the end of the year to submit his annual proof because the proof may be properly submitted as soon as the expenditures have been made. Proof sufficient for the 3 years may be offered whenever the amount of $3 an acre has been expended in reclaiming and improving the land, and thereafter annual proof will not be required.
§ 2521.6 Final proof.
(a) General requirements. The entryman, his assigns, or, in case of death, his heirs or devisees, are allowed 4 years from date of the entry within which to comply with the requirements of the law as to reclamation and cultivation of the land and to submit final proof, but final proof may be made and patent thereon issued as soon as there has been expended the sum of $3 per acre in improving, reclaiming, and irrigating the land, and one-eighth of the entire area entered has been properly cultivated and irrigated, and when the requirements of the desert-land laws as to water rights and the construction of the necessary reservoirs, ditches, dams, etc., have been fully complied with.
(1) Where the proof establishes that the entryman cannot effect timely compliance with the law, the entry must be canceled unless statutory authority permits the granting of an extension of time or other relief.
(b) Notice of intention to make final proof. When an entryman has reclaimed the land and is ready to make final proof, he should apply to the authorizing officer for a notice of intention to make such proof. This notice must contain a complete description of the land, give the number of the entry and name of the claimant, and must bear an endorsement specifically indicating the source of his water supply. If the proof is made by an assignee, his name, as well as that of the original entryman, should be stated. It must also show when, where and before whom the proof is to be made. Four witnesses may be named in this notice, two of whom must be used in making proof. Care should be exercised to select as witnesses persons who are familiar, from personal observation, with the land in question, and with what has been done by the claimant toward reclaiming and improving it. Care should also be taken to ascertain definitely the names and addresses of the proposed witnesses, so that they may correctly appear in the notice.
(c) Publication of final-proof notice. The authorizing officer will issue the usual notice for publication. This notice must be published once a week for five successive weeks in a newspaper of established character and general circulation published nearest the lands (see 38 L.D. 131; 43 L.D. 216). The claimant must pay the cost of the publication but it is the duty of authorizing officers to procure the publication of proper final-proof notices. The date fixed for the taking of the proof must be at least 30 days after the date of first publication. Proof of publication must be made by the statement of the publisher of the newspaper or by someone authorized to act for him.
(d) Submission of final proof. On the day set in the notice (or, in the case of accident or unavoidable delay, within 10 days thereafter), and at the place and before the officer designated, the claimant will appear with two of the witnesses named in the notice and make proof of the reclamation, cultivation, and improvement of the land. The testimony of each claimant should be taken separately and apart from and not within the hearing of either of his witnesses, and the testimony of each witness should be taken separately and apart from and not within the hearing of either the applicant or of any other witness, and both the applicant and each of the witnesses should be required to state, in and as a part of the final-proof testimony given by them, that they have given such testimony without any actual knowledge of any statement made in the testimony of either of the others. In every instance where, for any reason whatever, final proof is not submitted within the 4 years prescribed by law, or within the period of an extension granted for submitting such proof, a statement should be filed by claimant, with the proof, explaining the cause of delay.
(e) Showing as to irrigation system. The final proof must show specifically the source and volume of the water supply and how it was acquired and how it is maintained. The number, length, and carrying capacity of all ditches, canals, conduits, and other means to conduct water to and on each of the legal subdivisions must also be shown. The claimant and the witnesses must each state in full all that has been done in the matter of reclamation and improvements of the land, and must answer fully, of their own personal knowledge, all of the questions contained in the final-proof blanks. They must state plainly whether at any time they saw the land effectually irrigated, and the different dates on which they saw it irrigated should be specifically stated.
(f) Showing as to lands irrigated and reclaimed. While it is not required that all of the land shall have been actually irrigated at the time final proof is made, it is necessary that the one-eighth portion which is required to be cultivated shall also have been irrigated in a manner calculated to produce profitable results, considering the character of the land, the climate, and the kind of crops being grown. (Alonzo B. Cole, 38 L.D. 420.) The cultivation and irrigation of the one-eighth portion of the entire area entered may be had in a body on one legal subdivision or may be distributed over several subdivisions. The final proof must clearly show that all of the permanent main and lateral ditches, canals, conduits, and other means to conduct water necessary for the irrigation of all the irrigable land in the entry have been constructed so that water can be actually applied to the land as soon as it is ready for cultivation. If pumping be relied upon as the means of irrigation, the plant installed for that purpose must be of sufficient capacity to render available enough water for all the irrigable land. If there are any high points or any portions of the land which for any reason it is not practicable to irrigate, the nature, extent, and situation of such areas in each legal subdivision must be fully stated. If less than one-eighth of a smallest legal subdivision is practically susceptible of irrigation from claimant’s source of water supply and no portion thereof is used as a necessary part of his irrigation scheme, such subdivision must be relinquished. (43 L.D. 269.)
(g) Showing as to tillage of land. As a rule, actual tillage of one-eighth of the land must be shown. It is not sufficient to show only that there has been a marked increase in the growth of grass or that grass sufficient to support stock has been produced on the land as a result of irrigation. If, however, on account of some peculiar climatic or soil conditions, no crops except grass can be successfully produced, or if actual tillage will destroy or injure the productive quality of the soil, the actual production of a crop of hay of merchantable value will be accepted as sufficient compliance with the requirements as to cultivation. (32 L.D. 456.) In such cases, however, the facts must be stated and the extent and value of the crop of hay must be shown, and, as before stated, that same was produced as a result of actual irrigation.
(h) Showing as to water right. (1) In every case where the claimant’s water right is founded upon contract or purchase the final proof must embrace evidence which clearly establishes the fact and legal sufficiency of that right. If claimant’s ownership of such right has already been evidenced in connection with the original entry or some later proceeding, then the final proof must show his continued possession thereof. If the water right relied on is obtained under claimant’s appropriation, the final proof, considered together with any evidence previously submitted in the matter, must show that the claimant has made such preliminary filings as are required by the laws of the State in which the land is located, and that he has also taken all other steps necessary under said laws to secure and perfect the claimed water right. In all cases the water right, however it be acquired, must entitle the claimant to the use of a sufficient supply of water to irrigate successfully all the irrigable land embraced in his entry, notwithstanding that the final proof need only show the actual irrigation of one-eighth of that area.
(2) In those States where entrymen have made applications for water rights and have been granted permits but where no final adjudication of the water right can be secured from the State authorities owing to delay in the adjudication of the watercourses or other delay for which the entrymen are in no way responsible, proof that the entrymen have done all that is required of them by the laws of the State, together with proof of actual irrigation of one-eighth of the land embraced in their entries, may be accepted. This modification of the rule that the claimant must furnish evidence of an absolute water right will apply only in those States where under the local laws it is impossible for the entryman to secure final evidence of title to his water right within the time allowed him to submit final proof on his entry, and in such cases the best evidence obtainable must be furnished. (35 L.D. 305.)
(3) It is a well-settled principle of law in all of the States in which the desert land acts are operative that actual application to a beneficial use of water appropriated from public streams measures the extent of the right to the water, and that failure to proceed with reasonable diligence to make such application to beneficial use within a reasonable time constitutes an abandonment of the right. (Wiel’s Water Rights in the Western States, sec. 172.) The final proof, therefore, must show that the claimant has exercised such diligence as will, if continued, under the operation of this rule result in his definitely securing a perfect right to the use of sufficient water for the permanent irrigation and reclamation of all of the irrigable land in his entry. To this end the proof must at least show that water which is being diverted from its natural course and claimed for the specific purpose of irrigating the lands embraced in claimant’s entry, under a legal right acquired by virtue of his own or his grantor’s compliance with the requirements of the State laws governing the appropriation of public waters, has actually been conducted through claimant’s main ditches to and upon the land; that one-eighth of the land embraced in the entry has been actually irrigated and cultivated; that water has been brought to such a point on the land as to readily demonstrate that the entire irrigable area may be irrigated from the system; and that claimant is prepared to distribute the water so claimed over all of the irrigable land in each smallest legal subdivision in quantity sufficient for practical irrigation as soon as the land shall have been cleared or otherwise prepared for cultivation. The nature of the work necessary to be performed in and for the preparation for cultivation of such part of the land as has not been irrigated should be carefully indicated, and it should be shown that the said work of preparation is being prosecuted with such diligence as will permit of beneficial application of appropriated water within a reasonable time.
(4) Desert-land claimants should bear in mind that a water right and a water supply are not the same thing and that the two are not always or necessarily found together. Strictly speaking, a perfect and complete water right for irrigation purposes is confined to and limited by the area of land that has been irrigated with the water provided thereunder. Under the various State laws, however, an inchoate or incomplete right may be obtained which is capable of ripening into a perfect right if the water is applied to beneficial use with reasonable diligence. A person may have an apparent right of this kind for land which he has not irrigated, and which, moreover, he never can irrigate because of the lack of available water to satisfy his apparent right. Such an imperfect right, of course, cannot be viewed as meeting the requirements of the desert-land law which contemplates the eventual reclamation of all the irrigable land in the entry. Therefore, and with special reference to that portion of the irrigable land of an entry not required to be irrigated and cultivated before final proof, an incomplete (though real) water right will not be acceptable if its completion appears to be impossible because there is no actual supply of water available under the appropriation in question.
(i) Showing where water supply is derived from irrigation project. (1) Where the water right claimed in any final proof is derived from an irrigation project it must be shown that the entryman owns such an interest therein as entitles him to receive from the irrigation works of the project a supply of water sufficient for the proper irrigation of the land embraced in his entry. Investigations by field examiners as to the resources and reliability, including particularly the source and volume of the water supply, of all irrigation companies associations, and districts through which desert-land entrymen seek to acquire water rights for the reclamation of their lands are made, and it is the purpose of the Bureau of Land Management to accept no annual or final proofs based upon such a water right until an investigation of the company in question has been made and report thereon approved. The information so acquired will be regarded as determining, at least tentatively, the amount of stock or interest which is necessary to give the entryman a right to a sufficient supply of water; but the entryman will be permitted to challenge the correctness of the report as to the facts alleged and the validity of its conclusions and to offer either with his final proof or subsequently such evidence as he can tending to support his contentions.
(2) Entrymen applying to make final proof are required to state the source of their water supply, and if water is to be obtained from the works of an irrigation company, association, or district the authorizing officer will endorse the name and address of the project upon the copy of the notice to be forwarded to the State Director. If the report on the company has been acted upon by the Bureau of Land Management and the proof submitted by claimant does not show that he owns the amount of stock or interest in the company found necessary for the area of land to be reclaimed, the authorizing officer will suspend the proof, advise the claimant of the requirements made by the Bureau of Land Management in connection with the report, and allow him 30 days within which to comply therewith or to make an affirmative showing in duplicate and apply for a hearing. In default of any action by him within the specified time the authorizing officer will reject the proof, subject to the usual right of appeal.
(j) Final-proof expiration notice. (1) Where final proof is not made within the period of 4 years, or within the period for which an extension of time has been granted, the claimant will be allowed 90 days in which to submit final proof. (44 L.D. 364.)
(2) Should no action be taken within the time allowed, the entry will be canceled. The 90 days provided for in this section must not be construed as an extension of time or as relieving the claimant from the necessity of explaining why the proof was not made within the statutory period or within such extensions of that period as have been specifically granted.
(k) Requirements where township is suspended for resurvey. No claimant will be required to submit final proof while the township embracing his entry is under suspension for the purpose of resurvey. (40 L.D. 223.) This also applies to annual proof. In computing the time when final proof on an entry so affected will become due the period between the date of suspension and the filing in the local office of the new plat of survey will be excluded. However, if the claimant so elects, he may submit final proof on such entry notwithstanding the suspension of the township.
§ 2521.7 Amendments.
(a) To enlarge area of desert-land entry. Amendment for the purpose of enlarging the area of a desert-land entry will be granted under and in the conditions and circumstances now to be stated.
(1) In any case where it is satisfactorily disclosed that entry was not made to embrace the full area which might lawfully have been included therein because of existing appropriations of all contiguous lands then appearing to be susceptible of irrigation through and by means of entryman’s water supply, or of all such lands which seemed to be worthy of the expenditure requisite for that purpose, said lands having since been released from such appropriations.
(2) Where contiguous tracts have been omitted from entry because of entryman’s belief, after a reasonably careful investigation, that they could not be reclaimed by means of the water supply available for use in that behalf, it having been subsequently discovered that reclamation thereof can be effectively accomplished by means of a changed plan or method of conserving or distributing such water supply.
(3) Where, at the time of entry, the entryman announced, in his declaration, his purpose to procure the cancellation, through contest or relinquishment, of an entry embracing lands contiguous to those entered by him, and thereafter to seek amendment of his entry in such manner as to embrace all or some portion of the lands so discharged from entry.
(b) Conditions governing amendments in exercise of equitable powers; amendments involving homestead and desert-land entries of adjoining lands. Applications for amendment presented pursuant to § 1821.6-5(a) of this chapter will not be granted, except where at least one legal subdivision of the lands originally entered is retained in the amended entry, and any such application must be submitted within 1 year next after discovery by the entryman of the existence of the conditions relied upon as entitling him to the relief he seeks, or within 1 year succeeding the date on which, by the exercise of reasonable diligence, the existence of such conditions might have been discovered: Provided, nevertheless, That where an applicant for amendment has made both homestead and desert land entries for contiguous lands, amendment may be granted whereby to transfer the desert-land entry, in its entirety, to the land covered by the homestead entry, and the homestead entry, in its entirety, to the land covered by the desert-land entry, or whereby to enlarge the desert-land entry in such manner as that it will include the whole or some portion of the lands embraced in the homestead entry, sufficient equitable reason for such enlargement being exhibited, and the area of the enlarged entry in no case exceeding 320 acres. Applications for such amendments may be made under §§ 1821.6-1 to 1821.6-5 of this chapter and on the prescribed form, in so far as the same are applicable. A supplemental statement should also be furnished, if necessary, to show the facts.
(c) Evidence of water-right to accompany application to amend desert-land entry. Application to amend desert-land entries by the addition of a new and enlarged area or by transferring the entry to lands not originally selected for entry must be accompanied by evidence of applicant’s right to the use of water sufficient for the adequate irrigation of said enlarged area or of the lands to which entry is to be transferred. Such evidence must be in the form prescribed by § 2521.2.
§ 2521.8 Contests.
(a) Contests may be initiated by any person seeking to acquire title to or claiming an interest in the land involved against a party to any desert-land entry because of priority of claim or for any sufficient cause affecting the legality or validity of the claim not shown by the records of the Bureau of Land Management.
(b) Successful contestants will be allowed a preference right of entry for 30 days after notice of the cancellation of the contested entry, in the same manner as in homestead cases, and the authorizing officer will give the same notice and is entitled to the same fee for notice as in other cases.
§ 2521.9 Relinquishments.
A desert-land entry may be relinquished at any time by the party owning the same. Conditional relinquishments will not be accepted.
Subpart 2522 – Extensions of Time To Make Final Proof
(a) There are five general Acts of Congress which authorize the allowance, under certain conditions, of an extension of time for the submission of final proof by a desert-land claimant. Said Acts are the following: June 27, 1906 (Sec. 5, 34 Stat. 520; 43 U.S.C. 448); March 28, 1908 (Sec. 3, 35 Stat. 52; 43 U.S.C. 333); April 30, 1912 (37 Stat. 106; 43 U.S.C. 334); March 4, 1915 (Sec. 5, 38 Stat. 1161; 43 U.S.C. 335); and February 25, 1925 (43 Stat. 982; 43 U.S.C. 336). The Act of June 27, 1906, is applicable only to entries embraced within the exterior limits of some withdrawal or irrigation project under the Reclamation Act of June 17, 1902 (32 Stat. 388).
(b) In addition to the Acts cited in this section, extensions of time for making desert-land proofs were authorized by the Acts of June 16, 1933 (48 Stat. 274; 43 U.S.C. 256a), July 26, 1935 (49 Stat. 504; 43 U.S.C. 256a), and June 16, 1937 (50 Stat. 303; 43 U.S.C. 256a). Such Acts affect only proofs becoming due on or before December 31, 1936. For that reason, the regulations which were issued thereunder have not been included in this chapter.
§ 2522.2 Procedure on applications for extensions of time, where contest is pending.
(a) A pending contest against a desert-land entry will not prevent the allowance of an application for extension of time, where the contest affidavit does not charge facts tending to overcome the prima facie showing of right to such extension (41 L.D. 603).
(b) Consideration of an application for extension of time will not be deferred because of the pendency of a contest against the entry in question unless the contest charges be sufficient, if proven, to negative the right of the entryman to an extension of time for making final proof. If the contest charges be insufficient, the application for extension, where regular in all respects, will be allowed and the contest dismissed subject to the right of appeal, but without prejudice to the contestant’s right to amend his charges.
§ 2522.3 Act of March 28, 1908.
Under the provisions of the Act of March 28, 1908 (35 Stat. 52; 43 U.S.C. 333), the period of 4 years may be extended, in the discretion of the authorized officer, for an additional period not exceeding 3 years, if, by reason of some unavoidable delay in the construction of the irrigating works intended to convey water to the land, the entryman is unable to make proof of reclamation and cultivation required within the 4 years. This does not mean that the period within which proof may be made will be extended as a matter of course for 3 years. Applications for extension under said act will not be granted unless it be clearly shown that the failure to reclaim and cultivate the land within the regular period of 4 years was due to no fault on the part of the entryman but to some unavoidable delay in the construction of the irrigation works for which he was not responsible and could not have readily foreseen (37 L.D. 332). It must also appear that he has complied with the law as to annual expenditures and proof thereof.
§ 2522.4 Act of April 30, 1912.
(a) Under the provisions of the Act of April 30, 1912 (37 Stat. 106; 43 U.S.C. 334), a further extension of time may be granted for submitting final proof, not exceeding 3 years, where it is shown that, because of some unavoidable delay in the construction of irrigation works intended to convey water to the land embraced in his entry, the claimant is, without fault on his part, unable to make proof of the reclamation and cultivation of said lands within the time limited therefor, but such further extension cannot be granted for a period of more than 3 years nor affect contests initiated for a valid existing reason.
(b) An entryman who has complied with the law as to annual expenditures and proof thereof and who desires to make application for extension of time under the provisions of the Act of March 28, 1908, should file with the authorizing officer a statement setting forth fully the facts, showing how and why he has been prevented from making final proof of reclamation and cultivation within the regular period. This statement must be corroborated by two witnesses who have personal knowledge of the facts.
§ 2522.5 Act of February 25, 1925.
Applications for further extension of time under the Act of April 30, 1912, and February 25, 1925 (43 Stat. 982; 43 U.S.C. 336), may be made in the same manner, and the same procedure will be followed with respect to such applications as under the Act of March 28, 1908, and the Act of March 4, 1915 (38 Stat. 1161; 43 U.S.C. 335), as amended.
§ 2522.6 Service fees.
All applications for extension of time made under the Acts of March 28, 1908, April 30, 1912, or February 25, 1925, must be accompanied by an application service fee of $10 which will not be returnable.
Subpart 2523 – Payments
§ 2523.1 Collection of purchase money and fees; issuance of final certificate.
(a) At the time of making final proof the claimant must pay to the authorizing officer the sum of $1 per acre for each acre of land upon which proof is made. This, together with the 25 cents per acre paid at the time of making the original entry, will amount to $1.25 per acre, which is the price to be paid for all lands entered under the desert land law.
(b) If the entryman is dead and proof is made by anyone for the heirs, no will being suggested in the record, the final certificate should issue to the heirs generally, without naming them; if by anyone for the heirs or devisees, final certificate should issue in like manner to the heirs or devisees.
(c) When final proof is made on an entry made prior to the Act of March 28, 1908 (35 Stat. 52; 43 U.S.C. 324, 326, 333), for unsurveyed land, if the land is still unsurveyed and such proof is satisfactory, the authorizing officer will approve same without collecting the final payment of $1 an acre and without issuing final certificate. Fees for reducing the final-proof testimony to writing should be collected and receipt issued therefor if the proof is taken before the authorizing officer. As soon as the plat or plats of any township or townships previously unsurveyed are filed in the proper office the authorizing office will examine his records for the purpose of determining, if possible, whether or not, prior to the passage of the Act of March 28, 1908, any desert-land entry of unsurveyed land was allowed in the locality covered by the said plats; and if any such entries are found intact, he will call upon the claimants thereof to file a statement of adjustment, corroborated by two witnesses, giving the correct description, in accordance with the survey of the lands embraced in their respective entries.
(d) If the final proof has been made upon any desert-land entry so adjusted and the records show that such proof has been found satisfactory and no conflicts or other objections are apparent, the manager will allow claimant 60 days within which to make final payment for the land.
§ 2523.2 Amounts to be paid.
No fees or commissions are required of persons making entry under the desert land laws except such fees as are paid to the officers for taking the affidavits and proofs. Unless the entry be perfected under the Act of February 14, 1934 (48 Stat. 349; 43 U.S.C. 339), the only payments made to the Government are the original payment of 25 cents an acre at the time of making the application and the final payment of $1 an acre, to be paid at the time of making the final proof. On all final proofs made before the authorizing officer, the claimant must pay to the authorizing officer the costs of reducing the testimony to writing, as determined by the authorizing officer. No proof shall be accepted or approved until all charges have been paid.
Subpart 2524 – Desert-Land Entries Within a Reclamation Project
§ 2524.1 Conditions excusing entrymen from compliance with the desert-land laws.
(a) By section 5 of the Act of June 27, 1906 (34 Stat. 520, 43 U.S.C. 448), it is provided that any desert-land entryman who has been or may be directly or indirectly hindered or prevented from making improvements on or from reclaiming the lands embraced in his entry, by reason of the fact that such lands have been embraced within the exterior limits of any withdrawal under the Reclamation Act of June 17, 1902 (32 Stat. 388; 43 U.S.C. 372 et seq.) will be excused during the continuance of such hindrance from complying with the provisions of the desert-land laws.
(b) Persons excused from compliance with the desert-land laws. Section 5 of the Act of June 27, 1906, applies only to persons who have been, directly or indirectly, delayed or prevented, by the creation of any reclamation project, or by any withdrawal of public lands under the reclamation law, from improving or reclaiming the lands covered by their entries.
(c) Statement required to warrant excuse. No entryman will be excused under this act from a compliance with all of the requirements of the desert-land law until he has filed in the proper office for the district in which his lands are situated a statement showing in detail all of the facts upon which he claims the right to be excused. This statement must show when the hindrance began, the nature, character, and extent of the same, and it must be corroborated by two disinterested persons, who can testify from their own personal knowledge.
§ 2524.2 Annual proof.
(a) Extension of time. Inasmuch as entrymen are allowed 1 year after entry in which to submit the first annual proof of expenditures for the purpose of improving and reclaiming the land entered by them, the privileges of the Act of June 27, 1906, are not necessary in connection with annual proofs until the expiration of the years in which such proofs are due. Therefore, if at the time that annual proof is due it can not be made, on account of hindrance or delay occasioned by a withdrawal of the land for the purpose indicated in the act, the applicant will file his statement explaining the delay. As a rule, however, annual proofs may be made, notwithstanding the withdrawal of the land, because expenditures for various kinds of improvements are allowed as satisfactory annual proofs. Therefore an extension of time for making annual proof will not be granted unless it is made clearly to appear that the entryman has been delayed or prevented by the withdrawal from making the required improvements; and, unless he has been so hindered or prevented from making the required improvements, no application for extension of time for making final proof will be granted until after all the yearly proofs have been made.
(b) When application for extension of time should be filed. An entryman will not need to invoke the privileges of the Act of June 27, 1906, in connection with final proof until such final proof is due, and if at that time he is unable to make the final proof of reclamation and cultivation, as required by law, and such inability is due, directly or indirectly, to the withdrawal of the land on account of a reclamation project, the statement explaining the hindrance and delay should be filed in order that the entryman may be excused for such failure.
§ 2524.3 Time extended to make final proof.
When the time for submitting final proof has arrived and the entryman is unable, by reason of the withdrawal of the land, to make such proof, upon proper showing, he will be excused and the time during which it is shown that he has been hindered or delayed on account of the withdrawal of the land will not be computed in determining the time within which final proof must be made.
§ 2524.4 Beginning of period for compliance with the law.
If, after investigation the irrigation project has been or may be abandoned by the Government, the time for compliance with the law by the entryman shall begin to run from the date of notice of such abandonment of the project and of the restoration to the public domain of the lands which had been withdrawn in connection with the project. If, however, the reclamation project is carried to completion by the Government and a water supply has been made available for the land embraced in such desert-land entry, the entryman must, if he depends on the Government’s project for his water supply, comply with all provisions of the reclamation law, and must under the Act of June 6, 1930 (46 Stat. 502; 43 U.S.C. 448), relinquish or assign in not less than 2 years after notice all the land embraced in his entry in excess of one farm unit, and upon making final proof and complying with the regulations of the Department applicable to the remainder of the irrigable land of the project and with the terms of payment prescribed in the reclamation law, he shall be entitled to patent as to such retained farm unit, and final water-right certificate containing lien as provided for by the Act of August 9, 1912 (37 Stat. 265; 43 U.S.C. 541-546), Act of August 26, 1912 (37 Stat. 610; 43 U.S.C. 547), and the Act of February 15, 1917 (39 Stat. 920; 43 U.S.C. 541), or to patent without a lien if provision therefor shall have been made as provided for by the Act of May 15, 1922 (42 Stat. 541; 43 U.S.C. 511-513).
§ 2524.5 Assignment of desert-land entries in whole or in part.
(a) Act of July 24, 1912. Under the Act of July 24, 1912 (37 Stat. 200; 43 U.S.C. 449), desert-land entries covering lands within the exterior limits of a Government reclamation project may be assigned in whole or in part, even though water-right application has been filed for the land in connection with the Government reclamation project, or application for an extension of time in which to submit proof on the entry has been submitted, under the Act of June 27, 1906 (34 Stat. 520; 43 U.S.C. 448), as amended by the Act of June 6, 1930 (46 Stat. 502; 43 U.S.C. 448), requiring reduction of the area of the entry to one farm unit.
(b) Amendment of farm-unit plat after partial assignment. Where it is desired to assign part of a desert-land entry which has been designated as a farm unit, application for the amendment of the farm-unit plat should be filed with the official in charge of the project, as in the case of assignments of homestead entries. (See § 2515.5 (a)(3) to (5).) The same disposition of amendatory diagrams will be made and the same procedure followed as provided for assignments of homestead entries.
§ 2524.6 Desert-land entryman may proceed independently of Government irrigation.
Special attention is called to the fact that nothing contained in the Act of June 27, 1906 (34 Stat. 520; 43 U.S.C. 448), shall be construed to mean that a desert-land entryman who owns a water right and reclaims the land embraced in his entry must accept the conditions of the reclamation law, but he may proceed independently of the Government’s plan of irrigation and acquire title to the land embraced in his desert-land entry by means of his own system of irrigation.
§ 2524.7 Disposal of lands in excess of 160 acres.
Desert-land entrymen within exterior boundaries of a reclamation project who expect to secure water from the Government must relinquish or assign all of the lands embraced in their entries in excess of one farm unit in not less than 2 years after notice through the land office, must reclaim one-half of the irrigable area covered by their water right in the same manner as private owners of land irrigated under a reclamation project, and also comply with the regulations of the Department applicable to the remainder of the irrigable land of the project.
§ 2524.8 Cancellation of entries for nonpayment of water-right charges.
All homestead and desert-land entrymen holding land under the reclamation law must, in addition to paying the water-right charges, reclaim the land as required by the reclamation law. Homestead entrymen must reside upon, cultivate, and improve the lands embraced in their entries for not less than the period required by the homestead laws. Desert-land entrymen must comply with the provisions of the desert-land laws as amended by the reclamation law. Failure to make payment of any water-right charges due for more than 1 year, will render the entry subject to cancellation and the money paid subject to forfeiture, whether water-tight application has been made or not.
PART 2530 – INDIAN ALLOTMENTS
Subpart 2530 – Indian Allotments: General
§ 2530.0-3 Authority.
(a) General Allotment Act of February 8, 1887. Section 4 of the General Allotment Act of February 8, 1887 (24 Stat. 389; 25 U.S.C. 334), as amended by the Act of February 28, 1891 (26 Stat. 794), and section 17 of the Act of June 25, 1910 (36 Stat. 859; 25 U.S.C. 336), provides that where any Indian entitled to allotment under existing laws shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled, upon application to the proper office for the district in which the lands are located, to have the same allotted to him or her and to his or her children in manner as provided by law for allotments to Indians residing upon reservations, and that such allotments to Indians on the public domain shall not exceed 40 acres of irrigable land, or 80 acres of nonirrigable agricultural land or 160 acres of nonirrigable grazing land to any one Indian.
(b) Act of March 1, 1933. The Act of March 1, 1933 (47 Stat. 1418; 43 U.S.C. 190a) provides that no further allotments of lands to Indians on the public domain shall be made in San Juan County, Utah.
(c) Executive Orders 6910 and 6964, Taylor Grazing Act of June 28, 1934. Public land withdrawn by Executive Orders 6910 and 6964 of November 26, 1934, and February 5, 1935, respectively, and land within grazing districts established under section 1 of the Taylor Grazing Act of June 28, 1934 (43 U.S.C. 315), is not subject to settlement under section 4 of the General Allotment Act of February 8, 1887, as amended, until such settlement has been authorized by classification. See parts 2410, 2420, and 2430 of this chapter.
§ 2530.0-7 Cross reference.
For native allotments in Alaska see subpart 2561 of this chapter.
§ 2530.0-8 Land subject to allotment.
(a) General. (1) The law provides that allotments may include not to exceed 40 acres of irrigable land, 80 acres of nonirrigable agricultural land, or 160 acres of nonirrigable grazing land.
(2) Irrigable lands are those susceptible of successful irrigation at a reasonable cost from any known source of water supply; nonirrigable agricultural lands are those upon which agricultural crops can be profitably raised without irrigation; grazing lands are those which can not be profitably devoted to any agricultural use other than grazing.
(3) An allotment may be allowed for coal and oil and gas lands, with reservation of the mineral contents to the United States.
Subpart 2531 – Applications, Generally
§ 2531.1 Qualifications of applicants.
(a) General. An applicant for allotment under the fourth section of the Act of February 8, 1887, as amended, is required to show that he is a recognized member of an Indian tribe or is entitled to be so recognized. Such qualifications may be shown by the laws and usages of the tribe. The mere fact, however, that an Indian is a descendant of one whose name was at one time borne upon the rolls and who was recognized as a member of the tribe does not of itself make such Indian a member of the tribe. The possession of Indian blood, not accompanied by tribal affiliation or relationship, does not entitle a person to an allotment on the public domain. Tribal membership, even though once existing and recognized, may be abandoned in respect to the benefits of the fourth section.
(b) Certificate that applicant is Indian and eligible for allotment. Any person desiring to file application for an allotment of land on the public domain under this act must first obtain from the Commissioner of Indian Affairs a certificate showing that he or she is an Indian and eligible for such allotment, which certificate must be attached to the allotment application. Application for the certificate must be made on the proper form, and must contain information as to the applicant’s identity, such as thumb print, age, sex, height, approximate weight, married or single, name of the Indian tribe in which membership is claimed, etc., sufficient to establish his or her identity with that of the applicant for allotment. Each certificate must bear a serial number, record thereof to be kept in the Indian Office. The required forms may be obtained as stated in § 2531.2(b).
(c) Heirs of Indian settlers and applicants. (1) Allotments are allowable only to living persons or those in being at the date of application. Where an Indian dies after settlement and filing of application, but prior to approval, the allotment will upon final approval be confirmed to the heirs of the deceased allottee.
(2) In disposing of pending applications in which the death of the applicant has been reported, the heirs of an applicant who was otherwise qualified at the date of application should be notified that they will be allowed 90 days from receipt of notice within which to submit proof that the applicant personally settled on the land applied for during his or her lifetime, and while the land was open to settlement, and upon failure to submit such proof within the time allowed the application will be finally rejected.
(3) When it is sufficiently shown that an applicant was at the time of death occupying in good faith the land settled on, patent will be issued to his or her heirs without further use or occupancy on the part of such heirs being shown.
(d) Minor children. An Indian settler on public lands under the fourth section of the Act of February 8, 1887, as amended, is also eligible upon application for allotments made thereunder to his minor children, stepchildren, or other children to whom he stands in loco parentis, provided the natural children are in being at the date of the parent’s application, or the other relationship referred to exist at such date. The law only permits one eligible himself under the fourth section to take allotments thereunder on behalf of his minor children or of those to whom he stands in loco parentis. Orphan children (those who have lost both parents) are not eligible for allotments on the public domain unless they come within the last-mentioned class. No actual settlement is required in case of allotments to minor children under the fourth section, but the actual settlement of the parent or of a person standing in loco parentis on his own public-land allotment will be regarded as the settlement of the minor children.
(e) Indian wives. (1) Where an Indian woman is married to non-Indian not eligible for an allotment under the fourth section of the Act of February 8, 1887, as amended, and not a settler or entryman under the general homestead law, her right, and that of the minor children born of such marriage, to allotments on the public domain will be determined without reference to the quantum of Indian blood possessed by such women and her children but solely with reference as to whether they are recognized members of an Indian tribe or are entitled to such membership.
(2) An Indian woman married to an Indian man who has himself received an allotment on the public domain or is entitled to one, or has earned the equitable right to patent on any form of homestead or small holding claim, is not thereby deprived of the right to file an application for herself, provided she is otherwise eligible, and also for her minor children where her husband is for any reason disqualified.
(3) An Indian woman who is separated from her husband who has not received an allotment under the fourth section will be regarded as the head of a family and may file applications for herself and for the minor children under her care.
(4) In every case where an Indian woman files applications for her minor children it must appear that she has not only applied for herself under the fourth section but has used the land in her own application in some beneficial manner.
(f) Citizenship. (1) Under section 6 of the Act of February 8, 1887 (24 Stat. 390; 25 U.S.C. 349), every Indian born within the territorial limits of the United States, to whom allotments were made under that Act, and every Indian who voluntarily takes up his residence separate and apart from any tribe of Indians and adopts the habits of civilized life is declared to be a citizen of the United States.
(2) The Act of May 8, 1906 (34 Stat. 182; 8 U.S.C. 3), changed the time when an Indian became a citizen by virtue of the allotment made to him to the time when patent in fee should be issued on such an allotment.
(3) The Act of June 2, 1924 (43 Stat. 253, 8 U.S.C. 3), conferred citizenship on all noncitizen Indians born within the Territorial limits of the United States, but expressly reserved to them all rights to tribal or other property. These rights include that of allotment on the public land, if qualified.
§ 2531.2 Petition and applications.
(a) Any person desiring to receive an Indian allotment (other than those seeking allotments in national forests, for which see subpart 2533 of this part) must file with the authorized officer, an application, together with a petition on forms approved by the Director, properly executed, together with a certificate from the authorized officer of the Bureau of Indian Affairs that the person is Indian and eligible for allotment, as specified in § 2531.1(b). However, if the lands described in the application have been already classified and opened for disposition under the provisions of this part, no petition is required. The documents must be filed in accordance with the provisions of § 1821.2 of this chapter.
(b) Blank forms for petitions and applications may be had from any office of the Bureau of Indian Affairs, or from land offices of the Bureau of Land Management.
§ 2531.3 Effect of application.
(a) Where an allotment application under the fourth section of the Act of February 8, 1887, as amended, 25 U.S.C. 334 (is not accompanied by the requisite certificate from the Bureau of Indian Affairs showing the applicant to be eligible for an allotment, and the applicant is given time to furnish such certificate, the application does not segregate the land, and other applications therefor may be received and held to await final action on the allotment application.
(b) Where an allotment application is approved by the authorized officer, it operates as a segregation of the land, and subsequent application for the same land will be rejected.
Subpart 2532 – Allotments
§ 2532.1 Certificate of allotment.
(a) When the authorizing officer approves an application for allotment, he will issue to the applicant a certificate of allotment, on a prescribed form, showing the name in full of the applicant, post office address, name of the tribe in which membership is claimed, serial number of the certificate issued by the Commissioner of Indian Affairs, and a description of the land allotted.
(b) Where the application under investigation is that of a single person over 21 years of age, or of the head of a family, report will also be made as to the character of the applicant’s settlement and improvements. A similar report will be made on applications filed in behalf of minor children as to the character of the settlement and improvements made by the parent, or the person standing in loco parentis, on his or her own allotment under the fourth section.
§ 2532.2 Trust patent.
(a) To enable an Indian allottee to demonstrate his good faith and intention, the issuance of trust patent will be suspended for a period of 2 years from date of settlement; but in those cases where that period has already elapsed at the time of adjudicating the allotment application, and when the evidence either by the record or upon further investigation in the field, shows the allottee’s good faith and intention in the matter of his settlement, trust patents will issue in regular course. Trust patents in the suspended class, when issued will run from the date of suspension.
(b) In the matter of fourth-section applications filed prior to the regulations in this part, where, by the record or upon further investigation in the field, it appears that such settlement has not been made as is contemplated by the regulations, such applications will not be immediately rejected, but the applicant will be informed that 2 years will be allowed within which to perfect his settlement and to furnish proof thereof, whereupon his application will be adjudicated as in other cases.
Subpart 2533 – Allotments Within National Forests
§ 2533.0-3 Authority.
By the terms of section 31 of the Act of June 25, 1910 (36 Stat. 863; 25 U.S.C. 337), allotments under the fourth section of the Act of February 8, 1887, as amended, may be made within national forests.
§ 2533.0-8 Land subject to allotment.
An allotment under this section may be made for lands containing coal and oil and gas with reservation of the mineral contents to the United States, but not for lands valuable for metalliferous minerals. The rules governing the conduct of fourth-section applications under the Act of February 8, 1887 as amended, apply equally to applications under said section 31.
§ 2533.1 Application.
An Indian who desires to apply for an allotment within a national forest under this act must submit the application to the supervisor of the particular forest affected, by whom it will be forwarded with appropriate report, through the district forester and Chief, Forest Service, to the Secretary of Agriculture, in order that he may determine whether the land applied for is more valuable for agriculture or grazing than for the timber found thereon.
§ 2533.2 Approval.
(a) Should the Secretary of Agriculture decide that the land applied for, or any part of it, is chiefly valuable for the timber found thereon, he will transmit the application to the Secretary of the Interior and inform him of his decision in the matter. The Secretary of the Interior will cause the applicant to be informed of the action of the Secretary of Agriculture.
(b) In case the land is found to be chiefly valuable for agriculture or grazing, the Secretary of Agriculture will note that fact on the application and forward it to the Commissioner of Indian Affairs.
(c) If the Commissioner of Indian Affairs approves the application, he will transmit it to the Bureau of Land Management for issuance of a trust patent.
PART 2540 – COLOR-OF-TITLE AND OMITTED LANDS
Subpart 2540 – Color-of-Title: Authority and Definitions
§ 2540.0-3 Authority.
(a) Act of December 22, 1928. The Act of December 22, 1928 (45 Stat. 1069), as amended by the Act of July 28, 1953 (67 Stat. 227; 43 U.S.C. 1068, 1068a), authorizes the issuance of patent for not to exceed 160 acres of public lands held under claim or color of title of either of the two classes described in § 2540.0-5(b) upon payment of the sale price of the land.
(b) Act of February 23, 1932. The Act of February 23, 1932 (47 Stat. 53; 43 U.S.C. 178), authorizes the Secretary of the Interior in his discretion to issue patents, upon the payment of $1.25 per acre, for not more than 160 acres of public land, where such land is contiguous to a Spanish or Mexican land grant, and where such land has been held in good faith and in peaceful, adverse possession by a citizen of the United States, his ancestors or grantors, for more than 20 years under claim or color of title and where valuable improvements have been placed on such land, or some part thereof has been reduced to cultivation. The act further provides that where the land is in excess of 160 acres, the Secretary may determine the 160 acres to be patented under the Act. Under the said act the coal and all other minerals in the land are reserved to the United States and shall be subject to sale or disposal under applicable leasing and mineral land laws of the United States.
(c) Act of September 21, 1922. The Act of September 21, 1922 (42 Stat. 992; 43 U.S.C. 992), authorizes the Secretary of the Interior in his judgment and discretion to sell at an appraised price, any of those public lands situated in Arkansas, which were originally erroneously meandered and shown upon the official plats as water-covered areas, and which are not lawfully appropriated by a qualified settler or entryman claiming under the public land laws, to any citizen who in good faith under color of title or claiming as a riparian owner, has prior to September 21, 1922, placed valuable improvements on such land or reduced some part thereof to cultivation.
(d) Act of February 19, 1925. The Act of February 19, 1925 (43 Stat. 951; 43 U.S.C. 993), authorizes the Secretary of the Interior in his judgment and discretion to sell at an appraised price, any of those public lands situated in Louisiana, which were originally erroneously meandered and shown upon the official plats as water-covered areas and which are not lawfully appropriated by a qualified settler or entryman claiming under the public land laws, to any citizen who or whose ancestors in title in good faith under color of title or claiming as a riparian owner, has prior to February 19, 1925, placed valuable improvements upon or reduced to cultivation any of such lands. The coal, oil, gas, and other minerals in such lands are reserved to the United States.
(e) Act of August 24, 1954. The Act of August 24, 1954 (68 Stat. 789), directs the Secretary of the Interior to issue patents for public lands which lie between the meander line of an inland lake or river in Wisconsin as originally surveyed and the meander line of that lake or river as subsequently resurveyed, under certain terms and conditions. The Act of February 27, 1925 (43 Stat. 1013 43 U.S.C. 994), authorized the Secretary of the Interior to sell such public lands under certain other terms and conditions. These Acts are cited as the Act of 1954 and the Act of 1925, respectively, in §§ 2545.1 to 2545.4.
(f) Act of May 31, 1962. (1) The Act of May 31, 1962 (76 Stat. 89), hereafter referred to as the Act, authorizes the Secretary of the Interior, in his discretion, to sell at not less than their fair market value any of those lands in the State of Idaho, in the vicinity of the Snake River or any of its tributaries, which have been, or may be, found upon survey to be omitted public lands of the United States, and which are not within the boundaries of a national forest or other Federal reservation and are not lawfully appropriated by a qualified settler or entryman claiming under the public land laws, or are not used and occupied by Indians claiming by reason of aboriginal rights or are not used and occupied by Indians who are eligible for an allotment under the laws pertaining to allotments on the public domain.
(2) The Act provides that in all patents issued under the Act, The Secretary of the Interior (i) shall include a reservation to the United States of all the coal, oil, gas, oil shale, phosphate, potash, sodium, native asphalt, solid and semisolid bitumen, and bitumen rock (including oil-impregnated rock or sands from which oil is recoverable only by special treatment after the deposit is mined or quarried), together with the right to prospect for, mine, and remove the same; and (ii) may reserve the right of access to the public through the lands and such other reservations as he may deem appropriate and consonant with the public interest in preserving public recreational values in the lands.
(3) The Act further provides that the Secretary of the Interior shall determine the fair market value of the lands by appraisal, taking into consideration any reservations specified pursuant to paragraph (f)(2) of this section and excluding, when sales are made to preference-right claimants under section 2 of the Act, any increased values resulting from the development or improvement thereof for agricultural or other purposes by the claimant or his predecessors in interest.
(4) The Act grants a preference right to purchase lands which are offered by the Secretary of the Interior for sale under the Act to any citizen of the United States (which term includes corporations, partnerships, firms, and other legal entities having authority to hold title to lands in the State of Idaho) who, in good faith under color of title or claiming as a riparian owner has, prior to March 30, 1961, placed valuable improvements upon, reduced to cultivation or occupied any of the lands so offered for sale, or whose ancestors or predecessors in title have taken such action.
(g) The Federal Land Policy and Management Act of 1976.
(1) Section 211 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1721), authorizes the Secretary of the Interior in his discretion to sell at not less than fair market value to the occupant thereof any omitted lands which, after survey, are found to have been occupied and developed for a 5-year period prior to January 1, 1975.
(2) The Act provides that all such conveyances under the Act must be in the public interest and will serve objectives which outweigh all public objectives and values served by retaining such lands in Federal ownership.
(3) Section 208 of the Act (43 U.S.C. 1718) further provides that the Secretary of the Interior shall issue patents subject to such terms, convenants, conditions, and reservations as deemed necessary to insure proper land use and protection of the public interest.
(4) Section 209 of the Act (43 U.S.C. 1719) provides that all patents issued under the Act shall reserve to the United States all minerals in the lands, together with the right to prospect for, mine, and remove the minerals under applicable law and such regulations as the Secretary may prescribe, except as provided by section 209(b) of the Act.
§ 2540.0-5 Definition.
(a) The act, when used in this section means the Act of December 22, 1928 (45 Stat. 1069; 43 U.S.C. 1068, 1068a), as amended by the Act of July 28, 1953 (67 Stat. 227, 43 U.S.C. 1068a).
(b) The claims recognized by the Act will be referred to in this part as claims of class 1, and claim of class 2. A claim of class 1 is one which has been held in good faith and in peaceful adverse possession by a claimant, his ancestors or grantors, under claim or color of title for more than 20 years, on which valuable improvements have been placed, or on which some part of the land has been reduced to cultivation. A claim of class 2 is one which has been held in good faith and in peaceful, adverse possession by a claimant, his ancestors or grantors, under claim or color of title for the period commencing not later than January 1, 1901, to the date of application, during which time they have paid taxes levied on the land by State and local governmental units. A claim is not held in good faith where held with knowledge that the land is owned by the United States. A claim is not held in peaceful, adverse possession where it was initiated while the land was withdrawn or reserved for Federal purposes.
Subpart 2541 – Color-of-Title Act
§ 2541.1 Who may apply.
Any individual, group, or corporation authorized to hold title to land in the State and who believes he has a valid claim under color of title may make application.
§ 2541.2 Procedures.
(a) Application. (1) An application for a claim of class 1 or of class 2 must be filed in duplicate on a form approved by the Director. It must be filed in accordance with the provisions of § 1821.2 of this chapter.
(2) Every application must be accompanied by a filing fee of $10, which will be nonreturnable.
(3) The application must be in typewritten form, or in legible handwriting, and it must be completely executed and signed by the applicant.
(4) Every applicant must furnish information required in the application form concerning improvements, cultivation, conveyances of title, taxes, and related matters.
(b) Description of lands applied for. Application under the act may be made for surveyed or unsurveyed lands. If unsurveyed, the description must be sufficiently complete to identify the location, boundary, and area of the land and, if possible, the approximate description or location of the land by section, township, and range. If unsurveyed land is claimed, final action will be suspended until the plat of survey has been officially filed.
(c) Presentation and verification of factual statements. (1) Information relating to all record and nonrecord conveyances, or to nonrecord claims of title, affecting the land shall be itemized on a form approved by the Director. The statements of record conveyances must be certified by the proper county official or by an abstractor. The applicant may be called upon to submit documentary or other evidence relating to conveyances or claims. Abstracts of title or other documents which are so requested will be returned to the applicant.
(2) Applicants for claims of class 2 must itemize all information relating to tax levies and payments on the land on a form approved by the Director which must be certified by the proper county official or by an abstractor.
§ 2541.3 Patents.
(a) Any applicant who satisfied all requirements for a claim of class 1 or class 2 commencing not later than January 1, 1901, to the date of application and who so requests in the application will receive a patent conveying title to all other minerals except:
(1) Any minerals which, at the time of approval of the application, are embraced by an outstanding mineral lease or
(2) Any minerals for which the lands have been placed in a mineral withdrawal.
(b) All mineral reservations will include the right to prospect for, mine, and remove the same in accordance with applicable law.
(c) The maximum area for which patent may be issued for any claim under the act is 160 acres. Where an area held under a claim or color of title is in excess of 160 acres, the Secretary has authority under the act to determine what particular subdivisions not exceeding 160 acres, may be patented.
§ 2541.4 Price of land; payment.
(a) Price of land. The land applied for will be appraised on the basis of its fair market value at the time of appraisal. However, in determination of the price payable by the applicant, value resulting from improvements or development by the applicant or his predecessors in interest will be deducted from the appraised price, and consideration will be given to the equities of the applicant. In no case will the land be sold for less than $1.25 per acre.
(b) Payment. Applicant will be required to make payment of the sale price of the land within the time stated in the request for payment.
§ 2541.5 Publication; protests.
(a) The applicant will be required to publish once a week for four consecutive weeks in accordance with § 1824.3 of this chapter, at his expense, in a designated newspaper and in a designated form, a notice allowing all persons claiming the land adversely to file in the office specified in § 2541.1-2(a) their objections to the issuance of patent under the application. A protestant must serve on the applicant a copy of the objections and furnish evidence of such service.
(b) The applicant must file a statement of the publisher, accompanied by a copy of the notice published, showing that publication has been had for the required time.
Subpart 2542 – Color-of-Title Claims: New Mexico, Contiguous to Spanish or Mexican Grants
§ 2542.1 Application.
(a) Where filed; purchase price required. Applications under the Act of February 23, 1932 must be filed with the authorizing officer of the proper office at Santa Fe, New Mexico, and should be accompanied by payment of the purchase price of the land applied for at the rate of $1.25 per acre.
(b) Form. No special form of application is provided. The application should be in typewritten form or in legible handwriting and must be corroborated by at least two disinterested persons having actual knowledge of the facts alleged therein.
(c) Contents of application. Applicants desiring to take advantage of the benefits of the Act of February 23, 1932, must show the following matters in their applications:
(1) Full name and post-office address of the applicant and whether married or single.
(2) Description of the land for which patent is desired. If surveyed, the land should be described by legal subdivision, section, township, and range. If unsurveyed, the land should be described by metes and bounds.
(3) That the land applied for is contiguous to a Spanish or Mexican land grant. The grant should be identified by name, number, patentee or description of land involved. The points or places at which the land applied for is contiguous to the Spanish or Mexican land grant, must be clearly shown.
(4) That possession of the lands applied for has been maintained for more than 20 years under claim or color of title. If the applicant is claiming as a record owner, he or she will be required to file an abstract of title, certified to by a competent abstractor, showing the record of all conveyances of the land up to the date of the filing of the application. If the applicant is not a record owner and no abstract of title can be furnished, statements must be filed, setting forth the names of all mesne possessors of the land, the periods held by each, giving the dates and manner of acquiring possession of the land, and the acts of dominion exercised over the land by each possessor.
(5) That the lands have been held in good faith and in peaceful, adverse possession. The applicant should show whether or not he and his predecessors in interest have paid taxes on the lands and for what periods of time, and whether any consideration was paid for any conveyances of the land. It should further be shown whether there is any person who is claiming the land adversely to the applicant, and if there be such, the name and address of such adverse claimant should be furnished.
(6) Whether or not valuable improvements have been erected upon the land applied for and whether or not any part of such land has been reduced to cultivation. If improvements have been made, the nature, the value, the exact location, and the time of erection thereof, should be fully disclosed together with the identity of the one who was responsible for erecting such improvements. If any of the land has been reduced to cultivation, the subdivision so claimed to have been reduced must be identified and the amount and nature of the cultivation must be set forth, together with the dates thereof.
§ 2542.2 Evidence required.
(a) Citizenship. The applicant must furnish a statement showing whether such applicant is a native-born or naturalized citizen of the United States. In the event an applicant is a naturalized citizen, the statement should show the date of the alleged naturalization or declaration of intention, the title and location of the court in which instituted, and when available, the number of the document in question, if the proceeding has been had since September 26, 1906. In addition, in cases of naturalization prior to September 27, 1906, there should be given the date and place of the applicant’s birth and the foreign country of which the applicant was a citizen or subject. In case the applicant is a corporation, a certified copy of the articles of incorporation should be filed.
(b) Acreage claimed. The applicant in the statement required under paragraph (a) of this section must show that the land claimed is not a part of a claim which embraced more than 160 acres on February 23, 1932. If the land claimed is part of a claim containing more than 160 acres, a full disclosure of all facts concerning the larger claim must be furnished.
§ 2542.3 Publication and posting of notice.
(a) If upon consideration of the application it is determined that the applicant is entitled to purchase the land applied for, the applicant will be required to publish notice of the application in a newspaper of general circulation in the county wherein the land applied for is situated. Notice for publication shall be issued in the following form:
Notice is hereby given that ________________________ (Name of applicant) of ______________________________ (Address) has filed application __________________________________ (Number and land office) under the Act of February 23, 1932 (47 Stat. 53), to purchase __________________________________________ (Land) Sec.______, T.______, R.______, ____________ Mer., claiming under ____________ (Ground of claim).
The purpose of this notice is to allow all persons having bona fide objection to the proposed purchase, an opportunity to file their protests in this office on or before
(b) The notice shall be published at the expense of the applicant and such publication shall be made once each week for a period of five consecutive weeks. A copy of the notice will be posted in the proper office during the entire period of publication. The applicant must file evidence showing that publication has been had for the required time, which evidence must consist of the statement of the publisher, accompanied by a copy of the notice as published.
§ 2542.4 Patent.
(a) Upon submission of satisfactory proof of publication and the expiration of the time allowed for the filing of objections against the application, if there be no protest, contest or other objection against the application, patent will then be issued by the authorizing officer.
(b) There will be incorporated in patents issued on applications under the above Act, the following:
Excepting and reserving, however, to the United States, the coal and all other minerals in the land so patented, together with the right of the United States or its permittees, lessees, or grantees, to enter upon said lands for the purpose of prospecting for and mining such deposits as provided for under the Act of February 23, 1932 (47 Stat. 53).
Subpart 2543 – Erroneously Meandered Lands: Arkansas
§ 2543.1 Applications.
(a) Applications to purchase under the Act of September 21, 1922, must be signed by the applicant in the State of Arkansas. Such applications had to be filed within 90 days from the date of the passage of this Act, if the lands had been surveyed and plats filed, otherwise they must be filed within 90 days from the filing of such plats. The applicant must show that he is either a native-born or naturalized citizen of the United States, and, if naturalized, file record evidence thereof; must describe the land which he desires to purchase, together with the land claimed as the basis of his preference right to the lands applied for if he applies as a riparian owner, or if claiming otherwise, under what color of title his claim is based, and that the applied-for lands are not lawfully appropriated by a qualified settler or entryman under the public land laws, nor in the legal possession of any adverse applicant; the kind, character, and value of the improvements on the land covered by the application; when they were placed thereon; the extent of the cultivation had, if any, and how long continued. This application must be supported by the statements of two persons having personal knowledge of the facts alleged in the application.
(b) All applications to purchase under the act must be accompanied by an application service fee of $10 which will not be returnable.
§ 2543.2 Appraisal of land.
When an application is received it will be assigned for investigation and appraisement of the land in accordance with the provisions of the Act of September 21, 1922.
§ 2543.3 Purchase price required.
If upon consideration of the application it shall be determined that the applicant is entitled to purchase the lands applied for, the applicant will be notified by registered mail that he must within 30 days from service of notice deposit the appraised price, or thereafter, and without further notice, forfeit all rights under his application.
§ 2543.4 Publication and posting.
Upon payment of the appraised price a notice of publication will be issued. Such notice shall be published at the expense of the applicant in a designated newspaper of general circulation in the vicinity of the lands once a week for five consecutive weeks immediately prior to the date of sale, but a sufficient time should elapse between the date of last publication and date of sale to enable the statement of the publisher to be filed. The notice will advise all persons claiming adversely to the applicant that they should file any objections or protests against the allowance of the application within the period of publication, otherwise the application may be allowed. Any objections or protests must be corroborated, and a copy thereof served upon the applicant. The Bureau of Land Management will cause a notice similar to the notice for publication to be posted in such office, during the entire period of publication. The publisher of the newspaper must file in the Bureau of Land Management prior to the date fixed by the sale evidence that publication has been had for the required period, which evidence must consist of the statement of the publisher, accompanied by a copy of the notice published.
§ 2543.5 Patent.
Upon submission of satisfactory proof, if no protest or contest is pending, patent will be issued.
Subpart 2544 – Erroneously Meandered Lands: Louisiana
§ 2544.1 Applications.
(a) Applications to purchase under the Act of February 19, 1925, must be signed by the applicant in the State of Louisiana. Such applications had to be filed within 90 days from the passage of this act, if the lands had been surveyed and plats filed, otherwise they must be filed within 90 days from the filing of such plat. The applicant must show that he is either a native-born or a naturalized citizen of the United States, and, if naturalized, file record evidence thereof; must describe the land which he desires to purchase, together with the land claimed as the basis of his preference right to the lands applied for it he applies as a riparian owner, or if claiming otherwise, under what color of the title his claim is based; in other words, a complete history of the claim, and that the lands applied for are not lawfully appropriated by a qualified settler or entryman under the public land laws, nor in the legal possession of any adverse applicant; the kind, character, and value of the improvements on the land covered by the application; when they were placed thereon; the extent of the cultivation, if any, and how long continued. Such application must be supported by the statement of at least two persons having personal knowledge of the facts alleged in the application.
(b) All applications to purchase under the act must be accompanied by an application service fee of $10 which will not be returnable.
§ 2544.2 Appraisal of land.
When an application is received it will be assigned for investigation and appraisement of the land in accordance with the provisions of the act.
§ 2544.3 Notice to deposit purchase price.
If, upon consideration of the application, it shall be determined that the applicant is entitled to purchase the lands applied for, the applicant will be notified, by registered mail, that he must within 6 months from receipt of notice deposit the appraised price of the land or else forfeit all his rights under his application.
§ 2544.4 Publication and posting.
Upon payment of the appraised price of the land the Bureau will issue notice of publication. Such notice shall be published at the expense of the applicant in a designated newspaper of general circulation in the vicinity of the lands, once a week for five consecutive weeks. In accordance with § 1824.3 of this chapter, immediately prior to the date of sale, but a sufficient time shall elapse between the date of the last publication and the date of sale to enable the statement of the publisher to be filed. The notice will advise all persons claiming adversely to the applicant that they should file any objections or protests against the allowance of the application within the period of publication, otherwise the application may be allowed. Any objections or protests must be corroborated, and a copy thereof served upon the applicant. The Bureau will also cause a copy of such notice of publication to be posted in such office during the entire period of publication. The applicant must file in the Bureau prior to the date fixed for the sale evidence that publication has been had for the required period, which evidence must consist of the statement of the publisher accompanied by a copy of the notice so published.
§ 2544.5 Patent.
Upon the submission of satisfactory proof, the Bureau will, if no protest or contest is pending, issue patent, such patent to contain a stipulation that all the minerals in the lands described in the application are reserved to the United States with the right to prospect for, mine and remove same.
Subpart 2545 – Erroneously Meandered Lands: Wisconsin
§ 2545.1 Qualifications of applicants.
(a) To qualify under the Act of 1954, a person, or his predecessors in interest, (1) must have been issued, prior to January 21, 1953, a patent for lands lying along the meander line as originally determined, and (2) must have held in good faith and in peaceful, adverse possession since the date of issuance of said patent adjoining public lands lying between the original meander line and the resurveyed meander line.
(b) To qualify under the Act of 1925, a person must either (1) be the owner in good faith of land, acquired prior to February 27, 1925, shown by the official public land surveys to be bounded in whole or in part by such public lands or (2) be a citizen of the United States who, in good faith under color of title or claiming as a riparian owner, had, prior to February 27, 1925, placed valuable improvements upon or reduced to cultivation any of such public lands.
§ 2545.2 Applications.
(a) Claimants under the Act of 1925 have a preferred right of application for a period of 90 days from the date of filing of the plat of survey of lands claimed by them. Applications for public lands under the Act of 1954 must be filed within 1 year after August 24, 1954, or 1 year from the date of the official plat or resurvey, whichever is later. All applications must be filed in the proper office (see § 1821.2-1 of this chapter).
(b) Every application must be accompanied by a filing fee of $10, which is not returnable.
(c) No particular form is required but the applications must be typewritten or in legible handwriting and must contain the following information:
(1) The name and post office address of the applicant.
(2) The legal description and acreage of the public lands claimed or desired.
(3) The legal description of the lands owned by the applicant, if any, adjoining the public lands claimed or desired. If the claim is based on ownership of such adjoining lands, the application must be accompanied by a certificate from the proper county official or by an abstractor, showing the date of acquisition of the lands by the applicant and that the applicant owns the lands in fee simple as of the date of application.
(4) If the applicant is a color-of-title applicant under the Act of 1925, a statement whether or not the applicant is a citizen of the United States.
(5) If the application is based on color of title or riparian claim under the Act of 1925, a statement fully disclosing the facts of the matter; or if the application is based on peaceful, adverse possession under the Act of 1954, a similar statement showing peaceful, adverse possession by the applicant, or his predecessors in interest, since the issuance of the patent to the lands adjoining the claimed lands.
(6) A statement showing the improvements, if any, placed on the public lands applied for including their location, nature, present value, date of installation, and the names of the person or persons who installed them.
(7) A statement showing the cultivation, if any, of the lands applied for, including the nature, location, and dates of such cultivation.
(8) The names and post office addresses of any adverse claimants, settlers, or occupants of the public lands applied for or claimed.
(9) The names and post office addresses of at least two disinterested persons having knowledge of the facts relating to the applicant’s claim.
(10) A citation of the act under which the application is made.
§ 2545.3 Publication and protests.
(a) The applicant will be required to publish once a week for five consecutive weeks in accordance with § 1824.3 of this chapter, at his expense, in a designated newspaper and in a designated form, a notice allowing all persons claiming the land adversely to file with the Bureau of Land Management, Washington, DC, their objections to issuance of patent under the application. A protestant must serve on the applicant a copy of the objections and furnish evidence of such service.
(b) The applicant must file a statement of the publisher, accompanied by a copy of the notice published, showing that publication has been had for the required time.
§ 2545.4 Price of land; other conditions.
(a) Persons entitled to a patent under the Act of 1954 must, within 30 days after request therefor, pay, under the same terms and conditions, the same price per acre as was paid for the land included in their original patent.
(b) Persons entitled to a patent under the Act of 1925, within 30 days after request therefor, must pay the appraised price of the lands, which price will be the value of the lands as of the date of appraisal, exclusive of any increased value resulting from the development or improvement of the lands for agricultural purposes by the applicant or his predecessors in interest but inclusive of the stumpage value of any timber cut or removed by them.
Subpart 2546 – Snake River, Idaho: Omitted Lands
§ 2546.1 Offers of lands for sale.
Before any lands may be sold under the Act, the authorized officer of the Bureau of Land Management shall publish in the
§ 2546.2 Applications for purchase.
(a) All citizens who file a notice of intention in accordance with § 2546.1 within the time period specified in the published notice or any amendment thereof will be granted by the authorized officer a period of time not less than 30 days in duration in which to file, in duplicate with the Authorizing officer of the Boise State Office, their applications to purchase lands as preference-right claimants.
(b) Every application must be accompanied by a filing fee of $10, which is not returnable.
(c) No particular form is required but the applications must be typewritten or in legible handwriting and must contain the following information:
(1) The name and post office address of the claimant.
(2) The description and acreage of the public lands claimed or desired.
(3) The description of the lands owned by the applicant, if any, adjoining the public lands claimed or desired accompanied by a certificate from the proper county official or by an abstractor or by an attorney showing the date of acquisition of the lands by the applicant and that the applicant owns the lands in fee simple as of the date of application.
(4) A statement showing that the claimant is a citizen of the United States, as defined in paragraph (4) of § 2540.0-3(f).
(5) A statement giving the basis for color of title or claim of riparian ownership.
(6) A statement showing the improvements, if any, placed on the public lands applied for including their location, nature, present value, date of installation, and the names of the person or persons who installed them.
(7) A statement showing the cultivation and occupancy, if any, of the lands applied for, including the nature, location, and date of such cultivation and occupancy.
(8) The names and post office addresses of any adverse claimants, settlers, or occupants of the public lands claimed.
(9) The names and addresses of at least two disinterested persons having knowledge of the facts relating to the applicant’s claim.
(10) A citation of the Act under which the application is made.
§ 2546.3 Payment and publication.
(a) Before lands may be sold to a qualified preference-right claimant, the claimant will be required to pay the purchase price of the lands and will be required to publish once a week for four consecutive weeks, at his expense, in a designated newspaper and in a designated form, a notice allowing all persons having objections to file with the Authorizing officer of the State Office at Boise, Idaho, their objections to issuance of patent to the claimant. A protestant must serve on the claimant a copy of the objections and must furnish the Authorizing officer with evidence of such service.
(b) Among other things, the notice will describe the lands to be patented, state the purchase price for the lands and the reservations, if any, to be included in the patent to preserve public recreational values in the lands.
(c) The claimant must file a statement of the publisher, accompanied by a copy of the notice published, showing that publication has been had for the required time.
§ 2546.4 Public auctions.
(a) The authorized officer may sell under the Act at public auction any lands for which preference-claimants do not qualify for patents under the regulations of § 2540.0-3(f) and subpart 2546.
(b) Lands will be sold under this section at not less than their appraised fair market value at the time and place and in the manner specified by the authorized officer in a public notice of the sale.
(c) Bids may be made by the principal or his agent, either personally at the sale or by mail.
(d) A bid sent by mail must be received at the place and within the time specified in the public notice. Each such bid must clearly state (1) the name and address of the bidder and (2) the specified tract, as described in the notice for which the bid is made. The envelope must be noted as required by the notice.
(e) Each bid by mail must be accompanied by certified or cashier’s check, post office money order or bank draft for the amount of the bid.
(f) The person who submits the highest bid for each tract at the close of bidding, but not less than the minimum price, will be declared the purchaser.
Subpart 2547 – Omitted Lands: General
§ 2547.1 Qualifications of applicants.
(a) Any person authorized to hold title to land in the State may make application under section 211 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1721). For regulations on conveyances of omitted lands and unsurveyed islands to State and local governments see subpart 2742 of this title.
(b) The applicant shall be a citizen of the United States, or in the case of corporation, shall be organized under the laws of the United States or any State thereof.
(c) The applicant shall have occupied and developed the lands for a 5-year period prior to January 1, 1975.
§ 2547.2 Procedures; applications.
(a) The description of the omitted lands applied for shall be sufficiently complete to identify the location, boundary, and area of the land, including, if possible, the legal description of the land by section or fractional section, township, range, meridian and State.
(b) Each application shall be accompanied by a filing fee of $50 that is nonreturnable. The application shall be filed in accordance with the provisions of § 1821.2 of this title.
(c) No special form of application is required. The application shall be typewritten or in legible handwriting and shall contain the following information:
(1) The full name and legal mailing address of the applicant.
(2) The description and acreage of the public lands claimed.
(3) A statement showing that the applicant is qualified or authorized to hold title to land in the State, is a citizen of the United States, and in the case of a corporation, is organized under the laws of the United States or any State thereof.
(4) A statement describing how the applicant has satisfied the requirements of the statute.
(5) A statement describing the nature and extent of any developments made to the lands applied for and describing the period and type of any occupancy of the land.
(6) The names and legal mailing addresses of any known adverse claimants or occupants of the applied for lands.
(7) A citation of the Act under which the application is being made.
§ 2547.3 Price of land; payment.
(a) The land applied for shall be appraised for fair market value at the time of appraisal. However, in determination of the price payable by the applicant, value resulting from development and occupation by the applicant or his predecessors in interest shall be deducted from the appraised price.
(b) The applicant shall also be required to pay administrative costs, including:
(1) The cost of making the survey,
(2) The cost of appraisal, and
(3) The cost of making the conveyance.
(c) The applicant shall be required to make payment of the sale price and administrative costs within the time stated in the requests for payment or any extensions granted thereto by the authorized officer.
§ 2547.4 Publication and protests.
(a) The applicant shall be required to publish a notice of the application once a week for five consecutive weeks in accordance with § 1824.3 of this title, in a designated newspaper and in a designated form. All persons claiming the land adversely may file with the State Office of the Bureau of Land Management in which the lands are located, their objections to issuance of patent under the application. A protestant shall serve on the applicant a copy of the objections and furnish evidence of such service.
(b) The applicant shall file at the appropriate BLM office a statement of the publisher, accompanied by a copy of the notice published, showing that the publication has been made for the required time.
§ 2547.5 Disposal considerations.
(a) Disposal under this provision shall not be made until:
(1) It has been determined by the authorized officer that such conveyance is in the public interest and will serve objectives which outweigh all public objectives and values which would be served by retaining such lands in Federal ownership.
(2) The relevant State government, local government, and areawide planning agency designated under section 204 of the Demonstration Cities and Metropolitan Act of 1966 (80 Stat. 1255, 1262), and/or Title IV of the Intergovernmental Cooperation Act of 1968 (82 Stat. 1098, 1103-4) have notified the authorized officer as to the consistency of such conveyance with applicable State and local government land use plans and programs.
(3) The plat of survey has been officially filed.
§ 2547.6 Lands not subject to disposal under this subpart.
This subpart shall not apply to any lands within the National Forest System, defined in the Act of August 17, 1974 (16 U.S.C. 1601), the National Park System, the National Wildlife Refuge System, and the National Wild and Scenic Rivers System.
§ 2547.7 Coordination with State and local governments.
At least 60 days prior to offering land for sale, the authorized officer shall notify the Governor of the State within which the lands are located and the head of the governing body of any political subdivision of the State having zoning or other land use regulatory jurisdiction in the geographical area within which the lands are located that the lands are being offered for sale. The authorized officer shall also promptly notify such public officials of the issuance of the patent for such lands.
PART 2560 – ALASKA OCCUPANCY AND USE
Subpart 2561 – Native Allotments
§ 2561.0-2 Objectives.
It is the program of the Secretary of the Interior to enable individual natives of Alaska to acquire title to the lands they use and occupy and to protect the lands from the encroachment of others.
§ 2561.0-3 Authority.
The Act of May 17, 1906 (34 Stat. 197), as amended August 2, 1956 (70 Stat. 954; 43 U.S.C. 270-1 to 270-3), authorizes the Secretary of the Interior to allot not to exceed 160 acres of vacant, unappropriated, and unreserved nonmineral land in Alaska or, subject to the provisions of the Act of March 8, 1922 (42 Stat. 415; 48 U.S.C. 376-377), of vacant, unappropriated, and unreserved public land in Alaska that may be valuable for coal, oil, or gas deposits, or, under certain conditions, of national forest lands in Alaska, to any Indian, Aleut or Eskimo of full or mixed blood who resides in and is a native of Alaska, and who is the head of a family, or is twenty-one years of age.
§ 2561.0-5 Definitions.
As used in the regulations in this section.
(a) The term substantially continuous use and occupancy contemplates the customary seasonality of use and occupancy by the applicant of any land used by him for his livelihood and well-being and that of his family. Such use and occupancy must be substantial actual possession and use of the land, at least potentially exclusive of others, and not merely intermittent use.
(b) Allotment is an allocation to a Native of land of which he has made substantially continuous use and occupancy for a period of five years and which shall be deemed the homestead of the allottee and his heirs in perpetuity, and shall be inalienable and nontaxable except as otherwise provided by the Congress.
(c) Allotment Act means the Act of May 17, 1906 (34 Stat. 197), as amended (48 U.S.C. 357, 357a, 357b).
§ 2561.0-8 Lands subject to allotment.
(a) A Native may be granted a single allotment of not to exceed 160 acres of land. All the lands in an allotment need not be contiguous but each separate tract of the allotment should be in reasonably compact form.
(b) In areas where the rectangular survey pattern is appropriate, an allotment may be in terms of 40-acre legal subdivisions and survey lots on the basis that substantially continuous use and occupancy of a significant portion of such smallest legal subdivision shall normally entitle the applicant to the full subdivision, absent conflicting claims.
(c) Allotments may be made in national forests if founded on occupancy of the land prior to the establishment of the particular forest or if an authorized officer of the Department of Agriculture certifies that the land in the application for allotment is chiefly valuable for agricultural or grazing purposes.
(d) Lands in applications for allotment and allotments that may be valuable for coal, oil, or gas deposits are subject to the regulations of § 2093.4 of this chapter.
§ 2561.1 Applications.
(a) Applications for allotment properly and completely executed on a form approved by the Director, Bureau of Land Management, must be filed in the proper office which has jurisdiction over the lands.
(b) Any application for allotment of lands which extend more than 160 rods along the shore of any navigable waters shall be considered a request for waiver of the 160-rod limitation (see part 2094 of this chapter).
(c) If surveyed, the land must be described in the application according to legal subdivisions and must conform to the plat of survey when possible. If unsurveyed, it must be described as accurately as possible by metes and bounds and tied to natural objects. On unsurveyed lands, the application should be accompanied by a map or approved protracted survey diagram showing approximately the lands included in the application.
(d) An application for allotment shall be rejected unless the authorized officer of the Bureau of Indian Affairs certifies that the applicant is a native qualified to make application under the Allotment Act, that the applicant has occupied and posted the lands as stated in the application, and that the claim of the applicant does not infringe on other native claims or area of native community use.
(e) The filing of an acceptable application for a Native allotment will segregate the lands. Thereafter, subsequent conflicting applications for such lands shall be rejected, except when the conflicting application is made for the conveyance of lands pursuant to any provision of the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.).
(f) By the filing of an application for allotment the applicant acquires no rights except as provided in paragraph (e) of this section. If the applicant does not submit the required proof within six years of the filing of his application in the proper office, his application for allotment will terminate without affecting the rights he gained by virtue of his occupancy of the land or his right to make another application.
§ 2561.2 Proof of use and occupancy.
(a) An allotment will not be made until the lands are surveyed by the Bureau of Land Management, and until the applicant or the authorized officer of the Bureau of Indian Affairs has made satisfactory proof of substantially continuous use and occupancy of the land for a period of five years by the applicant. Such proof shall be made on a form approved by the Director, Bureau of Land Management, and filed in the proper land office. If made by the applicant, it must be signed by him, but if he is unable to write his name, his mark or thumb print shall be impressed on the statement and witnessed by two persons. This proof may be submitted with the application for allotment if the applicant has then used and occupied the land for five years, or may be made at any time within six years after the filing of the application when the requirements have been met.
(b) [Reserved]
§ 2561.3 Effect of allotment.
(a) Land allotted under the Act is the property of the allottee and his heirs in perpetuity, and is inalienable and nontaxable. However, a native of Alaska who received an allotment under the Act, or his heirs, may with the approval of the Secretary of the Interior or his authorized representative, convey the complete title to the allotted land by deed. The allotment shall thereafter be free of any restrictions against alienation and taxation unless the purchaser is a native of Alaska who the Secretary determines is unable to manage the land without the protection of the United States and the conveyance provides for a continuance of such restrictions.
(b) Application by an allottee or his heirs for approval to convey title to land allotted under the Allotment Act shall be filed with the appropriate officer of the Bureau of Indian Affairs.
Subpart 2562 – Trade and Manufacturing Sites
§ 2562.0-3 Authority.
Section 10 of the Act of May 14, 1898 (30 Stat. 413, as amended August 23, 1958 (72 Stat. 730; 43 U.S.C. 687a), authorizes the sale at the rate of $2.50 per acre of not exceeding 80 acres of land in Alaska possessed and occupied in good faith as a trade and manufacturing site. The lands must be nonmineral in character, except that lands that may be valuable for coal, oil, or gas deposits are subject to disposition under the Act of March 8, 1922 (42 Stat. 415; 48 U.S.C. 376-377), as amended, and the regulations of § 2093.4 of this chapter.
§ 2562.1 Initiation of claim.
(a) Notice. Any qualified person, association, or corporation initiating a claim on or after April 29, 1950, under section 10 of the Act of May 14, 1898, by the occupation of vacant and unreserved public land in Alaska for the purposes of trade, manufacture, or other productive industry, must file notice of the claim for recordation in the proper office for the district in which the land is situated, within 90 days after such initiation. Where on April 29, 1950, such a claim was held by a qualified person, association, or corporation, the claimant must file notice of the claim in the proper office, within 90 days from that date.
(b) Form of notice. The notice must be filed on a form approved by the Director in triplicate if the land is unsurveyed, or in duplicate if surveyed, and shall contain:
(1) The name and address of the claimant, (2) age and citizenship, (3) date of occupancy, and (4) the description of the land by legal subdivisions, section, township and range, if surveyed, or, if unsurveyed, by metes and bounds with reference to some natural object or permanent monument, giving, if desired, the approximate latitude and longitude. The notice must designate the kind of trade, manufacture, or other productive industry in connection with which the site is maintained or desired.
(c) Failure to file notice. Unless a notice of the claim is filed within the time prescribed in paragraph (a) of this section no credit shall be given for occupancy of the site prior to filing of notice in the proper office, or application to purchase, whichever is earlier.
(d) Recording fee. The notice of the claim must be accompanied by a remittance of $10.00, which will be earned and applied as a service charge for recording the notice, and will not be returnable, except in cases where the notice is not acceptable to the proper office for recording, because the land is not subject to the form of disposition specified in the notice.
§ 2562.2 Qualifications of applicant.
An application must show that the applicant is a citizen of the United States and 21 years of age, and that he has not theretofore applied for land as a trade and manufacturing site. If such site has been applied for and the application not completed, the facts must be shown. If the application is made for an association of citizens or a corporation, the qualifications of each member of the organization must be shown. In the case of a corporation, proof of incorporation must be established by the certificate of the officer having custody of the records of incorporation at the place of its formation and it must be shown that the corporation is authorized to hold land in Alaska.
§ 2562.3 Applications.
(a) Execution. Application for a trade and manufacturing site should be executed in duplicate and should be filed in the proper office. It need not be sworn to, but it must be signed by the applicant and must be corroborated by the statements of two persons.
(b) Fees. All applications must be accompanied by an application service fee of $10 which will not be returnable.
(c) Time for filing. Application to purchase a claim, along with the required proof or showing, must be filed within 5 years after the filing of notice of the claim.
(d) Contents. The application to enter must show:
(1) That the land is actually used and occupied for the purpose of trade, manufacture or other productive industry when it was first so occupied, the character and value of the improvements thereon and the nature of the trade, business or productive industry conducted thereon and that it embraces the applicant’s improvements and is needed in the prosecution of the enterprise. A site for a prospective business cannot be acquired under section 10 of the Act of May 14, 1898 (30 Stat. 413; 43 U.S.C. 687a).
(2) That no portion of the land is occupied or reserved for any purpose by the United States or occupied or claimed by natives of Alaska; that the land is unoccupied, unimproved, and unappropriated by any person claiming the same other than the applicant.
(3) That the land does not abut more than 80 rods of navigable water.
(4) That the land is not included within an area which is reserved because of springs thereon. All facts relative to medicinal or other springs must be stated, in accordance with § 2311.2(a) of this chapter.
(5) That no part of the land is valuable for mineral deposits other than coal, oil, or gas, and that at the date of location no part of the land was claimed under the mining laws.
(e) Description of land. If the land be surveyed, it must be described in the application according to legal subdivisions of the public-land surveys. If it be unsurveyed, the application must describe it by approximate latitude and longitude and otherwise with as much certainty as possible without survey.
§ 2562.4 Survey.
(a) If the land applied for be unsurveyed and no objection to its survey is known to the authorizing officer, he will furnish the applicant with a certificate stating the facts, and, after receiving such certificate, the applicant may make application to the State Director for the survey of the land. Upon receipt of an application, the State Director will, if conditions make such procedure practicable and no objection is shown by his records, furnish the applicant with an estimate of the cost of field and office work, and upon receipt of the deposit required will issue appropriate instructions for the survey of the claim, such survey to be made not later than the next surveying season. The sum so deposited by the applicant for survey will be deemed an appropriation thereof and will be held to be expended in the payment of the cost of the survey, including field and office work, and upon the acceptance of the survey any excess over the cost shall be repaid to the depositor or his legal representative.
(b) In case it is decided that by reason of the inaccessibility of the locality embraced in an application for the survey, or by reason of other conditions, it will result to the advantage of the Government or claimant to have the survey executed by a deputy surveyor, the State Director will deliver an order to the applicant for such survey, which will be sufficient authority for any deputy surveyor to make a survey of the claim.
(c) In the latter contingency the survey must be made at the expense of the applicant, and no right will be recognized as initiated by such application unless actual work on the survey is begun and carried to completion without unnecessary delay.
§ 2562.5 Publication and posting.
The instructions given in subpart 1824 of this chapter, relative to publication and posting.
§ 2562.6 Form of entry.
Claims initiated by occupancy after survey must conform thereto in occupation and application, but if the public surveys are extended over the lands after occupancy and prior to application, the claim may be presented in conformity with such surveys, or, at the election of the applicant, a special survey may be had.
§ 2562.7 Patent.
The application and proofs filed therewith will be carefully examined and, if all be found regular, the application will be allowed and patent issued upon payment for the land at the rate of $2.50 per acre, and in the absence of objections shown by his records.
Subpart 2563 – Homesites or Headquarters
§ 2563.0-2 Purpose.
(a) Act of March 3, 1927. The purpose of this statute is to enable fishermen, trappers, traders, manufacturers, or others engaged in productive industry in Alaska to purchase small tracts of unreserved land in the State, not exceeding 5 acres, as homesteads or headquarters.
(b) [Reserved]
§ 2563.0-3 Authority.
(a) The Act of March 3, 1927 (44 Stat. 1364; 43 U.S.C. 687a), as amended, authorizes the sale as a homestead or headquarters of not to exceed five acres of unreserved public lands in Alaska at the rate of $2.50 per acre, to any citizen of the United States 21 years of age employed by citizens of the United States, association of such citizens, or by corporations organized under the laws of the United States, or of any State or Territory, whose employer is engaged in trade, manufacture, or other productive industry in Alaska, and to any such person who is himself engaged in trade, manufacture or other productive industry in Alaska. The lands must be nonmineral in character except that lands that may be valuable for coal, oil, or gas deposits are subject to disposition under the provisions of the Act of March 8, 1922 (42 Stat. 415, 43 U.S.C. 270-11, 270-12), as amended.
(b) The Act of May 26, 1934 (48 Stat. 809; 43 U.S.C. 687a) amended section 10 of the Act of May 14, 1898 (30 Stat. 413), as amended by the Act of March 3, 1927 (44 Stat. 1364), so as to provide that any citizen, after occupying land of the character described in said section of a homestead or headquarters, in a habitable house not less than 5 months each year for 3 years, may purchase such tract, not exceeding 5 acres, in a reasonably compact form, without a showing as to his employment or business, upon the payment of $2.50 per acre, the minimum payment for any one tract to be $10.
§ 2563.0-7 Cross references.
See the following parts in this subchapter: for Indian and Eskimo allotments, part 2530; for mining claims, subpart 3826; for school indemnity selections, subpart 2627; for shore space, subpart 2094 for trade and manufacturing sites, subpart 2562.
§ 2563.1 Purchase of tracts not exceeding 5 acres, on showing as to employment or business (Act of March 3, 1927).
(a) Notice of initiation of claim. A notice of the initiation of a claim under the Act of March 3, 1927, must designate the kind of trade, manufacture, or other productive industry in connection with which the claim is maintained or desired, and identify its ownership. The procedure as to notices will be governed in other respects by the provisions of § 2563.2-1(a) to (d).
(b) [Reserved]
§ 2563.1-1 Application.
(a) Form and contents of applications. Applications under the Act of March 3, 1927, must be filed in duplicate in the proper office for the district in which the land is situated, and the claim must be in reasonably compact form. An application need not be under oath but must be signed by the applicant and corroborated by the statements of two persons and must show the following facts:
(1) The age and citizenship of applicant.
(2) The actual use and occupancy of the land for which application is made for a homestead or headquarters.
(3) The date when the land was first occupied as a homestead or headquarters.
(4) The nature of the trade, business, or productive industry in which applicant or his employer, whether a citizen, an association of citizens, or a corporation is engaged.
(5) The location of the tract applied for with respect to the place of business and other facts demonstrating its adaptability to the purpose of a homestead or headquarters.
(6) That no portion of the tract applied for is occupied or reserved for any purpose by the United States, or occupied or claimed by any natives of Alaska, or occupied as a town site or missionary station or reserved from sale, and that the tract does not include improvements made by or in possession of another person, association, or corporation.
(7) That the land is not included within an area which is reserved because of springs thereon. All facts as to medicinal or other springs must be stated, in accordance with § 2311.2(a).
(8) That no part of the land is valuable for mineral deposits other than coal, oil or gas, and that at the date of location no part of the land was claimed under the mining laws.
(9) If the land desired for purchase is surveyed, the application must include a description of the tract by aliquot parts of legal subdivisions, not exceeding 5 acres. If the tract is situated in the fractional portion of a sectional lotting, the lot may be subdivided; where such subdivision, however, would result in narrow strips or other areas containing less than 2
(10) If the land is unsurveyed, the application must be accompanied by a petition for survey, describing the tract applied for with as much certainty as possible, without actual survey, not exceeding 5 acres, and giving the approximate latitude and longitude of one corner of the claim.
(b) Filing fee. All applications must be accompanied by an application service fee of $10 which will not be returnable.
(c) Time for filing application. Application to purchase a claim, along with the required proof or showing, must be filed within 5 years after the filing of notice of the claim.
§ 2563.1-2 Approval.
Care will be taken in all cases before patent issues to see that the lands applied for are used for the purposes contemplated by the said Act of March 3, 1927, and that they are not used for any purpose inconsistent therewith.
§ 2563.2 Purchase of tracts not exceeding 5 acres, without showing as to employment or business (Act of May 26, 1934).
§ 2563.2-1 Procedures for initiating claim.
(a) Who must file. Any qualified person initiating a claim under the Act of May 26, 1934, must file notice of the claim for recordation in the proper office for the district in which the land is situated, within 90 days after such initiation.
(b) Form of notice. The notice must be filed on a form approved by the Director in triplicate if the land is unsurveyed, or in duplicate if surveyed, and shall contain: (1) The name and address of the claimant, (2) age and citizenship, (3) date of settlement and occupancy, and (4) the description of the land by legal subdivisions, section, township and range, if surveyed, or, if unsurveyed, by metes and bounds with reference to some natural object or permanent monument, giving, if desired, the approximate latitude and longitude.
(c) Failure to file notice. Unless a notice of the claim is filed within the time prescribed in paragraph (a) of this section no credit shall be given for occupancy of the site prior to filing of notice in the proper office, or application to purchase, whichever is earlier.
(d) Recording fee. The notice of the claim must be accompanied by a remittance of $10.00, which will be applied as a service charge for recording the notice, and will not be returnable, except in cases where the notice is not acceptable to the proper office for recording because the land is not subject to the form of disposition specified in the notice.
(e) Form and contents of application. Applications under the Act of May 26, 1934, must be filed in duplicate, if for surveyed land, and in triplicate, if for unsurveyed land, in the proper office for the district within which the land is situated.
(1) Full name, post office address and age of applicant.
(2) Whether the applicant is a native-born or naturalized citizen of the United States, and if naturalized, evidence of such naturalization must be furnished.
(3) A description of the habitable house on the land, the date when it was placed on the land, and the dates each year from which and to which the applicant has resided in such house.
(4) That no portion of the tract applied for is occupied or reserved for any purpose by the United States, or occupied or claimed by any native of Alaska, or occupied as a townsite, or missionary station, or reserved from sale, and that the tract does not include improvements made by or in the possession of any other person, association, or corporation.
(5) That the land is not included within an area which is reserved because of hot, medicinal or other springs, as explained in § 2311.2(a) of this chapter. If there be any such springs upon or adjacent to the land, on account of which the land is reserved, the facts relative thereto must be set forth in full.
(6) That no part of the land is valuable for mineral deposits other than coal, oil or gas, and that at the date of location no part of the land was claimed under the mining laws.
(7) That the applicant has not theretofore applied for land under said act, or if he has previously purchased a tract he should make a full showing as to the former purchase and the necessity for the second application.
(8) An application for surveyed land must describe the land by aliquot parts of legal subdivisions, not exceeding 5 acres. If the tract is situated in the fractional portion of a sectional lotting, the lot may be subdivided; where such subdivision, however, would result in narrow strips or other areas containing less than 2
(9) All applications for unsurveyed land must be accompanied by a petition for survey, describing the land applied for with as much certainty as possible, without actual survey, not exceeding 5 acres, and giving the approximate latitude and longitude of one corner of the claim.
(f) Filing fee. All applications must be accompanied by an application service fee of $10 which will not be returnable.
Subpart 2564 – Native Townsites
§ 2564.0-3 Authority.
The Act of May 25, 1926, (44 Stat. 629; 43 U.S.C. 733-736) provides for the townsite survey and disposition of public lands set apart or reserved for the benefit of Indian or Eskimo occupants in trustee townsites in Alaska and for the survey and disposal of the lands occupied as native towns or villages. The Act of February 26, 1948 (62 Stat. 35; 43 U.S.C. 737), provides for the issuance of an unrestricted deed to any competent native for a tract of land claimed and occupied by him within any such trustee townsite.
§ 2564.0-4 Responsibility.
(a) Administration of Indian possessions in trustee towns. As to Indian possessions in trustee townsites in Alaska established under authority of section 11 of the Act of March 3, 1891 (26 Stat. 1009; 43 U.S.C. 732), and for which the townsite trustee has closed his accounts and been discharged as trustee, and as to such possessions in other trustee townsites in Alaska, such person as may be designated by the Secretary of the Interior will perform all necessary acts and administer the necessary trusts in connection with the Act of May 25, 1926.
(b) Administration of native towns. The trustee for any and all native towns in Alaska which may be established and surveyed under authority of section 3 of the said Act of May 25, 1926 (44 Stat. 630; 43 U.S.C. 735), will take such action as may be necessary to accomplish the objects sought to be accomplished by that section.
§ 2564.1 Application for restricted deed.
A native Indian or Eskimo of Alaska who occupies and claims a tract of land in a trustee townsite and who desires to obtain a restricted deed for such tract should file application therefor on a form approved by the Director, with the townsite trustee.
§ 2564.2 No payment, publication or proof required on entry for native towns.
In connection with the entry of lands as a native town or village under section 3 of the said Act of May 25, 1926, no payment need be made as purchase money or as fees, and the publication and proof which are ordinarily required in connection with trustee townsites will not be required.
§ 2564.3 Native towns occupied partly by white occupants.
Native towns which are occupied partly by white lot occupants will be surveyed and disposed of under the provisions of both the Act of March 3, 1891 (26 Stat. 1095, 1099), and the Act of May 25, 1926 (44 Stat. 629).
§ 2564.4 Provisions to be inserted in restricted deeds.
The townsite trustee will note a proper reference to the Act of May 25, 1926, on each deed which is issued under authority of that act and each such deed shall provide that the title conveyed is inalienable except upon approval of the Secretary of the Interior or his authorized representative, and that the issuance of the restricted deed does not subject the tract to taxation, to levy and sale in satisfaction of the debts, contracts or liabilities of the transferee, or to any claims of adverse occupancy or law of prescription; also, if the established streets and alleys of the townsite have been extended upon and across the tract, that there is reserved to the townsite the area covered by such streets and alleys as extended. The deed shall further provide that the approval by the Secretary of the Interior or his authorized representative of a sale by the Indian or Eskimo transferee shall vest in the purchaser a complete and unrestricted title from the date of such approval.
§ 2564.5 Sale of land for which restricted deed was issued.
When a native possessing a restricted deed for land in a trustee townsite issued under authority of the Act of May 25, 1926 (44 Stat. 629; 43 U.S.C. 733-736), desires to sell the land, he should execute a deed on a form approved by the Director, prepared for the approval of the Secretary of the Interior, or his authorized representative, and send it to the townsite trustee in Alaska. The townsite trustee will forward the deed to the Area Director of the Bureau of Indian Affairs who will determine whether it should be approved. Where the deed is approved it shall be returned by the Area Director, Bureau of Indian Affairs, through the townsite trustee to the vendor. In the event the Area Director determines that the deed shall not be approved, he shall so inform the native possessing the restricted deed, who shall have a right of appeal from such finding or decision to the Commissioner of Indian Affairs within sixty days from the date of notification of such finding or decision. The appeal shall be filed with the Area Director. Should the Commissioner uphold the decision of the Area Director, he shall notify the applicant of such action, informing him of his right of appeal to the Secretary of the Interior.
§ 2564.6 Application for unrestricted deed.
Any Alaska native who claims and occupies a tract of land in a trustee townsite and is the owner of land under a restricted deed issued under the Act of May 25, 1926 (44 Stat. 629; 43 U.S.C. 732-737) may file an application for an unrestricted deed pursuant to the Act of February 26, 1948 (62 Stat. 35; 43 U.S.C. 732-737), with the townsite trustee. The application must be in writing and must contain a description of the land claimed and information regarding the competency of the applicant. It must also contain evidence substantiating the claim and occupancy of the applicant, except when the applicant has been issued a restricted deed for the land. A duplicate copy of the application must be submitted by the applicant to the Area Director of the Bureau of Indian Affairs.
§ 2564.7 Determination of competency or noncompetency; issuance of unrestricted deed.
(a) Upon a determination by the Bureau of Indian Affairs that the applicant is competent to manage his own affairs, and in the absence of any conflict or other valid objection, the townsite trustee will issue an unrestricted deed to the applicant. Thereafter all restrictions as to sale, encumbrance, or taxation of the land applied for shall be removed, but the said land shall not be liable to the satisfaction of any debt, except obligations owed to the Federal Government, contracted prior to the issuance of such deed. Any adverse action under this section by the townsite trustee shall be subject to appeal to the Board of Land Appeals, Office of the Secretary, in accordance with part 4 of 43 CFR Subtitle A.
(b) In the event the Area Director determines that the applicant is not competent to manage his own affairs, he shall so inform the applicant, and such applicant shall have a right of appeal from such finding or decision to the Commissioner of Indian Affairs, within 60 days from the date of notification of such finding or decision. The appeal shall be filed with the Area Director. Should the Commissioner uphold the decision of the Area Director, he shall notify the applicant of such action, informing him of his right of appeal to the Secretary of the Interior.
(c) Except as provided in this section, the townsite trustee shall not issue other than restricted deeds to Indian or other Alaska natives.
Subpart 2565 – Non-native Townsites
§ 2565.0-3 Authority.
The entry of public lands in Alaska for townsite purposes, by such trustee or trustees as may be named by the Secretary of the Interior for that purpose, is authorized by section 11 of the Act of March 3, 1891 (sec. 11, 26 Stat. 1099; 43 U.S.C. 732).
§ 2565.0-7 Cross reference.
Townsites in Alaska may be reserved by the President and sold as provided for in sections 2380 and 2381 of the Revised Statutes; 43 U.S.C. 711, 712. The regulations governing these townsites are contained in §§ 2760.0-3 and 2761.3.
§ 2565.1 General requirements.
(a) Survey of exterior lines; exclusions from townsite survey. If the land is unsurveyed the occupants must by application to the State Director, obtain a survey of the exterior lines of the townsite which will be made at Government expense. There must be excluded from the tract to be surveyed and entered for the townsite any lands set aside by the district court under section 31 of the Act of June 6, 1900 (31 Stat. 332; 48 U.S.C. 40), for use as jail and courthouse sites, also all lands needed for Government purposes or use, together with any existing valid claim initiated under Russian rule.
(b) Petition for trustee and for survey of lands into lots, blocks, etc. When the survey of the exterior lines has been approved, or if the townsite is on surveyed land, a petition, signed by a majority of occupants of the land, will be filed in the proper office requesting the appointment of trustee and the survey of the townsite into lots, blocks, and municipal reservations for public use, the expense thereof to be paid from assessments upon the lots, as provided in § 2565.3(b) of this part.
(c) Designation of trustee; payment required: area enterable. If the petition be found sufficient, the Secretary of the Interior will designate a trustee to make entry of the townsite, payment for which must be made at the rate of $1.25 per acre. If there are less than 100 inhabitants the area of the townsite is limited to 160 acres; if 100 and less than 200, to 320 acres; if more than 200, to 640 acres, this being the maximum area allowed by the statute.
§ 2565.2 Application; fees; contests and protests.
(a) Filing of application; publication and posting; submission of proof. The trustee will file his application and notice of intention to make proof, and thereupon the authorizing officer will issue the usual notice of making proof, to be posted and published at the trustee’s expense, for the time and in the manner as in other cases provided, and proof must be made showing occupancy of the tract, number of inhabitants thereon, character of the land, extent, value, and character of improvements, and that the townsite does not contain any land occupied by the United States for school or other purposes or land occupied under any existing valid claim initiated under Russian rule.
(b) Application service fee. The trustee’s application shall be accompanied by $10 application service fee which shall not be returnable.
(c) Expense money to be advanced by lot occupants. The occupants will advance a sufficient amount of money to pay for the land and the expenses incident to the entry to be refunded to them when realized from lot assessments.
(d) Contests and protests. Applications for entry will be subject to contest or protest as in other cases.
§ 2565.3 Subdivision.
(a) Subdivision of land and payment therefore. After the entry is made, the townsite will be subdivided by the United States into blocks, lots, streets, alleys, and municipal public reservations. The expense of such survey will be paid from the appropriation for surveys in Alaska reimbursable from the lot assessments collected.
(b) Lot assessments. The trustee will assess against each lot, according to area, its share of the cost of the subdivisional survey. The trustee will make a valuation of each occupied or improved lot in the townsite and assess upon such lots, according to their value, such rate and sum in addition to the cost of their share of the survey as will be necessary to pay all other expenses incident to the execution of his trust which have accrued up to the time of such levy. More than one assessment may be made if necessary to effect the purpose of the Act of March 3, 1891, and this section.
(c) Award and disposition of lots after subdivisional survey. On the acceptance of the plat by the Bureau of Land Management, the trustee will publish a notice that he will, at the end of 30 days from the date thereof, proceed to award the lots applied for, and that all lots for which no applications are filed within 120 days from the date of said notice will be subject to disposition to the highest bidder at public sale. Only those who were occupants of lots or entitled to such occupancy at the date of the approval of final subdivisional townsite survey or their assigns thereafter, are entitled to the allotments herein provided. Minority and coverture are not disabilities.
§ 2565.4 Deeds.
(a) Applications for deeds. Claimants should file their applications for deeds, setting forth the grounds of their claims for each lot applied for, which should be corroborated by two witnesses.
(b) Issuance of deeds; procedure on conflicting applications. (1) Upon receipt of the patent and payment of the assessments the trustee will issue deeds for the lots. The deeds will be acknowledged before an officer duly authorized to take acknowledgements of deeds at the cost of the grantee. In case of conflicting applications for lots, the trustee, if he considers it necessary, may order a hearing to be conducted in accordance with the part 1850 of this chapter.
(2) No deed will be issued for any lot involved in a contest until the case has been finally closed. Appeals from any decision of the trustee or from decisions of the Bureau of Land Management may be taken in the manner provided by part 1840 of this chapter.
§ 2565.5 Sale of the land.
(a) Public sale of unclaimed lots. After deeds have been issued to the parties entitled thereto the trustee will publish or post notice that he will sell, at a designated place in the town and at a time named, to be not less than 30 days from date, at public outcry, for cash, to the highest bidder, all lots and tracts remaining unoccupied and unclaimed at the date of the approval of final subdivisional townsite survey, and all lots and tracts claimed and awarded on which the assessments have not been paid at the date of such sale. The notice shall contain a description of the lots and tracts to be sold, made in two separate lists, one containing the lots and tracts unclaimed at the date of the approval of final subdivisional townsite survey and the other the lots and tracts claimed and awarded on which the assessments have not been paid. Should any delinquent allottee, prior to the sale of the lot claimed by him, pay the assessments thereon, together with the pro rata cost of the publication and the cost of acknowledging deed, a deed will be issued to him for such lot, and the lot will not be offered at public sale. Where notice by publication is deemed advisable the notice will be published once a week for 5 consecutive weeks in accordance with § 1824.3 of this chapter prior to the date of sale, and in any event copies of such notice shall be posted in three conspicuous places within the townsite. Each lot must be sold at a fair price, to be determined by the trustee, and he is authorized to reject any and all bids. Lots remaining unsold at the close of the public sale in an unincorporated town may again be offered at a fair price if a sufficient demand appears therefor.
(b) Sales to Federal, State and local governmental agencies. (1) Any lot or tract in the townsite which is subject to sale to the highest bidder by the trustee pursuant to this section may in lieu of disposition at public sale be sold by the trustee at a fair value to be fixed by him to any Federal or State agency or instrumentality or to any local governmental agency or instrumentality of the State for use for public purposes.
(2) All conveyances under this section shall be subject to such conditions, limitations, or stipulations as the trustee shall determine are necessary or appropriate in the circumstances, including, where he deems proper, a provision for reversion of title to the trustee or his successor in interest. Any such provision for reversion of title, however, shall by its terms cease to be in effect 25 years after the conveyance.
(3) Conveyances under this section for lands within any incorporated city, town, village, or municipality may be made only after the proposed conveyance has received the approval of the city, town, or village council, or of the local official designated by such council. Such conveyances for lands within any unincorporated city, town, village or municipality may be made only after notice of the proposed conveyance, together with the opportunity to be heard, has been given by the proposed grantee to the residents or occupants thereof in accordance with the requirements for such notice in the case of the public sale of unclaimed lots in a trustee townsite. Any decision of the trustee which is adverse to a protest will be subject to the right of appeal under part 1840 of this chapter. Upon filing of an appeal pursuant to that part, action by the trustee on the conveyance will be suspended pending final decision on the appeal.
§ 2565.6 Rights-of-way.
(a) Notwithstanding any other provisions of this part, the trustee is authorized to grant rights-of-way for public purposes across any unentered lands within the townsite. This authority is expressly limited to grants of rights-of-way to cities, towns, villages, and municipalities, and to school, utility, and other types of improvement districts, and to persons, associations, companies, and corporations engaged in furnishing utility services to the general public, and to the United States, any Federal or State agency or instrumentality for use for public purposes.
(b) The trustee may in his discretion fix a reasonable charge for any grant under this authority to private persons, associations, companies and corporations, and to Federal and State agencies and instrumentalities, which charge shall be a lump sum. All grants shall be subject to such conditions, limitations, or stipulations as the trustee shall determine are necessary or appropriate in the circumstances. No grants of rights-of-way under this authority shall be made across or upon lands on which prior rights of occupancy or entry have vested under the law.
(c) Grants of rights-of-way under this section to Federal and State agencies and instrumentalities to private persons, associations, companies, or corporations affecting lands within any incorporated city, town, village, or municipality, may be made only after the proposed grant has received the approval of the city, town, or village council, or, where applicable, the municipal board or commission having authority under state law to approve rights-of-way for local public utility purposes. Grants of such rights-of-way to Federal and State agencies and instrumentalities and to private persons, associations, companies, or corporations within unincorporated cities, towns, villages, or municipalities may be made only after notice of the proposed grant, together with the opportunity to be heard, has been given by the proposed grantee to the residents or occupants thereof in accordance with the requirements for such notice in the case of the public sale of unclaimed lots in a trustee townsite. Any decision by the trustee which is adverse to a protest will be subject to the right of appeal under part 1840 of this chapter. Upon the filing of an appeal, action by the trustee on the application for right-of-way will be suspended pending final decision on the appeal.
§ 2565.7 Final report of trustee; disposition of unexpended moneys and unsold lots.
After the disposal of a sufficient number of lots to pay all expenses incident to the execution of the trust, including the cost of the subdivisional survey, the trustee will make and transmit to the Bureau of Land Management his final report of his trusteeship, showing all amounts received and paid out and the balance remaining on hand derived from assessments upon the lots and from the public sale. The proceeds derived from such sources, after deducting all expenses, may be used by the trustee on direction of the Secretary of the Interior, where the town is unincorporated, in making public improvements, or, if the town is incorporated such remaining proceeds may be turned over to the municipality for the use and benefit thereof. After the public sale and upon proof of the incorporation of the town, all lots then remaining unsold will be deeded to the municipality, and all municipal public reserves will, by a separate deed, be conveyed to the municipality in trust for the public purposes for which they were reserved.
§ 2565.8 Records to be kept by trustee.
The trustee shall keep a tract book of the lots and blocks, a record of the deeds issued, a contest docket, and a book of receipts and disbursements.
§ 2565.9 Disposition of records on completion of trust.
The trustee’s duties having been completed, the books of accounts of all his receipts and expenditures, together with a record of his proceedings as provided in § 2565.8 of this part with all papers, other books, and everything pertaining to such townsite in his possession and all evidence of his official acts shall be transmitted to the Bureau of Land Management to become a part of the records thereof, excepting from such papers, however, in case the town is incorporated, the subdivisional plat of the townsite, which he will deliver to the municipal authorities of the town, together with a copy of the townsite tract book or books, taking a receipt therefore to be transmitted to the Bureau of Land Management.
Subpart 2566 – Alaska Railroad Townsites
§ 2566.0-3 Authority.
It is hereby ordered that the administration of that portion of the Act of March 12, 1914 (38 Stat. 305; 43 U.S.C. 975, 975a-975g) relating to the withdrawal, location and disposition of townsites shall be in accordance with the following regulations and provisions.
(a) Orders revoked. All Executive orders heretofore issued for the disposition of townsites along the Government railroads in Alaska are hereby revoked so far as they conflict with §§ 2566.1 and 2566.2. This order is intended to take the place of all other orders making provisions for the sale and disposal of lots in said townsites along Government railroads in Alaska under the provisions of said Act.
(b) Amendments – (1) Executive Orders 3529 and 5136. Sections 2566.1 and 2566.2 are amended by E.O. 3529, Aug. 9, 1921 and E.O. 5136, June 12, 1929.
(2) The designation of the Alaskan Engineering Commission has been changed to The Alaska Railroad. All matters which formerly were under the control of the chairman of said commission now are under the supervision of the general manager of the said railroad. The functions formerly exercised by the Commissioner of the General Land Office have been transferred to the Director, Bureau of Land Management.
(3) Due to the change in organization, plats of Alaska Railroad townsites are not approved by an official of the Alaska Railroad.
(4) The State Director in Alaska has been designated as Superintendent of Sales of Alaska Railroad townsites.
(c) Executive Order 5136. (1) It is ordered that Executive Order 3489, issued June 10, 1921, containing the Alaska Railroad Townsite Regulations, is hereby amended to authorize the Secretary of the Interior to reappraise and sell the unimproved lots in Nenana Townsite, Alaska, belonging to the United States, and to readjust the assessments levied against them for the improvement of streets, sidewalks, and alleys, and for the promotion of sanitation and fire protection by the Alaska Railroad prior to August 31, 1921.
(2) As to the lots within said townsite which have been forfeited for failure to pay such assessments, upon which valuable improvements have been placed, the provisions of said order regarding the collection of the unpaid assessments remain effective.
(3) This order shall continue in full force and effect unless and until revoked by the President or by Act of Congress.
§ 2566.0-7 Cross references.
(a) Sales of railroad townsites in Alaska, provided for by Executive Order 3489 of June 10, 1921, §§ 2566.1(a) to (f) and 2566.0-3(a), will be made by the authorized officer in Alaska, as superintendent of sales of railroad townsites in accordance with townsite regulations contained in §§ 2760.0-3 to 2761.2(e) so far as those regulations are applicable.
(b) For surveys, Alaska, see part 9180 of this chapter. For townsites, Alaska, see § 2565.0-7.
§ 2566.1 General procedures.
(a) Reservations. The Alaska Railroad will file with the Secretary of the Interior, when deemed necessary, its recommendations for the reservation of such areas as in its opinion may be needed for townsite purposes. The Secretary of the Interior will thereupon transmit such recommendations to the President with his objections thereto or concurrence therewith. If approved by the President, the reservation will be made by Executive order.
(b) Survey. When in the opinion of the Secretary of the Interior the public interests require a survey of any such reservation, he shall cause to be set aside such portions thereof for railroad purposes as may be selected by the Alaska Railroad, and cause the remainder, or any part thereof, to be surveyed into urban or suburban blocks and lots of suitable size, and into reservations for parks, schools, and other public purposes and for Government use. Highways should be laid out, where practicable, along all shore lines, and sufficient land for docks and wharf purposes along such shore lines should be reserved in such places as there is any apparent necessity therefor. The survey will be made under the supervision of the Bureau of Land Management.
(c) Preference right. Any person residing in a reserved townsite at the time of the subdivisional survey thereof in the field and owning and having valuable and permanent improvements thereon, may, in the discretion of the Secretary of the Interior, be granted a preference right of entry, of not exceeding two lots on which he may have such improvements by paying the appraised price fixed by the superintendent of sale, under such regulations as the Secretary of the Interior may prescribe. Preference right proof and entry, when granted, must be made prior to the date of the public sale.
§ 2566.2 Public sale.
(a) Generally. The unreserved and unsold lots will be offered at public sale to the highest bidder at such time and place, and after such publication of notice, if any, as the Secretary of the Interior may direct.
(b) Superintendent’s authority. Under the supervision of the Secretary of the Interior the superintendent of the sale will be, and he is hereby, authorized to make all appraisements of lots and at any time to reappraise any lot which in his judgment is not appraised at the proper amount, or to fix a minimum price for any lot below which it may not be sold, and he may adjourn, or postpone the sale of any lots to such time and place as he may deem proper.
(c) Manner and terms of public sale. (1) The Secretary of the Interior shall by regulations prescribe the manner of conducting the public sale, the terms thereof and forms therefor and he may prescribe what failures in payment will subject the bidder or purchaser to a forfeiture of his bid or right to the lot claimed and money paid thereon. The superintendent of sale will at the completion of the public sale deposit with the receiver of the proper local land office the money received and file with its officers the papers deposited with him by said bidder, together with his certificate as to successful bidder.
(2) If it be deemed advisable, the Director, Bureau of Land Management may direct the receiver of public moneys of the proper district to attend sales herein provided for in which event the cash payment required shall be paid to the said receiver.
Subpart 2568 – Alaska Native Allotments For Certain Veterans
Purpose
§ 2568.10 What Alaska Native allotment benefits are available to certain Alaska Native veterans?
Eligible Alaska Native veterans may receive an allotment of one or two parcels of Federal land in Alaska totaling no more than 160 acres.
Regulatory Authority
(a) The Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq. (ANCSA), as amended.
(b) Section 432 of Public Law 105-276, the Appropriations Act for the Departments of Veterans Affairs and Housing and Urban Development for fiscal year 1999, 43 U.S.C. 1629g, which amended ANCSA by adding section 41.
(c) Section 301 of Public Law 106-559, the Indian Tribal Justice Technical and Legal Assistance Act of 2000, which amended section 41 of ANCSA.
(d) The Native Allotment Act of 1906, 34 Stat. 197, as amended, 42 Stat. 415 and 70 Stat. 954, 43 U.S.C. 270-1 through 270-3 (1970).
§ 2568.21 Do other regulations directly apply to these regulations?
Yes. The regulations implementing the Native Allotment Act of 1906, 43 CFR Subpart 2561, also apply to Alaska Native Veteran Allotments to the extent they are not inconsistent with section 41 of ANCSA or other provisions in this Subpart.
Definitions
§ 2568.30 What terms do I need to know to understand these regulations?
Alaska Native is defined in the Native Allotment Act of 1906 as amended by the Act of August 2, 1956, 70 Stat. 954.
Allotment has the same meaning as in 43 CFR 2561.0-5(b).
Conservation System Unit has the same meaning as under Sec. 102(4) of the Alaska National Interest Lands Conservation Act of December 2, 1980, 16 U.S.C. 3102(4).
Consistent and inconsistent mean compatible and incompatible, respectively, in accordance with the guidelines in these regulations in §§ 2568.102 through 2568.106.
Veteran has the same meaning as in 38 U.S.C. 101, paragraph 2.
Information Collection
(a) Yes. The Office of Management and Budget has approved, under 44 U.S.C. 3507, the information collection requirements contained in Subpart 2568 and has assigned them clearance number 1004-0191 for Form AK-2561-10. BLM uses this information to determine if using the public lands is appropriate. You must respond to obtain a benefit.
(b) BLM estimates that the public reporting burden for this information is as follows: 28 hours per response to fill out form AK-2561-10. These estimates include the time for reviewing instruction, searching existing data sources, gathering and maintaining the data needed and completing the collection of information.
(c) Send comments regarding this burden estimate or any other aspect of this collection to the Information Collection Clearance Officer, Bureau of Land Management, 1849 C St. N.W., Mail Stop 401 LS, Washington, D.C. 20240.
Who Is Qualified for an Allotment
§ 2568.50 What qualifications do I need to be eligible for an allotment?
To qualify for an allotment you must:
(a) Have been eligible for an allotment under the Native Allotment Act as it was in effect before December 18, 1971; and
(b) Establish that you used land in accordance with the regulation in effect before December 18, 1971, and that the land is still owned by the Federal government; and
(c) Be a veteran who served at least six months between January 1, 1969, and December 31, 1971, or enlisted or was drafted after June 2, 1971, but before December 3, 1971; and
(d) Not have already received conveyance or approval of an allotment. (However, if you are otherwise qualified to receive an allotment under the Alaska Native Veterans Allotment Act, you will still qualify even if you received another allotment interest by inheritance, devise, gift, or purchase); and
(e) Not have a Native allotment application pending on October 21, 1998; and
(f) Reside in the State of Alaska or, in the case of a deceased veteran, have been a resident of Alaska at the time of death.
Personal Representatives
§ 2568.60 May the personal representatives of eligible deceased veterans apply on their behalf?
Yes. The personal representative or special administrator, appointed in the appropriate Alaska State court proceeding, may apply for an allotment for the benefit of a deceased veteran’s heirs if the deceased veteran served in South East Asia at any time during the period beginning August 5, 1964, and ending December 31, 1971, and during that period the deceased veteran:
(a) Was killed in action,
(b) Was wounded in action and later died as a direct consequence of that wound, as determined and certified by the Department of Veterans Affairs, or
(c) Died while a prisoner of war.
§ 2568.61 What are the requirements for a personal representative?
The person filing the application must present proof of a current appointment as personal representative of the estate of the deceased veteran by the proper court, or proof that this appointment process has begun.
§ 2568.62 Under what circumstances does BLM accept the appointment of a personal representative?
BLM will accept an appointment of personal representative made any time after an eligible person dies, even if that appointment came before enactment of the Alaska Native Veterans Allotment Act.
§ 2568.63 Under what circumstances does BLM reject the appointment of a personal representative?
If the appointment process is incomplete at the time of allotment application filing, the prospective personal representative must file the proof of appointment with BLM within 18 months after the application filing deadline or BLM will reject the application.
§ 2568.64 Are there different requirements for giving an allotment to the estate of a deceased veteran?
No, the estate of the deceased veteran eligible under § 2568.60 must meet the same requirements for a Native allotment as other living Alaska Native veterans. In addition, a deceased veteran must have been a resident of Alaska at the time of death.
Applying for an Allotment
§ 2568.70 If I am qualified for an allotment, when can I apply?
If you are qualified, you can apply between July 31, 2000 and January 31, 2002.
§ 2568.71 Where do I file my application?
You must file your application in person or by mail with the BLM Alaska State Office in Anchorage, Alaska.
§ 2568.72 When does BLM consider my application to be filed too late?
BLM will consider applications to be filed too late if they are:
(a) Submitted in person after the deadline in section 2568.70, or
(b) Postmarked after the deadline in section 2568.70.
§ 2568.73 Do I need to fill out a special application form?
Yes. You must complete form no. AK-2561-10, “Alaska Native Veteran Allotment Application.”
§ 2568.74 What else must I file with my application?
You must also file:
(a) A Certificate of Indian Blood (CIB), which is a Bureau of Indian Affairs form,
(b) A DD Form 214 “Certificate of Release or Discharge from Active Duty” or other documentation from the Department of Defense (DOD) to verify military service, as well as any information on cause of death supplied by the Department of Veterans Affairs,
(c) A map at a scale of 1:63,360 or larger, sufficient to locate on-the-ground the land for which you are applying, and
(d) A legal description of the land for which you are applying. If there is a discrepancy between the map and the legal description, the map will control. The map must be sufficient to allow BLM to locate the parcel on the ground. You must also estimate the number of acres in each parcel.
§ 2568.75 Must I include a Certificate of Indian Blood as well as a Department of Defense verification of qualifying military service when I file my application with BLM?
Yes.
(a) If the CIB or DOD verification of qualifying military service is missing when you file the application, BLM will ask you to provide the information within the time specified in a notice. BLM will not process the application until you file the necessary documents but will consider the application as having been filed on time.
(b) A personal representative filing on behalf of the estate of a deceased veteran must file the Department of Veterans Affairs verification of cause of death.
§ 2568.76 Do I need to pay any fees when I file my application?
No. You do not need to pay a fee to file an application.
§ 2568.77 [Reserved]
§ 2568.78 Will my application segregate the land for which I am applying from other applications or land actions?
The filing of an application with a sufficient description to identify the lands will segregate those lands. “Segregation” has the same meaning as in 43 CFR 2091.0-5(b).
§ 2568.79 Are there any rules about the number and size of parcels?
Yes. You may apply for one or two parcels, but if you apply for two parcels the two combined cannot total more than 160 acres. You may apply for less than 160 acres. Each parcel must be reasonably compact.
§ 2568.80 Does the parcel have to be surveyed before I can receive title to it?
Yes. The land in your application must be surveyed before BLM can convey it to you. BLM will survey your allotment at no charge to you, or you may obtain a private survey. BLM must approve the survey if it is done by a private surveyor.
§ 2568.81 If BLM finds errors in my application, will BLM give me a chance to correct them?
Yes. If you file your application during the 18-month filing period and BLM finds correctable errors, it will consider the application as having been filed on time once you correct them. BLM will send you a notice advising you of any correctable errors and give you at least 60 days to correct them. You must make corrections within the specified time or BLM will reject your application.
§ 2568.82 If BLM decides that I have not submitted enough information to show qualifying use and occupancy, will it reject my application or give me a chance to submit more information?
(a) BLM will not reject your application without giving you an opportunity for a hearing to establish the facts of your use.
(b) If BLM cannot determine from the information you submit that you met the use and occupancy requirements of the 1906 Act, it will send you a notice saying that you have not submitted enough evidence and will give you at least 60 days to file additional information.
(c) If you do not submit additional evidence by the end of the time BLM gives you or if you submit additional evidence but BLM still cannot determine that you meet the use and occupancy requirements, the following process will occur:
(1) BLM will issue a formal contest complaint telling you why it believes it should reject your application.
(2) If you answer the complaint and tell BLM you want a hearing, BLM will ask an Administrative Law Judge (ALJ) of the Interior Department, Office of Hearings and Appeals, to preside over a hearing to establish the facts of your use and occupancy.
(3) The ALJ will evaluate all the written evidence and oral testimony and issue a decision.
(4) You can appeal this decision to the Interior Board of Land Appeals according to 43 CFR part 4.
Available Lands – General
§ 2568.90 If I qualify for an allotment, what land may BLM convey to me?
You may receive title only to:
(a) Land that:
(1) Is currently owned by the Federal government,
(2) Was vacant, unappropriated, and unreserved when you first began to use and occupy it,
(3) Has not been continuously withdrawn since before your sixth birthday,
(4) You started using before December 14, 1968, the date when Public Land Order 4582 withdrew all unreserved public lands in Alaska from all forms of appropriation and disposition under the public land laws, and
(5) You prove by a preponderance of the evidence that you used and occupied in a substantially continuous and independent manner, at least potentially exclusive of others, for five or more years. This possession of the land must not be merely intermittent. “Preponderance of evidence” means evidence which is more convincing than the evidence offered in opposition to it; that is, evidence which as a whole shows that the fact you are trying to prove is more likely a fact than not.
(b) Substitute land explained in 43 CFR 2568.110.
§ 2568.91 Is there land owned by the Federal government that BLM cannot convey to me even if I qualify?
You cannot receive an allotment containing any of the following:
(a) A regularly used and recognized campsite that is primarily used by someone other than yourself. The campsite area that you cannot receive is that which is actually used as a campsite.
(b) Land presently selected by, but not conveyed to, the State of Alaska. The State may relinquish up to 160 acres of its selection to allow an eligible Native veteran to receive an allotment;
(c) Land presently selected by, but not conveyed to, a Native corporation as defined in 43 U.S.C. 1602(m). A Native corporation may relinquish up to 160 acres of its selection to allow an eligible Native veteran to receive an allotment, as long as the remaining ANCSA selection comports with the appropriate selection rules in 43 CFR 2650. Any such relinquishment must not cause the corporation to become underselected. See 43 U.S.C. 1621(j)(2) for a definition of underselection;
(d) Land designated as wilderness by statute;
(e) Land acquired by the Federal government through gift, purchase, or exchange;
(f) Land containing any development owned or controlled by a unit of government, or a person other than yourself;
(g) Land withdrawn or reserved for national defense, other than the National Petroleum Reserve-Alaska;
(h) National Forest land; or
(i) Land selected or claimed, but not yet conveyed, under a public land law, including but not limited to the following:
(1) Land within a recorded mining claim;
(2) Home sites;
(3) Trade and manufacturing sites;
(4) Reindeer sites and headquarters sites;
(5) Cemetery sites.
§ 2568.92 [Reserved]
§ 2568.93 Is there a limit to how much water frontage my allotment can include?
Yes, in some cases. You will normally be limited to a half-mile (referred to as 160 rods in the regulations at 43 CFR part 2094) along the shore of a navigable water body. If you apply for land that extends more than a half-mile, BLM will treat your application as a request to waive this limitation. As explained in 43 CFR 2094.2, BLM can waive the half-mile limitation if it determines the land is not needed for a harborage, wharf, or boat landing area, and that a waiver would not harm the public interest.
§ 2568.94 Can I receive an allotment of land that is valuable for minerals?
BLM can convey an allotment that is known to be or believed to be valuable for coal, oil, or gas, but the ownership of these minerals remains with the Federal government. BLM cannot convey to you land valuable for other kinds of minerals such as gold, silver, sand or gravel. If BLM conveys an allotment that is valuable for coal, oil, or gas, the allottee owns all minerals in the land except those expressly reserved to the United States in the conveyance.
§ 2568.95 Will BLM try to reacquire land that has been conveyed out of Federal ownership so it can convey that land to a Native veteran?
No. The Alaska Native Veterans Allotment Act does not give BLM the authority to reacquire former Federal land in order to convey it to a Native veteran.
Available Lands – Conservation System Units (CSU)
§ 2568.100 What is a CSU?
A CSU is an Alaska unit of the National Park System, National Wildlife Refuge System, National Wild and Scenic Rivers System, National Trails System, National Wilderness Preservation System, or a National Forest Monument.
§ 2568.101 If the land I used and occupied is within a CSU other than a National Wilderness or any part of a National Forest, can I receive a title to it?
You may receive title if you qualify for that allotment and the managing agency of the CSU agrees that conveyance of that allotment is not inconsistent with the purposes of the CSU.
§ 2568.102 Is the process by which the managing agency decides whether my allotment is not inconsistent with the CSU the same as other such determination processes?
No. This process is unique to this regulation. It should not be confused with any similar process under any other act, including the incompatibility process under the National Wildlife Refuge System Improvement Act of 1997.
§ 2568.103 By what process does the managing agency of a CSU decide if my allotment would be consistent with the CSU?
(a) BLM conducts a field exam, with you or your representative, to check the boundaries of the land for which you are applying and to look for signs of use and occupancy. The CSU manager or a designated representative may also attend the field exam.
(b) The CSU manager or representative assesses the resources to determine if the allotment would be consistent with CSU purposes at that location. You may submit any other information for the CSU manager to consider. You or your representative may also accompany the CSU representative on any field exam.
(c) The CSU manager submits a written decision and resource assessment to BLM within 18 months of the BLM field exam. The CSU manager will send you a copy of the decision and a copy of the resource assessment.
§ 2568.104 How will a CSU manager determine if my allotment is consistent with the CSU?
The CSU manager will decide this on a case-by-case basis by considering the law or withdrawal order which created the CSU. The law or withdrawal order explains the purposes for which the CSU was created. The manager would also consider the mission of the CSU managing agency as established in law and policy. The manager will also consider how the cumulative impacts of the various activities that could take place on the allotment might affect the CSU.
§ 2568.105 In what situations could a CSU manager likely find an allotment to be consistent with the CSU?
An allotment could generally be consistent with the purposes of the CSU if:
(a) The allotment for which you qualify is located near land that BLM has conveyed to a Native corporation under ANCSA, or,
(b) A Native corporation has selected the land under ANCSA and has said it would relinquish such selection, as long as the remaining ANCSA selection comports with the appropriate selection rules in 43 CFR 2650. Any relinquishment must not cause the corporation to become underselected. See 43 U.S.C. 1621(j)(2) for a definition of underselection.
§ 2568.106 In what situations could a CSU manager generally find an allotment to be inconsistent with the purposes of a CSU?
An allotment could generally be inconsistent in situations including, but not limited to, the following:
(a) If, by itself or as part of a group of allotments, it could significantly interfere with biological, physical, cultural, scenic, recreational, natural quiet or subsistence values of the CSU.
(b) If, by itself or as part of a group of allotments, it obstructs access by the public or managing agency to the resource values of surrounding CSU lands.
(c) If, by itself or as part of a group of allotments, it could trigger development or future uses in an area that would adversely affect resource values of surrounding CSU lands.
(d) If it is isolated from existing private properties and opens an area of a CSU to new access and uses that adversely affect resource values of the surrounding CSU lands.
(e) If it interferes with the implementation of the CSU management plan.
Alternative Allotments
§ 2568.110 If I qualify for Federal land in one of the categories BLM cannot convey, is there any other way for me to receive an allotment?
Yes. If you qualify for land in one of the categories listed in section 2568.91 which BLM cannot convey, you may choose an alternative allotment from the following types of land within the same ANCSA Region as the land for which you originally qualified:
(a) Land within an original withdrawal under section 11(a)(1) of ANCSA for selection by a Village Corporation which was:
(1) Not selected,
(2) Selected and later relinquished, or
(3) Selected and later rejected by BLM;
(b) Land outside of, but touching a boundary of a Village withdrawal, not including land described in section 2568.91 or land within a National Park; or
(c) Vacant, unappropriated, and unreserved land. (For purposes of this section, the term “unreserved” includes land withdrawn solely under the authority of section 17(d)(1) of ANCSA.)
§ 2568.111 What if BLM decides that I qualify for land that is in the category of Federal land that BLM cannot convey?
BLM will notify you in writing that you are eligible to choose an alternative allotment from lands described in section 2568.110.
§ 2568.112 What do I do if BLM notifies me that I am eligible to choose an alternative allotment?
You must file a request for an alternative allotment in the Alaska State Office as stated in section 2568.71 and follow all the requirements you did for your original allotment application.
§ 2568.113 Do I have to prove that I used and occupied the land I’ve chosen as an alternative allotment?
No. If BLM cannot convey the allotment for which you originally apply, and you are eligible to choose an alternative allotment, you do not have to prove that you used and occupied the land in the alternative location.
§ 2568.114 How do I apply for an alternative allotment if the CSU manager determines my application is inconsistent with a CSU?
You should contact the appropriate CSU manager as quickly as possible to discuss resource concerns, potential constraints, and impacts on existing management plans. After you do this you must file a request for an alternative allotment with the BLM Alaska State Office as stated in section 2568.71 and follow all the requirements of the original allotment application. If the alternative allotment land is also in the CSU, the CSU manager will evaluate it to determine if conveyance of an allotment there would be inconsistent with the CSU as well.
§ 2568.115 When must I apply for an alternative allotment if the CSU manager determines my application is inconsistent with a CSU?
Your application for an alternative allotment must be filed:
(a) Within 12 months of when you receive a decision from a CSU manager that says your original allotment is inconsistent with the purposes of the CSU or,
(b) Within six months of when you receive a decision from the CSU manager on your request for reconsideration of the original decision affirming that your original allotment is inconsistent with the purposes of the CSU, or
(c) Within three months of the date an appellate decision from the appropriate Federal official becomes final. This official will be either:
(1) The Regional Director of the National Park Service (NPS),
(2) The Regional Director of the U.S. Fish and Wildlife Service (USFWS), or
(3) The BLM Alaska State Director
Appeals
§ 2568.120 What can I do if I disagree with any of the decisions that are made about my allotment application?
You may appeal all decisions, except for CSU inconsistency decisions or determinations by the Department of Veterans Affairs, to the Interior Board of Land Appeals under 43 CFR Part 4.
§ 2568.121 If an agency determines my allotment is inconsistent with the purposes of a CSU, what can I do if I disagree?
(a) You may request reconsideration of a CSU manager’s decision by sending a signed request to that manager.
(b) The request for reconsideration must be submitted in person or correctly addressed and postmarked to the CSU manager no later than 90 calendar days of when you received the decision.
(c) The request for reconsideration must include:
(1) The BLM case file number of the application and parcel, and
(2) Your reason(s) for filing the reconsideration, and any new pertinent information.
§ 2568.122 What then does the CSU manager do with my request for reconsideration?
(a) The CSU manager will reconsider the original inconsistency decision and send you a written decision within 45 calendar days after he or she receives your request. The 45 days may be extended for a good reason in which case you would be notified of the extension in writing. The reconsideration decision will give the CSU Manager’s reasons for this new decision and it will summarize the evidence that the CSU manager used.
(b) The reconsideration decision will provide information on how to appeal if you disagree with it.
§ 2568.123 Can I appeal the CSU Manager’s reconsidered decision if I disagree with it?
(a) Yes. If you or your legal representative disagree with the decision you may appeal to the appropriate Federal official designated in the appeal information you receive with the decision. That official will be either the NPS Regional Director, the USFWS Regional Director, or the BLM Alaska State Director, depending on the CSU where your proposed allotment is located.
(b) Your appeal must:
(1) Be in writing,
(2) Be submitted in person to the CSU manager or correctly addressed and postmarked no later than 45 calendar days of when you received the reconsidered decision.
(3) State any legal or factual reason(s) why you believe the decision is wrong. You may include any additional evidence or arguments to support your appeal.
(c) The CSU manager will send your appeal to the appropriate Federal official, which is either the NPS Regional Director, the USFWS Regional Director, or the BLM Alaska State Director.
(d) You may present oral testimony to the appropriate Federal official to clarify issues raised in the written record.
(e) The appropriate Federal official will send you his or her written decision within 45 calendar days of when he or she receives your appeal. The 45 days may be extended for good reason in which case you would be notified of the extension in writing.
(f) The decision of the appropriate Federal official is the final administrative decision of the Department of the Interior.
Subpart 2569 – Alaska Native Vietnam-Era Veterans Land Allotments
General Provisions
§ 2569.100 What is the purpose of this subpart?
The purpose of this subpart is to implement section 1119 of the John D. Dingell, Jr. Conservation, Management, and Recreation Act of March 12, 2019, Public Law 116-9, codified at 43 U.S.C. 1629g-1, which allows Eligible Individuals to receive an allotment of a single parcel of available Federal lands in Alaska containing not less than 2.5 acres and not more than 160 acres.
The legal authority for this subpart is 43 U.S.C. 1629g-1(b)(2).
§ 2569.201 What terms do I need to know to understand this subpart?
(a) Allotment is an allocation to an Alaska Native of land which shall be deemed the homestead of the allottee and his or her heirs in perpetuity, and shall be inalienable and nontaxable except as otherwise provided by Congress;
(b) Available Federal lands means land in Alaska that meets the requirements of 43 U.S.C. 1629g-1(a)(1) and that the BLM has certified to be free of known contamination.
(c) Eligible Individual means a Native Veteran who meets the qualifications listed in 43 U.S.C. 1629g-1(a)(2) and has not already received an allotment pursuant to the Act of May 17, 1906 (34 Stat. 197, chapter 2469) (as in effect on December 17, 1971); or section 14(h)(5) of the Alaska Native Claims Settlement Act (43 U.S.C. 1613(h)(5)); or section 41 of the Alaska Native Claims Settlement Act (43 U.S.C. 1629g);
(d) Mineral means coal, oil, natural gas, other leasable minerals, locatable minerals, and saleable minerals other than sand and gravel.
(e) Native means a person who meets the qualifications listed in section 3(b) of the Alaska Native Claims Settlement Act (43 U.S.C. 1602(b));
(f) Native corporation means a regional corporation or village corporation as defined in sections 3(g) and (j) of the Alaska Native Claims Settlement Act (43 U.S.C. 1602);
(g) Realty Service Provider means a Public Law 93-638 “Contract” or Public Law 103-413 “Compact” Tribe or Tribal organization that provides Trust Real Estate Services for the Bureau of Indian Affairs;
(h) Receipt date means the date on which an application for an allotment is physically received by the BLM Alaska State Office, whether the application is delivered by hand, by mail, or by delivery service;
(i) Segregate has the same meaning as in 43 CFR 2091.0-5(b);
(j) Selection means an area of land that has been identified in an application for an allotment under this part;
(k) State means the State of Alaska;
(l) State or Native corporation selected land means land that is selected, as of the receipt date of the allotment application, by the State of Alaska under the Statehood Act of July 7, 1958, Public Law 85-508, 72 Stat. 339, as amended, or the Alaska National Interest Lands Conservation Act (ANILCA) of December 2, 1980, 94 Stat. 2371, or by a Native corporation under the Alaska Native Claims Settlement Act of December 18, 1971, 43 U.S.C. 1611 and 1613, and that has not been conveyed to the State or Native corporation;
(m) Substantive error means an error or omission in an application of information that is immediately necessary to determine if you are eligible to apply for an allotment. Substantive errors include, but are not limited to, missing land descriptions, missing name or inability to contact the applicant, and missing forms required under § 2569.404, if applicable. When a person corrects this type of error, the correction could show the applicant has an uncorrectable defect like not being an Alaska Native.
(n) Technical error means types of errors that do not rise to the level of substantive error or uncorrectable defect. For instance, not signing your application is an easily correctable error and correcting the error by signing the application cannot raise any new issues which could cause an application to be rejected.
(o) Uncorrectable defect means information provided with an application which provides obvious evidence that you are not qualified to receive an allotment. That evidence includes a lack of qualifying military service or proof of Alaska Native decent.
(p) Valid relinquishment means a signed document from a person authorized by a board resolution from a Native corporation or the State that terminates its rights, title and interest in a specific area of Native corporation or State selected land. A relinquishment may be conditioned upon conformance of a selection to the Plat of Survey and the identity of the individual applicant; and
(q) Veteran means a person who meets the qualifications listed in 38 U.S.C. 101(2) and served in the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard, including the reserve components thereof, during the period between August 5, 1964, and December 31, 1971.
Who Is Qualified for an Allotment
§ 2569.301 How will the BLM let me know if I am an Eligible Individual?
The Bureau of Land Management (BLM), in consultation with the Department of Defense (DoD), the Department of Veterans Affairs (VA), and the Bureau of Indian Affairs (BIA), has identified individuals whom it believes to be Eligible Individuals. If the BLM identifies you as a presumed Eligible Individual, it will inform you by letter at your last address of record with the BIA or the VA. Even if you are identified as presumptively eligible, you still must certify in the application that you do meet the criteria of the Dingell Act.
§ 2569.302 What if I believe I am an Eligible Individual, but I was not notified by the BLM?
If the BLM has not notified you that it believes that you are an Eligible Individual, you may still apply for an allotment under this subpart. However, as described in § 2569.404(b), you will need to provide evidence with your application that you are an Eligible Individual. Supporting evidence with your application must include:
(a) A Certificate of Degree of Indian Blood or other documentation from the BIA to verify you meet the definition of Native; and
(b) A Certificate of Release or Discharge from Active Duty (Form DD-214) or other documentation from DoD to verify your military service.
§ 2569.303 Who may apply for an allotment under this subpart on behalf of another person?
(a) A personal representative of the estate of an Eligible Individual may apply for an allotment for the benefit of the estate. The personal representative must be appointed in an appropriate Alaska State court by either a judge in the formal probate process or the registrar in the informal probate process. The Certificate of Allotment will be issued in the name of the heirs, devisees, and/or assigns of the deceased Eligible Individual.
(b) An attorney-in-fact, a court-appointed guardian, or a court-appointed conservator of an Eligible Individual may apply for an allotment for the benefit of the Eligible Individual. The Certificate of Allotment will be issued in the name of the Eligible Individual.
Applying for an Allotment
§ 2569.401 When can I apply for an allotment under this subpart?
(a) You can apply between December 28, 2020 and December 29, 2025.
(1) If an application is submitted prior to the beginning of the application period, it will be held until the application period begins and considered timely filed.
(2) If an application is submitted by mail after the application period, the BLM will use the post-mark date to determine if the application was timely filed.
(b) Notwithstanding paragraph (a) of this section, in the case of a corrected or completed application or of an application for a substitute selection for resolution of a conflict or an unavailable land selection, you can submit a corrected, completed, or substitute application within 60 days of receiving the notice described in § 2569.410, § 2569.502(b), or § 2569.503(a), respectively. This period may be extended for up to two years in order to allow a personal representative, guardian, conservator, or attorney-in-fact to be appointed, as provided in § 2569.507(c).
(c) Except as set forth in paragraphs (a) and (b) of this section, the BLM will issue a decision rejecting any application received after December 29, 2025.
§ 2569.402 Do I need to fill out a special application form?
Yes. You must complete and sign the BLM Form No. AK-2569-1004-0216, “Alaska Native Vietnam-Era Veteran Land Allotment Application.”
§ 2569.403 How do I obtain a copy of the application form?
The BLM will mail you an application form if you are determined to be an Eligible Individual under § 2569.301. If you do not receive an application in the mail, you can also obtain the form at the BIA, a Realty Service Provider’s office, the BLM Public Room, or on the internet at https://www.blm.gov/alaska/2019AKNativeVetsLand.
§ 2569.404 What must I file with my application form?
(a) You must include the following along with your signed application form:
(1) A map showing the selection you are applying for:
(i) Your selection must be drawn on a map in sufficient detail to locate the selection on the ground.
(ii) You must draw your selection on a map that is either a topographic map or a printout of a map that shows the section lines from the BLM mapping tool, available at https://www.blm.gov/alaska/2019AKNativeVetsLand.
(2) A written description of the lands you are applying for, including:
(i) Section, township, range, and meridian; and
(ii) If desired, additional information about the location. The submitted map will be given preference if there is a conflict between the written description and the submitted map, unless you specify otherwise.
(b) In addition to the materials described in paragraph (a) of this section, you must also provide the following materials, under the circumstances described in paragraphs (b)(1) through (4) of this section:
(1) If you, or the person on whose behalf you are applying, are an Eligible Individual as described in § 2569.301, and were not notified by the BLM of your eligibility, you must provide proof that you, or the person on whose behalf you are applying, are an Eligible Individual, consisting of:
(i) A Certificate of Degree of Indian Blood or other documentation from the BIA to verify that you (or the person on whose behalf you are applying) are an Alaska Native; and
(ii) A Certificate of Release or Discharge from Active Duty (Form DD-214) or other documentation from DoD to verify that you (or the person on whose behalf you are applying) are a Veteran and served between August 5, 1964 and December 31, 1971.
(2) If you are applying on behalf of the estate of an Eligible Individual who is deceased, you must provide proof that you have been appointed by an Alaska State court as the personal representative of the estate, and an affidavit stating that the appointment has not expired. The appointment may have been made before or after the enactment of the Act, as long as it has not expired.
(3) If you are applying on behalf of an Eligible Individual as that individual’s guardian or conservator, you must provide proof that you have been appointed by a court of law, and an affidavit stating that the appointment has not expired.
(4) If you are applying on behalf of an Eligible Individual as that individual’s attorney-in-fact, you must provide a legally valid and current power of attorney that either grants a general power-of-attorney or specifically includes the power to apply for this benefit or conduct real estate transactions.
(c) You must sign the application, certifying that all the statements made in the application are true, complete, and correct to the best of your knowledge and belief and are made in good faith.
§ 2569.405 What are the special provisions that apply to selections that include State or Native corporation selected land?
(a) If the selection you are applying for includes State or Native corporation selected land, the BLM must receive a valid relinquishment from the State or Native corporation that covers all of the lands in your selection that are State or Native corporation selected lands. If the application does not include a valid relinquishment, the BLM will contact the State or Native corporation to request a relinquishment. This requirement does not apply if all of the State or Native corporation selected land included within your selection consists of land for which the State or Native corporation has issued a blanket conditional relinquishment as shown on the mapping tool available at https://www.blm.gov/alaska/2019AKNativeVetsLand.
(b) No such relinquishment may cause a Native corporation to become underselected. See 43 U.S.C. 1621(j)(2) for a definition of underselection.
(c) An application for Native corporation or State selected land will segregate the land from any future entries on the land once the BLM receives a valid relinquishment.
(d) If the State or Native corporation is unable or unwilling to provide a valid relinquishment, the BLM will issue a decision finding that your selection includes lands that are not available Federal lands and then follow the procedures set out at § 2569.503.
§ 2569.406 What are the rules about the number of parcels and size of the parcel for my selection?
(a) You may apply for only one parcel.
(b) The parcel cannot be less than 2.5 acres or more than 160 acres.
§ 2569.407 Is there a limit to how much water frontage my selection can include?
Generally, yes. You will normally be limited to a half-mile along the shore of a navigable water body, referred to as 160 rods (one half-mile) in the regulations at 43 CFR part 2090, subpart 2094. If you apply for land that extends more than 160 rods (one half-mile), the BLM will treat your application as a request to waive this limitation. As explained in 43 CFR 2094.2, the BLM can waive the half-mile limitation if the BLM determines the land is not needed for a harborage, wharf, or boat landing area, and that a waiver will not harm the public interest. If the BLM determines it cannot waive the 160-rod (one half-mile) limitation, the BLM will issue a decision finding your selection includes lands that are not available Federal lands and then follow the procedures set out at § 2569.503.
§ 2569.408 Do I need to pay any fees when I file my application?
No. You do not need to pay a fee to file an application.
§ 2569.409 Where do I file my application?
You must file your application with the BLM Alaska State Office in Anchorage, Alaska, by one of the following methods:
(a) Mail or delivery service: Bureau of Land Management, ATTN: Alaska Native Vietnam-era Veterans Land Allotment Section, 222 West 7th Avenue, Mail Stop 13, Anchorage, Alaska 99513-7504; or
(b) In person: Bureau of Land Management Alaska, Public Information Center, 222 West 7th Avenue, Anchorage, Alaska 99513-7504.
§ 2569.410 What will the BLM do if it finds an error in my application?
(a) If an error is found, the BLM will send you a notice identifying any correctable errors or omissions and whether the error is substantive or technical.
(1) You will have 60 days from the date you received the notice to correct the errors or provide the omitted materials.
(2) If you do not submit the corrections to the BLM within the 60-day period, the BLM will issue a decision rejecting your application and require you to submit a new application.
(b) If the error is a substantive error, your application will not be deemed received until the corrections are made.
(c) If the error is a technical error, your application will be deemed received as of the receipt date. However, the application may still be rejected if the BLM does not receive the corrections within 60 days from the date you received the notice to correct the errors.
(d) If you have uncorrectable defect, then the BLM will issue a decision rejecting your application.
§ 2569.411 When is my application considered received by the BLM?
(a) An application that is free from substantive errors, as described in § 2569.410, will be deemed received on the receipt date, except that if such an application is received before December 28, 2020, the application will be deemed received on December 28, 2020.
(b) An application that contains substantive errors will be deemed received on the receipt date of the last required correction.
(c) In the case of a substitute selection for conflict resolution under § 2569.502, for correction of an unavailable lands selection under § 2569.503, or an amended selection under § 2569.504, the substitute application will be deemed received on the receipt date of the substitute selection application.
§ 2569.412 Where can I go for help with filling out an application?
You can receive help with your application at:
(a) The BIA or a Realty Service Provider for your home area or where you plan to apply. To find the list of the Realty Service Providers, go to https://www.bia.gov/regional-offices/alaska/real-estate-services/tribal-service-providers or call 907-271-4104 or 1-800-645-8465.
(b) The BLM Public Rooms:
(1) The Anchorage Public Room located at 222 West 7th Avenue, Anchorage, Alaska 99513-7504, by email at [email protected], by telephone at 907-271-5960, Monday through Friday from 8 a.m. to 4 p.m. excluding Federal Holidays.
(2) The Fairbanks Public Room located at 222 University Ave, Fairbanks, Alaska 99709, by email at [email protected] or by telephone at 907-474-2252 or 2200, Monday through Friday from 7:45 a.m. to 4:30 p.m. excluding Federal Holidays.
(c) The following BLM Field Offices:
(1) Anchorage Field Office located at 4700 BLM Road, Anchorage, Alaska, by email at [email protected], by phone 907-267-1246, Monday through Friday from 7:30 a.m. to 4 p.m. excluding Federal Holidays.
(2) Glennallen Field Office located at Mile Post 186.5 Glenn Highway, by email at [email protected], by phone 907-822-3217, Monday through Friday 8 a.m. to 4:30 p.m. excluding Federal Holidays.
(3) Nome Field Station located at the U.S. Post Office Building, by phone 907-443-2177, Monday through Friday excluding Federal holidays.
(d) (d) Online at the BLM website which gives answers to frequently asked questions and a mapping tool which will show the available Federal lands and provide online tools for identifying and printing your selection: https://www.blm.gov/alaska/2019AKNativeVetsLand.
§ 2569.413 How will I receive Notices and Decisions?
(a) The BLM will provide all Notices and Decisions by Certified Mail with Return Receipt to your address of record.
(b) Where these regulations specify that you must take a certain action within a certain number of days of receiving a notice or decision, the BLM will determine the date on which you received the notice or decision as follows:
(1) If you sign the Return Receipt, the date on which you received the notice or decision will be the date on which you signed the Return Receipt.
(2) If the notice or decision is returned as undelivered, or if you refuse to sign the Return Receipt, the BLM will make a second attempt by an alternative method. If the second attempt succeeds in delivering the notice or decision, the BLM will deem the notice or decision to have been received on the date when the notice or decision was delivered according to the mail tracking system.
(3) If the notice or decision is returned as undelivered following the second attempt, the BLM may issue a decision rejecting your application.
(c) You have a duty to keep your address up to date. If your mailing address or other contact information changes during the application process, please notify the BLM by mail at the address provided in § 2569.409(a), or by telephone at 907-271-5960, by fax at 907-271-3334, or by the email address provided in the received notice or decision. If you notify the BLM by mail, fax, or email, please prominently include the words “Change of Contact Information” in your correspondence.
(d) Any responses to Notices or Decisions will be deemed received when it is physically received at the BLM Alaska State Office; if the response is mailed, on the date it was post-marked; or, if emailed, the date the email was sent.
§ 2569.414 May I request an extension of time to respond to Notices?
The BLM will allow reasonable extensions of deadlines in Notices for good cause. The request for the extension must be received from the Eligible Individual prior to the end of the 60-day period and provide the reason an extension is needed.
Processing the Application
§ 2569.501 What will the BLM do with my application after it is received?
After your application is deemed received in accordance with § 2569.411, the BLM will take the following steps:
(a) The BLM will enter your selection onto the Master Title Plat (MTP) to make the public aware that the land has been segregated from the public land laws.
(b) The BLM will then determine whether the selection includes only available Federal lands or if the selection conflicts with any other applicant’s selection. The BLM will also review its records and aerial imagery to identify, to the extent it can, any valid existing rights that exist within the selection.
(c) The BLM may make minor adjustments to the shape and description of your selection to match existing property boundaries, roads, or meanderable waterbodies, or to reduce the number of corners or curved boundary segments. The BLM will attempt to retain the acreage requested in the selection, but the adjustment may cause a reduction or addition in the acreage (not to exceed 160 acres).
(d) After any adjustments have been made, the BLM will send you a Notice of Survey to inform you of the shape and location of the lands the BLM plans to survey. The Notice of Survey will include:
(1) Your original land description;
(2) The adjusted land description plotted onto a Topographic Map and a MTP;
(3) Imagery of your original land description with the adjusted land description projected onto it;
(4) a Draft Plan of Survey; and
(5) A list of valid existing rights that the BLM has identified within the selection.
(e) The Notice of Survey will provide you an opportunity to challenge, in writing, the Draft Plan of Survey of the adjusted land description within 60 days of receipt of the BLM’s notice. If no challenge is received within 60 days, the BLM will deem the Draft Plan of Survey to have been accepted.
(f) The BLM will finalize the Plan of Survey based on the Draft Plan of Survey in the Notice of Survey or the adjustment you provide pursuant to paragraph (e) of this section.
(g) The BLM will survey the selection based on the Plan of Survey.
(h) After survey, the BLM will mail you a document titled Conformance to Plat of Survey. That document will:
(1) Show the selection as actually surveyed;
(2) Plot the survey onto imagery; and
(3) If you found an error in the way the BLM surveyed the selection based on the Plan of Survey, provide an opportunity to dispute the survey in writing within 60 days of receipt of the Conformance of Plat of Survey. If no notice of dispute is received within 60 days, the BLM will deem the survey to have been accepted.
(i) The BLM will issue a Certificate of Allotment. No right or title of any sort will vest in the selection until the Certificate of Allotment is issued.
(j) If an application is rejected for any reason, the BLM will remove the corresponding selection from the MTP to make the public aware that the land is no longer segregated from the public land laws.
§ 2569.502 What if more than one Eligible Individual applies for the same lands?
(a) If two or more Eligible Individuals select the same lands, in whole or part, the BLM will:
(1) Give preference to the application bearing the earliest receipt date;
(2) If two or more applications bear an identical receipt date, and one or more application bears a legible postmark or shipping date, give preference to the application with the earliest postmark or shipping date; or
(3) Assign to any applications for the same land that are still tied after the criteria in paragraphs (a)(1) and (2) of this section are applied a number in sequence, and run a random number generator to pick the application that will receive preference.
(4) For purposes of paragraphs (a)(1) and (2) of this section, an application received, postmarked, or shipped before December 28, 2020 will be deemed to have been received, postmarked, or shipped on December 28, 2020.
(b) The BLM will issue a decision to all applicants with conflicting selections setting out the BLM’s determination of preference rights. Applicants who do not have preference must make one of the following choices:
(1) Provide the BLM a substitute selection within 60 days of receipt of the BLM’s decision. The substitute selection may consist of either an adjustment to the original selection that avoids the conflict, or a new selection located somewhere else. The substitute selection will be considered a new application for purposes of preference, as set forth in § 2569.411(c), but the applicant will not need to resubmit any portions of the application other than the land description and map; or,
(2) If only a portion of the selection is in conflict, the applicant may request that the BLM continue to adjudicate the portion of the selection that is not in conflict. The BLM must receive the request within 60 days of your receipt of the BLM’s decision. Each applicant is allowed only one selection of land under this act and will not be allowed to apply for more acreage later.
(c) If the BLM finds your application conflicts with an application which has technical errors, the BLM will provide you the option of selecting a substitute parcel prior to that application being corrected under the procedures of paragraph (b)(1) of this section.
(d) If you receive a decision finding your application does not have preference under paragraph (b) of this section and the BLM does not receive your choice within 60 days of receipt of the notice, the BLM will issue a decision rejecting your application. If your application is rejected, you may file a new application for different lands before the end of the five-year application period.
§ 2569.503 What if my application includes lands that are not available Federal lands?
(a) If your selection includes lands that are not available Federal lands, the BLM will issue you a decision informing you of the unavailable land selection and give you the following choices:
(1) Provide the BLM a substitute selection within 60 days of your receipt of the decision. The substitute selection may consist of either an adjustment to your original selection that avoids the unavailable lands, or a new selection located somewhere else. Your substitute selection will be considered a new application for purposes of preference, as set forth in § 2569.411(c), but you will not need to resubmit any portions of your application other than the land description and map; or,
(2) If only a portion of your selection is unavailable, you may request that the BLM continue to adjudicate the portion of the selection that is within available Federal lands. The BLM must receive your request within 60 days of your receipt of the BLM’s decision. You are allowed only one parcel of land under this act, and you will not be allowed to apply for more acreage later.
(b) If you receive a decision finding your selection includes unavailable lands under paragraph (a) of this section and the BLM does not receive your choice within 60 days of receipt of the notice, the BLM will issue a decision rejecting your application. If your application is rejected, you may file a new application for different lands before the end of the five-year application period.
§ 2569.504 Once I file, can I change my land selection?
(a) Once your application is received in accordance with § 2569.411, you will only be allowed to amend your selection until 60 days after you receive the Notice of Survey as set forth in § 2569.501(e). Your amended selection will be considered a new application for purposes of preference, as set forth in § 2569.411(c), but you will not need to resubmit any portions of your application other than the land description and map.
(b) Otherwise, you will not be allowed to change your selection except as set forth in § 2569.502 or § 2569.503.
(c) If an applicant relinquishes their application more than 60 days after they receive the Notice of Survey as set forth in § 2569.501(e), the applicant will only be able to submit a new application for a new selection if their original selection is no longer available.
§ 2569.505 Does the selection need to be surveyed before I can receive title to it?
Yes. The land in your selection must be surveyed before the BLM can convey it to you. The BLM will survey your selection at no charge to you, as set forth in § 2569.501(g).
§ 2569.506 How will the BLM convey the land?
(a) The BLM will issue a Certificate of Allotment which includes language similar to the language found in Certificates of Allotment issued under the Act of May 17, 1906 (34 Stat. 197, chapter 2469), providing that the land conveyed will be deemed the homestead of the allottee and his or her heirs in perpetuity, and will be inalienable and nontaxable until otherwise provided by Congress or until the Secretary of the Interior or his or her delegate approves a deed of conveyance vesting in the purchaser a complete title to the land.
(b) The Certificate of Allotment will be issued subject to valid existing rights.
(c) The United States will reserve to itself all minerals in the Certificate of Allotment.
(d) If the Eligible Individual is deceased, the Certificate of Allotment will be issued in the name of the heirs, devisees, and/or assigns of the deceased Eligible Individual.
§ 2569.507 What should I do if the Eligible Individual dies or becomes incapacitated during the application process?
(a) If an Eligible Individual dies during the application process, another individual may continue the application process as a personal representative of the estate of the deceased Eligible Individual by providing to the BLM the materials described in § 2569.404(b)(2).
(b) If an Eligible Individual becomes incapacitated during the application process, another individual may continue the application process as a court-appointed guardian or conservator or as an attorney-in-fact for the Eligible Individual by providing to the BLM the materials described in § 2569.404(b)(3) or (4).
(c) If a deceased or incapacitated Eligible Individual has received a notice from the BLM that requires a response within 60 days, as described in § 2569.410, § 2569.501(e), § 2569.501(h)(3), § 2569.502(b), or § 2569.503(a), and no personal representative, guardian, or conservator has been appointed, or no attorney-in-fact has been designated, the individual who receives the notice, or an employee of the BIA or a Realty Service Provider, may respond to the notice in order to request that the BLM extend the 60-day period to allow for a personal representative, guardian, or conservator to be appointed. The BLM will extend a 60-day period under this paragraph (c) for up to two years.
(d) If the BLM has completed a Draft Plan of Survey as described in § 2569.501(d) or a survey as described in § 2569.501(g), and the estate of the deceased Eligible Individual does not wish to dispute the Draft Plan of Survey as described in § 2569.501(e) or the results of the survey as described in § 2569.501(h), then the BLM will not require a personal representative to be appointed. The BLM will continue to process the application.
(e) Other than as provided in paragraphs (b), (c), and (d) of this section, the BLM will not accept any correspondence on behalf of a deceased or incapacitated Eligible Individual from an individual who has not provided the materials described in § 2569.404(b)(2), (3), or (4).
Available Federal Lands – General
§ 2569.601 What lands are available for selection?
You may receive title only to lands identified as available Federal land. You can review the available Federal lands on the mapping tool available at https://www.blm.gov/alaska/2019AKNativeVetsLand. If you do not have access to the internet, a physical copy of the map of available Federal lands can be requested by either:
(a) Calling the BLM Alaska Public Room, the BIA Regional Realty Office or Fairbanks Agency Office, or your local Realty Service Provider. The map will be current as of the date it is printed and mailed to the mailing address provided at the time of request; or
(b) Requesting a physical copy in person at any of the offices listed in paragraph (a) of this section.
§ 2569.602 How will the BLM certify that the land is free of known contaminants?
The BLM will review land for contamination by using current contaminated site database information in the Alaska Department of Environmental Conservation database, the U.S. Army Corps of Engineers Formerly Used Defense Sites database, the U.S. Air Force database, and the Federal Aviation Administration database, or any equivalent databases if any of these databases are no longer available. Any land found to have possible contamination based on these searches will not be available for selection.
§ 2569.603 Are lands that contain minerals available?
Yes the lands are available for selection, however, the minerals will be reserved to the United States and will not be conveyed to Eligible Individuals or to the devisees and/or assigns of Eligible Individuals.
§ 2569.604 What happens if new lands become available?
(a) New lands may become available during the application period. As additional lands become available, the BLM will review the lands to determine whether they are free of known contaminants as described in § 2569.602.
(b) After review, the BLM will update the online web maps of available Federal lands to include these additional lands during the five-year application period.
National Wildlife Refuge System
§ 2569.701 If Congress makes lands available within a National Wildlife Refuge, what additional rules apply?
Any Certificate of Allotment for lands within a National Wildlife Refuge will contain provisions that the lands remain subject to the laws and regulations governing the use and development of the Refuge.
Appeals
§ 2569.801 What can I do if I disagree with any of the Decisions that are made about my allotment application?
(a) You may appeal all Decisions to the Interior Board of Land Appeals under 43 CFR part 4.
(b) On appeals of Decisions made pursuant to § 2569.502(b):
(1) Unless the BLM’s decision is stayed on appeal pursuant to 43 CFR 4.21, the BLM will continue to process the conflicting applications that received preference over your application.
(2) Within 60 days of receiving a decision on the appeal, the losing applicant may exercise one of the two options to select a substitute parcel pursuant to § 2569.502(b).
(c) On appeals of Decisions which reject the application or of a decision made pursuant to § 2569.503(a):
(1) Unless the BLM’s decision is stayed on appeal pursuant to 43 CFR 4.21, the BLM will lift the segregation of your selection and the land will be available for all future entries.
(2) If you win the appeal and the decision was not stayed, your selection will be considered received as of the date of the Interior Board of Land Appeals decision for purposes of preference under § 2569.502(a).
PART 2610 – CAREY ACT GRANTS
Subpart 2610 – Carey Act Grants, General
§ 2610.0-2 Objectives.
The objective of section 4 of the Act of August 18, 1894 (28 Stat. 422), as amended (43 U.S.C. 641 et seq.), known as the Carey Act, is to aid public land States in the reclamation of the desert lands therein, and the settlement, cultivation, and sale thereof in small tracts to actual settlers.
§ 2610.0-3 Authority.
(a) The Carey Act authorizes the Secretary of the Interior, with the approval of the President, to contract and agree to grant and patent to States, in which there are desert lands, not to exceed 1,000,000 acres of such lands to each State, under the conditions specified in the Act. The Secretary is authorized to contract and agree to grant and patent additional lands to certain States. After a State’s application for a grant has been approved by the Secretary, the lands are segregated from the public domain for a period of from 3 to 15 years, the State undertaking within that time to cause the reclamation of the lands by irrigation. The lands, when reclaimed, are patented to the States or to actual settlers who are its assignees. If the lands are patented to the State, the State transfers title to the settler. Entries are limited to 160 acres to each actual settler.
(b) The Act of June 11, 1896 (29 Stat. 434; 43 U.S.C. 642), authorizes liens on the land for the cost of construction of the irrigation works, and permits the issuance of patents to States for particular tracts actually reclaimed without regard to settlement or cultivation.
(c) The Act of March 1, 1907 (34 Stat. 1056), extends the provisions of the Carey Act to the former Southern Ute Indian Reservation in Colorado.
(d) The Joint Resolution approved May 25, 1908 (35 Stat. 577), authorizes grants to the State of Idaho of an additional 1,000,000 acres.
(e) The Act of May 27, 1908 (35 Stat. 347; 43 U.S.C. 645), authorizes grants of an additional 1,000,000 acres to the State of Idaho and the State of Wyoming.
(f) The Act of February 24, 1909 (35 Stat. 644; 43 U.S.C. 647), extends the provisions of the Carey Act to the former Ute Indian Reservation in Colorado.
(g) The Act of February 16, 1911 (36 Stat. 913), extends the Carey Act to the former Fort Bridger Military Reservation in Wyoming.
(h) The Act of February 21, 1911 (36 Stat. 925; 43 U.S.C. 523-524), permits the sale of surplus water by the United States Bureau of Reclamation for use upon Carey Act lands.
(i) The Act of March 4, 1911 (36 Stat. 1417; 43 U.S.C. 645), authorizes grants to the State of Nevada of an additional 1,000,000 acres.
(j) The Joint Resolution of August 21, 1911 (37 Stat. 38; 43 U.S.C. 645), authorizes grants to the State of Colorado of an additional 1,000,000 acres.
§ 2610.0-4 Responsibilities.
(a) The authority of the Secretary of the Interior to approve the applications provided for in this part, has been delegated to the Director of the Bureau of Land Management and redelegated to State Directors of the Bureau of Land Management.
(b) The grant contact must be signed by the Secretary of the Interior, or an officer authorized by him, and approved by the President.
§ 2610.0-5 Definitions.
As used in the regulations of this part:
(a) Actual settler means a person who establishes a primary residence on the land.
(b) Cultivation means tilling or otherwise preparing the land and keeping the ground in a state favorable for the growth of ordinary agricultural crops, and requires irrigation as an attendant act.
(c) Desert lands means unreclaimed lands which will not, without irrigation, produce any reasonably remunerative agricultural crop by usual means or methods of cultivation. This includes lands which will not, without irrigation, produce paying crops during a series of years, but on which crops can be successfully grown in alternate years by means of the so-called dry-farming system. Lands which produce native grasses sufficient in quantity, if ungrazed by grazing animals, to make an ordinary crop of hay in usual seasons, are not desert lands. Lands which will produce an agricultural crop of any kind without irrigation in amount sufficient to make the cultivation reasonably remunerative are not desert. Lands containing sufficient moisture to produce a natural growth of trees are not to be classed as desert lands.
(d) Economic feasibility means the capability of an entry to provide an economic return to the settler sufficient to provide a viable farm enterprise and assure continued use of the land for farming purposes. Factors considered in determining feasibility may include the cost of developing or acquiring water, land reclamation costs, land treatment costs, the cost of construction or acquisition of a habitable residence, acquisition of farm equipment, fencing and other costs associated with a farm enterprise, such as water delivery, seed, planting, fertilization, harvest, etc.
(e) Grant contract means the contract between a State and the United States which sets the terms and conditions which the State or its assignees shall comply with before lands shall be patented.
(f) Irrigation means the application of water to the land for the purpose of growing crops.
(g) Ordinary agricultural crops means any agricultural product to which the land under consideration is generally adapted, and which would return a fair reward for the expense of producing them. Ordinary agricultural crops do not include forest products, but may include orchards and other plants which cannot be grown on the land without irrigation and from which a profitable crop may be harvested.
(h) Reclamation means the establishment of works for conducting water in adequate volume and quantity to the land so as to render it available for distribution when needed for irrigation and cultivation.
(i) Segregation means the action under the Act of August 19, 1894 (39 Stat. 422), as amended (43 U.S.C. 641), by which the lands are reserved from the public domain and closed to application or entry under the public land laws, including location under the mining laws.
(j) Smallest legal subdivision means a quarter quarter section (40 acres).
§ 2610.0-7 Background.
The Carey Act authorizes the Secretary of the Interior, with the approval of the President, to contract and agree to grant and patent to States, in which there are desert lands, not exceeding 1 million acres of such lands to each State, as the State may cause to be reclaimed. The State shall also cause not less than 20 acres of each 160 acre tract to be cultivated by actual settlers. A number of amendments allowed additional acreages for certain States. Colorado, Nevada and Wyoming were allowed up to 2 million acres. Idaho was allowed up to 3 million acres.
§ 2610.0-8 Lands subject to application.
(a) The lands shall be unreclaimed desert lands capable of producing ordinary agricultural crops by irrigation.
(b) The lands shall be nonmineral, except that lands withdrawn, classified or valuable for coal, phosphate, nitrate, potash, sodium, sulphur, oil, gas or asphaltic minerals may be applied for subject to a reservation of such deposit, as explained in subpart 2093 of this title.
(c) Lands embraced in mineral permits of leases, or in applications for such permits or leases, or classified, withdrawn or reported as valuable for any leasable mineral, or lying within the geologic structure of a field are subject to the provisions of §§ 2093.0-3 through 2093.0-7 of this title.
(d) A project or individual entry may consist of 2 or more noncontiguous parcels. However, noncontiguous lands should be in a pattern compact enough to be managed as an efficient, economic unit.
Subpart 2611 – Segregation Under the Carey Act: Procedures
§ 2611.1 Applications.
§ 2611.1-1 Applications for determination of suitability and availability of lands.
The first step in obtaining segregation of lands for Carey Act development shall be the filing of an application in the appropriate State office of the Bureau of Land Management requesting that the authorized officer make a determination regarding the suitability and availability of lands for a Carey Act Project. The application shall consist of a map of lands proposed to be reclaimed, containing sufficient detail to clearly show which lands are included in the Project, the mode of irrigation and the source of water. The map shall bear a certification by the State official authorized to file the application that the lands are applied for subject to the provisions of subpart 2093 of this title.
§ 2611.1-2 Determination of suitability and availability of lands.
The authorized officer shall evaluate the suitability and availability of the lands for agricultural development under the Carey Act utilizing the criteria and procedures in part 2400 of this title.
§ 2611.1-3 Application for grant contract.
If it is determined that lands are suitable and available for agricultural development under the Carey Act, the State shall submit the following, in duplicate, to the appropriate Bureau of Land Management office (43 CFR part 1821):
(a) A plan of development that includes:
(1) A report on the economic feasibility of the project and the availability of an adequate supply of water to thoroughly irrigate and reclaim the lands to raise ordinary agricultural crops.
(2) Procedures for avoiding or mitigating adverse environmental impacts and for rehabilitation of the lands if all or part of the project fails.
(3) A map in sufficient detail to show the proposed major irrigation works and the lands to be irrigated. Map material and dimensions shall be as prescribed by the authorized officer and shall be drawn to a scale not greater than 1,000 feet to 1 inch. The map shall connect canals, pipelines larger than 8 inches in diameter, reservoirs and other major facilities in relationship to public survey lines or corners, where present. The map shall show other data as needed to enable retracement of the proposed major irrigation works on the ground. The engineer who prepared the map shall certify that the system depicted therein is accurately and fully represented and that the system proposed is sufficient to fully reclaim the lands.
(4) Additional data concerning the specifics of the plan and its feasibility as required by the authorized officer.
(b) A grant contract in a form prescribed by the Director, Bureau of Land Management, in duplicate, signed by the authorized State official, shall also be filed. A carbon copy of the contract shall not be accepted. The person who signs the contract on behalf of the State shall furnish evidence of his/her authority to do so. The contract shall obligate the State to all terms and conditions of the Act and all specifications of the approved plan, and shall obligate the United States to issue patents to the State upon actual reclamation of the lands according to the plan or to settlers who are its assignees, as provided in subpart 2093 of this title.
§ 2611.1-4 Approval of plan and contract.
(a) After making a determination that the proposed project is economically feasible, that sufficient water can be furnished to thoroughly irrigate and reclaim the lands, that measures to avoid or mitigate adverse environmental impacts and to rehabilitate the lands if the project fails are adequate, and that State laws and regulations concerning the disposal of the lands to actual settlers are not contrary to the provisions and restrictions of the Act, the authorized officer may approve the plan. Before making this determination and approving the plan, the authorized officer may, in agreement with the State, modify the plan.
(b) Upon approval of the plan, the grant contract may be signed by the Secretary of the Interior, or an officer in the Office of the Secretary who has been appointed by the President, by and with the advice and consent of the Senate. A notice that the contract has been signed and the lands are segregated shall be published in the
(c) The contract is not final and binding until approved by the President.
(d) After the plan has been approved, and the contract signed and approved, the lands may be entered by the State and its agents for reclamation and for residency, if appropriate.
§ 2611.1-5 Priority of Carey Act applications.
Properly filed applications under § 2611.1-1 or § 2611.1-3 of this title shall have priority over any subsequently filed agricultural applications for lands within the project boundaries. However, the rejection of a Carey Act application will not preclude subsequent agricultural development under another authority.
§ 2611.2 Period of segregation.
(a) The States are allowed 10 years from the date of the signing of the contract by the Secretary in which to cause the lands to be reclaimed. If the State fails in this, the State Director may, in his discretion, extend the period for up to 5 years, or may restore the lands to the public domain at the end of the 10 years or any extension thereof. If actual construction of the reclamation works has not been commenced within 3 years after the segregation of the land or within such further period not exceeding 3 years as may be allowed for that purpose by the State Director, the State Director may, in his discretion, restore the lands to the public domain.
(b) All applications for extensions of the period of segregation must be submitted to the State Director. Such applications will be entertained only upon the showing of circumstances which prevent compliance by the State with the requirements within the time allowed, which, in the judgment of the State Director, could not have been reasonably anticipated or guarded against, such as the distruction of irrigation works by storms, floods, or other unavoidable casualties, unforeseen structural or physical difficulties encountered in the operations, or errors in surveying and locating needed ditches, canals, or pipelines.
§ 2611.3 Rights-of-way over other public lands.
When the canals, ditches, pipelines, reservoirs or other facilities required by the plan of development will be located on public lands not applied for by the State under the Carey Act, an application for right-of-way over such lands under Title V of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1761 et seq.), shall be filed separately by the proposed constructor. Rights-of-way shall be approved simultaneously with the approval of the plan, but shall be conditioned on approval of the contract.
Subpart 2612 – Issuance of Patents
§ 2612.1 Lists for patents.
When patents are desired for any lands that have been segregated, the State shall file in the BLM State Office a list of lands to be patented, with a certificate of the presiding officer of the State land board, or other officer of the State who may be charged with the duty of disposing of the lands which the State may obtain under the law, that the lands have been reclaimed according to the plan of development, so that a permanent supply of water has been made available for each tract in the list, sufficient to thoroughly reclaim each 160-acre tract for the raising of ordinary agricultural crops. If patents are to be issued directly to assignees, the list shall include their names, the particular lands each claims, and a certification by the State that each is an actual settler and has cultivated at least 20 acres of each 160-acre tract. If there are portions which cannot be reclaimed, the nature, extent, location, and area of such portions should be fully stated. If less than 5 acres of a smallest legal subdivision can be reclaimed and the subdivision is not essential for the reclamation, cultivation, or settlement of the lands; such legal subdivision must be relinquished, and shall be restored to the public domain as provided in a notice published in the
§ 2612.2 Publication of lists for patents.
(a) Notice of lists. When a list for patents is filed in the State Office, it shall be acompanied by a notice of the filing, in duplicate, prepared for the signature of the State Director, or his delegate, fully incorporating the list. The State shall cause this notice to be published once a week for 5 consecutive weeks, in a newspaper of established character and general circulation in the vicinity of the lands, to be designated by the State Director, as provided in subpart 1824 of this chapter.
(b) Proof of publication. At the expiration of the period of publication, the State shall file in the State Office proof of publication and of payment for the same.
§ 2612.3 Issuance of patents.
Upon the receipt of proof of publication such action shall be taken in each case as the showing may require, and all tracts that are free from valid protest, and respecting which the law and regulations and grant contract have been complied with, shall be patented to the State, or to its assignees if the lands have been settled and cultivated. If patent issues to the State, it is the responsibility of the State to assure that the lands are cultivated and settled. If the State does not dispose of the patented lands within 5 years to actual settlers who have cultivated at least 20 acres of each 160 acre tract, or if the State disposes of the patented lands to any person who is not an actual settler or has not cultivated 20 acres of the 160 acre tract, action may be taken to revest title in the United States.
Subpart 2613 – Preference Right Upon Restoration
§ 2613.0-3 Authority.
The Act approved February 14, 1920 (41 Stat. 407; 43 U.S.C. 644), provides that upon restoration of Carey Act lands from segregation, the Secretary is authorized, in his discretion, to allow a preference right of entry under other applicable land laws to any Carey Act entryman on any such lands which such person had entered under and pursuant to the State laws providing for the administration of the grant and upon which such person had established actual, bona fide residence or had made substantial and permanent improvements.
§ 2613.1 Allowance of filing of applications.
(a) Status of lands under State laws. Prior to the restoration of lands segregated under the Carey Act, the Bureau of Land Management shall ascertain from the proper State officials whether any entries have been allowed under the State Carey Act laws on any such lands, and if any such entries have been allowed, the status thereof and action taken by the State with reference thereto.
(b) No entries under State laws. If it is shown with reasonable certainty, either from the report of the State officers or by other available information, that there are no entries under State law, then the Act of February 14, 1920, shall not be considered applicable to the restoration of the lands. Lands shall be restored as provided in a notice published in the
(c) Entries under State laws. If it appears from the report of the State officials or otherwise that there are entries under the State law which may properly be the basis for preference rights under this act, in the order restoring the lands the authorized officer may, in his discretion, allow only the filing of applications to obtain a preference right under the Act of February 14, 1920.
§ 2613.2 Applications.
(a) Applications for preference rights under the Act of February 14, 1920, shall be filed within 90 days of the publication of the restoration order.
(b) Applications shall be on a form approved by the Director and shall set forth sufficient facts to show that the applicant is qualified under the act and these regulations. The application must be subscribed and sworn to before a notary public.
(c) Persons qualified. The Act of February 14, 1920, applies only to cases of entries in good faith in compliance with the requirements of State law, with a view to reclaiming the land and procuring title pursuant to the provisions of the Carey Act; the act does not apply to cases where persons have settled on or improved the segregated land, either with the approval of the State authorities or otherwise, not pursuant to State law or not in anticipation of reclaiming the lands and procuring title under the Carey Act but in anticipation of initiating some kind of a claim to the land on its restoration because of failure of the project or cancellation of the segregation.
(d) Persons not qualified. The Act of February 14, 1920, does not apply to cases where the applicant’s entry has been canceled by the State or forfeited for failure to perfect the entry according to State law, unless the failure is the result of conditions which culminated in the elimination of the lands from the project if the State has allowed a subsequent entry for the same lands, this shall be conclusive evidence that the default was the fault of the State entryman whose entry was forfeited or canceled.
§ 2613.3 Allowance of preference right.
If a person’s application is approved, such person shall have 90 days to submit an application for entry under another land law, and shall be entitled to a preference right of entry under other law if and when the lands are determined to be suitable for entry under such law pursuant to the regulations found in part 2400 of this chapter.
PART 2620 – STATE GRANTS
Subpart 2621 – Indemnity Selections
§ 2621.0-2 Objectives and background.
Generally, grants made by Statehood Acts to the various States of school sections 16 and 36, and in addition, sections 2 and 32 in Arizona, New Mexico, and Utah, attach to a school sections on the date of acceptance or approval of the plat of survey thereof. If the acceptance or approval was prior to the granting act, or to the date of admission of the State into the Union, the grant attaches either on the date of approval of the act or the date of admission into the Union, whichever is the later date. However, if on the date the grant would otherwise attach, the land is appropriated under some applicable public land law, the grant does not attach, and the State is entitled to indemnity therefor as provided in the regulations in this subpart.
§ 2621.0-3 Authority.
(a) Sections 2275 and 2276 of the Revised Statutes, as amended (43 U.S.C. 851, 852), referred to in §§ 2621.0-3 to 2621.4 of this subpart as the law, authorize the public land States except Alaska to select lands (or the retained or reserved interest of the United States in lands which have been disposed of with a reservation to the United States of all minerals, or any specified mineral or minerals, which interest is referred to in §§ 2621.0-3 to 2621.4 as the mineral estate) of equal acreage within their boundaries as indemnity for grant lands in place lost to the States because of appropriation before title could pass to the State or because of natural deficiencies resulting from such causes as fractional sections and fractional townships.
(b) The law provides that indemnity for lands lost because of natural deficiencies will be selected from the unappropriated, nonmineral, public lands, and that indemnity for lands lost before title could pass to the State will be selected from the unappropriated, public lands subject to the following restrictions:
(1) No lands mineral in character may be selected except to the extent that the selection is made as indemnity for mineral lands.
(2) No lands on a known geologic structure of a producing oil or gas field may be selected except to the extent that the selection is made as indemnity for lands on such a structure.
(c) The law also provides that lands subject to a mineral lease or permit may be selected, but only if the lands are otherwise available for selection, and if none of the lands subject to that lease or permit are in producing or producible status. It permits the selection of lands withdrawn, classified, or reported as valuable for coal, phosphate, nitrate, potash, oil, gas, asphaltic minerals, oil shale, sodium, and sulphur and lands withdrawn by Executive Order 5327 of April 15, 1930, if such lands are otherwise available for, and subject to, selection: Provided, That except where the base lands are mineral in character, such minerals are reserved to the United States in accordance with and subject to the regulations in subpart 2093. Except for the withdrawals mentioned in this paragraph and for lands subject to classification under section 7 of the Taylor Grazing Act of June 28, 1934 (48 Stat. 1269; 43 U.S.C. 315f), as amended, the law does not permit the selection of withdrawn or reserved lands.
(d) Subsection (b) of the section 2276 of the Revised Statutes, as amended, sets forth the principles of adjustment where selections are made to compensate for deficiencies of school lands in fractional townships.
§ 2621.1 Applications for selection.
(a) Applications for selection must be made on a form approved by the Director, and must be accompanied by a petition on a form approved by the Director properly executed. However, if the lands described in application have been already classified and opened for selection pursuant to the regulations of this part, no petition is required.
(b) Applications for selection under the law will be made by the proper selecting agent of the State and will be filed, in duplicate, in the proper office in the State or for lands or mineral estate in a State in which there is no office, will be filed in accordance with the provisions of § 1821.2 of this chapter.
(c) Applications must be accompanied by the following information:
(1) A reference to the Act of August 27, 1958 (72 Stat. 928), as amended.
(2) A certificate by the selecting agent showing:
(i) All facts relative to medicinal or hot springs or other waters upon the selected lands.
(ii) That indemnity has not been previously granted for the assigned base lands and that no other selection is pending for such assigned base.
(3) A statement describing the mineral or nonmineral character of each smallest legal subdivision of the base and selected lands or mineral estate.
(4) A certificate by the officer or officers charged with the care and disposal of school lands that no instrument purporting to convey, or in any way incumber, the title to any of the land used as base or bases, has been issued by the State or its agents.
(d) In addition to the requirements of paragraph (c) of this section, applications for selection must conform with the following rules:
(1) The selected land and base lands must be described in accordance with the official plats of survey except that unsurveyed lands will be described in terms of protracted surveys as officially approved in accordance with 43 CFR 3101.1-4(d)(1). If the unsurveyed lands are not covered by protracted surveys the lands must be described in terms of their probable legal description, if and when surveyed in accordance with the rectangular system of public land surveys, or if the State Director gives written approval therefor, by a metes and bounds description adequate to identify the lands accurately.
(2) Separate base or bases do not have to be assigned to each smallest legal subdivision of selected surveyed lands or mineral estate and to each tract of unsurveyed lands upon application. However, prior to final approval of the selection, separate base or bases shall be assigned. Assignment of the smallest actual or probable legal subdivision as base will constitute an election to take indemnity for the entire subdivision and is a waiver of the State’s rights to such subdivision, except that any remaining balance of acreage may be used as base in other selections.
(3) For purposes of selecting unsurveyed land a protracted section shall be considered to be a smallest legal subdivision except where the State Director finds otherwise.
(4) The cause of loss of the base lands to the State must be specifically stated for each separate base.
§ 2621.2 Publication and protests.
(a) The State will be required to publish once a week for five consecutive weeks in accordance with § 1824.3 of this chapter, at its own expense, in a designated newspaper and in a designated form, a notice allowing all persons claiming the land adversely to file in the appropriate office their objections to the issuance of a certification to the State for lands selected under the law. A protestant must serve on the State a copy of the objections and furnish evidence of service to the appropriate land office.
(b) The State must file a statement of the publisher, accompanied by a copy of the notice published, showing that publication has been had for the required time.
§ 2621.3 Certifications; mineral leases and permits.
(a) Certifications will be issued for all selections approved under the law by the authorized officer of the Bureau of Land Management.
(b) Where all the lands subject to a mineral lease or permit are certified to a State, or if, where the State has previously acquired title to a portion of the lands subject to a mineral lease or permit, the remaining lands in the lease or permit are certified to the State, the State shall succeed to the position of the United States thereunder. Where a portion of the lands subject to any mineral lease or permit are certified to a State, the United States shall retain for the duration of the lease or permit the mineral or minerals for which the lease or permit was issued.
§ 2621.4 Application for selection of unsurveyed lands.
(a) The authorized officer will reject any application for selection of unsurveyed lands if: (1) The costs of survey of the lands would grossly exceed the average per-acre costs of surveying public lands under the rectangular system of surveys in the State in which the lands are located, or (2) if the conveyance of the lands would create serious problems in the administration of the remaining public lands or resources thereof or would significantly diminish the value of the remaining public lands. The term remaining public lands means the public lands from which the applied-for lands would be separated by survey.
(b) In addition to the provisions of this section, applications for selection of unsurveyed lands are subject to the provisions of subpart 2400.
Subpart 2622 – Quantity and Special Grant Selections
§ 2622.0-1 Purpose and scope.
(a) Sections 2622.0-1 to 2622.0-8 apply generally to quantity and special grants made to States other than Alaska.
(b) The regulations in §§ 2621.2 to 2621.4 apply to quantity and special grants with the following exceptions and modifications:
(1) Sections 2621.4(b) and 2621.2(c)(4); and §§ 2621.2(d) (3) and (4) and all references to base lands and to mineral estate do not apply.
(2) Section 2621.2(c)(1) is modified to require reference to the appropriate granting act; § 2621.2(c)(3) is modified to require a statement testifying to the nonmineral character of each smallest legal subdivision of the selected land; § 2621.2(d)(2) is modified to permit as much as 6,400 acres in a single selection; and § 2621.2 is modified to require a certificate that the selection and those pending, together with those approved, do not exceed the total amount granted for the stated purpose of the grant.
§ 2622.0-8 Lands subject to selection.
Selections made in satisfaction of quantity and special grants can generally be made only from the vacant, unappropriated, nonmineral, surveyed public lands within the State to which the grant was made. If the lands are otherwise available for selection, the States may select lands which are withdrawn, classified, or reported as valuable for coal, phosphate, nitrate, potash, oil, gas, asphaltic minerals, sodium, or sulphur, provided that the appropriate minerals are reserved to the United States in accordance with and subject to the regulations of subpart 2093.
Subpart 2623 – School Land Grants to Certain States Extended To Include Mineral Sections
§ 2623.0-3 Authority.
(a) The first paragraph of section 1 of the Act approved January 25, 1927 (44 Stat. 1026; 43 U.S.C. 870), reads as follows:
That, subject to the provisions of paragraphs (a), (b), and (c) of this section, the several grants to the States of numbered sections in place for the support or in aid of common or public schools be, and they are hereby, extended to embrace numbered school sections mineral in character, unless land has been granted to and/or selected by and certified or approved, to any such State or States as indemnity or in lieu of any land so granted by numbered sections.
(b) The beneficiaries of this grant are the States of Arizona, California, Colorado, Idaho, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. The grant also extends to the unsurveyed school sections reserved, granted, and confirmed to the State of Florida by the Act of Congress approved September 22, 1922 (42 Stat. 1017; 16 U.S.C. 483, 484).
(c) The additional grant thus made, subject to all the conditions in the statute making same, applies to school-section lands known to be of mineral character at the effective date thereof as hereinafter defined. It does not include school-section lands nonmineral in character, those not known to be mineral in character at time of grant, but afterwards found to contain mineral deposits, such lands not being excepted from the grants theretofore made (Wyoming et al. v. United States, 255 U.S. 489-500, 501, 65 L. ed. 742-748), nor does it include lands in numbered school sections in lieu of or as indemnity for which lands were conveyed to the States first above named, or to the State of Florida with respect to school-section lands coming within the purview of the Act of September 22, 1922, prior to January 25, 1927.
(d) Determinations made prior to January 25, 1927, by the Secretary of the Interior or the Commissioner of the General Land Office to the effect that lands in school sections were excepted from school-land grants because of their known mineral character do not, of themselves, prevent or affect in any way the vesting of title in the States pursuant to the provisions of the statute making the additional grant.
(e) Subsection (a) of section 1 of the Act provides:
That the grant of numbered mineral sections under this Act shall be of the same effect as prior grants for the numbered nonmineral sections, and title to such numbered mineral sections shall vest in the States at the time and in the manner and be subject to all the rights of adverse parties recognized by existing law in the grants of numbered nonmineral sections.
§ 2623.0-7 Cross reference.
For national forests and national parks, see § 1821.7-2 of this chapter. For naval petroleum reserves, see § 3102.2-2 of this chapter.
§ 2623.0-8 Lands subject to selection.
(a) Lands included in grant. (1) Section 2 of the Act of January 25, 1927 (44 Stat. 1027; 43 U.S.C. 871) reads as follows:
(2) The only grants affected in any way by the provisions of the Act of January 25, 1927, are those of numbered sections of land in place made to the States for the support of common or public schools. The adjudication of claims to land asserted under other grants, for indemnity or lieu lands and exchanges of lands, will proceed as theretofore, being governed by the provisions of existing laws applicable thereto. The States will be afforded full opportunity, however, if the facts and conditions are such as to authorize such action, either to assign new base in support of or to withdraw pending unapproved indemnity school land selections in support of which mineral school-section lands have been tendered as base.
(b) Lands excluded from grant. (1) Subsection (c) of section 1 of the Act of January 25, 1927, provides:
That any lands included within the limits of existing reservations of or by the United States, or specifically reserved for waterpower purposes, or included in any pending suit or proceedings in the courts of the United States, or subject to or included in any valid application, claim, or right initiated or held under any of the existing laws of the United States, unless or until such application, claim, or right is relinquished or canceled, and all lands in the Territory of Alaska are excluded from the provisions of this act.
(2) School-section lands included within the limits of existing reservations of or by the United States, specifically reserved for waterpower purposes, or included in any suit or proceedings in the courts of the United States, prior to January 25, 1927, and all lands in Alaska are excluded from the provisions of the Act. (§ 2623.4)
(3) The words existing reservation as used in subsection (c) are construed generally and subject to specific determination in particular cases if the need therefor shall arise, as including Indian and military reservations, naval and petroleum reserves, national parks, national forests, stock driveways, reservations established under the Act of June 25, 1910 (36 Stat. 847; 43 U.S.C. 141-143), as amended by the Act of August 24, 1912 (37 Stat. 497; 43 U.S.C. 142), and all forms of Executive withdrawal recognized and construed by the Department of the Interior as reservations, existent prior to January 25, 1927.
§ 2623.1 Effective date of grant.
Grants to the States of school lands in place (the numbered sections), of the character and status subject thereto, as a rule, are effective and operate to vest title upon the date of the approval of the statute making the grant or the date of the admission of the State into the Union, as to lands then surveyed, and as to the lands thereafter surveyed upon the date of the acceptance of the survey thereof by the Director of the Bureau of Land Management. (United States v. Morrison, 240 U.S. 192, 60 L. ed. 599; United States v. Sweet, 245 U.S. 563, 62 L. ed. 473; Wyoming et al. v. United States, supra.) It is held, therefore, that the grant made by the first paragraph of section 1 of the Act of January 25, 1927, subject to the provision therein with respect to indemnity or lieu lands, to the provisions of subsections (b) and (c) of said section 1 and following the plain provisions of subsection (a) thereof is effective upon the date of the approval of the Act (January 25, 1927) as to lands then surveyed and the survey thereof accepted by the Director of the Bureau of Land Management and as to the unsurveyed school sections in the State of Florida granted to that State by the Act of September 22, 1922. The grant, as to other lands thereafter surveyed, subject to the same provisions is effective upon the acceptance of the survey thereof as above indicated.
§ 2623.2 Claims protected.
(a) Valid applications, claims, or rights protected by the provisions of subsection (c) of section 1 of the Act of January 25, 1927, include applications, entries, selections, locations, permits, leases, and other forms of filing, initiated or held pursuant to existing laws of the United States prior to January 25, 1927, embracing known mineral school-section lands then surveyed and otherwise within the terms of the additional grant, and as to lands thereafter surveyed, valid applications, claims, or rights so initiated or held prior to the date of the acceptance of the survey. The additional grant to the State will attach upon the effective date of the relinquishment or cancellation of any claim, so asserted, in the absence of any other valid existing claim for the land and if same be then surveyed. Should the validity of any such claim be questioned by the State, proceedings with respect thereto by protest, contest, hearing, etc., will be had in the form and manner prescribed by existing rules governing such cases. This procedure will be followed in the matter of all protests, contests, or claims filed by individuals, associations, or corporations against the States affecting school-section lands.
§ 2623.3 States not permitted to dispose of lands except with reservation of minerals.
(a) Subsection (b) of section 1 of the Act of January 25, 1927, provides:
That the additional grant made by this Act is upon the express condition that all sales, grants, deeds, or patents for any of the lands so granted shall be subject to and contain a reservation to the State of all the coal and other minerals in the lands so sold, granted, deeded, or patented, together with the right to prospect for, mine, and remove the same. The coal and other mineral deposits in such lands shall be subject to lease by the State as the State legislature may direct, the proceeds of rentals and royalties therefrom to be utilized for the support or in aid of the common or public schools: Provided, That any lands or minerals disposed of contrary to the provisions of this Act shall be forfeited to the United States by appropriate proceedings instituted by the Attorney General for that purpose in the United States district court for the district in which the property or some part thereof is located.
(b) The lands granted to the States by the Act of January 25, 1927, and the mineral deposits therein are to be disposed of by the States in the manner prescribed in subsection (b) thereof, provision being made for judicial forfeiture in case of disposal of any of the lands or minerals contrary to the provisions of the act.
§ 2623.4 Grant of mineral school sections effective upon restoration of land from reservation.
(a) By the Act of January 25, 1927 (44 Stat. 1026; 43 U.S.C. 870, 871), which grants to the States certain school-section lands that are mineral in character, it is provided by subsection (c) of section 1 that where such lands are embraced within an existing reservation at the date of said Act of 1927, they are thereby excluded from the grant made by said act.
(b) Under the amendatory Act of May 2, 1932 (47 Stat. 140; 43 U.S.C. 870), it is provided that in the event of the restoration of the lands from such reservation, the grant to the State of such mineral school-section lands will thereupon become effective.
(c) Adjudications in connection with the State’s title to school sections will be governed by the provisions of this amendatory Act of May 2, 1932.
Subpart 2624 [Reserved]
Subpart 2625 – Swamp-land Grants
§ 2625.0-3 Authority.
(a) Circular dated Mar. 17, 1896, containing the swamp-land laws and regulations, states:
As soon as practicable after the passage of the swamp-land grant of September 28, 1850, viz, on the 21st of November 1850, the commissioner transmitted to the governors of the respective States to which the grant applied copies of office circular setting forth the provisions of said Act, giving instructions thereunder, and allowing the States to elect which of two methods they would adopt for the purpose of designating the swamp lands, viz:
1. The field notes of Government survey could be taken as the basis for selections, and all lands shown by them to be swamp or overflowed, within the meaning of the act, which were otherwise vacant and unappropriated September 28, 1850, would pass to the States.
2. The States could select the lands by their own agents and report the same to the United States surveyor general with proof as to the character of the same.
The following States elected to make the field notes of survey the basis for determining what lands passed to them under the grant, viz: Louisiana, Michigan, and Wisconsin. Later the State of Minnesota adopted this method of settlement.
The authorities of the following States elected to make their selections by their own agents and present proof that the lands selected were of the character contemplated by the swamp grant, viz: Alabama, Arkansas, Florida, Illinois, Indiana, Iowa, Mississippi, Missouri, and Ohio. Later Oregon adopted this method.
The States of Alabama, Arkansas, Indiana, Mississippi, and Ohio adopted the second method at the beginning, but they changed to the first method, i.e., to the field notes of survey, as a basis of settlement, in recent years.
The authorities of California did not adopt either method, and the passage of the Act of July 23, 1866, rendered such action on their part unnecessary.
In Louisiana the selections under the grant of March 2, 1849, forming the bulk of the selections in said State, are made in accordance with the terms of said act by deputy surveyors, under the direction of the United States surveyor general, at the expense of the State.
(b) The grant of swamp lands, under Acts of March 2, 1849, and September 28, 1850, is a grant in praesenti. See United States Supreme Court decisions Railroad Co. v. Fremont County (9 Wall, 89, 19 L. ed. 563); Railroad Co. v. Smith (id. 95, 19 L. ed. 599); Martin v. Marks (7 Otto 345, 24 L. ed. 940); decisions of the Secretary of the Interior, December 23, 1851 (1 Lester’s L.L. 549), April 25, 1862, and opinion of Attorney General, November 10, 1858 (1 Lester’s L.L. 564).
(c) The Act of September 28, 1850, did not grant swamp and overflowed lands to States admitted into the Union after its passage. See decision of Secretary of the Interior, August 17, 1858; Commissioner, General Land Office, May 2, 1871 (Copp’s L.L. 474), affirmed by Secretary June 1, 1871, and Commissioner, General Land Office, January 19, 1874 (Copp’s L.L. 473), affirmed by Secretary July 9, 1875.
(d) A State having elected to take swamp land by field notes and plats of survey is bound by them, as is also the Government. (See Secretary’s decisions, October 4, 1855 (1 Lester’s L.L. 553), August 1, 1859 (id. 571), December 4, 1877 (4 Copp’s L.L. 149), and September 19, 1879.
(e) The Swamp-Land Acts do not contain any exception or reservation of mineral lands and none is to be implied, since at the time of their enactment the public policy of withholding mineral lands for disposition only under laws including them, was not established. Work, Secretary of the Interior v. Louisiana (269 U.S. 250, 70 L. ed. 259).
§ 2625.1 Selection and patenting of swamp lands.
(a) All lands properly selected and reported to the Bureau of Land Management as swamp will be compared with the records of the said office, and lists of such lands as are shown to be swamp or overflowed, within the meaning of the Acts of March 2, 1849, and September 28, 1850 (9 Stat. 352, 519), and that are otherwise free from conflict will be made out by such office and approved.
(b) When the lists have been approved a copy of each list will be transmitted to the governor of the State, with the statement that on receipt of his request patent will issue to the State for the lands. A copy of each list also will be transmitted to the authorizing officer of the proper office for the district in which the lands are situated, and he will be requested to examine the same with the records of his office and report any conflicts found.
(c) Upon receipt of a request from the governor for patent, and a report from the authorizing officer as to status, patents will issue to the State for all the lands embraced in said lists so far as they are free from conflict.
(d) Under the provisions of the Act of March 2, 1849, granting swamp lands to the State of Louisiana, a certified copy of the list approved by the Director, transmitted to the Governor, has the force and effect of a patent.
§ 2625.2 Applications in conflict with swamp-land claims.
Applications adverse to the State, in conflict with swamp-land claims, will be governed by the following rules:
(a) In those States where the adjudication of swamp-land claims is based on the evidence contained in the survey returns, applications adverse to the State for lands returned as swamp will be rejected unless accompanied by a showing that the land is non-swamp in character.
(b) In such case, the claim adverse to the State must be supported by a statement of the applicant under oath, corroborated by two witnesses, setting forth the basis of the claim and that at the date of the swamp-land grant the land was not swamp and overflowed and not rendered thereby unfit for cultivation. In the absence of such affidavit the application will be rejected. If properly supported, the application will be received and suspended subject to a hearing to determine the swamp or nonswamp character of the land, the burden of proof being upon the non-swamp claimant.
(c) In those States where the survey returns are not made the basis for adjudication of the swamp-land selections, junior applications for lands covered by swamp-land selections may be received and suspended, if supported by non-swamp affidavits corroborated by two witnesses, subject to hearing to determine the character of the land, whether swamp or non-swamp, and the burden of proof will be upon the junior applicant. Likewise, the State, if a junior applicant, may be heard upon furnishing an affidavit corroborated by two witnesses alleging that the land is swamp in character within the meaning of the swamp-land grant, in which case the burden of proof at the hearing will be upon the State.
(d) Where hearings are ordered in any such cases, the Rules of Practice governing contests will be applied, except as herein otherwise provided.
Subpart 2627 – Alaska
§ 2627.1 Grant for community purposes.
(a) Authority. The Act of July 7, 1958 (72 Stat. 339, 340), grants to the State of Alaska the right to select, within 25 years after January 3, 1959, not to exceed 400,000 acres of national forest lands in Alaska which are vacant and unappropriated at the time of their selection and not to exceed 400,000 acres of other public lands in Alaska which are vacant, unappropriated, and unreserved at the time of their selection. The act provides that the selected lands must be adjacent to the established communities or suitable for prospective community centers and recreational areas. The act further provides that such lands shall be selected with the approval of the Secretary of Agriculture as to national forest lands and with the approval of the Secretary of the Interior as to other lands, and that no selection shall be made north and west of the line described in section 10 of the act without approval of the President or his designated representative.
(b) Applicable regulations. Unless otherwise indicated therein, the regulations in § 2627.3 (a) to (d) apply to the grant and selection of lands for community purposes. In addition to the requirements of § 2627.3(c), where the selected lands are national forest, the application for selection must be accompanied by a statement of the Secretary of Agriculture or his delegate showing that he approves the selection.
(c) Approval of selections outside of national forests. Selection of lands outside of national forests will be approved by the authorized officer of the Bureau of Land Management if, all else being regular, he finds that approval of a selection of lands adjacent to an established community will further expansion of an established community, or if the lands are suitable for prospective community centers and recreational areas.
§ 2627.2 Grant for University of Alaska.
(a) Statutory authority. The Act of January 21, 1929 (45 Stat. 1091), as supplemented July 7, 1958 (72 Stat. 339, 343; 43 U.S.C. 852 note), grants to the State of Alaska, for the exclusive use and benefit of the University of Alaska, the unsatisfied portion of 100,000 acres of vacant, surveyed, unreserved public lands in said State, to be selected by the State, under the direction and subject to the approval of the Secretary of the Interior, and subject to the conditions and limitations expressed in the act.
(b) Applications for selection. (1) Applications to select lands under the grant made to Alaska by the Act of January 21, 1929, will be made by the proper selecting agent of the State and will be filed in the proper office of the district in which such selected lands are situated. Such selections must be made in accordance with the law and with the applicable regulations governing selection of lands by States as set forth in part 2620.
(2) Notice of selection and publication is required as provided by § 2627.5 (b) and (c).
(3) Each list of selections must contain a reference to the act under which the selections are made and must be accompanied by a certificate of the selecting agent showing the selections are made under and pursuant to the laws of the State of Alaska.
(4) The selections in any one list must not exceed 6,400 acres.
(5) Each list must be accompanied by a certification of the selecting agent stating that the acreage selected together with the cumulative acreage total of all prior sales for lists pending and finally approved for clear-listing or patenting does not exceed 100,000 acres.
(c) Statement with application. Every application for selection under the Act of January 21, 1929, must be accompanied by a duly corroborated statement making the following showing as to the lands sought to be selected.
(1) That no portion of the land is occupied for any purpose by the United States and that to the best of his knowledge and belief the land is unoccupied, unimproved, and unappropriated by any person claiming the same other than the applicant; and that at the date of the application no part of the land was claimed under the mining laws.
(2) That the land applied for does not extend more than 160 rods along the shore of any navigable water or that such restriction has been or should be waived. (See § 2094.2 of this chapter.)
(3) All facts relative to medicinal or hot springs or other waters upon the lands must be stated.
§ 2627.3 Grant for general purposes.
(a) Statutory authority. (1) The Act of July 7, 1958 (72 Stat. 339-343), referred to in paragraphs (a) to (d) of this section as the act, grants to the State of Alaska the right to select, within 25 years from January 3, 1959, not to exceed 102,550,000 acres from the public lands in Alaska which are vacant, unappropriated and unreserved at the time of selection. The Act of September 14, 1960 (74 Stat. 1024), defines vacant unappropriated, unreserved public lands in Alaska to include the retained or reserved interest of the United States in lands which have been disposed of with a reservation to the United States of all minerals or any specified mineral or minerals.
(2) The Act further provides that no selection shall be made in the area north and west of the line described in section 10 thereof (72 Stat. 345) without the approval of the President or his designated representative.
(b) Lands subject to selection; patents; minerals. (1) The Act as amended August 18, 1959 (73 Stat. 395), provides that any lease, permit, license, or contract issued under the Mineral Leasing Act of 1920 (41 Stat. 437; 30 U.S.C. 181 et seq.), as amended, or under the Alaska Coal Leasing Act of 1914 (38 Stat. 741; 30 U.S.C. 432 et seq.), as amended, referred to in this section as the mineral leasing acts, shall have the effect of withdrawing the lands subject thereto from selection by the State.
(2) Under the Act, the State may select any vacant, unappropriated, and unreserved public lands in Alaska, whether or not they are surveyed and whether or not they contain mineral deposits. For the purposes of selection, leases, permits, licenses, and contracts issued under the Mineral Leasing Acts of 1914 and 1920 will be considered an appropriation of lands. Where the preference provisions of § 2627.4(a) do not apply, selections by the State of lands covered by an application filed prior to the State selection will be rejected to the extent of the conflict when and if such application is allowed. Conflicting applications and offers for mineral leases and permits, except for preference right applicants, filed pursuant to the Mineral Leasing Act, whether filed prior to, simultaneously with, or after the filing of a selection under this part will be rejected when and if the selection is tentatively approved by the authorized officer of the Bureau of Land Management in accordance with paragraph (d) of this section.
(3) Patents will be issued for all selections approved under the act by the authorized officer of the Bureau of Land Management but such patents will not issue unless or until the exterior boundaries of the selected area are officially surveyed.
(4) (i) Where the State selects all the lands in a mineral lease, permit, license, or contract, issued under the Mineral Leasing Acts of 1914 and 1920, the patent issued under the act will convey to the State all mineral deposits in the selected lands. Any such patent shall vest in the State all right, title, and interest of the United States in and to any such lease, permit, license, or contract that remains outstanding on the effective date of the patent, including the right to all rentals, royalties, and other payments accruing after that date under such lease, permit, license, or contract, and including any authority that may have been retained by the United States to modify the terms and conditions of such lease, permit, license, or contract. Issuance of patent will not affect the continued validity of any such lease, permit, license, or contract or any rights arising thereunder.
(ii) Where the State selects a portion of the lands subject to a mineral lease, permit, license, or contract issued under the Mineral Leasing Acts of 1914 and 1920, the patent issued under the act shall reserve to the United States the mineral or minerals subject to that lease, permit, license, or contract, together with such further rights as may be necessary to the full and complete enjoyment of all rights, privileges, and benefits under or with respect to that lease, permit, license, or contracts. Upon the termination of the lease, permit, license, or contract, title to minerals so reserved to the United States shall pass to the State.
(c) Applications for selection. (1) Applications for selection of lands under the act will be made by the proper selecting agent of the State and will be filed, in duplicate, in the proper office of the district in which such selected lands are situated. No special form is required but it must be typewritten and must contain the following information:
(i) A reference to the Act of July 7, 1958 (70 Stat. 709), as supplemented, and a statement that the selection, together with other selections under the act pending or approved, does not exceed 102,550,000 acres (400,000 acres where one of the grants for community purposes is involved).
(ii) A certificate by the selecting agent showing:
(a) That the selection is made under and pursuant to the laws of the State.
(b) The acreage selected and the cumulative acreage of all prior selection lists pending and finally approved for clear-listing or patenting.
(c) His official title and his authority to make the selection on behalf of the State.
(d) That no portion of the selected land is occupied for any purpose by the United States and that to the best of his knowledge and belief the land is unoccupied, unimproved, and unappropriated by any person claiming the land other than the applicant, and that at the date of the application no part of the land claimed or occupied under the mining laws.
(e) That the selected land does not extend more than 160 rods along the shore of any navigable water or that such restriction has been waived or should be waived. (§ 2094.2 of this chapter.)
(f) All the facts relative to medicinal or hot springs or other waters upon the selected lands.
(iii) If the selected lands are surveyed, the legal description of the lands in accordance with official plats of survey.
(iv) If the selected lands are unsurveyed and are described by approved protraction diagrams of the rectangular system of surveys, such description is required.
(v) If the selected lands are unsurveyed and are not described by approved protraction diagrams, a description of the lands and a map or maps, in duplicate, sufficient to permit ready identification of the location, boundaries, and area of the lands.
(2) Selections must be accompanied by a filing fee of $10 for 5,760 acres or fraction thereof in the selection which fee is not returnable.
(3) All selections shall be made in reasonably compact tracts, taking into account the situation and potential uses of the lands involved. A tract will not be considered compact if it excludes other public lands available for selection within its exterior boundary. Each tract selected shall contain at least 5,760 acres unless isolated from other tracts open to selection.
(4) If the selected lands are in the area north and west of the line described in section 10 of the Act, all selection made or confirmed by the act must be accompanied by a statement of the President or his designated representative showing that he approves the selection.
(5) Section 2627.3(a)(1) and (c)(1)(ii) do not apply to the extent that an application embraces a reserved or retained interest.
(d) Effect of approval of selections. Following the selection of lands by the State and the tentative approval of such selection by the authorized officer of the Bureau of Land Management, the State is authorized to execute conditional leases and to make conditional sales of such selected lands pending survey of the exterior boundaries of the selected area, if necessary, and issuance of patent. Said officer will notify the appropriate State official in writing of his tentative approval of a selection after determining that there is no bar to passing legal title to the lands to the State other than the need for the survey of the lands or for the issuance of patent or both.
§ 2627.4 All grants.
(a) State preference right of selection: waivers. (1) The Act of July 7, 1958 (see § 2627.3(a)), provide that upon the revocation of any order of withdrawal in Alaska, the order of revocation shall provide for a period of not less than 90 days before the date on which it otherwise becomes effective during which period the State of Alaska shall have a preferred right of selection under the acts of 1956 and 1958, except as against prior existing valid rights, equitable claims subject to allowance and confirmation and other preferred rights of application conferred by law.
(2) Where the proper selecting agent of the State files in writing in the proper office a waiver of the preference provisions of paragraph (a) of this section in connection with the proposed revocation of an order of withdrawal, the order affecting such revocation will not provide for such preference.
(b) Segregative effect of applications. Lands desired by the State under the regulations of this part will be segregated from all appropriations based upon application or settlement and location, including locations under the mining laws, when the state files its application for selection in the proper office properly describing the lands as provided in § 2627.3(c)(1) (iii), (iv), and (v). Such segregation will automatically terminate unless the State publishes first notice as provided by paragraph (c) of this section within 60 days of service of such notice by the appropriate officer of the Bureau of Land Management.
(c) Publications and protests. (1) The State will be required to publish once a week for five consecutive weeks in accordance with § 1824.4 of this chapter, at its own expense, in a designated newspaper, and in a designated form, a notice allowing all persons claiming the land adversely to file in the appropriate office their objections to the issuance of patent or certification for lands selected under the regulations of this part. A protestant must serve on the State a copy of the objections and furnish evidence of service to the proper office.
(2) The State must file a statement of the publisher, accompanied by a copy of the notice published, showing that publication has been had for the required time.
PART 2630 – RAILROAD GRANTS
Subpart 2631 – Patents for Lands Sold by Railroad Carriers (Transportation Act of 1940)
§ 2631.0-3 Authority.
Subsection (b) of section 321, Part II, Title III, of the Transportation Act of September 18, 1940 (54 Stat. 934; 49 U.S.C. 65), authorizes the issuance of patents for the benefit of certain innocent purchasers for value of land-grant lands from railroad carriers which have released their land-grant claims.
Notices of releases of land grant claims by railroad carriers listing the carriers, the date of the approval of the release and the land-grant predecessors involved dated Dec. 17, 1940, May 17, 1941, and June 29, 1942, appear at 6 FR 449, 2634, and 7 FR 5319.
§ 2631.0-8 Lands for which applications may be made.
Subsection (b) of section 321, Part II, Title III, of the Transportation Act of 1940 provides that in the case of a railroad carrier, or a predecessor, which received a land grant to aid in the construction of any part of its railroad, the laws relating to compensation for certain Government transportation services shall continue to apply as though subsection (a) of section 321 had not been enacted unless the carrier shall file on or before September 18, 1941, with the Secretary of the Interior, in the form and manner prescribed by him, a release of any claim it may have to lands, interests in lands, compensation, or reimbursement on account of lands or interests in lands so granted, claimed to have been granted or claimed should have been granted. Section 321 provides further that nothing therein shall be construed as preventing the issuance of patents confirming the title to such uncertified or unpatented lands as the Secretary of the Interior shall find have been sold prior to September 18, 1940, to innocent purchasers for value. Subsection (b) of section 321 authorizing the issuance of such patents is not an enlargement of the grants, and does not extend them to lands not already covered thereby and, therefore, has no application to lands which for various reasons, such as mineral character, prior grants, withdrawals, reservations, or appropriation, were not subject to the grants. It does apply, however, to lands selected under remedial or lieu acts supplemental to the original grants as well as to primary and indemnity lands. Classification under section 7 of the Taylor Grazing Act of June 28, 1934 (48 Stat. 1269), as amended by the Act of June 26, 1936 (49 Stat. 1976; 43 U.S.C. 315f), will not be required where the sold land is such as the company was authorized by law to select.
§ 2631.1 Applications.
Application, and supporting evidence, must be filed by the carrier in the proper office, accompanied by a nonrefundable application service charge of $10. The lands listed in any one application must be limited to those embraced in a single sale upon which the claim for patent is based. The application should state that it is filed under the railroad land grant act involved, properly cited, and subsection (b) of section 321, Part II, Title III of the Transportation Act of 1940 (54 Stat. 954). The application must be supported by a showing that the land is of the character which would pass under the grant involved, and was not by some superior or prior claim, withdrawal, reservation, or other reason, excluded from the operation of the grant. Full details of the alleged sale must be furnished, such as dates, the terms thereof, the estate involved, consideration, parties, amounts and dates of payments, made, and amounts due, if any, description of the land, and transfers of title. The use, occupancy, and cultivation of the land and the improvements placed thereon by the alleged purchaser should be described. All statements should be duly corroborated. Available documentary evidence, including the contract or deed, should be filed, which may be authenticated copies of the originals. An abstract of title may be necessary, dependent upon the circumstances of the particular case. No application for a patent under this act will be favorably considered unless it be shown that the alleged purchaser is entitled forthwith to the estate and interest transferred by such patent. Evidence of a recorded deed of conveyance from the carrier to the purchaser may be required. Where the company has on file an application in which the sold lands embraced, it need not file a new application, but may file a request for amendment of the pending application to come under the Transportation Act of 1940, together with the showing, supra, required as to the bona fide sale.
§ 2631.2 Publication of notice.
The authorizing officer shall direct the publication of notice of the application. The notice will be published at the carrier’s expense in a newspaper of general circulation in the vicinity of the land. If a daily newspaper be designated, the notice should be published in the Wednesday issue for five consecutive weeks; if weekly, for five consecutive issues; and if semiweekly, in either issue for five consecutive weeks. The carrier must furnish evidence of such publication in due course. Notice need not be published, in case of amendment of a pending application, where publication has already been had.
§ 2631.3 Surveying and conveyance fees.
The carrier must pay the cost of the survey of the land, paying also one-half the cost of any segregation survey in accordance with the laws and regulations pertaining to the survey and patenting of railroad lands. (See 43 U.S.C. 881 et seq.; also subpart 1822 of this chapter.)
§ 2631.4 Patents.
If all be found regular and in conformity with the governing law and regulations, patent shall be issued in the name of the grantee under the railroad grant, the carrier paying the costs of preparation and issuance of the patent.
PART 2640 – FAA AIRPORT GRANTS
Subpart 2640 – Airport and Airway Improvement Act of September 3, 1982
§ 2640.0-1 Purpose.
This subpart sets forth procedures for the issuance of conveyance documents for lands under the jurisdiction of the Department of the Interior to public agencies for use as airports and airways.
§ 2640.0-3 Authority.
Section 516 of the Airport and Airway Improvement Act of September 3, 1982 (49 U.S.C. 2215).
§ 2640.0-5 Definitions.
As used in this subpart, the term:
(a) Act means section 516 of the Airport and Airway Improvement Act of September 3, 1982 (49 U.S.C. 2215).
(b) Secretary means the Secretary of the Interior.
(c) Authorized officer means any employee of the Bureau of Land Management who has been delegated the authority to perform the duties described in this subpart.
(d) Administrator means the person authorized by the Secretary of Transportation to administer the Act.
(e) Applicant means any public agency as defined in § 153.3 of Title 14 of the Code of Federal Regulations, which, either individually or jointly with other such public agencies, submits to the Administrator an application requesting that lands or interests in lands under the jurisdiction of the Department of the Interior be conveyed to such applicant under the Act.
(f) Property interest means the title to or any other interest in lands or any easement through or other interest in air space.
(g) Conveyance document means a patent, deed or similar instrument which transfers title to lands or interests in lands.
§ 2640.0-7 Cross reference.
The regulations of the Federal Aviation Administration under the Act are found in 14 CFR part 153.
Subpart 2641 – Procedures
§ 2641.1 Request by Administrator for conveyance of property interest.
Each request by the Administrator in behalf of the applicant for conveyance of a property interest in lands under the jurisdiction of the Department of the Interior shall be filed with the State Office of the Bureau of Land Management having jurisdiction of the lands or interests in lands in duplicate, and shall contain the following:
(a) A copy of the application filed by the requesting public agency with the Administrator.
(b) A description of the lands or interests in lands, if surveyed, by legal subdivisions, specifying section, township, range, meridian and State. Unsurveyed lands shall be described by metes and bounds with a tie to a corner of the public-land surveys if within two miles; otherwise a tie shall be made to some prominent topographic feature and the approximate latitute and longitude shall be provided.
§ 2641.2 Action on request.
(a) Upon receipt of the request from the Administrator, the authorized officer shall determine whether the requested conveyance is inconsistent with the needs of the Department of the Interior, or any agency thereof, and shall notify the Administrator of the determination within 4 months after receipt of the request. On determining that the conveyance is not inconsistent with the needs of the Department of the Interior, the authorized officer also shall determine what, if any, convenants, terms, conditions and reservations should be included in the conveyance, if made. Any conveyance shall be made subject to valid existing rights of record, and to those disclosed as a result of publication or otherwise.
(b) Unless otherwise specifically provided by law, no conveyance shall be made of Federal lands within any national park, national monument, national recreation area, or similar area under the administration of the National Park Service; within any unit of the National Wildlife Refuge System or similar area under the jurisdiction of the United States Fish and Wildlife Service; within any area designated part of the National Wilderness Preservation System or any area designated as a wilderness study area; or within any national forest or Indian reservation.
(c) The applicant shall, upon request by the authorized officer, submit a deposit in an amount determined by the authorized officer, to cover the administrative costs of processing the application, including the cost of survey, if one is necessary, and issuing of a document of conveyance. No document of conveyance shall be issued for unsurveyed lands. The processing of applications under this part shall be accomplished without any expense to the Bureau of Land Management.
(d) Each applicant also shall pay the cost of publication of a notice in the
§ 2641.3 Publication and payment.
(a) Prior to issuance of a conveyance document, the authorized officer shall publish a notice of realty action in the
(b) The notice of realty action may segregate the lands or interests in lands to be conveyed to the extent that they will not be subject to appropriation under the public land laws, including the mining laws. The segregative effect of the notice of realty action shall terminate either upon the issuance of a document of conveyance or 1 year after the date of publication, whichever occurs first.
(c) The determination concerning the granting or denial of an application shall be sent by the authorized officer to the applicant and to any party who commented on the application.
(d) The authorized officer shall advise the applicant whether any balance is due on the payments required of the applicant and of the time within which payment shall be made. Failure to pay the required amount within the allotted time shall constitute grounds for rejection of the application. If the applicant has deposited with the authorized officer an amount in excess of the payments required, the authorized officer shall so advise the applicant and return the excess payment.
§ 2641.4 Approval of conveyance.
(a) Each conveyance document shall contain appropriate covenants, terms, conditions and reservations requested by the Administrator, and those required for protection of the Department of the Interior or any agency thereof.
(b) Upon receipt of the payment required by § 2641.2 (c) and (d) of this title and after consideration of comments received, the authorized officer shall make a decision upon the application. If the decision is to make a conveyance, the authorized officer shall send the conveyance document to the Attorney General of the United States for consideration. Upon approval by the Attorney General, the authorized officer shall issue the conveyance document.
§ 2641.5 Reversion.
A conveyance shall be made only on the condition that, at the option of the Administrator, the property interest conveyed shall revert to the United States in the event that the lands in question are not developed for airport or airway purposes or are used in a manner inconsistent with the terms of the conveyance. If only a part of the property interest conveyed is not developed for airport purposes, or is used in a manner inconsistent with the terms of the conveyance, only that particular part shall, at the option of the Administrator, revert to the United States.
PART 2650 – ALASKA NATIVE SELECTIONS
Subpart 2650 – Alaska Native Selections: Generally
§ 2650.0-1 Purpose.
The purpose of the regulations in this part is to provide procedures for orderly and timely implementation of those provisions of the Alaska Native Claims Settlement Act of December 18, 1971 (43 U.S.C. 1601) which pertain to selections of lands and interests in lands in satisfaction of the land selections conferred by said Act upon Alaska Natives and Alaska Native corporations.
§ 2650.0-2 Objectives.
The program of the Secretary is to implement such provisions in keeping with the congressional declaration of policy that the settlement of the Natives’ aboriginal land claims be fair and just and that it be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation and with maximum participation by Natives in decisions affecting their rights and property.
§ 2650.0-3 Authority.
Section 25 of the Alaska Native Claims Settlement Act of December 18, 1971, authorizes the Secretary of the Interior to issue and publish in the
§ 2650.0-5 Definitions.
(a) Act means the Alaska Native Claims Settlement Act of December 18, 1971 (43 U.S.C. 1601) and any amendments thereto.
(b) Secretary means the Secretary of the Interior or his authorized delegate.
(c) Native means a Native as defined in section 3(b) of the Act.
(d) Native village means any tribe, band, clan, group, village, community, or association in Alaska, as defined in section 3(c) of the Act.
(e) Village corporation means a profit or nonprofit Alaska Native village corporation which is eligible under § 2651.2 of this chapter to select land and receive benefits under the act, and is organized under the laws of the State of Alaska in accordance with the provisions of section 8 of the Act.
(f) Regional corporation means an Alaska Native regional corporation organized under the laws of the State of Alaska in accordance with the provisions of section 7 of the Act.
(g) Public lands means all Federal lands and interests in lands located in Alaska (including the beds of all non-navigable bodies of water), except:
(1) The smallest practicable tract, as determined by the Secretary, enclosing land actually used, but not necessarily having improvements thereon, in connection with the administration of a Federal installation; and,
(2) Land selections of the State of Alaska which have been patented or tentatively approved under section 6(g) of the Alaska Statehood Act, as amended (72 Stat. 341; 77 Stat. 223; 48 U.S.C. Ch. 2), or identified for selection by the State prior to January 17, 1969, except as provided in § 2651.4(a)(1) of this chapter.
(h) Interim conveyance as used in these regulations means the conveyance granting to the recipient legal title to unsurveyed lands, and containing all the reservations for easements, rights-of-way, or other interests in land, provided by the act or imposed on the land by applicable law, subject only to confirmation of the boundary descriptions after approval of the survey of the conveyed land.
(i) Patent as used in these regulations means the original conveyance granting legal title to the recipient to surveyed lands, and containing all the reservations for easements, rights-of-way, or other interests in land, provided by the act or imposed on the land by applicable law; or the document issued after approval of the survey by the Bureau of Land Management, to confirm the boundary description of the unsurveyed conveyed lands.
(j) Conveyance as used in these regulations means the transfer of title pursuant to the provisions of the act whether by interim conveyance or patent, whichever occurs first.
(k) National Wildlife Refuge System means all lands, waters, and interests therein administered on December 18, 1971, by the Secretary as wildlife refuges, areas for the protection and conservation of fish and wildlife that are threatened with extinction, wildlife ranges, game ranges, wildlife management areas, or waterfowl production areas, as provided in the Act of October 15, 1966, 80 Stat. 927, as amended by the Act of July 18, 1968, 82 Stat. 359 (16 U.S.C. 668dd).
(l) Protraction diagram means the approved diagram of the Bureau of Land Management mathematical plan for extending the public land surveys and does not constitute an official Bureau of Land Management survey, and, in the absence of an approved diagram of the Bureau of Land Management, includes the State of Alaska protraction diagrams which have been authenticated by the Bureau of Land Management.
(m) Date of filing shall be the date of postmark, except when there is no postmark, in which case it shall be the date of receipt in the proper office.
(n) LUPC means the Joint Federal-State Land Use Planning Commission for Alaska.
(o) Major waterway means any river, stream, or lake which has significant use in its liquid state by watercraft for access to publicly owned lands or between communities. Significant use means more than casual, sporadic or incidental use by watercraft, including floatplanes, but does not include use of the waterbody in its frozen state by snowmobiles, dogsleds or skiplanes. Designation of a river or stream as a major waterway may be limited to a specific segment of the particular waterbody.
(p) Present existing use means use by either the general public which includes both Natives and non-Natives alike or by a Federal, State, or municipal corporation entity on or before December 18, 1976, or the date of selection, whichever is later. Past use which has long been abandoned shall not be considered present existing use.
(q) Public easement means any easement reserved by authority of section 17(b) of the Act and under the criteria set forth in these regulations. It includes easements for use by the general public and easements for use by a specific governmental agency. Public easements may be reserved for transportation, communication and utility purposes, for air, light or visibility purposes, or for guaranteeing international treaty obligations.
(r) Publicly owned lands means all Federal, State, or municipal corporation (including borough) lands or interests therein in Alaska, including public lands as defined herein, and submerged lands as defined by the Submerged Lands Act, 43 U.S.C. 1301, et seq.
(s) Director means the Director, Bureau of Land Management.
(t) Isolated tract means a tract of one or more contiguous parcels of publicly owned lands completely surrounded by lands held in nonpublic ownership or so effectively separated from other publicly owned lands as to make its use impracticable without a public easement for access.
(u) State means the State of Alaska.
(v) Native corporation means any Regional Corporation, any Village Corporation, Urban Corporation and any Native Group.
§ 2650.0-7 References.
(a) Native enrollment procedures are contained in 25 CFR part 43h.
(b) Withdrawal procedures are contained in part 2300 of this chapter.
(c) Application procedures are contained in subpart 1821 of this chapter.
(d) Appeals procedures are contained in 43 CFR part 4, subpart E.
(e) Mineral patent application procedures are contained in part 3860 of this chapter.
§ 2650.0-8 Waiver.
The Secretary may, in his discretion, waive any nonstatutory requirement of these regulations. When the rights of third parties will not be impaired, and when rapid, certain settlement of the claims of Natives will be assisted, minor procedural and technical errors should be waived.
§ 2650.1 Provisions for interim administration.
(a)(1) Prior to any conveyance under the Act, all public lands withdrawn pursuant to sections 11, 14, and 16, or covered by section 19 of the Act, shall be administered under applicable laws and regulations by the Secretary of the Interior, or by the Secretary of Agriculture in the case of national forest lands, as provided by section 22(i) of the Act. The authority of the Secretary of the Interior and of the Secretary of Agriculture to make contracts and to issue leases, permits, rights-of-way, or easements is not impaired by the withdrawals.
(2)(i) Prior to the Secretary’s making contracts or issuing leases, permits, rights-of-way, or easements, the views of the concerned regions or villages shall be obtained and considered, except as provided in paragraph (a)(2)(ii) of this section.
(ii) Prior to making contracts, or issuing leases, permits, rights-of-way, or easements on lands subject to election pursuant to section 19(b) of the Act, the Secretary shall obtain the consent of the representatives of the Natives living on those lands.
(b) As provided in section 17(d)(3) of the Act, any lands withdrawn pursuant to section 17(d) shall be subject to administration by the Secretary under applicable laws and regulations and his authority to make contracts, and to issue leases, permits, rights-of-way, or easements shall not be impaired by the withdrawal. To the extent that any such land is also subject to the provisions of paragraph (a) of this section, the provisions of that subsection shall govern.
(c) As provided in section 21(e) of the Act, so long as there are no substantial revenues from real property interests conveyed pursuant to this Act and the lands are not subject to State and local real property taxes, such lands shall continue to receive forest fire protection services from the United States at no cost. The Secretary will promulgate criteria, after consultation with the concerned Native corporations and the State of Alaska, for determining when substantial revenues are accruing as to lands for which forest fire protection services are furnished by the Department of the Interior and no discontinuance of such service will be ordered by the Secretary unless he finds, after notice and opportunity for submission of views, that such discontinuance is in conformity with the criteria.
§ 2650.2 Application procedures for land selections.
(a) Applications for land selections must be filed on forms approved by the Director, Bureau of Land Management. Applications must be filed in accordance with subpart 1821 of this chapter.
(b) Each regional corporation shall submit with its initial application under this section a copy of the resolution authorizing the individual filing the application to do so.
(c) Each village corporation under subpart 2651 of this chapter must submit with its initial application under this section a certificate of incorporation, evidence of approval of its articles of incorporation by the regional corporation for that region, and a copy of the authorization of the individual filing the application to do so.
(d)(1) Regional and village corporations authorized by the act subsequently filing additional or amendatory applications need only refer to the serial number of the initial filing.
(2) Any change of the officer authorized to act for any corporation in the matter of land selections should be promptly submitted to the appropriate office of the Bureau of Land Management.
(e)(1) If the lands applied for are surveyed, the legal description of the lands in accordance with the official plats of survey shall be used.
(2) If the lands applied for are unsurveyed, they shall be described by protraction diagrams.
(3) If the lands applied for are not surveyed and are not covered by protraction diagrams, they must be described by metes and bounds commencing at a readily identifiable topographic feature, such as a mountain peak, mouth of a stream, etc., or a monumented point of known position, such as a triangulation station, and the description must be accompanied by a topographic map delineating the boundary of the area applied for.
(4) Where 1:63,360 U.S.G.S. quadrangle maps with the protraction diagram plotted thereon have been published, these maps shall be used to portray and describe the lands applied for. Where 1:63,360 U.S.G.S. quadrangle maps with the protraction diagram plotted thereon have not been published, then the 1:250,000 U.S.G.S. quadrangle maps with the protraction diagrams plotted thereon shall be used.
(5) If the written description shown on the application and the map portrayal accompanying the application do not agree the delineation shown on the map shall be controlling.
(f) The selected areas may be adjusted by the Secretary with the consent of the applicant and amendment of the application by the applicant, provided that the adjustment will not create an excess over the selection entitlement.
§ 2650.3 Lawful entries, lawful settlements, and mining claims.
§ 2650.3-1 Lawful entries and lawful settlements.
(a) Pursuant to sections 14(g) and 22(b) of the Act, all conveyances issued under the act shall exclude any lawful entries or entries which have been perfected under, or are being maintained in compliance with, laws leading to the acquisition of title, but shall include land subject to valid existing rights of a temporary or limited nature such as those created by leases (including leases issued under section 6(g) of the Alaska Statehood Act), contracts, permits, rights-of-way, or easements.
(b) The right of use and occupancy of persons who initiated lawful settlement or entry of land, prior to August 31, 1971, is protected: Provided, That:
(1) Occupancy has been or is being maintained in accordance with the appropriate public land law, and
(2) Settlement or entry was not in violation of Public Land Order 4582, as amended. Any person who entered or settled upon land in violation of that public land order has gained no rights.
(c) In the event land excluded from conveyance under paragraph (a) of this section reverts to the United States, the grantee or his successor in interest shall be afforded an opportunity to acquire such land by exchange pursuant to section 22(f) of the Act.
§ 2650.3-2 Mining claims.
(a) Possessory rights. Pursuant to section 22(c) of the Act, on any lands to be conveyed to village or regional corporations, any person who prior to August 31, 1971, initiated a valid mining claim or location, including millsites, under the general mining laws and recorded notice thereof with the appropriate State or local office, shall not be challenged by the United States as to his possessory rights, if all requirements of the general mining laws are met. However, the validity of any unpatented mining claim may be contested by the United States, the grantee of the United States or its successor in interest, or by any person who may initiate a private contest. Contest proceedings and appeals therefrom shall be to the Interior Board of Land Appeals.
(b) Patent requirements met. An acceptable mineral patent application must be filed with the appropriate Bureau of Land Management office not later than December 18, 1976, on lands conveyed to village or regional corporations.
(1) Upon a showing that a mineral survey cannot be completed by December 18, 1976, the filing of an application for a mineral survey, which states on its face that it was filed for the purpose of proceeding to patent, will constitute an acceptable mineral patent application, provided all applicable requirements under the general mining laws have been met.
(2) The failure of an applicant to prosecute diligently his application for mineral patent to completion will result in the loss of benefits afforded by section 22(c) of the Act.
(3) The appropriate office of the Bureau of Land Management shall give notice of the filing of an application under this section to the village or regional corporation which has selection rights in the land covered by the application.
(c) Patent requirements not met. Any mineral patent application filed after December 18, 1976, on land conveyed to any village or regional corporation pursuant to this Act, will be rejected for lack of departmental jurisdiction. After that date, patent applications may continue to be filed on land not conveyed to village or regional corporations until such land is conveyed.
§ 2650.4 Conveyance reservations.
§ 2650.4-1 Existing rights and contracts.
Any conveyance issued for surface and subsurface rights under this act will be subject to any lease, contract, permit, right-of-way, or easement and the rights of the lessee, contractee, permittee, or grantee to the complete enjoyment of all rights, privileges, and benefits thereby granted him.
§ 2650.4-2 Succession of interest.
Upon issuance of any conveyance under this authority, the grantee thereunder shall succeed and become entitled to any and all interests of the State of Alaska or of the United States as lessor, contractor, permitter, or grantor, in any such lease, contract, permit, right-of-way, or easement covering the estate conveyed, subject to the provisions of section 14(g) of the Act.
§ 2650.4-3 Administration.
Leases, contracts, permits, rights-of-way, or easements granted prior to the issuance of any conveyance under this authority shall continue to be administered by the State of Alaska or by the United States after the conveyance has been issued, unless the responsible agency waives administration. Where the responsible agency is an agency of the Department of the Interior, administration shall be waived when the conveyance covers all the land embraced within a lease, contract, permit, right-of-way, or easement, unless there is a finding by the Secretary that the interest of the United States requires continuation of the administration by the United States. In the latter event, the Secretary shall not renegotiate or modify any lease, contract, right-of-way or easement, or waive any right or benefit belonging to the grantee until he has notified the grantee and allowed him an opportunity to present his views.
§ 2650.4-4 Revenues. [Reserved]
§ 2650.4-5 National forest lands.
Every conveyance which includes lands within the boundaries of a national forest shall, as to such lands, contain reservations that:
(a) Until December 18, 1976, the sale of any timber from the land is subject to the same restrictions relating to the export of timber from the United States as are applicable to national forest lands in Alaska under rules and regulations of the Secretary of Agriculture; and,
(b) Until December 18, 1983, the land shall be managed under the principles of sustained yield and under management practices for protection and enhancement of environmental quality no less stringent than such management practices on adjacent national forest lands.
§ 2650.4-6 National wildlife refuge system lands.
(a) Every conveyance which includes lands within the national wildlife refuge system shall, as to such lands, provide that the United States has the right of first refusal so long as such lands remain within the system. The right of first refusal shall be for a period of 120 days from the date of notice to the United States that the owner of the land has received a bona fide offer of purchase. The United States shall exercise such right of first refusal by written notice to the village corporation within such 120-day period. The United States shall not be deemed to have exercised its right of first refusal if the village corporation does not consummate the sale in accordance with the notice to the United States.
(b) Every conveyance which covers lands lying within the boundaries of a national wildlife refuge in existence on December 18, 1971, shall provide that the lands shall remain subject to the laws and regulations governing use and development of such refuge so long as such lands remain in the refuge. Regulations governing use and development of refuge lands conveyed pursuant to section 14 shall permit such uses that will not materially impair the values for which the refuge was established.
§ 2650.4-7 Public easements.
(a) General requirements. (1) Only public easements which are reasonably necessary to guarantee access to publicly owned lands or major waterways and the other public uses which are contained in these regulations, or to guarantee international treaty obligations shall be reserved.
(2) In identifying appropriate public easements assessment shall be made in writing of the use and purpose to be accommodated.
(3) The primary standard for determining which public easements are reasonably necessary for access shall be present existing use. However, a public easement may be reserved absent a demonstration of present existing use only if it is necessary to guarantee international treaty obligations, if there is no reasonable alternative route or site available, or if the public easement is for access to an isolated tract or area of publicly owned land. When adverse impacts on Native culture, lifestyle, and subsistence needs are likely to occur because of the reservation of a public easement, alternative routes shall be assessed and reserved where reasonably available. The natural environment and other relevant factors shall also be considered.
(4) All public easements which are reserved shall be specific as to use, location, and size. Standard sizes and uses which are delineated in this subsection may be varied only when justified by special circumstances.
(5) Transportation, communication, and utility easements shall be combined where the combination of such easements is reasonable considering the primary purposes for which easement is to be reserved.
(6) Public easements may be reserved to provide access to present existing Federal, State, or municipal corporation sites; these sites themselves shall not be reserved as public easements. Unless otherwise justified, access to these sites shall be limited to government use.
(7) Scenic easements or easements for recreation on lands conveyed pursuant to the Act shall not be reserved. Nor shall public easements be reserved to hunt or fish from or on lands conveyed pursuant to the Act.
(8) The identification of needed easements and major waterways shall include participation by appropriate Natives and Native corporations, LUPC, State, Federal agencies, and other members of the public.
(9) After reviewing the identified easements needs, the Director shall tentatively determine which easements shall be reserved. Tentative determinations of major waterways shall also be made by the Director and shall apply to rivers, streams, and lakes. All lakes over 640 acres in size shall be screened to determine if they qualify as major waterways. Those smaller than 640 acres may be considered on a case-by-case basis. The Director shall issue a notice of proposed easements which notifies all parties that participated in the development of the easement needs and information on major waterways as to the tentative easement reservations and which directs that all comments be sent to the LUPC and the Director.
(10) The State and the LUPC shall be afforded 90 days after notice by the Director to make recommendations with respect to the inclusion of public easements in any conveyance. If the Director does not receive a recommendation from the LUPC or the State within the time period herein called for, he may proceed with his determinations.
(11) Prior to making a determination of public easements to be reserved, the Director shall review the recommendations of the LUPC, appropriate Native corporation(s), other Federal agencies, the State, and the public. Consideration shall be given to recommendations for public easement reservations which are timely submitted to the Bureau of Land Management and accompanied by written justification.
(12) The Director, after such review, shall prepare a decision to convey that includes all necessary easements and other appropriate terms and conditions relating to conveyance of the land. If the decision prepared by the Director is contrary to the LUPC’s recommendations, he shall notify the LUPC of the variance(s) and shall afford the LUPC 10 days in which to document the reasons for its disagreement before making his final decision. The Director shall then issue a Decision to Issue Conveyance (DIC).
(13) The Director shall terminate a public easement if it is not used for the purpose for which it was reserved by the date specified in the conveyance, if any, or by December 18, 2001, whichever occurs first, He may terminate an easement at any time if he finds that conditions are such that its retention is no longer needed for public use or governmental function. However, the Director shall not terminate an access easement to isolated tracts of publicly owned land solely because of the absence of proof of public use. Public easements which have been reserved to guarantee international treaty obligations shall not be terminated unless the Secretary determines that the reasons for such easements no longer justify the reservation. No public easement shall be terminated without proper notice and an opportunity for submission of written comments or for a hearing if a hearing is deemed to be necessary by either the Director or the Secretary.
(b) Transportation easements. (1) Public easements for transportation purposes which are reasonably necessary to guarantee the public’s ability to reach publicly owned lands or major waterways may be reserved across lands conveyed to Native corporations. Such purposes may also include transportation to and from communities, airports, docks, marine coastline, groups of private holdings sufficient in number to constitute a public use, and government reservations or installations. Public easements may also be reserved for railroads. If public easements are to be reserved, they shall:
(i) Be reserved across Native lands only if there is no reasonable alternative route of transportation across publicly owned lands;
(ii) Within the standard of reasonable necessity, be limited in number and not duplicative of one another (nonduplication does not preclude separate easements for winter and summer trails, if otherwise justified);
(iii) Be subject only to specific uses and sizes which shall be placed in the appropriate interim conveyance and patent documents;
(iv) Follow existing routes of travel unless a variance is otherwise justified;
(v) Be reserved for future roads, including railroads and roads for future logging operations, only if they are site specific and actually planned for construction within 5 years of the date of conveyance;
(vi) Be reserved in topographically suitable locations whenever the location is not otherwise determined by an existing route of travel or when there is no existing site;
(vii) Be reserved along the marine coastline only to preserve a primary route of travel between coastal communities, publicly owned uplands, or coastal communities and publicly owned uplands;
(viii) Be reserved from publicly owned uplands to the marine coastline only if significant present existing use has occurred on those publicly owned lands below the line of mean high tide. However, for isolated tracts of publicly owned uplands, public easements may be reserved to provide transportation from the marine coastline if there is no other reasonable transportation route;
(ix) Be reserved along major waterways only to provide short portages or transportation routes around obstructions. However, this condition does not preclude the reservation of a trail or road easement which happens to run alongside a waterway;
(x) Not be reserved on the beds of major waterways except where use of the bed is related to road or trail purposes, portaging, or changing the mode of travel between water and land (e.g., launching or landing a boat); a specific portion of the bed or shore of the waterway which is necessary to provide portage or transportation routes around obstructions, including those that are dangerous or impassible or seasonably dangerous or impassible, may be reserved.
(xi) Not be reserved on the beds of nonmajor waterways except where use of the beds is related to road or trail purposes. However, this exception shall not be used to reserve a continuous linear easement on the streambed to facilitate access by boat.
(xii) Not be reserved simply to reflect patterns of Native use on Native lands;
(xiii) Not be reserved for the purpose of protecting Native stockholders from their respective corporations;
(xiv) Not be reserved on the basis of subsistence use of the lands of one village by residents of another village.
(2) Transportation easements shall be limited to roads and sites which are related to access. The use of these easements shall be controlled by applicable Federal, State, or municipal corporation laws or regulations. The uses stated herein will be specified in the interim conveyance and patent documents as permitted uses of the easement.
(i) The width of a trail easement shall be no more than 25 feet if the uses to be accommodated are for travel by foot, dogsleds, animals, snowmobiles, two and three-wheel vehicles, and small all-terrain vehicles (less than 3,000 lbs. G.V.W.);
(ii) The width of a trail easement shall be no more than 50 feet if the uses to be accommodated are for travel by large all-terrain vehicles (more than 3,000 lbs. G.V.W.), track vehicles and 4-wheel drive vehicles, in addition to the uses included under paragraph (b)(2)(i) of this section;
(iii) The width of an existing road easement shall be no more than 60 feet if the uses to be accommodated are for travel by automobiles or trucks in addition to the uses included under paragraphs (b)(2) (i) and (ii) of this section. However, if an existing road is wider than 60 feet, the specific public easement may encompass that wider width. For proposed roads, including U.S. Forest Service logging roads, the width of the public easement shall be 100 feet, unless otherwise justified. Prior to construction, trail uses which are included under paragraphs (b)(2) (i) and (ii) of this section may be permitted if otherwise justified and may continue if the road is not built. If after the road has been constructed a lesser width is sufficient to accommodate the road, the Director shall reduce the size of the easement to that width.
(iv) The width of a proposed railroad easement shall be 100 feet on either side of the center line of any such railroad.
(3) Site easements. Site easements which are related to transportation may be reserved for aircraft landing or vehicle parking (e.g., aircraft, boats, ATV’s, cars, trucks), temporary camping, loading or unloading at a trail head, along an access route or waterway, or within a reasonable distance of a transportation route or waterway where there is a demonstrated need to provide for transportation to publicly owned lands or major waterways. Temporary camping, loading, or unloading shall be limited to 24 hours. Site easements shall not be reserved for recreational use such as fishing, unlimited camping, or other purposes not associated with use of the public easement for transportation. Site easements shall not be reserved for future logging or similar operations (e.g., log dumps, campsites, storage or staging areas). Before site easements are reserved on transportation routes or on major waterways, a reasonable effort shall be made to locate parking, camping, beaching, or aircraft landing sites on publicly owned lands; particularly, publicly owned lands in or around communities, or bordering the waterways. If a site easement is to be reserved, it shall:
(i) Be subject to the provisions of paragraphs (b)(1) (ii), (iii), (vi), (xii), (xiii), and (xiv) of this section.
(ii) Be no larger than one acre in size and located on existing sites unless a variance is in either instance, otherwise justified;
(iii) Be reserved on the marine coastline only at periodic points along the coast where they are determined to be reasonably necessary to facilitate transportation on coastal waters or transportation between coastal waters and publicly owned uplands;
(iv) Be reserved only at periodic points on major waterways. Uses shall be limited to those activities which are related to travel on the waterway or to travel between the waterway and publicly owned lands. Also, periodic site easements shall be those necessary to allow a reasonable pattern of travel on the waterway;
(v) Be reserved for aircraft landing strips only if they have present significant use and are a necessary part of a transportation system for access to publicly owned lands and are not suitable for reservation under section 14(c)(4) of the Act. Any such easement shall encompass only that area which is used for takeoffs and landings and any clear space around such site that is needed for parking or public safety.
(c) Miscellaneous easements. The public easements referred to in this subsection which do not fall into the categories above may be reserved in order to continue certain uses of publicly owned lands and major waterways. These public easements shall be limited in number. The identification and size of these public easements may vary from place to place depending upon particular circumstances. When not controlled by applicable law or regulation, size shall not exceed that which is reasonably necessary for the purposes of the identified easement. Miscellaneous easements may be reserved for the following purposes:
(1) Public easements which are for utility purposes (e.g., water, electricity, communications, oil, gas, and sewage) may be reserved and shall be based upon present existing use. Future easements for these purposes may also be reserved, but only if they are site specific and actually planned for construction within 5 years of the date of conveyance;
(2) Easements for air light or visibility purposes may be reserved if required to insure public safety or to permit proper use of improvements developed for public benefit or use; e.g., protection for aviation or navigation aids or communications sites;
(3) Public easements may be reserved to guarantee international treaty obligations or to implement any agreement entered into between the United States and the Native Corporation receiving the conveyance. For example, the agreement of May 14, 1974, related to Naval Petroleum Reserve Number Four (redesignated June 1, 1977, as the National Petroleum Reserve-Alaska) between the United States Department of the Navy and the Arctic Slope Regional Corporation and four Native village corporations, shall be incorporated in the appropriate conveyances and the easements necessary to implement the agreement shall be reserved.
(d) Conveyance provisions. (1) Public easement provisions shall be placed in interim conveyances and patents.
(2) Permissible uses of a specific easement shall be listed in the appropriate conveyance document. The conveyance documents shall include a general provision which states that uses which are not specifically listed are prohibited.
(3) The easements shall be identified on appropriate maps which shall be part of the pertinent interim conveyance and patent.
(4) All public easement shall be reserved to the United States and subject, as appropriate, to further Federal, State, or municipal corporation regulation.
(5) All conveyance documents shall contain a general provision which states that pursuant to section 17(b)(2) of the Act, any valid existing right recognized by the Act shall continue to have whatever right of access as is now provided for under existing law.
§ 2650.5 Survey requirements.
§ 2650.5-1 General.
(a) Selected areas are to be surveyed as provided in section 13 of the Act. Any survey or description used as a basis for conveyance must be adequate to identify the lands to be conveyed.
(b) The following procedures shall be used to determine what acreage is not to be charged against Native entitlement:
(1) For any approved plat of survey where meanderable water bodies were not segregated from the survey but were included in the calculation of acreage to be charged against the Native corporation’s land entitlement, the chargeable acreage shall, at no cost to the Native corporation, be recalculated to conform to the principles contained in the Bureau of Land Management’s Manual of Surveying Instructions, 1973, except as modified by this part. Pursuant to such principles, the acreage of meanderable water bodies, as modified by this part, shall not be included in the acreage charged against the Native corporation’s land entitlement.
(2) For any plat of survey approved after December 5, 1983, water bodies shall be meandered and segregated from the survey in accordance with the principles contained in the Bureau of Land Management’s Manual of Surveying Instructions, 1973, as modified by this part, as the basis for determining acreage chargeability.
(3) If title to lands beneath navigable waters, as defined in the Submerged Lands Act, of a lake less than 50 acres in size or a river or stream less than 3 chains in width did not vest in the State on the date of Statehood, such lake, river or stream shall not be meandered and shall be charged against the Native corporation’s entitlement.
(4) Any determinations of meanders which may be made pursuant to this paragraph shall not require monumentation on the ground unless specifically required by law or for good cause in the public interest.
§ 2650.5-2 Rule of approximation.
To assure full entitlement, the rule of approximation may be applied with respect to the acreage limitations applicable to conveyances and surveys under this authority, i.e., any excess must be less than the deficiency would be if the smallest legal subdivision were eliminated (see 62 I.D. 417, 421).
§ 2650.5-3 Regional surveys.
Lands to be conveyed to a regional corporation, when selected in contiguous units, shall be grouped together for the purpose of survey and surveyed as one tract, with monuments being established on the exterior boundary at angle points and at intervals of approximately 2 miles on straight lines. If requested by the grantee, the Secretary may survey, insofar as practicable, the individual selections that comprise the total tract.
§ 2650.5-4 Village surveys.
(a) Only the exterior boundaries of contiguous entitlements for each village corporation will be surveyed. Where land within the outer perimeter of a selection is not selected, the boundaries along the area excluded shall be deemed exterior boundaries. The survey will be made after the total acreage entitlement of the village has been selected.
(b) Surveys will be made within the village corporation selections to delineate those tracts required by law to be conveyed by the village corporations pursuant to section 14(c) of the Act.
(c) (1) The boundaries of the tracts described in paragraph (b) of this section shall be posted on the ground and shown on a map which has been approved in writing by the affected village corporation and submitted to the Bureau of Land Management. Conflicts arising among potential transferees identified in section 14(c) of the Act, or between the village corporation and such transferees, will be resolved prior to submission of the map. Occupied lots to be surveyed will be those which were occupied as of December 18, 1971.
(2) Lands shown by the records of the Bureau of Land Management as not having been conveyed to the village corporation will be excluded by adjustments on the map by the Bureau of Land Management. No surveys shall begin prior to final written approval of the map by the village corporation and the Bureau of Land Management. After such written approval, the map will constitute a plan of survey. Surveys will then be made in accordance with the plan of survey. No further changes will be made to accommodate additional section 14(c) transferees, and no additional survey work desired by the village corporation or municipality within the area covered by the plan of survey or immediately adjacent thereto will be performed by the Secretary.
§ 2650.5-5 Cemetery sites and historical places.
Only those cemetery sites and historical places to be conveyed under section 14(h)(1) of the Act shall be surveyed.
§ 2650.5-6 Adjustment to plat of survey.
All conveyances issued for lands not covered by officially approved surveys of the Bureau of Land Management shall note that upon the filing of an official plat of survey, the boundary of the selected area, described in terms of protraction diagrams or by metes and bounds, shall be redescribed in accordance with the plats of survey. However, no change will be made in the land selected.
§ 2650.6 Selection limitations.
(a) Notwithstanding any other provisions of the act, no village or regional corporation may select lands which are within 2 miles from the boundary of any home rule or first-class city (excluding boroughs) as the boundaries existed and the cities were classified on December 18, 1971, or which are within 6 miles from the boundary of Ketchikan, except that a village corporation organized by Natives of a community which is itself a first class or home-rule city is not prohibited from making selections within 2 miles from the boundary of that first class or home-rule city, unless such selections fall within 2 miles from the boundary of another first class or home-rule city which is not itself a Native village or within 6 miles from the boundary of Ketchikan.
(b) Determination as to which cities were classified as home rule or first class as of December 18, 1971, and their boundaries as of that date will be made in accordance with the laws of the State of Alaska.
(c) If any village corporation whose land withdrawals encompass Dutch Harbor is found eligible under this act, it may select lands pursuant to subpart 2651 of this chapter and receive a conveyance under the terms of section 14(a) of the Act.
§ 2650.7 Publication.
In order to determine whether there are any adverse claimants to the land, the applicant should publish notice of his application. If the applicant decides to avail himself of the privilege of publishing a notice to all adverse claimants and requests it, the authorized officer will prepare a notice for publication. The publication will be in accordance with the following procedure:
(a) The applicant will have the notice published allowing all persons claiming the land adversely to file in the appropriate land office their objections to the issuance of any conveyance. The notice shall be published once a week for 4 consecutive weeks in a newspaper of general circulation.
(b) The applicant shall file a statement of the publisher, accompanied by a copy of the published notice, showing that publication has been had for 4 consecutive weeks. The applicant must pay the cost of publication.
(c) Any adverse claimant must serve on the applicant a copy of his objections and furnish evidence of service thereof to the appropriate land office.
(d) For all land selections made under the Act, in order to give actual notice of the decision of the Bureau of Land Management proposing to convey lands, the decision shall be served on all known parties of record who claim to have a property interest or other valid existing right in land affected by such decision, the appropriate regional corporation, and any Federal agency of record. In order to give constructive notice of the decision to any unknown parties, or to known parties who cannot be located after reasonable efforts have been expended to locate, who claim a property interest or other valid existing right in land affected by the decision, notice of the decision shall be published once in the
(1) Any party receiving actual notice of the decision shall have 30 days from the receipt of actual notice to file an appeal; and,
(2) That any unknown parties, any parties unable to be located after reasonable efforts have been expended to locate, and any parties who failed or refused to sign a receipt for actual notice, shall have 30 days from the date of publication in the
§ 2650.8 Appeals.
Any decision relating to a land selection shall become final unless appealed to the Board of Land Appeals by a person entitled to appeal, under, and in accordance with, subpart E of part 4, 43 CFR.
Subpart 2651 – Village Selections
§ 2651.0-3 Authority.
Sections 12 and 16(b) of the Act provide for the selection of lands by eligible village corporations.
§ 2651.1 Entitlement.
(a) Village corporations eligible for land benefits under the Act shall be entitled to a conveyance to the surface estate in accordance with sections 14(a) and 16(b) of the Act.
(b) In addition to the land benefits in paragraph (a) of this section, each eligible village corporation shall be entitled to select and receive a conveyance to the surface estate for such acreage as is reallocated to the village corporation in accordance with section 12(b) of the Act.
§ 2651.2 Eligibility requirements.
(a) Pursuant to sections 11(b) and 16(a) of the Act, the Director, Juneau Area Office, Bureau of Indian Affairs, shall review and make a determination, not later than December 19, 1973, as to which villages are eligible for benefits under the act.
(1) Review of listed native villages. The Director, Juneau Area Office, Bureau of Indian Affairs, shall make a determination of the eligibility of villages listed in section 11(b)(1) and 16(a) of the Act. He shall investigate and examine available records and evidence that may have a bearing on the character of the village and its eligibility pursuant to paragraph (b) of this section.
(2) Findings of fact and notice of proposed decision. After completion of the investigation and examination of records and evidence with respect to the eligibility of a village listed in sections 11(b)(1) and 16(a) of the Act for land benefits, the Director, Juneau Area Office, Bureau of Indian Affairs, shall publish in the
(3) Protest. Within 30 days from the date of publication of the proposed decision in the
(4) Action on protest. Upon receipt of a protest, the Director, Juneau Area Office, Bureau of Indian Affairs, shall examine and evaluate the protest and supporting evidence required herein, together with his record of findings of fact and proposed decision, and shall render a decision on the eligibility of the Native village that is the subject of the protest. Such decision shall be rendered within 30 days from the receipt of the protest and supporting evidence by the Director, Juneau Area Office, Bureau of Indian Affairs. The decision of the Director, Juneau Area Office, Bureau of Indian Affairs, shall be published in the
(5) Action on appeals. Appeals shall be made to the Board of Land Appeals in accordance with subpart E of part 4 of this title. Decisions of the Board on village eligibility appeals are not final until personally approved by the Secretary.
(6) Applications by unlisted villages for determination of eligibility. The head or any authorized subordinate officer of a Native village not listed in section 11(b) of the Act may file on behalf of the unlisted village an application for a determination of its eligibility for land benefits under the act. Such application shall be filed in duplicate with the Director, Juneau Area Office, Bureau of Indian Affairs, prior to September 1, 1973. If the application does not constitute prima facie evidence of compliance with the requirements of paragraph (b) of this section, he shall return the application to the party filing the same with a statement of reasons for return of the application, but such filing, even if returned, shall constitute timely filing of the application. The Director, Juneau Area Office, Bureau of Indian Affairs, shall immediately forward an application which appears to meet the criteria for eligibility to the appropriate office of the Bureau of Land Management for filing. Each application must identify the township or townships in which the Native village is located.
(7) Segregation of land. The receipt of the selection application for filing by the Bureau of Land Management shall operate to segregate the lands in the vicinity of the village as provided in sections 11(a)(1) and (2) of the Act.
(8) Action on application for eligibility. Upon receipt of an application which appears to meet the criteria for eligibility, the Director, Juneau Area Office, Bureau of Indian Affairs, shall have a notice of the filing of the application published in the
(9) Protest to eligibility determination. Any interested party may protest a decision of the Director, Juneau Area Office, Bureau of Indian Affairs, regarding the eligibility of a Native village for land benefits under the provisions of sections 11(b)(3)(A) and (B) of the Act by filing a notice of protest with the Director, Juneau Area Office, Bureau of Indian Affairs, within 30 days from the date of publication of the decision in the
(10) Action on protest appeal. Upon receipt of a protest, the Director, Juneau Area Office, Bureau of Indian Affairs, shall follow the procedure outlined in paragraph (a)(4) of this section. If an appeal is taken from a decision on eligibility, the provisions of paragraph (a)(5) of this section shall apply.
(b) Except as provided in paragraph (b)(4) of this section, villages must meet each of the following criteria to be eligible for benefits under sections 14(a) and (b) of the Act:
(1) There must be 25 or more Native residents of the village on April 1, 1970, as shown by the census or other evidence satisfactory to the Secretary. A Native properly enrolled to the village shall be deemed a resident of the village.
(2) The village shall have had on April 1, 1970, an identifiable physical location evidenced by occupancy consistent with the Natives’ own cultural patterns and life style and at least 13 persons who enrolled thereto must have used the village during 1970 as a place where they actually lived for a period of time: Provided, That no village which is known as a traditional village shall be disqualified if it meets the other criteria specified in this subsection by reason of having been temporarily unoccupied in 1970 because of an act of God or government authority occurring within the preceding 10 years.
(3) The village must not be modern and urban in character. A village will be considered to be of modern and urban character if the Secretary determines that it possessed all the following attributes as of April 1, 1970:
(i) Population over 600.
(ii) A centralized water system and sewage system that serves a majority of the residents.
(iii) Five or more business establishments which provide goods or services such as transient accommodations or eating establishments, specialty retail stores, plumbing and electrical services, etc.
(iv) Organized police and fire protection.
(v) Resident medical and dental services, other than those provided by Indian Health Service.
(vi) Improved streets and sidewalks maintained on a year-round basis.
(4) In the case of unlisted villages, a majority of the residents must be Native, but in the case of villages listed in sections 11 and 16 of the Act, a majority of the residents must be Native only if the determination is made that the village is modern and urban pursuant to paragraph (b)(3) of this section.
§ 2651.3 Selection period.
Each eligible village corporation must file its selection application(s) not later than December 18, 1974, under sections 12(a) or 16(b) of the Act; and not later than December 18, 1975, under section 12(b) of the Act.
§ 2651.4 Selection limitations.
(a) Each eligible village corporation may select the maximum surface acreage entitlement under sections 12(a) and (b) and section 16(b) of the Act. Village corporations selecting lands under sections 12(a) and (b) may not select more than:
(1) 69,120 acres from land that, prior to January 17, 1969, has been selected by, or tentatively approved to, but not yet patented to the State under the Alaska Statehood Act; and
(2) 69,120 acres of land from the National Wildlife Refuge System; and
(3) 69,120 acres of land from the National Forest System.
(b) To the extent necessary to obtain its entitlement, each eligible village corporation shall select all available lands within the township or townships within which all or part of the village is located, and shall complete its selection from among all other available lands. Selections shall be contiguous and, taking into account the situation and potential uses of the lands involved, the total area selected shall be reasonably compact, except where separated by lands which are unavailable for selection. The total area selected will not be considered to be reasonably compact if (1) it excludes other lands available for selection within its exterior boundaries; or (2) lands which are similar in character to the village site or lands ordinarily used by the village inhabitants are disregarded in the selection process; or (3) an isolated tract of public land of less than 1,280 acres remains after selection.
(c) The lands selected under sections 12(a) or (b) shall be in whole sections where they are available, or shall include all available lands in less than whole sections, and, wherever feasible, shall be in units of not less than 1,280 acres. Lands selected under section 16(b) of the Act shall conform to paragraph (b) of this section and shall conform as nearly as practicable to the U.S. land survey system.
(d) Village corporation selections within sections 11 (a)(1) and (a)(3) areas shall be given priority over regional corporation selections for the same lands.
(e) Village or regional corporations are not required to select lands within an unpatented mining claim or millsite. Unpatented mining claims and millsites shall be deemed to be selected, unless they are excluded from the selection by metes and bounds or other suitable description and there is attached to the selection application a copy of the notice of location and any amendments thereto. If the village or regional corporation selection omits lands within an unpatented mining claim or millsite, this will not be construed as violating the requirements for compactness and contiguity. If, during the selection period, the excepted mining claims or millsites are declared invalid, or under the State of Alaska mining laws are determined to be abandoned, the selection will no longer be considered as compact and contiguous. The corporation shall be required to amend its selection, upon notice from the authorized officer of the Bureau of Land Management, to include the lands formerly included in the mining claim or millsite. If the corporation fails to amend its selection to include such lands, the selection may be rejected.
(f) Eligible village corporations may file applications in excess of their total entitlement. To insure that a village acquires its selection in the order of its priorities, it should identify its choices numerically in the order it wishes them granted. Such selections must be filed not later than December 18, 1974, as to sections 12(a) or 16(b) selections and December 18, 1975, as to section 12(b) selections.
(g) Whenever the Secretary determines that a dispute exists between villages over land selection rights, he shall accept, but not act on, selection applications from any party to the dispute until the dispute has been resolved in accordance with section 12(e) of the Act.
(h) Village or regional corporations may, but are not required to, select lands within pending Native allotments. If the village or regional corporation selection omits lands within a pending Native allotment, this will not be construed as violating the requirements for compactness and contiguity. If, during the selection period, the pending Native allotment is finally rejected and closed, the village or regional corporation may amend its selection application to include all of the land formerly in the Native allotment application, but is not required to do so to meet the requirements for compactness and contiguity.
§ 2651.5 Conveyance reservations.
In addition to the conveyance reservations in § 2650.4 of this chapter, conveyances issued to village corporations shall provide for the transfer of the surface estates specified in section 14(c) of the Act, and shall be subject to valid existing rights under section 14(g) of the Act.
(a) Every airport and air navigation facility owned and operated by the United States which the Secretary determines is actually used in connection with the administration of a Federal program will be deemed a Federal installation under the provisions of section 3(e) of the Act, and the Secretary will determine the smallest practicable tract which shall enclose such Federal installations. Such Federal installations are not public lands as defined in the act and are therefore not lands available for selection under the provisions of these regulations.
(b) The surface of all other lands of existing airport sites, airway beacons, or other navigation aids, together with such additional acreage or easements as are necessary to provide related services and to insure safe approaches to airport runways, shall be conveyed by the village corporation to the State of Alaska, and the Secretary will include in the conveyance to any village corporation any and all covenants which he deems necessary to insure the fulfillment of this obligation.
Subpart 2652 – Regional Selections
§ 2652.0-3 Authority.
Sections 12 (a)(1) and (c)(3) provide for selections by regional corporations; and sections 14 (e), (f), (h), (1), (2), (3), (5), and (8), provide for the conveyance to regional corporations of the selected surface and subsurface estates, as appropriate.
§ 2652.1 Entitlement.
(a) Eligible regional corporations may select the maximum acreage granted pursuant to section 12(c) of the Act. They will be notified by the Secretary of their entitlement as expeditiously as possible.
(b) Where subsurface rights are not available to the eligible regional corporations in lands whose surface has been conveyed under section 14 of the Act, the regional corporations may select an equal subsurface acreage from lands withdrawn under sections 11(a) (1) and (3) of the Act, within the region, if possible.
(c) As appropriate, the regional corporations will receive title to the subsurface estate of lands, the surface estate of which is conveyed pursuant to section 14 of the Act.
(d) If a 13th regional corporation is organized under section 7(c) of the Act, it will not be entitled to any grant of lands.
§ 2652.2 Selection period.
All regional corporations must file their selection applications not later than December 18, 1975, for lands other than those allocated under section 14(h)(8) of the Act.
§ 2652.3 Selection limitations.
(a) To the extent necessary to obtain its entitlement, each regional corporation must select all available lands withdrawn pursuant to sections 11(a)(1)(B) and (C) of the Act, before selecting lands withdrawn pursuant to section 11(a)(3) of the Act, except that regional corporations selecting lands withdrawn pursuant to sections 11(a)(1) (B) and (C) may select only even-numbered townships in even-numbered ranges and only odd-numbered townships in odd-numbered ranges.
(b) Village corporation selections within section 11(a)(1) and section 11(a)(3) areas shall be given priority over regional corporation selections for the same lands.
(c) Whenever a regional selection is made in any township, the regional corporation shall select all available lands in that township: Provided, That such selection would not exceed the entitlement of that regional corporation.
(d) Subsurface selections made by a regional corporation pursuant to section 12(a) of the Act shall be contiguous and the total area selected shall be reasonably compact, except as separated by subsurface interests that are not the property of the United States including subsurface interests under bodies of water, and the selection shall be in whole sections where they are available, or shall include all available subsurface interests in less than whole sections and, wherever feasible, shall be in units of not less than 1,280 acres. The total area selected shall not be considered to be reasonably compact if (1) it excludes other subsurface interests available for selection within its exterior boundaries; or (2) an isolated tract of subsurface interests owned by the United States of less than 1,280 acres remains after selection.
(e) Regional corporations are not required to select lands within unpatented mining claims or millsites, as provided in § 2651.4(e) of this chapter.
(f) Regional corporations may file applications in excess of their total entitlement. To insure that a regional corporation acquires its selections in the order of its priorities, it should identify its choices numerically in the order it wishes them granted.
§ 2652.4 Conveyance reservations.
In addition to the conveyance reservations in § 2650.4 of this chapter, conveyances issued to regional corporations for the subsurface estate of lands whose surface has been conveyed to village corporations shall provide that the right to explore, develop, or remove minerals from the subsurface estate in the lands within the boundaries of any Native village shall be subject to the consent of the village corporation.
Subpart 2653 – Miscellaneous Selections
§ 2653.0-3 Authority.
Section 14(h) of the Act requires the Secretary to withdraw and to convey 2 million acres of unreserved and unappropriated public lands located outside the areas withdrawn by sections 11 and 16 of the Act. The Secretary will convey the land in part as follows:
(a) Title to existing cemetery sites and historical places to the regional corporations for the regions in which the lands are located;
(b) Title to the surface estate to any Native group that qualifies pursuant to this subpart 2653;
(c) Title to the surface estate of lands to the Natives residing in each of the cities of Sitka, Kenai, Juneau, and Kodiak, who have incorporated;
(d) Title to the surface estate of land to a Native as a primary place of residence.
(e) Title to the regional corporations for lands selected, if any remain, pursuant to section 14(h)(8) of the Act; and
(f) Title to the subsurface estate to the regional corporations of lands conveyed under paragraphs (b) and (d) of this section and title to the regional corporations to the subsurface estate to those lands not located in a National Wildlife Refuge under paragraph (c) of this section.
§ 2653.0-5 Definitions.
(a) Cemetery site means a burial ground consisting of the gravesites of one or more Natives.
(b) Historical place means a distinguishable tract of land or area upon which occurred a significant Native historical event, which is importantly associated with Native historical or cultural events or persons, or which was subject to sustained historical Native activity, but sustained Native historical activity shall not include hunting, fishing, berry-picking, wood gathering, or reindeer husbandry. However, such uses may be considered in the evaluation of the sustained Native historical activity associated with the tract or area.
(c) Native group means any tribe, band, clan, village, community or village association of Natives composed of less than 25, but more than 3 Natives, who comprise a majority of the residents of a locality and who have incorporated under the laws of the State of Alaska.
(d) Primary place of residence means a place comprising a primary place of residence of an applicant on August 31, 1971, at which he regularly resides on a permanent or seasonal basis for a substantial period of time.
§ 2653.1 Conveyance limitations.
(a) Under section 14(h) of the Act, a total of 2 million acres may be selected for cemetery sites and historical places, Native groups, corporations formed by the Native residents of Sitka, Kenai, Juneau, and Kodiak, for primary places of residence, and for Native allotments approved as provided in section 18 of the Act. Selections must be made before July 1, 1976. Of this total amount:
(1) 500,000 acres will be set aside to be used by the Secretary to satisfy applications filed pursuant to section 14(h) (1), (2), and (5) of the Act. The 500,000 acres will be allocated by: (i) Dividing 200,000 acres among the regions based on the number of Natives enrolled in each region; and, (ii) dividing 300,000 acres equally among the regions;
(2) 92,160 acres will be set aside for possible allocation by the Secretary to corporations formed by the Natives residing in Sitka, Kenai, Juneau, and Kodiak;
(3) 400,000 acres will be set aside to be used by the Secretary to satisfy Native allotment applications approved prior to December 18, 1975, under the Act of May 17, 1906 (34 Stat. 197), the Act of February 8, 1887 (24 Stat. 389), as amended and supplemented, and the Act of June 25, 1910 (36 Stat. 863). Any Native allotment applications pending before the Bureau of Indian Affairs or the Bureau of Land Management on December 18, 1971, will be considered as pending before the Department. Those allotment applications which have been determined to meet the requirements of the acts cited herein and for which survey has been requested before December 18, 1975, shall be considered approved under section 14(h)(6) of the Act and shall be charged against the acreage.
(b) After subtracting the number of acres used in accordance with paragraph (a) of this section from 2 million acres, the remainder will, after July 1, 1976, be reallocated by the Secretary among the regional corporations in accordance with the number of Natives enrolled in each region.
(c) No Native allotment applications pending before the Secretary on December 18, 1971, will be rejected solely for the reason that the acreage set aside by paragraph (a)(3) of this section has been exhausted.
§ 2653.2 Application procedures.
(a) All applications must be filed in accordance with the procedures in § 2650.2(a) of this chapter.
(b) Applications by corporations of Native groups under section 14(h)(2) and by a Native for a primary place of residence under section 14(h)(5) of the Act must be accompanied by written concurrence of the affected regional corporation. In the case of Native groups, such concurrence must also indicate how much land per member of the Native group, not to exceed 320 acres per member, the regional corporation recommends that the Secretary convey. Any application not accompanied by the necessary concurrence and recommendation of the affected region will be rejected.
(c) Native groups, and Natives residing in Sitka, Kenai, Juneau, and Kodiak, as provided in sections 14(h) (2) and (3), respectively, must comply with the applicable terms of § 2650.2(a), (c), (d), (e), and (f) of this chapter.
(d) The filing of an application under the regulations of this section will constitute a request for withdrawal of the lands, and will segregate the lands from all other forms of appropriation under the public land laws, including the mining and mineral leasing laws, and from selection under the Alaska Statehood Act, as amended, subject to valid existing rights, but will not segregate the lands from selections under section 12 or 16 of the Act. The segregative effect of such an application will terminate if the application is rejected.
§ 2653.3 Lands available for selection.
(a) Selection may be made for existing cemetery sites or historical places, Native groups, corporations formed by the Natives residing in Sitka, Kenai, Juneau, and Kodiak, and for primary places of residence, from any unappropriated and unreserved lands which the Secretary may withdraw for these purposes: Provided, That National Wildlife Refuge System lands and National Forest lands may be made available as provided by section 14(h)(7) of the Act and the regulations in this subpart. Selections for these purposes may also be made from any unappropriated and unreserved lands which the Secretary may withdraw from lands formerly withdrawn and not selected under section 16 of the Act and after December 18, 1975, from lands formerly withdrawn under section 11(a)(1) or 11(a)(3) and not selected under sections 12 or 19 of the Act.
(b) After December 18, 1975, selection of the lands allocated pursuant to § 2653.1(b), shall be made from any lands previously withdrawn under sections 11 or 16 of the Act which are not otherwise appropriated.
(c) A withdrawal made pursuant to section 17(d)(1) of the Act which is not part of the Secretary’s recommendation to Congress of December 18, 1973, on the four national systems shall not preclude a withdrawal pursuant to section 14(h) of the Act.
§ 2653.4 Termination of selection period.
Except as provided in § 2653.10, applications for selections under this subpart will be rejected after all allocated lands, as provided in § 2653.1, have been exhausted, or if the application is received after the following dates, whichever occurs first:
(a) As to primary place of residence – December 18, 1973.
(b) As to all recipients described in sections 14(h) (1), (2), and (3) of the Act – December 31, 1976.
(c) As to all recipients under section 14(h)(8) of the Act and § 2653.1(b) – September 18, 1978.
§ 2653.5 Cemetery sites and historical places.
(a) The appropriate regional corporation may apply to the Secretary for the conveyance of existing cemetery sites or historical places pursuant to section 14(h) of the Act. The Secretary may give favorable consideration to these applications: Provided, That the Secretary determines that the criteria in these regulations are met: And provided further, That the regional corporation agrees to accept a covenant in the conveyance that these cemetery sites or historical places will be maintained and preserved solely as cemetery sites or historical places by the regional corporation, in accordance with the provisions for conveyance reservations in § 2653.11.
(b) A historical place may be granted in a National Wildlife Refuge or National Forest unless, in the judgment of the Secretary, the events or the qualities of the site from which it derives its particular value and significance as a historical place can be commemorated or found in an alternative site outside the refuge or forest, or if the Secretary determines that the conveyance could have a substantial detrimental effect on (1) a fish or wildlife population, (2) its habitat, (3) the management of such population or habitat, or (4) access by a fish or wildlife population to a critical part of its habitat.
(c) Although the existence of a cemetery site or historical place and a proper application for its conveyance create no valid existing right, they operate to segregate the land from all other forms of appropriation under the public land laws. Conveyances of lands reserved for the National Wildlife Refuge System made pursuant to this subpart are subject to the provisions of section 22(g) of the Act and § 2650.4-6 as though they were conveyances to a village corporation.
(d) For purposes of evaluating and determining the eligibility of properties as historical places, the quality of significance in Native history or culture shall be considered to be present in places that possess integrity of location, design, setting, materials, workmanship, feeling and association, and:
(1) That are associated with events that have made a significant contribution to the history of Alaskan Indians, Eskimos or Aleuts, or
(2) That are associated with the lives of persons significant in the past of Alaskan Indians, Eskimos or Aleuts, or
(3) That possess outstanding and demonstrably enduring symbolic value in the traditions and cultural beliefs and practices of Alaskan Indians, Eskimos or Aleuts, or
(4) That embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or
(5) That have yielded, or are demonstrably likely to yield information important in prehistory or history.
(e) Criteria considerations for historic places: Ordinarily, cemeteries, birthplaces, or graves of historical figures, properties owned by religious institutions or used for religious purposes, structures that have been moved from their original locations, reconstructed historic buildings, properties primarily commemorative in nature, and properties that have achieved significance within the past 50 years shall not be considered eligible as a historical place unless they fall within one of the following categories:
(1) A religious property deriving primary significance from architectural or artistic distinction or historical importance;
(2) A building or structure removed from its original location but which is the surviving structure most importantly associated with a historic person or event;
(3) A birthplace or grave of a historical figure of outstanding importance if there is no appropriate site or building directly associated with his productive life;
(4) A cemetery which derives its primary significance from graves of persons of transcendent importance, from age, from distinctive design features, or from association with historic events;
(5) A reconstructed building when accurately executed in a suitable environment and preserved in a dignified manner as part of a restoration master plan and when no other building or structure with the same association has survived;
(6) A property primarily commemorative in intent if design, age, tradition, or symbolic value has invested it with its own historical significance; or
(7) A property achieving significance within the past 50 years if it is of exceptional importance.
(f) Applications by a regional corporation under section 14(h)(1) of the Act for conveyance of existing cemetery sites or historical places within its boundaries shall be filed with the proper office of the Bureau of Land Management in accordance with § 2650.2(a) of this chapter. The regional corporation shall include as an attachment to its application for a historical place a statement describing the events that took place and the qualities of the site from which it derives its particular value and significance as a historical place. In making the application, the regional corporation should identify accurately and with sufficient specificity the size and location of the site for which the application is made as an existing cemetery site or historical place to enable the Bureau of Land Management to segregate the proper lands. The land shall be described in accordance with § 2650.2(e) of this chapter, except that if the site under application is less than 2.50 acres or if it cannot be described by a protracted survey description, it shall be described by a metes and bounds description.
(g) Upon receipt of an application for an existing cemetery site or historical place, the Bureau of Land Management shall segregate from all other appropriation under the public land laws the land which it determines, adequately encompasses the site described in the application.
(h) Notice of filing of such application specifying the regional corporation, the size and location of the segregated lands encompassing the site for which application has been made, the date of filing, and the date by which any protest of the application must be filed shall be published once in the
(i) If, during its investigation, the Bureau of Indian Affairs finds that the location of the site as described in the application is in error, it shall notify the applicant, the Bureau of Land Management, and other affected Federal agencies, of such error. The applicant shall have 60 days from receipt of such notice to file with the Bureau of Land Management an amendment to its application with respect to the location of the site. Upon acceptance of such amendment the Bureau of Land Management shall reprocess the application, including segregation of lands and publication of notice.
(j) The Bureau of Indian Affairs shall identify on a map and mark on the ground, including gravesites or other important items, the location and size of the site or place with sufficient clarity to enable the Bureau of Land Management to locate on the ground said site or place. The Bureau of Indian Affairs, after consultation with the National Park Service and, in the case of refuges and forests, the agency or agencies involved, shall certify as to the existence of the site or place and that it meets the criteria in this subpart.
(1) Cemetery sites. The Bureau of Indian Affairs shall certify specifically that the site is the burial place of one or more Natives. The Bureau of Indian Affairs shall determine whether the cemetery site is in active or inactive use, and if active, it shall estimate the degree of use by Native groups and villages in the area which it shall identify.
(2) Historical places. The Bureau of Indian Affairs shall describe the events that took place and qualities of the site which give it particular value and significance as a historical place.
(k) The Bureau of Indian Affairs shall submit its report and certification along with the written comments and recommendations of the National Park Service and any other Federal agency, to the Bureau of Land Management. If the land is available, the Bureau of Land Management shall issue a decision to convey. However, where the issues in § 2653.5(b) are raised by the reports of the Fish and Wildlife Service or the Forest Service, the State Director, Bureau of Land Management shall submit the record including a land status report, to the Secretary for a resolution of any conflicts. If the land is available for that purpose, the Secretary shall make his determination to convey or not to convey the site to the applicant.
(l) The decision of the Bureau of Land Management or the Secretary shall be served on the applicant and all parties of record in accordance with the provisions of 43 CFR part 4, subpart E and shall be published in accordance with § 2650.7 of this part. The decision of the Bureau of Land Management shall become final unless appealed to the Board of Land Appeals in accordance with 43 CFR part 4, subpart E. Any agency adversely affected by the certification of BIA or the decision of the Bureau of Land Management may also appeal the matter to the Board of Land Appeals. After a decision to convey an existing cemetery site or historical place has become final, the Bureau of Land Management shall adjust the segregation of the lands to conform with said conveyance.
(m) For inactive cemeteries, the boundaries of such cemetery sites shall include an area encompassing all actual gravesites including a reasonable buffer zone of not more than 66 feet. For active cemeteries, the boundaries of such sites shall include an area of actual use and reasonable future expansion of not more than 10 acres, but the BLM in consultation with any affected Federal agency may include more than 10 acres upon a determination that special circumstances warrant it. For historical places, the boundaries shall include an area encompassing the actual site with a reasonable buffer zone of not more than 330 feet.
§ 2653.6 Native groups.
(a) Eligibility. (1) The head or any authorized representative of a Native group incorporated pursuant to section 14(h)(2) of the Act may file on behalf of the group an application for a determination of its eligibility under said section of the Act. Such application shall be filed in duplicate with the appropriate officer, Bureau of Land Management, prior to April 16, 1976, in accordance with § 2650.2(a) of this chapter. Upon serialization of the application, the Bureau of Land Management office will forward a copy of such application to the Director, Juneau Area Office, Bureau of Indian Affairs, who shall investigate and report the findings of fact required to be made herein to the Bureau of Land Management with a certification thereof. A copy of an application by a group located within a National Wildlife Refuge or a National Forest will be furnished to the appropriate agency administering the area.
(2) Each application must identify the section, township, and range in which the Native group is located, and must be accompanied by a list of the names of the Native members of the group, a listing of permanent improvements and periods of use of the locality by members, a conformed copy of the group’s article of incorporation, and the regional corporation’s concurrence and recommendation under § 2653.2(b).
(3) Notice of the filing of such application specifying the date of such filing, the identity and location of the Native group, and the date by which any protest of the application must be filed shall be prepared by the Bureau of Indian Affairs and shall be published once in the
(4) The Bureau of Indian Affairs shall investigate and determine whether each member of a Native group formed pursuant to section 14(h)(2) of the Act is enrolled pursuant to section 5 of the Act. The Bureau of Indian Affairs shall determine whether the members of the Native group actually reside in and are enrolled to the locality specified in its application. The Bureau of Indian Affairs shall specify the number and names of Natives who actually reside in and are enrolled to the locality, including children who are members of the group and who are temporarily elsewhere for purposes of education, and it shall further determine whether the members of the Native group constitute the majority of the residents of the locality where the group resides. The Bureau of Indian Affairs shall determine and identify the exterior boundaries of the Native group’s locality and the location of all those permanent structures of the Native group used as dwelling houses.
(5) The Native group must have an identifiable physical location. The members of the group must use the group locality as a place where they actually live in permanent structures used as dwelling houses. The group must have the character of a separate community, distinguishable from nearby communities, and must be composed of more than a single family or household. Members of a group must have enrolled to the group’s locality pursuant to section 5 of the Act, must actually have resided there as of the 1970 census enumeration date, and must have lived there as their principal place of residence since that date.
(6) The Bureau of Indian Affairs shall issue its certification, containing its findings of fact required to be made herein and its determination of the eligibility of the Native group, except it shall issue a certification of ineligibility when it is notified by the Bureau of Land Management that the land is unavailable for selection by such Native group. It shall send a copy thereof by certified mail to the Bureau of Land Management, the Native group, its regional corporation and any party of record.
(7) Appeals concerning the eligibility of a Native group may be made to the Board of Land Appeals in accordance with 43 CFR part 4, subpart E.
(b) Selections. (1) Native group selections shall not exceed the amount recommended by the regional corporation or 320 acres for each Native member of a group, or 7,680 acres for each Native group, whichever is less. Any acreage selected in excess of that number shall be identified as alternate selections and shall be numerically ordered to indicate selection preference. Native groups will not receive land benefits unless the land which is occupied by their permanent structures used as dwelling houses is available, or in the case where such land is not State or federally owned, the land which is contiguous to and immediately surrounds the land occupied by their permanent structures used as dwelling houses is available, and is not within a wildlife refuge or forest, pursuant to section 14(h) of the Act. Public lands which may be available for this purpose are set forth in § 2653.3 (a) and (c). Conveyances of lands reserved for the National Wildlife Refuge System made pursuant to this part are subject to the provisions of section 22(g) of the Act and § 2650.4-6 of this chapter as though they were conveyances to a village corporation.
(2) Upon receipt of the applications of a Native group for a determination of its eligibility under section 14(h)(2) of the Act, the Bureau of Land Management shall segregate the land encompassed within the group locality from land available for that purpose pursuant to § 2653.6(b)(1). However, segregation of land for Native groups whose dwelling structures are located outside but adjacent to a National Wildlife Refuge or National Forest shall not include such reserved land, unless the Native group’s dwelling structures are located on land excepted from the Kodiak National Wildlife Refuge pursuant to Public Land Order 1634 (FR Doc. 58-3696, filed May 16, 1958).
(3) The Bureau of Indian Affairs shall visit the locality of the group and shall recommend to the Bureau of Land Management the manner in which the segregation should be modified to encompass the residences of as many members as possible while allowing for the inclusion of the land most intensively used by members of the Native group. The recommended segregation must be contiguous and as compact as possible. The Bureau of Land Management may segregate the land accordingly provided such lands are otherwise available in accordance with paragraph (b)(1) and (b)(2). If the Bureau of Land Management finds the lands are unavailable for selection by a Native group, it shall notify the Bureau of Indian Affairs.
(4) Selections shall be made from lands segregated for that purpose and shall be filed prior to July 1, 1976. Selections shall be contiguous and taking into account the situation and potential uses of the lands involved, the total area selected shall be reasonably compact except where separated by lands which are unavailable for selection. The total area selected will not be considered to be reasonably compact if (i) it excludes other lands available for selection within its exterior boundaries; or (ii) an isolated tract of public land of less than 640 acres remains after selection. The lands selected shall be in quarter sections where they are available unless the exhaustion of the acreage which the group may be entitled to select does not permit the selection of a quarter section and shall include all available lands in less than quarter sections. Lands selected shall conform as nearly as practicable to the United States land survey system.
(5) A Native group whose eligibility has not been finally determined may file its land selections as if it were determined to be eligible. The Bureau of Land Management shall release from segregation the lands not selected and shall continue segregation of the selected land until the lands are conveyed or the group is finally determined to be ineligible. However, in the case of a group determined to be ineligible by the Board of Land Appeals, the segregation shall be continued for a period of 60 days from the date of such decision.
(6) Where any conflict in land selection occurs between any eligible Native groups, the Bureau of Land Management shall request the appropriate regional corporation to recommend the manner in which such conflict should be resolved.
(7) The Bureau of Land Management shall issue a decision on the selection of a Native group determined to be eligible and shall serve a copy of such decision by certified mail on the Native group, its regional corporation and any party of record and the decision shall be published in accordance with § 2650.7 of this part.
(8) Appeals from the Bureau of Land Management decision on the selection by a Native group under this section shall be made to the Board of Land Appeals in accordance with 43 CFR part 4, subpart E.
§ 2653.7 Sitka-Kenai-Juneau-Kodiak selections.
(a) The corporations representing the Natives residing in Sitka, Kenai, Juneau, and Kodiak, who incorporate under the laws of the State of Alaska, may each select the surface estate of up to 23,040 acres of lands of similar character located in reasonable proximity to those municipalities.
(b) The corporations representing the Natives residing in Sitka, Kenai, Juneau, and Kodiak, shall nominate not less than 92,160 acres of lands within 50 miles of each of the four named cities which are similar in character to the lands in which each of the cities is located. After review and public hearings, the Secretary shall withdraw up to 46,080 acres near each of the cities from the lands nominated. Each corporation representing the Native residents of the four named cities may select not more than one-half the area withdrawn for selection by that corporation. The Secretary shall convey the area selected.
§ 2653.8 Primary place of residence.
(a) An application under this subpart may be made by a Native who occupied land as a primary place of residence on August 31, 1971.
(b) Applications for a primary place of residence must be filed not later than December 18, 1973.
§ 2653.8-1 Acreage to be conveyed.
A Native may secure title to the surface estate of only a single tract not to exceed 160 acres under the provisions of this subpart, and shall be limited to the acreage actually occupied and used. An application for title under this subpart shall be accompanied by a certification by the applicant that he will not receive title to any other tract of land pursuant to sections 14 (c)(2), (h)(2), or 18 of the Act.
§ 2653.8-2 Primary place of residence criteria.
(a) Periods of occupancy. Casual or occasional use will not be considered as occupancy sufficient to make the tract applied for a primary place of residence.
(b) Improvements constructed on the land. (1) Must have a dwelling.
(2) May include associated structures such as food cellars, drying racks, caches etc.
(c) Evidence of occupancy. Must have evidence of permanent or seasonal occupancy for substantial periods of time.
§ 2653.8-3 Appeals.
Appeals from decisions made by the Bureau of Land Management on applications filed pursuant to section 14(h)(5) of the Act shall be made to the Board of Land Appeals in accordance with 43 CFR part 4, subpart E.
§ 2653.9 Regional selections.
(a) Applications by a regional corporation for selection of land within its boundaries under section 14(h)(8) of the Act shall be filed with the proper office of the Bureau of Land Management in accordance with § 2650.2(a). Selections made under section 14(h)(1), (2), (3), and (5) of the Act will take priority over selections made pursuant to section 14(h)(8). Lands available for section 14(h)(8) selections are those lands originally withdrawn under section 11(a)(1), (3), or 16(a) of the Act and not conveyed pursuant to selections made under sections 12(a), (b), or (c), 16(b) or 19 of the Act.
(b) A regional corporation may select a total area in excess of its entitlement to ensure that it will obtain its entitlement in the event of any conflicts. Any acreage in excess of its entitlement shall be identified as alternate selections and shall be numerically ordered on a section by section basis to indicate selection preference.
(c) Selections need not be contiguous but must be made along section lines in reasonably compact tracts of at least 5,760 acres, not including any unavailable land contained therein. The exterior boundaries of such tracts shall be in linear segments of not less than two miles in length, except where adjoining unavailable lands or where shorter segments are necessary to follow section lines where township lines are offset along standard parallels caused by the convergence of the meridians. However, selected tracts may contain less than 5,760 acres where there is good cause shown for such selection, taking into consideration good land management planning and principles for the potentially remaining public lands, and which would not leave unduly fragmented tracts of such public lands. Each tract selected shall not be considered to be reasonably compact if (1) it excludes other lands for selection within its exterior boundaries, or (2) an isolated tract of public land of less than 1,280 acres remains after selection of the total entitlement. Regional corporations shall not be precluded from selecting less than 5,760 acres where the entire tract available for selection constitutes less than 5,760 acres. Selection shall conform as nearly as practicable to the United States land survey system.
(d) Notice of the filing of such selections, including the date by which any protest of the selection should be filed, shall be published once in the
(e) Appeals from decisions made by the Bureau of Land Management with respect to such selections shall be made to the Board of Land Appeals in accordance with 43 CFR part 4, subpart E.
§ 2653.10 Excess selections.
Where land selections by a regional corporation, Native group, any of the four named cities, or a Native pursuant to section 14(h) (1), (2), (3), or (5) exceed the land entitlement, the Bureau of Land Management may request such corporation to indicate its preference among lands selected.
§ 2653.11 Conveyance reservations.
(a) Conveyances issued pursuant to this subpart are subject to the conveyance reservations described in § 2650.4 of this chapter.
(b) In addition to the reservations provided in paragraph (a) of this section, conveyance for cemetery sites or historical places will contain a covenant running with the land providing that (1) the regional corporation shall not authorize mining or mineral activity of any type; nor shall it authorize any use which is incompatible with or is in derogation of the values of the area as a cemetery site or historical place (standards for determining uses which are incompatible with or in derogation of the values of the area are found in relevant portions of 36 CFR 800.9 (1974); and (2) that the United States reserves the right to seek enforcement of the covenant in an action in equity. The covenant placed in this subsection may be released by the Secretary, in his discretion, upon application of the regional corporation grantee showing that extraordinary to circumstances of a nature to warrant the release have arisen subsequent to the conveyance.
(c) Conveyances for cemetery sites and historical places shall also contain the covenant required by § 2650.4-6 of this chapter.
Subpart 2654 – Native Reserves
§ 2654.0-3 Authority.
Section 19(b) of the Act authorizes any village corporation(s) located within a reserve defined in the act to acquire title to the surface and subsurface estates in any reserve set aside for the use and benefit of its stockholders or members prior to December 18, 1971. Such acquisition precludes any other benefits under the Act.
§ 2654.0-5 Definitions.
Reserve lands means any lands reserved prior to the date of enactment of the act which are subject to being taken in lieu of other benefits under the act pursuant to section 19(b) of the Act.
§ 2654.1 Exercise of option.
(a) Any village corporation which has not, by December 18, 1973, elected to acquire title to the reserve lands will be deemed to have elected to receive for itself and its members the other benefits under the Act.
(b) The election of a village to acquire title to the reserve lands shall be exercised in the manner provided by its articles of incorporation. However when two or more villages are located on the same reserve there must be a special election to acquire title to the reserve lands. A majority vote of all the stockholders or members of all corporations located on the reserve is required to acquire title to the reserve lands. For the purpose of this paragraph the stockholders or members shall be determined on the basis of the roll of village residents proposed to be promulgated under 25 CFR 43h.7.
(c) The results of any election by a village corporation or corporations to acquire title to the reserve lands shall be certified by such village corporation or corporations as being in conformity with the articles of incorporation and by-laws of the village corporation or corporations.
§ 2654.2 Application procedures.
(a) If the corporation or corporations elect to take title to the reserve lands, submission to the Secretary of the certificate of election will constitute an application to acquire title to those lands.
(b) If the village corporation or corporations do not elect to take the reserve lands, they shall apply for their land selections pursuant to subpart 2651 of this chapter.
§ 2654.3 Conveyances.
(a) Conveyances under this subpart are subject to the provisions of section 14(g) of the Act, as provided by § 2650.4 of this chapter.
(b) Conveyances under this subpart to two or more village corporations will be made to them as tenants-in-common, having undivided interests proportionate to the number of their respective members or stockholders determined on the basis of the final roll promulgated by the Secretary pursuant to section 5 of the Act.
Subpart 2655 – Federal Installations
§ 2655.0-3 Authority.
Section 3(e)(1) of the Act provides that the Secretary shall determine the smallest practicable tract enclosing land actually used in connection with the administration of Federal installations in Alaska.
§ 2655.0-5 Definitions.
As used in this subpart, the term:
(a) Holding agency means any Federal agency claiming use of a tract of land subject to these regulations.
(b) Appropriate selection period means the statutory or regulatory period within which the lands were available for Native selection under the act.
(c) State Director means the Director, Alaska State Office, Bureau of Land Management.
§ 2655.1 Lands subject to determination.
(a) Holding agency lands located within areas withdrawn by sections 11(a)(1), 16(a), or 16(d) of the Act and subsequently selected by a village or regional corporation under sections 12 or 16, or selected by the regional corporation under sections 12 or 16, or selected by the regional corporation for southeast Alaska in accordance with section 14(h)(8)(B) are subject to a determination made under this subpart.
(b) Lands in the National Park System, lands withdrawn or reserved for national defense purposes and those former Indian reserves elected under section 19 of the Act are not subject to a determination under section 3(e)(1) of the Act or this subpart. Lands withdrawn under section 11(a)(3) or 14(h), except 14(h)(8)(B), of the Act do not include lands withdrawn or otherwise appropriated by a Federal agency and, therefore, are not subject to a determination under section 3(e)(1) of the Act or this subpart.
§ 2655.2 Criteria for determinations.
Land subject to determination under section 3(e)(1) of the Act will be subject to conveyance to Native corporations if they are determined to be public lands under this subpart. If the lands are determined not to be public lands, they will be retained by the holding agency. The Bureau of Land Management shall determine:
(a) Nature and time of use.
(1) If the holding agency used the lands for a purpose directly and necessarily connected with the Federal agency as of December 18, 1971; and
(2) If use was continuous, taking into account the type of use, throughout the appropriate selection period; and
(3) If the function of the holding agency is similiar to that of the Federal agency using the lands as of December 18, 1971.
(b) Specifications for area to be retained by Federal agency.
(1) Area shall be no larger than reasonably necessary to support the agency’s use.
(2) Tracts shall be described by U.S. Survey (or portion thereof), smallest aliquot part, metes and bounds or protraction diagram, as appropriate.
(3) Tracts may include:
(i) Improved lands;
(ii) Buffer zone surrounding improved lands as is reasonably necessary for purposes such as safety measures, maintenance, security, erosion control, noise protection and drainage;
(iii) Unimproved lands used for storage;
(iv) Lands containing gravel or other materials used in direct connection with the agency’s purpose and not used simply as a source of revenue or services. The extent of the areas reserved as a source of materials will be the area disturbed but not depleted as of the date of the end of the appropriate selection period; and
(v) Lands used by a non-governmental entity or private person for a use that has a direct, necessary and substantial connection to the purpose of the holding agency but shall not include lands from which proceeds of the lease, permit, contract, or other means are used primarily to derive revenue.
(c) Interest to be retained by Federal agency.
(1) Generally, full fee title to the tract shall be retained; however, where the tract is used primarily for access, electronic, light or visibility clear zones or right-of-way, an easement may be reserved in lieu of full fee title where the State Director determines that an easement affords sufficient protection, that an easement is customary for the particular use and that it would further the objectives of the act.
(2) Easements reserved in lieu of full fee title shall be reserved under the provisions of section 17(b) of the Act and § 2650.4-7 of this title.
§ 2655.3 Determination procedures.
(a) The State Director shall make the determination pursuant to the provisions in this subpart. Where sufficient information has not already been provided, the State Director shall issue written notice to any Federal agency which the Bureau of Land Management has reason to believe might be a holding agency. The written notice shall provide that the information requested be furnished in triplicate to the State Director within 90 days from the receipt of the notice. Upon receipt of information the State Director will promptly provide affected Native corporations with copies of the documents. Upon adequate and justifiable showing as to the need for an extension by the holding agency, the State Director may grant a time extension up to 60 days to provide the information requested in this subpart.
(b) The information to be provided by the holding agency shall include the following for each tract which is subject to determination:
(1) The function and scope of the installation;
(2) A plottable legal description of the lands used;
(3) A list of structures or other alterations to the character of lands and their function, their location on the tract, and date of construction;
(4) A description of the use and function of any unaltered lands;
(5) A list of any rights, interests or permitted uses the agency has granted to others, including other Federal agencies, along with dates of issuance and expiration and copies of any relevant documents;
(6) If available, site plans, drawings and annotated aerial photographs delineating the boundaries of the installation and locations of the areas used; and
(7) A narrative explanation stating when Federal use of each area began; what use was being made of the lands as of December 18, 1971; whether any action has taken place between December 18, 1971, and the end of the appropriate selection period that would reduce the area needed, and the date this action occurred.
(c) The State Director shall request comments from the selecting Native corporation relating to the identification of lands requiring a determination. The period for comment by the Native corporation shall be as provided for the agency in paragraph (a) of this section, but shall commence from the date of receipt of the latest copy of the holding agency’s submission.
(d) The holding agency has the burden of proof in proceedings before the State Director under this subpart. A determination of the lands to be retained by the holding agency under section 3(e) of the Act and this subpart shall be made based on the information available in the case file. If the holding agency fails to present adequate information on which to base a determination, all lands selected shall be approved for conveyance to the selecting Native corporation.
(e) The results of the determination shall be incorporated into appropriate decision documents.
§ 2655.4 Adverse decisions.
(a) Any decision adverse to the holding agency or Native corporation shall become final unless appealed to the Board of Land Appeals in accordance with 43 CFR part 4, subpart E. If a decision is appealed, the Secretary may take personal jurisdiction over the matter in accordance with 43 CFR 4.5. In the case of appeals from affected Federal agencies, the Secretary may take jurisdiction upon written request from the appropriate cabinet level official. The requesting official, the State Director and any affected Native corporation shall be notified in writing of the Secretary’s decision regarding the request for Secretarial jurisdiction and the reasons for the decision shall be communicated in writing to the requesting agency and any other parties to the appeal.
(b) When an appeal to a decision to issue a conveyance is made by a holding agency or a Native corporation on the basis that the Bureau of Land Management neglected to make a determination pursuant to section 3(e)(1) of the Act, the matter shall be remanded by the Board of Land Appeals to the Bureau of Land Management for a determination pursuant to section 3(e)(1) of the Act and these regulations: Provided, That the holding agency or Native corporation has reasonably satisfied the Board that its claim is not frivolous.
The information collection requirements contained in parts 2720 and 2740 of Group 2700 have been approved by the Office of Management and Budget under 44 U.S.C. 3507 and assigned clearance numbers 1004-0153 and 1004-0012, respectively. The information is being collected to permit the authorized officer to determine if disposition of Federally-owned mineral interests should be made and to determine if disposition of public lands should be made for recreation and public purposes. This information will be used to make these determinations. A response is required to obtain a benefit.
PART 2710 – SALES: FEDERAL LAND POLICY AND MANAGEMENT ACT
Subpart 2710 – Sales: General Provisions
§ 2710.0-1 Purpose.
The regulations in this part implement the sale authority of section 203 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701, 1713).
§ 2710.0-2 Objective.
The objective is to provide for the orderly disposition at not less than fair market value of public lands identified for sale as part of the land use planning process.
§ 2710.0-3 Authority.
(a) The Secretary of the Interior is authorized by the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701, 1713), to sell public lands where, as a result of land use planning, it is determined that the sale of such tract meets any or all of the following disposal criteria:
(1) Such tract was acquired for a specific purpose and the tract is no longer required for that or any other Federal purpose; or
(2) Disposal of such tract shall serve important public objectives, including but not limited to, expansion of communities and economic development, which cannot be achieved prudently or feasibly on lands other than public lands and which outweigh other public objectives and values, including, but not limited to, recreation and scenic values, which would be served by maintaining such tract in Federal ownership; or
(3) Such tract, because of its location or other characteristics is difficult and uneconomic to manage as part of the public lands and is not suitable for management by another Federal department or agency.
(b) The Secretary of the Interior is authorized by section 310 of the Federal Land Policy and Management Act (43 U.S.C. 1740) to promulgate rules and regulations to carry out the purpose of the Act.
§ 2710.0-5 Definitions.
As used in this part, the term
(a) Public lands means any lands and interest in lands owned by the United States and administered by the Secretary through the Bureau of Land Management except:
(1) Lands located on the Outer Continental Shelf;
(2) Lands held for the benefit of Indians, Aleuts, and Eskimos.
(b) Secretary means the Secretary of the Interior.
(c) Authorized officer means any employee of the Bureau of Land Management who has been delegated the authority to perform the duties described in this part.
(d) Act means the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701).
(e) Family sized farm means the unit of public lands determined to be chiefly valuable for agriculture, and that is of sufficient size, based on land use capabilities, development requirements and economic capability, to provide a level of net income, after payment of expenses and taxes, which will sustain a family sized agribusiness operation above the poverty level for a rural farm family of 4 as determined by the Bureau of Labor Statistics, U.S. Department of Labor, for the calendar year immediately preceeding the year of the proposed sale under the regulations of this part. The determination of the practical size is an economic decision to be made on a local area basis considering, but not limited to, factors such as: Climatic conditions, soil character, availability of irrigation water, topography, usual crop(s) of the locale, marketability of the crop(s), production and development costs, and other physical characteristics which shall give reasonable assurance of continued production under proper conservation management.
§ 2710.0-6 Policy.
(a) Sales under this part shall be made only in implementation of an approved land use plan or analysis in accordance with part 1600 of this title.
(b) Public lands determined to be suitable for sale shall be offered only on the initiative of the Bureau of Land Management. Indications of interest to have specific tracts of public lands offered for sale shall be accomplished through public input to the land use planning process. (See §§ 1601.1-1 and 1601.8 of this title). Nominations or requests to have specific tracts of public lands offered for sale may also be made by direct request to the authorized officer.
(c)(1) The Federal Land Policy and Management Act (43 U.S.C. 1713(f)) provides that sales of public lands under this section shall be conducted under competitive bidding procedures established by the Secretary. However, where the Secretary determines it necessary and proper in order to assure equitable distribution among purchasers of lands, or to recognize equitable considerations or public policies, including, but not limited to, a preference to users, lands may be sold by modified competitive bidding or without competitive bidding. In recognizing public policies, the Secretary shall give consideration to the following potential purchasers:
(i) The State in which the lands are located;
(ii) The local government entities in such State which are in vicinity of the lands;
(iii) Adjoining landowners;
(iv) Individuals; and
(v) Any other person.
(2) When a parcel of land meets the sale criteria of section 203 of the Federal Land Policy and Management Act (43 U.S.C. 1713), several factors shall be considered in determining the method of sale. These factors include, but are not limited to: Competitive interest; needs of State and local governments; adjoining landowners; historical uses; and equitable distribution of land ownership.
(3) Three methods of sale are provided for in § 2711.3 of this title: competitive; modified competitive; and direct (non-competitive). The policy for selecting the method of sale is:
(i) Competitive sale as provided in § 2711.3-1 of this title is the general procedure for sales of public lands and may be used where there would be a number of interested parties bidding for the lands and (A) wherever in the judgment of the authorized officer the lands are accessible and usable regardless of adjoining land ownership and (B) wherever the lands are within a developing or urbanizing area and land values are increasing due to their location and interest on the competitive market.
(ii) Modified competitive sales as provided in § 2711.3-2 of this title may be used to permit the existing grazing user or adjoining landowner to meet the high bid at the public sale. This procedure will allow for limited competitive sales to protect on-going uses, to assure compatibility of the possible uses with adjacent lands, and avoid dislocation of existing users. Lands offered under this procedure would normally be public lands not located near urban expansion areas, or with rapidly increasing land values, and existing use of adjacent lands would be jeopardized by sale under competitive bidding procedures.
(iii) Direct sale as provided in § 2711.3-3 of this title may be used when the lands offered for sale are completely surrounded by lands in one ownership with no public access, or where the lands are needed by State or local governments or non-profit corporations, or where necessary to protect existing equities in the lands or resolve inadvertent unauthorized use or occupancy of said lands.
(4) When lands have been offered for sale by one method of sale and the lands remain unsold, then the lands may be reoffered by another method of sale.
(5) In no case shall lands be sold for less than fair market value.
(d) Sales of public lands determined to be chiefly valuable for agriculture shall be no larger than necessary to support a family-sized farm.
(e) The sale of family-sized farm units, at any given sale, shall be limited to one unit per bidder and one unit per family. The limit of one unit per family is not to be be construed as limiting children eighteen years or older from bidding in their own right.
(f) Sales under this part shall not be made at less than fair market value. Such value is to be determined by an appraisal performed by a Federal or independent appraiser, as determined by the authorized officer, using the principles contained in the Uniform Appraisal Standards for Federal Land Acquisitions. The value of authorized improvements owned by anyone other than the United States upon lands being sold shall not be included in the determination of fair market value. Technical review and approval for conformance with appraisal standards shall be conducted by the authorized officer.
(g) Constraint and discretion shall be used with regard to the terms, covenants, conditions and reservations authorized by section 208 of the Act that are to be in sales patents and other conveyance documents, except where inclusion of such provisions is required by law or for protection of valid existing rights.
§ 2710.0-8 Lands subject to sale.
(a) All public lands, as defined by § 2710.0-5 of this title, and, which meet the disposal criteria specified under § 2710.0-3 of this title, are subject to sale pursuant to this part, except:
(1) Those public lands within the revested Oregon California Railroad and reconveyed Coos Bay Wagon Road grants which are more suitable for management and administration for permanent forest protection and other purposes as provided for in the Acts of August 28, 1937 (50 Stat. 874; 43 U.S.C. 1181(a)); May 24, 1939 (53 Stat. 753); and section 701(b) of the Act.
(2) Public lands in units of the National Wilderness Preservation System, National Wild and Scenic Rivers System and National System of Trails.
(3) Public lands classified, withdrawn, reserved or otherwise designated as not available or subject to sale shall not be sold under the regulations of this part until issuance of an order or notice which either opens or provides for such disposition.
(b) Unsurveyed public lands shall not be sold under the regulations of this part until they are officially surveyed under the public land survey system of the United States. Such survey shall be completed and approved by the Secretary prior to any sale.
Subpart 2711 – Sales: Procedures
§ 2711.1 Initiation of sale.
§ 2711.1-1 Identification of tracts by land use planning.
(a) Tracts of public lands shall only be offered for sale in implementation of land use planning prepared and/or approved in accordance with subpart 1601 of this title.
(b) Public input proposing tracts of public lands for disposal through sale as part of the land use planning process may be made in accordance with §§ 1601.3, 1601.6-3 or § 1601.8 of this title.
(c) Nominations or requests for sales of public lands may be made to the District office of the Bureau of Land Management for the District in which the public lands are located and shall specifically identify the tract being nominated or requested and the reason for proposing sale of the specific tract.
§ 2711.1-2 Notice of realty action.
(a) A notice of realty action offering for sale a tract or tracts of public lands identified for disposal by sale shall be issued, published and sent to parties of interest by the authorized officer not less than 60 days prior to the sale. The notice shall include the terms, convenants, conditions and reservations which are to be included in the conveyance document and the method of sale. The notice shall also provide 45 days after the date of issuance for the right of comment by the public and interested parties.
(b) Not less than 60 days prior to sale, notice shall be sent to the Member of the U.S. House of Representatives in whose district the public lands proposed for sale are located and the U.S. Senators for the State in which the public lands proposed for sale are located, the Senate and House of Representatives, as required by paragraph (f) of this section, to Governor of the State within which the public lands are located, to the head of the governing body of any political subdivision having zoning or other land use regulatory responsibility in the geographic area within which the public lands are located and to the head of any political subdivision having administrative or public services responsibility in the geographic area within which the lands are located. The notice shall be sent to other known interested parties of record including, but not limited to, adjoining landowners and current land users.
(c) The notice shall be published once in the
(d) The publication of the notice of realty action in the
(e) The notice published under § 1610.5 of this title may, if so designated in the notice and is the functional equivalent of a notice of realty action required by this section, serve as the notice of realty action required by paragraph (a) of this section and may segregate the public lands covered by the sale proposal to the same extent that they would have been segregated under a notice of realty action issued under paragraph (a) of this section.
(f) For tracts of public lands in excess of 2,500 acres, the notice shall be submitted to the Senate and the House of Representatives not less than the 90 days prescribed by section 203 of the Act (43 U.S.C. 1713(c)) prior to the date of sale. The sale may not be held prior to the completion of the congressional notice period unless such period is waived by Congress.
§ 2711.1-3 Sales requiring grazing permit or lease cancellations.
When lands are identified for disposal and such disposal will preclude livestock grazing, the sale shall not be made until the permittees and lessees are given 2 years prior notification, except in cases of emergency, that their grazing permit or grazing lease and grazing preference may be cancelled in accordance with § 4110.4-2(b) of this title. A sale may be made of such identified lands if the sale is conditioned upon continued grazing by the current permittee/lessee until such time as the current grazing permit or lease would have expired or terminated. A permittee or lessee may unconditionally waive the 2-year prior notification. The publication of a notice of realty action as provided in § 2711.1-2(c) of this title shall constitute notice to the grazing permittee or lessee if such notice has not been previously given.
§ 2711.2 Qualified conveyees.
Tracts sold under this part may only be conveyed to:
(a) A citizen of the United States 18 years of age or over;
(b) A corporation subject to the laws of any State or of the United States;
(c) A State, State instrumentality or political subdivision authorized to hold property; and
(d) An entity legally capable of conveying and holding lands or interests therein under the laws of the State within which the lands to be conveyed are located. Where applicable, the entity shall also meet the requirements of paragraphs (a) and (b) of this section.
§ 2711.3 Procedures for sale.
§ 2711.3-1 Competitive bidding.
When public lands are offered through competitive bidding:
(a) The date, time, place, and manner for submitting bids shall be specified in the notice required by § 2711.1-2 of this title.
(b) Bids may be made by a principal or a duly qualified agent.
(c) Sealed bids shall be considered only if received at the place of sale prior to the hour fixed in the notice and are made for at least the fair market value. Each bid shall be accompanied by certified check, postal money order, bank draft or cashier’s check made payable to the Bureau of Land Management for the amount required in the notice of realty action which shall be not less than 10 percent or more than 30 percent of the amount of the bid, and shall be enclosed in a sealed envelope which shall be marked as prescribed in the notice. If 2 or more envelopes containing valid bids of the same amount are received, the determination of which is to be considered the highest bid shall be by supplemental biddings. The designated high bidders shall be allowed to submit oral or sealed bids as designated by the authorized officer.
(d) The highest qualifying sealed bid received shall be publicly declared by the authorized officer. If the notice published pursuant to § 2711.1-2 of this title provides for oral bids, such bids, in increments specified by the authorized officer, shall then be invited. After oral bids, if any, are received, the highest qualifying bid, designated by type, whether sealed or oral, shall be declared by the authorized officer. The person declared to have entered the highest qualifying oral bid shall submit payment by cash, personal check, bank draft, money order, or any combination for not less than one-fifth of the amount of the bid immediately following the close of the sale. The successful bidder, whether such bid is a sealed or oral bid, shall submit the remainder of the full bid price prior to the expiration of 180 days from the date of the sale. Failure to submit the full bid price prior to, but not including the 180th day following the day of the sale, shall result in cancellation of the sale of the specific parcel and the deposit shall be forfeited and disposed of as other receipts of sale. In the event the authorized officer rejects the highest qualified bid or releases the bidder from it, the authorized officer shall determine whether the public lands shall be withdrawn from the market or be reoffered.
(e) If the public lands are not sold pursuant to the notice issued under § 2711.1-2 of this subpart, they may remain available for sale on a continuing basis until sold as specified in the notice.
(f) The acceptance or rejection of any offer to purchase shall be in writing no later than 30 days after receipt of such offer unless the offerer waives his right to a decision within such 30-day period. In case of a tract of land in excess of 2,500 acres, such acceptance or rejection shall not be given until the expiration of 30 days after the end of the notice to the Congress provided for in § 2711.1-2(d) of this subpart. Prior to the expiration of such periods the authorized officer may refuse to accept any offer or may withdraw any tract from sale if he determines that:
(1) Consummation of the sale would be inconsistent with the provisions of any existing law; or
(2) Collusive or other activities have hindered or restrained free and open bidding; or
(3) Consummation of the sale would encourage or promote speculation in public lands.
(g) Until the acceptance of the offer and payment of the purchase price, the bidder has no contractual or other rights against the United States, and no action taken shall create any contractual or other obligations of the United States.
§ 2711.3-2 Modified bidding.
(a) Public lands may be offered for sale utilizing modified competitive bidding procedures when the authorized officer determines it is necessary in order to assure equitable distribution of land among purchasers or to recognize equitable considerations or public policies.
(1) Modified competitive bidding includes, but is not limited to:
(i) Offering to designated bidders the right to meet the highest bid. Refusal or failure to meet the highest bid shall constitute a waiver of such bidding provisions; or
(ii) A limitation of persons permitted to bid on a specific tract of land offered for sale; or
(iii) Offering to designated bidders the right of first refusal to purchase the lands at fair market value. Failure to accept an offer to purchase the offered lands within the time specified by the authorized officer shall constitute a waiver of his preference consideration.
(2) Factors that shall be considered in determining when modified competitive bidding procedures shall be used, include but are not limited to: Needs of State and/or local government, adjoining landowners, historical users, and other needs for the tract. A description of the method of modified competitive bidding to be used and a statement indicating the purpose or objective of the bidding procedure selected shall be specified in the notice of realty action required in § 2711.1-2 of this subpart.
(b) Where 2 or more designated bidders exercise preference consideration awarded by the authorized officer in accordance with paragraph (a)(1) of this section, such bidders shall be offered the opportunity to agree upon a division of the lands among themselves. In the absence of a written agreement, the preference right bidders shall be allowed to continue bidding to determine the high bidder.
(c) Where designated bidders fail to exercise the preference consideration offered by the authorized officer in the allowed time, the sale shall proceed using the procedures specified in § 2711.3-1 of this subpart; and
(d) Once the method of modified competitive or noncompetitive sale is determined and such determination has been issued, published and sent in accordance with procedures of this part, payment shall be by the same instruments as authorized in § 2711.3-1(c) of this subpart.
(e) Acceptance or rejection of any offer to purchase shall be in accordance with the procedures set forth in § 2711.3-1 (f) and (g) of this subpart.
§ 2711.3-3 Direct sales.
(a) Direct sales (without competition) may be utilized, when in the opinion of the authorized officer, a competitive sale is not appropriate and the public interest would best be served by a direct sale. Examples include, but are not limited to:
(1) A tract identified for transfer to State or local government or nonprofit organization; or
(2) A tract identified for sale that is an integral part of a project or public importance and speculative bidding would jeopardize a timely completion and economic viability of the project; or
(3) There is a need to recognize an authorized use such as an existing business which could suffer a substantial economic loss if the tract were purchased by other than the authorized user; or
(4) The adjoining ownership pattern and access indicate a direct sale is appropriate; or
(5) A need to resolve inadvertent unauthorized use or occupancy of the lands.
(b) Once the authorized officer has determined that the lands will be offered by direct sale and such determination has been issued, published and sent in accordance with procedures of this part, payment shall be made by the same instruments as authorized in § 2711.3-1(c) of this subpart.
(c) Failure to accept an offer to purchase the offered lands within the time specified by the authorized officer shall constitute a waiver of this preference consideration.
(d) Acceptance or rejection of an offer to purchase the lands shall be in accordance with the procedures set forth in § 2711.3-1 (f) and (g) of this subpart.
§ 2711.4-1 Grazing improvements.
No public lands in a grazing lease or permit may be conveyed until the provisions of part 4100 of this title concerning compensation for any authorized grazing improvements have been met.
§ 2711.4-2 Other private improvements.
Where public lands to be sold under this part contain authorized private improvements, other than those identified in § 2711.4-1 of this subpart or those subject to a patent reservation, the owner of such improvements shall be given an opportunity to remove them if such owner has not been declared the purchaser of the lands sold, or the prospective purchaser may compensate the owner of such authorized private improvements and submit proof of compensation to the authorized officer.
§ 2711.5 Conveyance documents.
Patents and other conveyance documents issued under this part shall contain a reservation to the United States of all minerals. Such minerals shall be subject to the right to explore, prospect for, mine, and remove under applicable law and such regulations as the Secretary may prescribe. However, upon the filing of an application as provided in part 2720 of this title, the Secretary may convey the mineral interest if all requirements of the law are met. Where such application has been filed and meets the requirements for conveyance, the authorized officer may withhold issuance of a patent or other document of conveyance on lands sold under this part until processing of the mineral conveyance application is completed, at which time a single patent or document of conveyance for the entire estate or interest of the United States may be issued.
§ 2711.5-2 Terms, covenants, conditions, and reservations.
Patents or other conveyance documents issued under this part may contain such terms, covenants, conditions, and reservations as the authorized officer determines are necessary in the public interest to insure proper land use and protection of the public interest as authorized by section 208 of the Act.
§ 2711.5-3 Notice of conveyance.
The authorized officer shall immediately notify the Governor and the heads of local government of the issuance of conveyance documents for public lands within their respective jurisdiction.
PART 2720 – CONVEYANCE OF FEDERALLY-OWNED MINERAL INTERESTS
Subpart 2720 – Conveyance of Federally-Owned Mineral Interests
§ 2720.0-1 Purpose.
The purpose of these regulations is to establish procedures under section 209 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1719, for conveyance of mineral interests owned by the United States where the surface is or will be in non-Federal ownership.
§ 2720.0-2 Objectives.
The objective is to allow consolidation of surface and subsurface or mineral ownership where there are no known mineral values or in those instances where the reservation interferes with or precludes appropriate non-mineral development and such development is a more beneficial use of the land than the mineral development.
§ 2720.0-3 Authority.
(a) Section 209(b) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1719(b), authorizes the Secretary of the Interior to convey mineral interests owned by the United States where the surface is or will be in non-Federal ownership, if certain specific conditions are met.
(b) Section 310 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1740, authorizes the Secretary of the Interior to promulgate rules and regulations to carry out the purposes of the Act.
§ 2720.0-5 Definitions.
As used in this subpart, the term:
(a) Prospective record owner means a person who has a contract or other agreement to purchase a tract of land that is in non-Federal ownership with a reservation of minerals in the United States, or a person who is purchasing a tract of land under the provisions of the Federal Land Policy and Management Act of 1976 or other laws authorizing the conveyance of Federal lands subject to the reservation of a mineral interest.
(b) Known mineral values means mineral rights in lands containing geologic formations that are valuable in the monetary sense for exploring, developing, or producing natural mineral deposits. The presence of such mineral deposits with potential for mineral development may be known because of previous exploration, or may be inferred based on geologic information.
(c) Authorized officer means any employee of the Bureau of Land Management to whom has been delegated the authority to perform the duties described in this part.
(d) Proof of ownership means evidence of title acceptable in local realty practice by attorneys and title examiners and may include a current title attorney’s opinon, based on a current abstract of title prepared by a bonded title insurance or title abstract company doing business in the locale where the lands are located.
§ 2720.0-6 Policy.
As required by the Federal Land Policy and Management Act, the Bureau of Land Management may convey a federally owned mineral interest only when the authorized officer determines that it has no known mineral value, or that the mineral reservation is interfering with or precluding appropriate nonmineral development of the lands and that nonmineral development is a more beneficial use than mineral development. Allegation, hypothesis or speculation that such conditions could or may exist at some future time shall not be sufficient basis for conveyance. Failure to establish by convincing factual evidence that the requisite conditions of interference or preclusion presently exist, and that nonmineral development is a more beneficial use, shall result in the rejection of an application.
§ 2720.0-9 Information collection.
(a) The Office of Management and Budget has approved under 44 U.S.C. 3507 the information collection requirements contained in part 2720 and assigned clearance number 1004-0153. The Bureau of Land Management is collecting the information to permit the authorized officer to determine whether the Bureau of Land Management should dispose of Federally-owned mineral interests. The Bureau of Land Management will use the information collected to make these determinations. A response is required to obtain a benefit.
(b) The Bureau of Land Management estimates the public reporting burden for this information to average 8 hours per response, including the time for reviewing regulations, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Information Collection Clearance Officer (783), Bureau of Land Management, Washington, D.C. 20240, and the Office of Management and Budget, Paperwork Reduction Project, 1004-0153, Washington, D.C. 20503.
§ 2720.1 Application to purchase federally-owned mineral interests.
§ 2720.1-1 Filing of application.
(a) Any existing or prospective record owner of the surface of land in which mineral interests are reserved or otherwise owned by the United States may file an application to purchase such mineral interests if –
(1) He has reason to believe that there are no known mineral values in the land, or
(2) The reservation of ownership of the mineral interests in the United States interferes with or precludes appropriate non-mineral development of the land and such development would be a more beneficial use of the land than its mineral development.
(b) Publication in the
§ 2720.1-2 Form of application.
(a) An application shall be filed with the proper BLM Office as listed in § 1821.2-1(d) of this title.
(b) No specific form is required.
(c) A non-refundable fee of $50 shall accompany the application.
(d) Each application shall include:
(1) The name, legal mailing address, and telephone number of the existing or prospective record owner of the land included in the application;
(2) Proof of ownership of the land included in the application, and in the case of a prospective record owner, a copy of the contract of conveyance or a statement describing the method by which he will become the owner of record;
(3) In the case of non-Federal ownership of the surface, a certified copy of any patent or other instrument conveying the land included in the application and a showing of ownership in the applicant, with supporting survey evidence acceptable to the authorized officer, which may consist of a metes and bounds survey prepared and certified by a civil engineer or land surveyor licensed under the laws of the State in which the lands are located; and
(4) As complete a statement as possible concerning (i) the nature of federally-reserved or owned mineral values in the land, including explanatory information, (ii) the existing and proposed uses of the land, (iii) why the reservation of the mineral interests in the United States is interfering with or precluding appropriate non-mineral development of the land covered by the application (iv) how and why such development would be a more beneficial use of the land than its mineral development, and (v) a showing that the proposed use complies or will comply with State and local zoning and/or planning requirements.
§ 2720.1-3 Action on application.
(a) Within 90 days of receipt of an application to purchase federally-owned mineral interests, the authorized officer shall, if the application meets the requirements for further processing, determine the amount of deposit required and so inform the applicant.
(b) No application filed under this subpart shall be processed until the applicant has either –
(1) Deposited with the authorized officer an amount of money that the authorized officer estimates is needed to cover administrative costs of processing, including, but not limited to, costs of conducting an exploratory program, if one is required, to determine the character of the mineral deposits in the land, evaluating the existing data [or the data obtained under an approved exploratory program] to aid in determining the fair market value of the mineral interests to be conveyed, and preparing and issuing the documents of conveyance, or
(2) Has obtained the consent of the authorized officer to conduct an exploratory program, such program to be conducted only under a plan of operations approved by the authorized officer and deposited with the authorized officer an amount of money the authorized officer estimates is needed to cover administrative costs of processing, including, but not limited to, costs of evaluating existing data and data submitted from an approved exploratory program to determine the fair market value of the mineral interests to be conveyed and preparing and issuing the documents of conveyance.
The authorized officer, in reaching a determination as to whether there are any known mineral values in the land and, if so, the estimated costs of an exploratory program, if one is needed, will rely upon reports on minerals prepared by or reviewed and approved by the Bureau of Land Management.
(c) The authorized officer shall inform the applicant of his determination as to the need for an exploratory program, and where appropriate, the estimated cost of such a program. The applicant may request that the exploratory program be arranged by the authorized officer or request the consent of the authorized officer to accomplish any required exploratory program by other means, at his own expense, under a plan of operations approved by the authorized officer and to provide the results to the authorized officer for his use and approval. The applicant shall, within 60 days of receipt of such notice, or any extension thereof, respond to the authorized officer’s notice, stating whether he wishes to have the authorized officer arrange to have conducted the required exploratory program or requests the consent of the authorized officer to accomplish any required exploratory program by other means. Failure to respond to said notice shall void the application.
(d) If the applicant requests that any required exploratory program be arranged by the authorized officer, he shall submit the sum of money required under paragraph (b) of this section and the authorized officer shall have the exploratory program accomplished so as to aid in determining the fair market value of the Federal mineral interests covered by the application.
(e) If the applicant requests the consent of the authorized officer to accomplish any required exploratory program by other means, at his own expense, he shall at the time of making his request for such consent, file a plan of operations to carry out any required exploratory program for approval by the authorized officer. Such plan of operations shall be sufficient to provide the resource and economic data needed to aid in determining the fair market value of the Federal mineral interests to be conveyed. Said resource and economic data shall include, where appropriate, but not be limited to, geologic maps, geologic cross-sections, tables and descriptive information encompassing lithologic, geochemical, and geophysical data, assays of samples, drill logs and outcrop sections, which aid in establishing the location, nature, quantity, and grade, and which aid in determining the fair market value of the Federal mineral interests in the land covered by the application. The plan of operations shall conform to the laws, regulations and ordinances of all governmental bodies having jurisdiction over the lands covered by the application. The authorized officer shall decide within 90 days of receipt of said request whether he shall or shall not give his consent. The authorized officer shall not give his consent if he determines that the plan of operations is not adequate to supply the resource and economic data needed to aid him in determining the fair market value of the Federal mineral interests to be conveyed. If the authorized officer, in his discretion, approves the applicant’s plan of operations, the applicant may proceed to execute the plan of operations, subject to the supervision of the authorized officer. If the authorized officer does not give his consent to the applicant’s request, the applicant may, within 60 days of such refusal, avail himself of the provisions of paragraph (d) of this section. Failure to deposit the required sum within the 60 day period shall void the application. All resource and economic data obtained from the approved exploratory program shall be supplied the authorized officer. The authorized officer shall supply that data needed for determination of the economic value of mineral resources to the Bureau of Land Management. The authorized officer relying upon those determinations shall determine the fair market value of the Federal mineral interests in the land covered by the application. If the authorized officer determines that the resource and economic data supplied from an approved exploratory program is not adequate to aid in determining the fair market value of the Federal mineral interests to be conveyed, he shall so notify the applicant and state what additional data is needed.
(f) Notwithstanding the provisions of the preceding paragraphs of this section, an application may be rejected without the applicant meeting the requirements of paragraph (b) of this section if the authorized officer determines from an examination of the application or of data readily available to him relating to the land concerned that the application does not meet the requirements of the Act.
§ 2720.2 Determination that an exploratory program is not required.
(a) In instances where available data indicate that there are no known mineral values in the land covered by the application, an exploratory program shall not be required.
(b) The authorized officer will not require an exploratory program to ascertain the presence of mineral values where the authorized officer determines that a reasonable person would not make exploration expenditures with expectations of deriving economic gain from the mineral production.
(c) The authorized officer will not require an exploratory program if the authorized officer determines that, for the mineral interests covered by the application, sufficient information is available to determine their fair market value.
§ 2720.3 Action upon determination of the fair market value of the mineral interests.
(a) Upon the authorized officer’s determination that all of the requirements of the Act for conveyance of mineral interests have been met by the applicant and all actions necessary to determine the fair market value of the Federal mineral interests in land covered by the application have been completed, the authorized officer shall notify the applicant in writing of the fair market value of the Federal mineral interests, including the administrative costs involved in development of and issuance of conveyance documents, and give a full and complete statement of the costs incurred in reaching such determination including any sum due the United States or that may be unexpended from the deposit made by the applicant. If the administrative costs of determining the fair market value of the Federal mineral interests exceed the amount of the deposit required of the applicant under this subpart, he will be informed that he is required to pay the difference between the actual costs and the deposit. If the deposit exceeds the administrative costs of determining the fair market value of the Federal mineral interests, the applicant will be informed that he is entitled to a credit for or a refund of the excess. The notice must require the applicant to pay both the fair market value of the Federal mineral interests and the remaining administrative costs owed within 90 days after the date the authorized officer mails the notice. Failure to pay the required amount within the allotted time shall constitute a withdrawal of the application and the application will be dismissed and the case closed.
(b) The Bureau of Land Management will convey mineral rights on lands for which this part does not require an exploratory program upon payment by the applicant of fair market value for those mineral interests and all administrative costs of processing the application to acquire the mineral rights.
§ 2720.4 Issuance of document of conveyance.
Upon receipt of the payment required by § 2720.3 of this subpart, if any is required, the authorized officer shall issue the necessary document conveying to the applicant the mineral interests of the United States in the land covered by the application.
§ 2720.5 Appeals.
An applicant adversely affected by a decision of the authorized officer made pursuant to the provisions of this subpart shall have a right of appeal pursuant to part 4 of this title. Decisions of the authorized officer under this subpart shall be subject to reversal only if found to be arbitrary, capricious, and abuse of discretion or otherwise not in accordance with law.
PART 2740 – RECREATION AND PUBLIC PURPOSES ACT
Subpart 2740 – Recreation and Public Purposes Act: General
§ 2740.0-1 Purpose.
These regulations provide guidelines and procedures for transfer of certain public lands under the Recreation and Public Purposes Act as amended (43 U.S.C. 869 et seq.), to States or their political subdivisions, and to nonprofit corporations and associations, for recreational and public purposes.
§ 2740.0-2 Objective.
The objective is to meet the needs of certain State and local governmental agencies and other qualified organizations for public lands required for recreational and public purposes.
§ 2740.0-3 Authority.
(a) The Act of June 14, 1926, as amended (43 U.S.C. 869 et seq.), commonly known as the Recreation and Public Purposes Act, authorizes the Secretary of the Interior to lease or convey public lands for recreational and public purposes under specified conditions.
(b) Section 211 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1721), authorizes the Secretary of the Interior to convey to States or their political subdivisions unsurveyed islands determined by the Secretary to be public lands of the United States and omitted lands under the Recreation and Public Purposes Act without regard to acreage limitations contained in the Act.
(c) Section 3 of the Act of June 14, 1926, as amended by the Recreation and Public Purposes Amendment Act of 1988, authorizes the Secretary of the Interior to convey public lands for the purpose of solid waste disposal or for any other purpose which may result in or include the disposal, placement, or release of any hazardous substance, with special provisions relating to reversion of such lands to the United States.
§ 2740.0-5 Definitions.
As used in this part, the term:
(a) Act means the Recreation and Public Purposes Act as amended by section 212 of the Federal Land Policy and Management Act of 1976.
(b) Authorized officer means any employee of the Bureau of Land Management who has been delegated the authority to perform the duties described in this part.
(c) Public lands means any lands and interest in lands administered by the Bureau of Land Management, except lands located on the Outer Continental Shelf and lands held for the benefit of Indians, Aleuts and Eskimos.
(d) Public purpose means for the purpose of providing facilities or services for the benefit of the public in connection with, but not limited to, public health, safety or welfare. Use of lands or facilities for habitation, cultivation, trade or manufacturing is permissible only when necessary for and integral to, i.e., and essential part of, the public purpose.
(e) Conveyance means a transfer of legal title. Leases issued pursuant to subpart 2912 of this title are not conveyances.
(f) Hazardous substance means any substance designated pursuant to Environmental Protection Agency regulations at 40 CFR part 302.
(g) Solid waste means any material as defined under Environmental Protection Agency regulations at 40 CFR part 261.
§ 2740.0-6 Policy.
(a) To assure development of public lands in accordance with a development plan and compliance with an approved management plan, the authorized officer may require that public lands first be leased under the provisions of subpart 2912 of this title for a period of time prior to issuance of a patent, except for conveyances under subpart 2743 of this title.
(b) Municipal corporations may not secure public lands under this act which are not within convenient access to the municipality and within the same State as the municipality. Other qualified governmental applicants may not secure public lands outside their political boundaries or other area of jurisdiction.
(c) Where lands are conveyed under the act with a reservation of the mineral estate to the United States, the Bureau of Land Management shall not thereafter convey that mineral estate to the surface owner under the provisions of section 209 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1719).
(d) Lease or conveyance of lands for purposes other than recreational or public purposes is not authorized by the act. Uses which can be more appropriately authorized under other existing authorities shall not be authorized under the act. Approval of leases or conveyances under the act shall not be made unless the public lands shall be used for an established or definitely proposed project. A commitment by lessee(s) or conveyee(s) to a plan of physical development, management and use of the lands shall be required before a lease or conveyance is approved. Use of public lands for nonrecreational or nonpublic purposes, whether by lease or conveyance, may be applied for under sections 203 and 302 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1713, 1732) or other applicable authorities.
(e) The Bureau of Land Management shall not exercise the exchange authority of section 206 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1716) for the purpose of acquiring lands for later conveyance under the act.
(f) The Bureau of Land Management shall not use Federal funds to undertake determinations of the validity of mining claims on public lands for the sole purpose of clearing title so that the lands may be leased or conveyed under the act.
§ 2740.0-7 Cross references.
(a) Requirements and procedures for conveyance of land under the Recreation and Public Purposes Act are contained in subpart 2741 of this chapter.
(b) Requirements and procedures for leasing of land under the Recreation and Public Purposes Act are contained in subpart 2912 of this title.
(c) Requirements and procedures for conveyance of unsurveyed islands and omitted lands under section 211 of the Federal Land Policy and Management Act are contained in subpart 2742 of this chapter.
(d) Requirements and procedures for conveyance of land under the Recreation and Public Purposes Act for the purpose of solid waste disposal or for any other purpose that the authorized officer determines may result in or include the disposal, placement, or release of any hazardous substance are contained in subpart 2743 of this chapter.
§ 2740.0-9 Information collection.
The collection of information contained in part 2740 of Group 2700 has been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1004-0012. This information will be used to determine the suitability of public lands for lease and/or disposal to States or their political subdivisions, and to nonprofit corporations and associations, for recreational and public purposes. Responses are required to obtain benefits in accordance with the Recreation and Public Purposes Act.
Public reporting burden for this information is estimated to average 47 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, should be sent to the Division of Information Resources Management (770), Bureau of Land Management, 1849 C Street NW., Washington, DC 20240; and the Paperwork Reduction Project (1004-0012), Office of Management and Budget, Washington, DC 20503.
Subpart 2741 – Recreation and Public Purposes Act: Requirements
§ 2741.1 Lands subject to disposition.
(a) The act is applicable to any public lands except (1) lands withdrawn or reserved for national forests, national parks and monuments, and national wildlife refuges, (2) Indian lands and lands set aside or held for use by or for the benefit of Indians, Aleuts and Eskimos, and (3) lands which have been acquired for specific purposes.
(b) Revested Oregon and California Railroad grant lands and reconveyed Coos Bay Wagon Road grant lands may only be leased to States and counties and to State and Federal instrumentalities and political subdivisions and to municipal corporations.
(c) Section 211 of the Federal Land Policy and Management Act of 1976 does not apply to public lands within the National Forest System, defined in the Act of August 17, 1974 (16 U.S.C. 1601), the National Park System, the National Wildlife Refuge System and the National Wild and Scenic Rivers System.
§ 2741.2 Qualified applicants.
Applications for any recreational or public purpose may be filed by States, Federal and State instrumentalities and political subdivisions, including counties and municipalities, and nonprofit associations and nonprofit corporations that, by their articles of incorporation or other authority, are authorized to acquire land.
§ 2741.3 Preapplication consultation.
(a) Potential applicants should contact the appropriate District Office of the Bureau of Land Management well in advance of the anticipated submission of an application. Early consultation is needed to familiarize a potential applicant with management responsibilities and terms and conditions which may be required in a lease or patent.
(b) Any information furnished by the applicant in connection with preapplication activity or use, which he/she requests not be disclosed, shall be protected to the extent consistent with the Freedom of Information Act (5 U.S.C. 552).
(c) Dependent upon the magnitude and/or public interest associated with the proposed use, various investigations, studies, analyses, public meetings and negotiations may be required of the applicant prior to the submission of the application. Where a determination is made that studies and analyses are required, the authorized officer shall inform the potential applicant of these requirements.
(d) The potential applicant may be permitted to go upon the public lands to perform casual acts related to data collection necessary for development of an acceptable plan of development as required in § 2741.4(b) of this title. These casual acts include, but are not limited to:
(1) Vehicle use on existing roads;
(2) Sampling;
(3) Surveys required for siting of structures or other improvements; and
(4) Other activities which do not unduly disturb surface resources. If, however, the authorized officer determines that appreciable impacts to surface resources may occur, he/she may require the potential applicant to obtain a land use authorization permit with appropriate terms and conditions under the provision of part 2920 of this title.
§ 2741.4 Applications.
(a) Applications shall be submitted on forms approved by the Director, Bureau of Land Management.
(b) Each application shall be accompanied by three copies of a statement describing the proposed use of the land. The statement shall show that there is an established or definitely proposed project for such use of the land, present detailed plan and schedule for development of the project and a management plan which includes a description of how any revenues will be used. The provisions of § 1821.2 of this title apply to filings pursuant to this section.
(c) Each application shall be accompanied by a nonrefundable filing fee of $100. The filing fee shall be required for new applications as well as for applications for change of use or transfer of title filed under § 2741.6 of this title.
§ 2741.5 Guidelines for conveyances and leases under the act.
(a) Public lands shall be conveyed or leased under the act only for an established or definitely proposed project for which there is a reasonable timetable of development and satisfactory development and management plans.
(b) No public lands having national significance shall be conveyed pursuant to the act.
(c) No more public lands than are reasonably necessary for the proposed use shall be conveyed pursuant to the act.
(d) For proposals involving over 640 acres, public lands shall not be sold or leased pursuant to this act until:
(1) Comprehensive land use plans and zoning regulations for the area in which the lands are located have been adopted by the appropriate State or local authorities.
(2) The authorized officer has held at least one public meeting on the proposal.
(e) Applications shall not be approved unless and until it has been determined that disposal under the act would serve the national interest following the planning requirements of section 202 of the Federal Land Policy and Management Act (43 U.S.C. 1712).
(f) Public lands may be determined to be suitable for lease or sale under the act by the authorized officer on his own motion as a result of demonstrated public needs for public lands for recreational or public purposes during the planning process described in section 202 of the Federal Land Policy and Management Act.
(g) Lands under the jurisdiction of another agency shall not be determined to be suitable for lease or sale without that agency’s approval.
(h)(1) A notice of realty action which shall serve as a classification of public lands as suitable or unsuitable for conveyance or lease under the act shall be issued, published and sent to parties of interest by the authorized officer not less than 60 days prior to the proposed effective date of the classification action. Notices specifying public lands classified as suitable shall include: the use proposed; whether the lands are to be conveyed or leased; and the terms, covenants, conditions and reservations which shall be included in the conveyance or lease document. The notice shall provide at least 45 days from the date of issuance for submission of public comments.
(2) If the notice of realty action states that the lands are classified as suitable for conveyance or lease under the act, it shall segregate the public lands described in the notice from appropriation under any other public land law, including locations under the mining laws, except as provided in the notice or any amendments or revisions to the notice. If, after 18 months following the issuance of the notice, an application has not been filed for the purpose for which the public lands have been classified, the segregative effect of the classification shall automatically expire and the public lands classified in the notice shall return to their former status without further action by the authorized officer.
(3) The notice of realty action shall be published once in the
(4) The notice published under § 1610.5-5 of this title, if designated in the notice, shall serve as the notice of realty action required by this section and shall segregate the public lands as stated in the notice. Any such notice given under § 1610.5-5 of this title shall be published and distributed under the provisions of this section.
(i) The Act shall not be used to provide sites for the disposal of permanent or long-term hazardous wastes.
§ 2741.6 Applications for transfer or change of use.
(a) Applications under the act for permission to add to or change the use specified in a patent or applications to transfer title to a third party shall be filed as prescribed in § 2741.4 of this title.
(b) Applications for transfer of title are subject to the acreage limitations as prescribed in § 2741.7(a) of this title.
(c) Prior to approval of an application filed under this section, the public lands may be reappraised in accordance with § 2741.8 of this title and the beneficiary required to make such payments as are found justified by the reappraisal.
§ 2741.7 Acreage limitations and general conditions.
(a) Conveyances under the Act to any applicant in any one calendar year shall be limited as follows:
(1) Any State or State agency having jurisdiction over the State park system may acquire not more than 6,400 acres for recreational purposes and such additional acreage as may be needed for small roadside parks and rest sites of 10 acres or less each.
(2) Any State or agency or instrumentality of such State may acquire not more than 640 acres for each of its programs involving public purposes other than recreation.
(3) Any politicial subdivision of a State may acquire for recreational purposes not more than 6,400 acres, and for public purposes other than recreation an additional 640 acres. In addition, any political subdivision of a State may acquire such additional acreage as may be needed for roadside parks and rest sites of not more than 10 acres each.
(4) If a State or political subdivision has failed in any one calendar year to receive 6,400 acres (not counting public lands for small roadside parks and rest sites) and had an application on file on the last day of that year, the State, State park agency or political subdivision may receive additional public lands to the extent that the conveyances would not have exceeded the limitations for that year.
(5) Any nonprofit corporation or nonprofit association may acquire for recreational purposes not more than 640 acres and for public purposes other than recreation an additional 640 acres.
(6) Acreage limitations described in this section do not apply to conveyances made under section 211 of the Federal Land Policy and Management Act of 1976.
(b) Conveyances within any State shall not exceed 25,600 acres for recreational purposes per calendar year, except that should any State park agency or political subdivision fail in one calendar year to receive 6,400 acres other than small roadside parks and rest sites, additional conveyances may be made thereafter to that State park agency or political subdivision pursuant to any application on file on the last day of said year to the extent that the conveyances would not have exceeded the limitations of said year.
(c) No patents shall be issued under the act unless and until the public lands are officially surveyed. This requirement does not apply to islands patented under the authority of section 211(a) of the Federal Land Policy and Management Act of 1976.
§ 2741.8 Price.
(a) Conveyances for recreational or historic-monument purposes to a State, county, or other State or Federal instrumentality or political subdivision shall be issued without monetary consideration.
(b) All other conveyances shall be made at prices established by the Secretary of the Interior through appraisal or otherwise, taking into consideration the purpose for which the land is to be used.
(c) Patents shall be issued only after payment of the full purchase price by a patent applicant.
§ 2741.9 Patent provisions.
(a) All patents under the act shall provide that title shall revert upon a finding, after notice and opportunity for a hearing, that, without the approval of the authorized officer:
(1) The patentee or its approved successor attempts to transfer title to or control over the lands to another;
(2) The lands have been devoted to a use other than that for which the lands were conveyed;
(3) The lands have not been used for the purpose for which they were conveyed for a 5-year period; or
(4) The patentee has failed to follow the approved development plan or management plan.
(b) Patents shall also provide that the Secretary of the Interior may take action to revest title in the United States if the patentee directly or indirectly permits his agents, employees, contractors, or subcontractors (including without limitation lessees, sublessees, and permittees) to prohibit or restrict the use of any part of the patented lands or any of the facilities thereon by any person because of such person’s race, creed, color, sex or national origin.
Subpart 2742 – Recreation and Public Purposes Act: Omitted Lands and Unsurveyed Islands
§ 2742.1 Lands subject to disposition.
Omitted lands and unsurveyed islands may be conveyed to States and their local political subdivisions under the provisions of section 211 of the Federal Land Policy and Management Act (43 U.S.C. 1721).
§ 2742.2 Qualifications of applicants.
States and their political subdivisions are qualified applicants.
§ 2742.3 Survey requirement.
(a) Islands. (1) Survey is not necessary. However, unsurveyed islands shall be determined by the Secretary to be public lands of the United States.
(2) Islands shall be surveyed at the request of the applicant, as provided in part 9185 of this chapter.
(b) Determination as to whether lands, other than islands, are public lands of the United States erroneously or fraudulently omitted from the original surveys shall be by survey. Surveys shall be in accordance with the requirements of part 9185 of this title.
§ 2742.4 Conveyance limitations.
(a) No conveyances shall be made under this section until the relevant State government, local government, and areawide planning agency have notified the Secretary as to the consistency of such conveyance with applicable State and local government land use plans and programs.
(b) At least 60 days prior to offering for sale or otherwise conveying public lands under this section, the Secretary shall notify the Governor of the State within which such lands are located and the head of the governing body of any political subdivision of the State having zoning or other land-use regulatory jurisdiction in the geographical area within which such lands are located in order to afford the appropriate body the opportunity to zone or otherwise regulate change or amend existing zoning or other regulations concerning the use of such lands prior to such conveyance.
(c) Conveyances under this section may be made without regard to acreage limitations contained in the Recreation and Public Purposes Act.
§ 2742.5 Consistency with other laws.
The provision of the Recreation and Public Purposes Act prohibiting disposal for any use authorized under any other law does not apply to conveyances under this subpart.
Subpart 2743 – Recreation and Public Purposes Act: Solid Waste Disposal
§ 2743.1 Applicable regulations.
Unless the requested action falls within the provision of § 2743.2(b), applications filed or actions taken under this subpart shall be subject to all the requirements set forth in subpart 2741 of this chapter except §§ 2741.6 and 2741.9.
§ 2743.2 New disposal sites.
(a) Public lands may be conveyed for the purpose of solid waste disposal or for any other purpose that the authorized officer determines may include the disposal, placement, or release of any hazardous substance subject to the following provisions:
(1) The applicant shall furnish a copy of the application, plan of development, and any other information concerning the proposed use to all Federal and State agencies with responsibility for enforcement of laws applicable to lands used for the disposal, placement, or release of solid waste or any hazardous substance. The applicant shall include proof of this notification in the application filed with the authorized officer;
(2) The proposed use covered by an application shall be consistent with the land use planning provisions contained in part 1600 of this title, and in compliance with the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4371) and any other Federal and State laws and regulations applicable to the disposal of solid wastes and hazardous substances;
(3) Conveyance shall be made only of lands classified for sale pursuant to the procedures and criteria in part 2400 of this title;
(4) The applicant shall warrant that it will indemnify and hold the United States harmless against any liability that may arise out of any violation of Federal or State law in connection with the use of the lands;
(5) The authorized officer shall investigate the lands covered by an application to determine whether or not any hazardous substance is present. The authorized officer will require full reimbursement from the applicant for the costs of the investigation. The authorized officer may, in his or her discretion, make an exception to the requirement of full reimbursement if the applicant demonstrates that such costs would result in undue hardship. The investigation shall include but not be limited to:
(i) A review of available records related to the history and use of the land;
(ii) A visual inspection of the property; and
(iii) An appropriate analysis of the soil, water and air associated with the area;
(6) The investigation conducted under paragraph (a)(5) of this section must disclose no hazardous substances and there is a reasonable basis to believe that no such substances are present; and
(7) The applicant shall present certification from the State agency or agencies responsible for environmental protection and enforcement that they have reviewed all records, inspection reports, studies, and other materials produced or considered in the course of the investigation and that based on these documents, such agency or agencies agree with the authorized officer that no hazardous substances are present on the property.
(b) The authorized officer shall not convey public lands covered by an application if hazardous substances are known to be present.
(c) The authorized officer shall retain as permanent records all environmental analyses and appropriate documentation, investigation reports, State certifications, and other materials produced or considered in determining the suitability of public lands for conveyance under this section.
§ 2743.2-1 Patent provisions for new disposal sites.
For new disposal sites, each patent will provide that:
(a) The patentee shall comply with all Federal and State laws applicable to the disposal, placement, or release of hazardous substances;
(b) The patentee shall indemnify and hold harmless the United States against any legal liability or future costs that may arise out of any violation of such laws;
(c) Except as provided in paragraph (e) of this section, the land conveyed under § 2743.2 of this part shall revert to the United States unless substantially used in accordance with an approved plan and schedule of development on or before the date five years after the date of conveyance;
(d) If, at any time, the patentee transfers to another party ownership of any portion of the land not used for the purpose(s) specified in the application and the approved plan of development, the patentee shall pay the Bureau of Land Management the fair market value, as determined by the authorized officer, of the transferred portion as of the date of transfer, including the value of any improvements thereon; and
(e) No portion of the land covered by such patent shall under any circumstance revert to the United States if such portion has been used for solid waste disposal or for any other purpose that the authorized officer determines may result in the disposal, placement, or release of any hazardous substance.
§ 2743.3 Leased disposal sites.
(a) Upon request by or with the concurrence of the lessee, the authorized officer may issue a patent for those lands covered by a lease, or portion thereof, issued on or before November 9, 1988, that have been or will be used, as specified in the plan of development, for solid waste disposal or for any other purpose that the authorized officer determines may result in or include the disposal, placement, or release of any hazardous substance, subject to the following provisions:
(1) All conveyances shall be consistent with the land use planning provisions contained in part 1600 of this title, and in compliance with the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4371) and any other Federal and State laws and regulations applicable to the disposal of solid wastes and hazardous substances;
(2) Conveyances shall be made only of lands classified for sale pursuant to the procedures and criteria in part 2400 of this title.
(3) The authorized officer shall investigate the lands to be included in the patent to determine whether they are contaminated with hazardous substances. The authorized officer will require full reimbursement from the lessee for the costs of the investigation. The authorized officer may, in his or her discretion, make an exception to the requirement of full reimbursement if the applicant demonstrates that such costs would result in undue hardship. The investigation shall include but not be limited to the following:
(i) A review of all records and inspection reports on file with the Bureau of Land Management, State, and local agencies relating to the history and use of the lands covered by a lease and any violations and enforcement problems that occurred during the term of the lease;
(ii) Consultation with the lessee and users of the landfill concerning site management and a review of all reports and logs pertaining to the type and amount of solid waste deposited at the landfill;
(iii) A visual inspection of the leased site; and
(iv) An appropriate analysis of the soil, water and air associated with the area;
(4) The investigation conducted under paragraph (a)(3) of this section must establish that the involved lands contain only those quantities and types of hazardous substances consistent with household wastes, or wastes from conditionally exempt small quantity generators (40 CFR 261.5), and there is a reasonable basis to believe that the contents of the leased disposal site do not threaten human health and the environment; and
(5) The applicant shall present certification from the State agency or agencies responsible for environmental protection and enforcement that they have reviewed all records, inspection reports, studies, and other materials produced or considered in the course of the investigation and that based on these documents, such agency or agencies agree with the authorized officer that the contents of the leased disposal site in question do not threaten human health and the environment.
(b) The authorized officer shall not convey lands identified in paragraph (a) of this section if the investigation concludes that the lands contain hazardous substances at concentrations that threaten human health and the environment.
(c) The authorized officer shall retain as permanent records all environmental analyses and appropriate documentation, investigation reports, State certifications, and other materials produced or considered in determining the suitability of public lands for conveyance under this section.
§ 2743.3-1 Patent provisions for leased disposal sites.
Each patent for a leased disposal site will provide that:
(a) The patentee shall comply with all Federal and State laws applicable to the disposal, placement, or release of hazardous substances;
(b) The patentee shall indemnify and hold harmless the United States against any legal liability or future costs that may arise out of any violation of such laws; and
(c) No portion of the land covered by such patent shall under any circumstance revert to the United States.
§ 2743.4 Patented disposal sites.
(a) Upon request by or with the concurrence of the patentee, the authorized officer may renounce the reversionary interests of the United States in land conveyed on or before November 9, 1988, and rescind any portion of any patent or other instrument of conveyance inconsistent with the renunciation upon a determination that such land has been used for solid waste disposal or for any other purpose that the authorized officer determines may result in the disposal, placement, or release of any hazardous substance.
(b) If the patentee elects not to accept the renunciation of the reversionary interests, the provisions contained in §§ 2741.6 and 2741.9 shall continue to apply.
PART 2800 – RIGHTS-OF-WAY UNDER THE FEDERAL LAND POLICY AND MANAGEMENT ACT
Subpart 2801 – General information
§ 2801.2 What is the objective of BLM’s right-of-way program?
It is BLM’s objective to grant rights-of-way under the regulations in this part to any qualified individual, business, or government entity and to direct and control the use of rights-of-way on public lands in a manner that:
(a) Protects the natural resources associated with public lands and adjacent lands, whether private or administered by a government entity;
(b) Prevents unnecessary or undue degradation to public lands;
(c) Promotes the use of rights-of-way in common considering engineering and technological compatibility, national security, and land use plans; and
(d) Coordinates, to the fullest extent possible, all BLM actions under the regulations in this part with state and local governments, interested individuals, and appropriate quasi-public entities.
§ 2801.5 What acronyms and terms are used in the regulations in this part?
(a) Acronyms. As used in this part:
ALJ means Administrative Law Judge.
BLM means the Bureau of Land Management.
CERCLA means the Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C. 9601 et seq.).
EA means environmental assessment.
EIS means environmental impact statement.
IBLA means the Department of the Interior, Board of Land Appeals.
IPD-GDP means the Implicit Price Deflator, Gross Domestic Product, as published in the most recent edition of the Survey of Current Business of the Department of Commerce, Bureau of Economic Analysis.
NEPA means the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
RMA means the Ranally Metro Area Population Ranking as published in the most recent edition of the Rand McNally Commercial Atlas and Marketing Guide.
(b) Terms. As used in this part, the term:
Acreage rent means rent assessed for solar and wind energy development grants and leases that is determined by the number of acres authorized for the grant or lease.
Act means the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.).
Actual costs means the financial measure of resources the Federal government expends or uses in processing a right-of-way application or in monitoring the construction, operation, and termination of a facility authorized by a grant or permit. Actual costs includes both direct and indirect costs, exclusive of management overhead costs.
Application filing fee means a filing fee specific to solar and wind energy applications. This fee is an initial payment for the reasonable costs for processing, inspecting, and monitoring a right-of-way.
Assignment means the transfer, in whole or in part, of any right or interest in a right-of-way grant or lease from the holder (assignor) to a subsequent party (assignee) with the BLM’s written approval. A change in ownership of the grant or lease, or other related change-in-control transaction involving the holder, including a merger or acquisition, also constitutes an assignment for purposes of these regulations requiring the BLM’s written approval, unless applicable statutory authority provides otherwise.
Base rent means the dollar amount required from a grant or lease holder on BLM managed lands based on the communication use with the highest value in the associated facility or facilities, as calculated according to the communication use rent schedule. If a facility manager’s or facility owner’s scheduled rent is equal to the highest rent charged a tenant in the facility or facilities, then the facility manager’s or facility owner’s use determines the dollar amount of the base rent. Otherwise, the facility owner’s, facility manager’s, customer’s, or tenant’s use with the highest value, and which is not otherwise excluded from rent, determines the base rent.
Casual use means activities ordinarily resulting in no or negligible disturbance of the public lands, resources, or improvements. Examples of casual use include: Surveying, marking routes, and collecting data to use to prepare grant applications.
Commercial purpose or activity refers to the circumstance where a holder attempts to produce a profit by allowing the use of its facilities by an additional party. BLM may assess an appropriate rent for such commercial activities. The holder’s use may not otherwise be subject to rent charges under BLM’s rental provisions.
Communication use rent schedule is a schedule of rents for the following types of communication uses, including related technologies, located in a facility associated with a particular grant or lease. All use categories include ancillary communications equipment, such as internal microwave or internal one-or two-way radio, that are directly related to operating, maintaining, and monitoring the primary uses listed below. The Federal Communications Commission (FCC) may or may not license the primary uses. The type of use and community served, identified on an FCC license, if one has been issued, do not supersede either the definitions in this subpart or the procedures in § 2806.30 of this part for calculating rent for communication facilities and uses located on public land:
(1) Television broadcast means a use that broadcasts UHF and VHF audio and video signals for general public reception. This category does not include low-power television (LPTV) or rebroadcast devices, such as translators, or transmitting devices, such as microwave relays serving broadcast translators;
(2) AM and FM radio broadcast means a use that broadcasts amplitude modulation (AM) or frequency modulation (FM) audio signals for general public reception. This category does not include low-power FM radio; rebroadcast devices, such as translators; or boosters or microwave relays serving broadcast translators;
(3) Cable television means a use that transmits video programming to multiple subscribers in a community over a wired or wireless network. This category does not include rebroadcast devices that retransmit television signals of one or more television broadcast stations, or personal or internal antenna systems, such as private systems serving hotels and residences;
(4) Broadcast translator, low-power television, and low-power FM radio means a use of translators, LPTV, or low-power FM radio (LPFM). Translators receive a television or FM radio broadcast signal and rebroadcast it on a different channel or frequency for local reception. In some cases the translator relays the true signal to an amplifier or another translator. LPTV and LPFM are broadcast translators that originate programming. This category also includes translators associated with public telecommunication services;
(5) Commercial mobile radio service (CMRS)/facility manager means commercial mobile radio uses that provide mobile communication service to individual customers. Examples of CMRS include: Community repeaters, trunked radio (specialized mobile radio), two-way radio voice dispatch, public switched network (telephone/data) interconnect service, microwave communications link equipment, and other two-way voice and paging services. “Facility Managers” are grant or lease holders that lease building, tower, and related facility space to a variety of tenants and customers as part of the holder’s business enterprise, but do not own or operate communication equipment in the facility for their own uses;
(6) Cellular telephone means a system of mobile or fixed communication devices that use a combination of radio and telephone switching technology and provide public switched network services to fixed or mobile users, or both, within a defined geographic area. The system consists of one or more cell sites containing transmitting and receiving antennas, cellular base station radio, telephone equipment, or microwave communications link equipment. Examples of cellular telephone include: Personal Communication Service, Enhanced Specialized Mobile Radio, Improved Mobile Telephone Service, Air-to-Ground, Offshore Radio Telephone Service, Cell Site Extenders, and Local Multipoint Distribution Service;
(7) Private mobile radio service (PMRS) means uses supporting private mobile radio systems primarily for a single entity for mobile internal communications. PMRS service is not sold and is exclusively limited to the user in support of business, community activities, or other organizational communication needs. Examples of PMRS include: Private local radio dispatch, private paging services, and ancillary microwave communications equipment for controlling mobile facilities;
(8) Microwave means communication uses that:
(i) Provide long-line intrastate and interstate public telephone, television, and data transmissions; or
(ii) Support the primary business of pipeline and power companies, railroads, land resource management companies, or wireless internet service provider (ISP) companies; and
(9) Other communication uses means private communication uses, such as amateur radio, personal/private receive-only antennas, natural resource and environmental monitoring equipment, and other small, low-power devices used to monitor or control remote activities;
Customer means an occupant who is paying a facility manager, facility owner, or tenant for using all or any part of the space in the facility, or for communication services, and is not selling communication services or broadcasting to others. We consider persons or entities benefitting from private or internal communication uses located in a holder’s facility as customers for purposes of calculating rent. Customer uses are not included in calculating the amount of rent owed by a facility owner, facility manager, or tenant, except as noted in §§ 2806.34(b)(4) and 2806.42 of this part. Examples of customers include: Users of PMRS, users in the microwave category when the microwave use is limited to internal communications, and all users in the category of “Other communication uses” (see paragraph (a) of the definition of Communication Use Rent Schedule in this section).
Designated leasing area means a parcel of land with specific boundaries identified by the BLM land use planning process as being a preferred location for solar or wind energy development that may be offered competitively.
Designated right-of-way corridor means a parcel of land with specific boundaries identified by law, Secretarial order, the land use planning process, or other management decision, as being a preferred location for existing and future linear rights-of-way and facilities. The corridor may be suitable to accommodate more than one right-of-way use or facility, provided that they are compatible with one another and the corridor designation.
Discharge has the meaning found at 33 U.S.C. 1321(a)(2) of the Clean Water Act.
Facility means an improvement or structure, whether existing or planned, that is or would be owned and controlled by the grant or lease holder within a right-of-way. For purposes of communication site rights-of-way or uses, facility means the building, tower, and related incidental structures or improvements authorized under the terms of the grant or lease.
Facility manager means a person or entity that leases space in a facility to communication users and:
(1) Holds a communication use grant or lease;
(2) Owns a communications facility on lands covered by that grant or lease; and
(3) Does not own or operate communications equipment in the facility for personal or commercial purposes.
Facility owner means a person or entity that may or may not lease space in a facility to communication users and:
(1) Holds a communication use grant or lease;
(2) Owns a communications facility on lands covered by that grant or lease; and
(3) Owns and operates his or her own communications equipment in the facility for personal or commercial purposes.
Grant means any authorization or instrument (e.g., easement, lease, license, or permit) BLM issues under Title V of the Federal Land Policy and Management Act, 43 U.S.C. 1761 et seq., and those authorizations and instruments BLM and its predecessors issued for like purposes before October 21, 1976, under then existing statutory authority. It does not include authorizations issued under the Mineral Leasing Act (30 U.S.C. 185).
Hazardous material means:
(1) Any substance or material defined as hazardous, a pollutant, or a contaminant under CERCLA at 42 U.S.C. 9601(14) and (33);
(2) Any regulated substance contained in or released from underground storage tanks, as defined by the Resource Conservation and Recovery Act at 42 U.S.C. 6991;
(3) Oil, as defined by the Clean Water Act at 33 U.S.C. 1321(a) and the Oil Pollution Act at 33 U.S.C. 2701(23); or
(4) Other substances applicable Federal, state, tribal, or local law define and regulate as “hazardous.”
Holder means any entity with a BLM right-of-way authorization.
Management overhead costs means Federal expenditures associated with a particular Federal agency’s directorate. The BLM’s directorate includes all State Directors and the entire Washington Office staff, except where a State Director or Washington Office staff member is required to perform work on a specific right-of-way case.
Megawatt (MW) capacity fee means the fee paid in addition to the acreage rent for solar and wind energy development grants and leases. The MW capacity fee is the approved MW capacity of the solar or wind energy grant or lease multiplied by the appropriate MW rate. A grant or lease may provide for stages of development, and the grantee or lessee will be charged a fee for each stage by multiplying the MW rate by the approved MW capacity for the stage of the project.
Megawatt rate means the price of each MW of capacity for various solar and wind energy technologies as determined by the MW rate formula. Current MW rates are found on the BLM’s MW rate schedule, which can be obtained at any BLM office or at http://www.blm.gov. The MW rate is calculated by multiplying the total hours per year by the net capacity factor, by the MW hour (MWh) price, and by the rate of return, where:
(1) Net capacity factor means the average operational time divided by the average potential operational time of a solar or wind energy development, multiplied by the current technology efficiency rates. The BLM establishes net capacity factors for different technology types but may determine another net capacity factor to be more appropriate, on a case-by-case or regional basis, to reflect changes in technology, such as a solar or wind project that employs energy storage technologies, or if a grant or lease holder or applicant is able to demonstrate that another net capacity factor is appropriate for a particular project or region. The net capacity factor for each technology type is:
(i) Photovoltaic (PV) – 20 percent;
(ii) Concentrated photovoltaic (CPV) and concentrated solar power (CSP) – 25 percent;
(iii) CSP with storage capacity of 3 hours or more – 30 percent; and
(iv) Wind energy – 35 percent;
(2) Megawatt hour (MWh) price means the 5 calendar-year average of the annual weighted average wholesale prices per MWh for the major trading hubs serving the 11 western States of the continental United States (U.S.);
(3) Rate of return means the relationship of income (to the property owner) to revenue generated from authorized solar and wind energy development facilities based on the 10-year average of the 20-year U.S. Treasury bond yield rounded to the nearest one-tenth percent; and
(4) Hours per year means the total number of hours in a year, which, for purposes of this part, means 8,760 hours.
Monetary value of the rights and privileges you seek means the objective value of the right-of-way or what the right-of-way grant is worth in financial terms to the applicant.
Monitoring means those actions the Federal government performs to ensure compliance with the terms, conditions, and stipulations of a grant.
(1) For Monitoring Categories 1 through 4, the actions include inspecting construction, operation, maintenance, and termination of permanent or temporary facilities and protection and rehabilitation activities until the holder completes rehabilitation of the right-of-way and BLM approves it;
(2) For Monitoring Category 5 (Master Agreements), those actions agreed to in the Master Agreement; and
(3) For Monitoring Category 6, those actions agreed to between BLM and the applicant before BLM issues the grant.
Performance and reclamation bond means the document provided by the holder of a right-of-way grant or lease that provides the appropriate financial guarantees, including cash, to cover potential liabilities or specific requirements identified by the BLM for the construction, operation, decommissioning, and reclamation of an authorized right-of-way on public lands.
(1) Acceptable bond instruments. The BLM will accept cash, cashier’s or certified check, certificate or book entry deposits, negotiable U.S. Treasury securities, and surety bonds from the approved list of sureties (U.S. Treasury Circular 570) payable to the BLM. Irrevocable letters of credit payable to the BLM and issued by banks or financial institutions organized or authorized to transact business in the United States are also acceptable bond instruments. An insurance policy can also qualify as an acceptable bond instrument, provided that the BLM is a named beneficiary of the policy, and the BLM determines that the insurance policy will guarantee performance of financial obligations and was issued by an insurance carrier that has the authority to issue policies in the applicable jurisdiction and whose insurance operations are organized or authorized to transact business in the United States.
(2) Unacceptable bond instruments. The BLM will not accept a corporate guarantee as an acceptable form of bond instrument.
Public lands means any land and interest in land owned by the United States within the several states and administered by the Secretary of the Interior through BLM without regard to how the United States acquired ownership, except lands:
(1) Located on the Outer Continental Shelf; and
(2) Held for the benefit of Indians, Aleuts, and Eskimos.
Reasonable costs has the meaning found at section 304(b) of the Act.
Reclamation cost estimate (RCE) means the estimate of costs to restore the land to a condition that will support pre-disturbance land uses. This includes the cost to remove all improvements made under the right-of-way authorization, return the land to approximate original contour, and establish a sustainable vegetative community, as required by the BLM. The RCE will be used to establish the appropriate amount for financial guarantees of land uses on the public lands, including those uses authorized by right-of-way grants or leases issued under this part.
Release has the meaning found at 42 U.S.C. 9601(22) of CERCLA.
Right-of-way means the public lands that the BLM authorizes a holder to use or occupy under a particular grant or lease.
Screening criteria for solar and wind energy development refers to the policies and procedures that the BLM uses to prioritize how it processes solar and wind energy development right-of-way applications to facilitate the environmentally responsible development of such facilities through the consideration of resource conflicts, land use plans, and applicable statutory and regulatory requirements. Applications for projects with lesser resource conflicts are anticipated to be less costly and time-consuming for the BLM to process and will be prioritized over those with greater resource conflicts.
Short-term right-of-way grant means any grant issued for a term of 3 years or less for such uses as storage sites, construction areas, and site testing and monitoring activities, including site characterization studies and environmental monitoring.
Site means an area, such as a mountaintop, where a holder locates one or more communication or other right-of-way facilities.
Substantial deviation means a change in the authorized location or use which requires:
(1) Construction or use outside the boundaries of the right-of-way; or
(2) Any change from, or modification of, the authorized use. Examples of substantial deviation include: Adding equipment, overhead or underground lines, pipelines, structures, or other facilities not included in the original grant.
Tenant means an occupant who is paying a facility manager, facility owner, or other entity for occupying and using all or any part of a facility. A tenant operates communication equipment in the facility for profit by broadcasting to others or selling communication services. For purposes of calculating the amount of rent that BLM charges, a tenant’s use does not include:
(1) Private mobile radio or internal microwave use that is not being sold; or
(2) A use in the category of “Other Communication Uses” (see paragraph (a) of the definition of Communication Use Rent Schedule in this section).
Third party means any person or entity other than BLM, the applicant, or the holder of a right-of-way authorization.
Tramway means a system for carrying passengers, logs, or other material using traveling carriages or cars suspended from an overhead cable or cables supported by a series of towers, hangers, tailhold anchors, guyline trees, etc.
Transportation and utility corridor means a parcel of land, without fixed limits or boundaries, that holders use as the location for one or more transportation or utility rights-of-way.
Zone means one of eight geographic groupings necessary for linear right-of-way rent assessment purposes, covering all lands in the contiguous United States.
§ 2801.6 Scope.
(a) What do these regulations apply to? The regulations in this part apply to:
(1) Grants for necessary transportation or other systems and facilities which are in the public interest and which require the use of public lands for the purposes identified in 43 U.S.C. 1761, and administering, amending, assigning, renewing, and terminating them;
(2) Grants to Federal departments or agencies for all systems and facilities identified in
§ 2801.9(a), including grants for transporting by pipeline and related facilities, commodities such as oil, natural gas, synthetic liquid or gaseous fuels, and any refined products produced from them; and
(3) Grants issued on or before October 21, 1976, under then existing statutory authority, unless application of these regulations would diminish or reduce any rights conferred by the original grant or the statute under which it was issued. Where there would be a diminishment or reduction in any right, the grant or statute applies.
(b) What don’t these regulations apply to? The regulations in this part do not apply to:
(1) Federal Aid Highways, for which Federal Highway Administration procedures apply;
(2) Roads constructed or used according to reciprocal and cost share road use agreement under subpart 2812 of this chapter;
(3) Lands within designated wilderness areas, although BLM may authorize some uses under parts 2920 and 6300 of this chapter;
(4) Grants to holders other than Federal departments or agencies for transporting by pipeline and related facilities oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced from them (see part 2880 of this chapter);
(5) Public highways constructed under the authority of Revised Statute (R.S.) 2477 (43 U.S.C. 932, repealed October 21, 1976);
(6) Reservoirs, canals, and ditches constructed under the authority of R.S. 2339 and R.S. 2340 (43 U.S.C. 661, repealed in part, October 21, 1976); or
(7)(i) Any project or portion of a project that, prior to October 24, 1992, was licensed under, or granted an exemption from, part I of the Federal Power Act (FPA) (16 U.S.C. 791a et seq.) which:
(A) Is located on lands subject to a reservation under section 24 (16 U.S.C. 818) of the FPA;
(B) Did not receive a grant under Title V of the Federal Land Policy and Management Act (FLPMA) before October 24, 1992; and
(C) Includes continued operation of such project (license renewal) under section 15 (16 U.S.C. 808) of the FPA;
(ii) Paragraph (b)(7)(i) of this section does not apply to any additional public lands the project uses that are not subject to the reservation in paragraph (b)(7)(i)(A) of this section.
§ 2801.8 Severability.
If a court holds any provisions of the regulations in this part or their applicability to any person or circumstances invalid, the remainder of these rules and their applicability to other people or circumstances will not be affected.
§ 2801.9 When do I need a grant?
(a) You must have a grant under this part when you plan to use public lands for systems or facilities over, under, on, or through public lands. These include, but are not limited to:
(1) Reservoirs, canals, ditches, flumes, laterals, pipelines, tunnels, and other systems which impound, store, transport, or distribute water;
(2) Pipelines and other systems for transporting or distributing liquids and gases, other than water and other than oil, natural gas, synthetic liquid or gaseous fuels, or any refined products from them, or for storage and terminal facilities used in connection with them;
(3) Pipelines, slurry and emulsion systems, and conveyor belts for transporting and distributing solid materials and facilities for storing such materials in connection with them;
(4) Systems for generating, transmitting, and distributing electricity, including solar and wind energy development facilities and associated short-term actions, such as site and geotechnical testing for solar and wind energy projects;
(5) Systems for transmitting or receiving electronic signals and other means of communication;
(6) Transportation systems, such as roads, trails, highways, railroads, canals, tunnels, tramways, airways, and livestock driveways; and
(7) Such other necessary transportation or other systems or facilities, including any temporary or short-term surface disturbing activities associated with approved systems or facilities, which are in the public interest and which require rights-of-way.
(b) If you apply for a right-of-way grant for generating, transmitting, and distributing electricity, you must also comply with the applicable requirements of the Federal Energy Regulatory Commission under the Federal Power Act of 1935, 16 U.S.C. 791a et seq., and 18 CFR chapter I.
(c) See part 2880 of this chapter for information about authorizations BLM issues under the Mineral Leasing Act for transporting oil and gas resources.
(d) All systems, facilities, and related activities for solar and wind energy projects are specifically authorized as follows:
(1) Energy site-specific testing activities, including those with individual meteorological towers and instrumentation facilities, are authorized with a short-term right-of-way grant issued for 3 years or less;
(2) Energy project-area testing activities are authorized with a short-term right-of-way grant for an initial term of 3 years or less with the option to renew for one additional 3-year period under § 2805.14(h) when the renewal application is accompanied by an energy development application;
(3) Solar and wind energy development facilities located outside designated leasing areas, and those facilities located inside designated leasing areas under § 2809.17(d)(2), are authorized with a right-of-way grant issued for up to 30 years (plus the initial partial year of issuance). An application for renewal of the grant may be submitted under § 2805.14(g);
(4) Solar and wind energy development facilities located inside designated leasing areas are authorized with a solar or wind energy development lease when issued competitively under subpart 2809. The term is fixed for 30 years (plus the initial partial year of issuance). An application for renewal of the lease may be submitted under § 2805.14(g); and
(5) Other associated actions not specifically included in § 2801.9(d)(1) through (4), such as geotechnical testing and other temporary land disturbing activities, are authorized with a short-term right-of-way grant issued for 3 years or less.
§ 2801.10 How do I appeal a BLM decision issued under the regulations in this part?
(a) You may appeal a BLM decision issued under the regulations in this part in accordance with part 4 of this title.
(b) All BLM decisions under this part remain in effect pending appeal unless the Secretary of the Interior rules otherwise, or as noted in this part. You may petition for a stay of a BLM decision under this part with the Office of Hearings and Appeals, Department of the Interior. Unless otherwise noted in this part, BLM will take no action on your application while your appeal is pending.
Subpart 2802 – Lands Available for FLPMA Grants
§ 2802.10 What lands are available for grants?
(a) In its discretion, BLM may grant rights-of-way on any lands under its jurisdiction except when:
(1) A statute, regulation, or public land order specifically excludes rights-of-way;
(2) The lands are specifically segregated or withdrawn from right-of-way uses; or
(3) BLM identifies areas in its land use plans or in the analysis of an application as inappropriate for right-of-way uses.
(b) BLM may require common use of a right-of-way and may require, to the extent practical, location of new rights-of-way within existing or designated right-of-way corridors (see § 2802.11 of this subpart). Safety and other considerations may limit the extent to which you may share a right-of-way. BLM will designate right-of-way corridors through land use plan decisions.
(c) You should contact the BLM office nearest the lands you seek to use to:
(1) Determine whether or not the land you want to use is available for that use; and
(2) Begin discussions about any application you may need to file.
§ 2802.11 How does the BLM designate right-of-way corridors and designated leasing areas?
(a) The BLM may determine the locations and boundaries of right-of-way corridors or designated leasing areas during the land use planning process described in part 1600 of this chapter. During this process, the BLM coordinates with other Federal agencies, State, local, and tribal governments, and the public to identify resource-related issues, concerns, and needs. The process results in a resource management plan or plan amendment, which addresses the extent to which you may use public lands and resources for specific purposes.
(b) When determining which lands may be suitable for right-of-way corridors or designated leasing areas, the factors the BLM considers include, but are not limited to, the following:
(1) Federal, state, and local land use plans, and applicable Federal, state, local, and tribal laws;
(2) Environmental impacts on cultural resources and natural resources, including air, water, soil, fish, wildlife, and vegetation;
(3) Physical effects and constraints on corridor placement or leasing areas due to geology, hydrology, meteorology, soil, or land forms;
(4) Costs of construction, operation, and maintenance and costs of modifying or relocating existing facilities in a proposed right-of-way corridor or designated leasing area (i.e., the economic efficiency of placing a right-of-way within a proposed corridor or providing a lease inside a designated leasing area);
(5) Risks to national security;
(6) Potential health and safety hazards imposed on the public by facilities or activities located within the proposed right-of-way corridor or designated leasing area;
(7) Social and economic impacts of the right-of-way corridor or designated leasing area on public land users, adjacent landowners, and other groups or individuals;
(8) Transportation and utility corridor studies previously developed by user groups; and
(9) Engineering and technological compatibility of proposed and existing facilities.
(c) BLM may designate any transportation and utility corridor existing prior to October 21, 1976, as a transportation and utility corridor without further review.
(d) The resource management plan or plan amendment may also identify areas where the BLM will not allow right-of-way corridors or designated leasing areas for environmental, safety, or other reasons.
Subpart 2803 – Qualifications for Holding FLPMA Grants
§ 2803.10 Who may hold a grant?
To hold a grant under these regulations, you must be:
(a) An individual, association, corporation, partnership, or similar business entity, or a Federal agency or state, tribal, or local government;
(b) Technically and financially able to construct, operate, maintain, and terminate the use of the public lands you are applying for; and
(c) Of legal age and authorized to do business in the state where the right-of-way you seek is located.
§ 2803.11 Can another person act on my behalf?
Another person may act on your behalf if you have authorized the person to do so under the laws of the state where the right-of-way is or will be located.
§ 2803.12 What happens to my application or grant if I die?
(a) If an applicant or grant holder dies, any inheritable interest in an application or grant will be distributed under state law.
(b) If the distributee of a grant is not qualified to hold a grant under § 2803.10 of this subpart, BLM will recognize the distributee as grant holder and allow the distributee to hold its interest in the grant for up to two years. During that period, the distributee must either become qualified or divest itself of the interest.
Subpart 2804 – Applying for FLPMA Grants
§ 2804.10 What should I do before I file my application?
(a) Before filing an application with BLM, we encourage you to make an appointment for a preapplication meeting with the appropriate personnel in the BLM field office having jurisdiction over the lands you seek to use. During the preapplication meeting, BLM can:
(1) Identify potential routing and other constraints;
(2) Determine whether the lands are located inside a designated or existing right-of-way corridor or a designated leasing area;
(3) Tentatively schedule the processing of your proposed application; and
(4) Inform you of your financial obligations, such as processing and monitoring costs and rents.
(b) Subject to § 2804.13 of this subpart, BLM may share any information you provide under paragraph (a) of this section with Federal, state, tribal, and local government agencies to ensure that:
(1) These agencies are aware of any authorizations you may need from them; and
(2) We initiate effective coordinated planning as soon as possible.
§ 2804.11 Where do I file my grant application?
(a) You must file the grant application in the BLM field office having jurisdiction over the lands affected by your application.
(b) If your application affects more than one BLM administrative unit, you may file at any BLM office having jurisdiction over any part of the project. BLM will notify you where to direct subsequent communications.
§ 2804.12 What must I do when submitting my application?
(a) File your application on Standard Form 299, available from any BLM office or at http://www.blm.gov, and fill in the required information as completely as possible. Your completed application must include the following:
(1) A description of the project and the scope of the facilities;
(2) The estimated schedule for constructing, operating, maintaining, and terminating the project;
(3) The estimated life of the project and the proposed construction and reclamation techniques;
(4) A map of the project, showing its proposed location and existing facilities adjacent to the proposal;
(5) A statement of your financial and technical capability to construct, operate, maintain, and terminate the project;
(6) Any plans, contracts, agreements, or other information concerning your use of the right-of-way and its effect on competition;
(7) A statement certifying that you are of legal age and authorized to do business in the State(s) where the right-of-way would be located and that you have submitted correct information to the best of your knowledge; and
(8) A schedule for the submission of a plan of development (POD) conforming to the POD template at http://www.blm.gov, should the BLM require you to submit a POD under § 2804.25(c).
(b) When submitting an application for a solar or wind energy development project or for a transmission line project with a capacity of 100 kV or more, in addition to the information required in paragraph (a) of this section, you must:
(1) Include a general description of the proposed project and a schedule for the submission of a POD conforming to the POD template at http://www.blm.gov;
(2) Address all known potential resource conflicts with sensitive resources and values, including special designations or protections, and include applicant-proposed measures to avoid, minimize, and compensate for such resource conflicts, if any;
(3) Initiate early discussions with any grazing permittees that may be affected by the proposed project in accordance with 43 CFR 4110.4-2(b); and
(4) Within 6 months from the time the BLM receives the cost recovery fee under § 2804.14, schedule and hold two preliminary application review meetings as follows:
(i) The first meeting will be with the BLM to discuss the general project proposal, the status of BLM land use planning for the lands involved, potential siting issues or concerns, potential environmental issues or concerns, potential alternative site locations and the right-of-way application process;
(ii) The second meeting will be with appropriate Federal and State agencies and tribal and local governments to facilitate coordination of potential environmental and siting issues and concerns; and
(iii) You and the BLM may agree to hold additional preliminary application review meetings.
(c) When submitting an application for a solar or wind energy project under this subpart rather than subpart 2809, you must:
(1) Propose a project sited on lands outside a designated leasing area, except as provided for by § 2809.19; and
(2) Pay an application filing fee of $15 per acre for solar or wind energy development applications and $2 per acre for energy project-area testing applications. The BLM will refund your fee, except for the reasonable costs incurred on your behalf, if you are the unsuccessful bidder in a competitive offer held under § 2804.30 or subpart 2809. The BLM will adjust the application filing fee at least once every 10 years using the change in the Implicit Price Deflator, Gross Domestic Product (IPD-GDP) for the preceding 10-year period and round it to the nearest one-half dollar. This 10-year average will be adjusted at the same time as the Per Acre Rent Schedule for linear rights-of-way under § 2806.22.
(d) If you are unable to meet a requirement of the application outlined in this section, you may submit a request for an alternative requirement under § 2804.40.
(e) If you are a business entity, you must also submit the following information:
(1) Copies of the formal documents creating the entity, such as articles of incorporation, and including the corporate bylaws;
(2) Evidence that the party signing the application has the authority to bind the applicant;
(3) The name and address of each participant in the business;
(4) The name and address of each shareholder owning 3 percent or more of the shares and the number and percentage of any class of voting shares of the entity which such shareholder is authorized to vote;
(5) The name and address of each affiliate of the business;
(6) The number of shares and the percentage of any class of voting stock owned by the business, directly or indirectly, in any affiliate controlled by the business;
(7) The number of shares and the percentage of any class of voting stock owned by an affiliate, directly or indirectly, in the business controlled by the affiliate; and
(8) If you have already provided the information in paragraphs (b)(1) through (7) of this section to the BLM and the information remains accurate, you need only reference the BLM serial number under which you previously filed it.
(f) The BLM may require you to submit additional information at any time while processing your application. See § 2884.11(c) of this chapter for the type of information we may require.
(g) If you are a Federal oil and gas lessee or operator and you need a right-of-way for access to your production facilities or oil and gas lease, you may include your right-of-way requirements with your Application for Permit to Drill or Sundry Notice required under parts 3160 through 3190 of this chapter.
(h) If you are filing with another Federal agency for a license, certificate of public convenience and necessity, or other authorization for a project involving a right-of-way on public lands, simultaneously file an application with the BLM for a grant. Include a copy of the materials, or reference all the information, you filed with the other Federal agency.
(i) Inter-agency coordination. You may request, in writing, an exemption from the requirements of this section if you can demonstrate to the BLM that you have satisfied similar requirements by participating in an inter-agency coordination process with another Federal, State, local, or Tribal authority. No exemption is approved until you receive BLM approval in writing.
§ 2804.13 Will BLM keep my information confidential?
BLM will keep confidential any information in your application that you mark as “confidential” or “proprietary” to the extent allowed by law.
§ 2804.14 What is the processing fee for a grant application?
(a) Unless you are exempt under § 2804.16, you must pay a fee to the BLM for the reasonable costs of processing your application. Subject to applicable laws and regulations, if processing your application involves Federal agencies other than the BLM, your fee may also include the reasonable costs estimated to be incurred by those Federal agencies. Instead of paying the BLM a fee for the reasonable costs incurred by other Federal agencies in processing your application, you may pay other Federal agencies directly for such costs. Reasonable costs are those costs as defined in Section 304(b) of FLPMA (43 U.S.C. 1734(b)). The fees for Processing Categories 1 through 4 (see paragraph (b) of this section) are one-time fees and are not refundable. The fees are categorized based on an estimate of the amount of time that the Federal Government will expend to process your application and issue a decision granting or denying the application.
(b) There is no processing fee if the Federal Government’s work is estimated to take 1 hour or less. Processing fees are based on categories. The BLM will update the processing fees for Categories 1 through 4 in the schedule each calendar year, based on the previous year’s change in the IPD-GDP, as measured second quarter to second quarter, rounded to the nearest dollar. The BLM will update Category 5 processing fees as specified in the Master Agreement. These categories and the estimated range of Federal work hours for each category are:
Processing Categories
| Processing category | Federal work hours involved |
|---|---|
| (1) Applications for new grants, assignments, renewals, and amendments to existing grants | Estimated Federal work hours are >1 ≤ 8 |
| (2) Applications for new grants, assignments, renewals, and amendments to existing grants | Estimated Federal work hours are >8 ≤ 24 |
| (3) Applications for new grants, assignments, renewals, and amendments to existing grants | Estimated Federal work hours are >24 ≤ 36 |
| (4) Applications for new grants, assignments, renewals, and amendments to existing grants | Estimated Federal work hours are >36 ≤ 50 |
| (5) Master agreements | Varies |
| (6) Applications for new grants, assignments, renewals, and amendments to existing grants | Estimated Federal work hours are >50 |
(c) You may obtain a copy of the current year’s processing fee schedule from any BLM State, district, or field office or by writing: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Washington, DC 20003. The BLM also posts the current processing fee schedule at http://www.blm.gov.
(d) After an initial review of your application, BLM will notify you of the processing category into which your application fits. You must then submit the appropriate payment for that category before BLM begins processing your application. Your signature on a cost recovery Master Agreement constitutes your agreement with the processing category decision. If you disagree with the category that BLM has determined for your application, you may appeal the decision under § 2801.10 of this part. For Processing Categories 5 and 6 applications, see §§ 2804.17, 2804.18, and 2804.19 of this subpart. If you paid the processing fee and you appeal a Processing Category 1 through 4 or a Processing Category 6 determination, BLM will process your application while the appeal is pending. If IBLA finds in your favor, you will receive a refund or adjustment of your processing fee.
(e) In processing your application, BLM may determine at any time that the application requires preparing an EIS. If this occurs, BLM will send you a decision changing your processing category to Processing Category 6. You may appeal this decision under § 2801.10 of this part.
(f) To expedite processing of your application, you may notify BLM in writing that you are waiving paying reasonable costs and are electing to pay the full actual costs incurred by BLM in processing your application and monitoring your grant.
§ 2804.15 When does BLM reevaluate the processing and monitoring fees?
BLM reevaluates the processing and monitoring fees (see § 2805.16 of this part) for each category and the categories themselves within 5 years after they go into effect and at 10-year intervals after that. When reevaluating processing and monitoring fees, BLM considers all factors that affect the fees, including, but not limited to, any changes in:
(a) Technology;
(b) The procedures for processing applications and monitoring grants;
(c) Statutes and regulations relating to the right-of-way program; or
(d) The IPD-GDP.
§ 2804.16 Who is exempt from paying processing and monitoring fees?
You are exempt from paying processing and monitoring fees if:
(a) You are a state or local government, or an agency of such a government, and BLM issues the grant for governmental purposes benefitting the general public. If your principal source of revenue results from charges you levy on customers for services similar to those of a profit-making corporation or business, you are not exempt; or
(b) Your application under this subpart is associated with a cost-share road or reciprocal right-of-way agreement.
§ 2804.17 What is a Master Agreement (Processing Category 5) and what information must I provide to BLM when I request one?
(a) A Master Agreement (Processing Category 5) is a written agreement covering processing and monitoring fees (see § 2805.16 of this part) negotiated between BLM and you that involves multiple BLM grant approvals for projects within a defined geographic area.
(b) Your request for a Master Agreement must:
(1) Describe the geographic area covered by the Agreement and the scope of the activity you plan;
(2) Include a preliminary work plan. This plan must state what work you must do and what work BLM must do to process your application. Both parties must periodically update the work plan, as specified in the Agreement, and mutually agree to the changes;
(3) Contain a preliminary cost estimate and a timetable for processing the application and completing the projects;
(4) State whether you want the Agreement to apply to future applications in the same geographic area that are not part of the same projects; and
(5) Contain any other relevant information that BLM needs to process the application.
§ 2804.18 What provisions do Master Agreements contain and what are their limitations?
(a) A Master Agreement:
(1) Specifies that you must comply with all applicable laws and regulations;
(2) Describes the work you will do and the work BLM will do to process the application;
(3) Describes the method of periodic billing, payment, and auditing;
(4) Describes the processes, studies, or evaluations you will pay for;
(5) Explains how BLM will monitor the grant and how BLM will recover monitoring costs;
(6) Describes existing agreements between the BLM and other Federal agencies for cost reimbursement;
(7) Contains provisions allowing for periodic review and updating, if required;
(8) Contains specific conditions for terminating the Agreement; and
(9) Contains any other provisions BLM considers necessary.
(b) BLM will not enter into any Agreement that is not in the public interest.
(c) If you sign a Master Agreement, you waive your right to request a reduction of processing and monitoring fees.
§ 2804.19 How will BLM process my Processing Category 6 application?
(a) For Processing Category 6 applications, you and the BLM must enter into a written agreement that describes how the BLM will process your application. The final agreement consists of a work plan, a financial plan, and a description of any existing agreements you have with other Federal agencies for cost reimbursement associated with your application.
(b) In processing your application, BLM will:
(1) Determine the issues subject to analysis under NEPA;
(2) Prepare a preliminary work plan;
(3) Develop a preliminary financial plan, which estimates the reasonable costs of processing your application and monitoring your project;
(4) Discuss with you:
(i) The preliminary plans and data;
(ii) The availability of funds and personnel;
(iii) Your options for the timing of processing and monitoring fee payments; and
(iv) Financial information you must submit; and
(5) Complete final scoping and develop final work and financial plans which reflect any work you have agreed to do. BLM will also present you with the final estimate of the reasonable costs you must reimburse BLM, including the cost for monitoring the project, using the factors in §§ 2804.20 and 2804.21 of this subpart.
(c) BLM retains the option to prepare any environmental documents related to your application. If BLM allows you to prepare any environmental documents and conduct any studies that BLM needs to process your application, you must do the work following BLM standards. For this purpose, you and BLM may enter into a written agreement. BLM will make the final determinations and conclusions arising from such work.
(d) BLM will periodically, as stated in the agreement, estimate processing costs for a specific work period and notify you of the amount due. You must pay the amount due before BLM will continue working on your application. If your payment exceeds the reasonable costs that BLM incurred for the work, BLM will either adjust the next billing to reflect the excess, or refund you the excess under 43 U.S.C. 1734. You may not deduct any amount from a payment without BLM’s prior written approval.
(e) We may collect reimbursement for reasonable costs to the United States for processing applications and other documents under this part relating to the public lands.
§ 2804.20 How does BLM determine reasonable costs for Processing Category 6 or Monitoring Category 6 applications?
BLM will consider the factors in paragraph (a) of this section and § 2804.21 of this subpart to determine reasonable costs. Submit to the BLM field office having jurisdiction over the lands covered by your application a written analysis of those factors applicable to your project, unless you agree in writing to waive consideration of reasonable costs and elect to pay full actual costs (see § 2804.14(f) of this subpart). Submitting your analysis with the application will expedite its handling. BLM may require you to submit additional information in support of your position. While we consider your written analysis, BLM will not process your Category 6 application.
(a) FLPMA factors. If your application is for a Processing Category 6, or a Monitoring Category 6 project, the BLM State Director having jurisdiction over the lands you are applying to use will apply the following factors set forth at section 304(b) of FLPMA, 43 U.S.C. 1734(b), to determine the amount you owe. With your application, submit your analysis of how each of the following factors applies to your application:
(1) Actual costs to the Federal Government (exclusive of management overhead costs) of processing your application and of monitoring construction, operation, maintenance, and termination of a facility authorized by the right-of-way grant;
(2) Monetary value of the rights or privileges you seek;
(3) BLM’s ability to process an application with maximum efficiency and minimum expense, waste, and effort;
(4) Costs incurred for the benefit of the general public interest rather than for the exclusive benefit of the applicant. That is, the costs for studies and data collection that have value to the Federal Government or the general public apart from processing the application;
(5) Any tangible improvements, such as roads, trails, and recreation facilities, which provide significant public service and are expected in connection with constructing and operating the facility;
(6) Existing agreements between the BLM and other Federal agencies for cost reimbursement associated with such application; and
(7) Other factors relevant to the reasonableness of the costs (see § 2804.21 of this subpart).
(b) Fee determination. After considering your analysis and other information, BLM will notify you in writing of what you owe. If you disagree with BLM’s determination, you may appeal it under § 2801.10 of this part.
§ 2804.21 What other factors will BLM consider in determining processing and monitoring fees?
(a) Other factors. If you include this information in your application, in arriving at your processing or monitoring fee in any category, the BLM State Director will consider whether:
(1) Payment of actual costs would:
(i) Result in undue financial hardship to your small business, and you would receive little monetary value from your grant as compared to the costs of processing and monitoring; or
(ii) Create such undue financial hardship as to prevent your use and enjoyment of your right-of-way for a non-commercial purpose.
(2) The costs of processing the application and monitoring the issued grant grossly exceed the costs of constructing the project;
(3) You are a non-profit organization, corporation, or association which is not controlled by or a subsidiary of a profit-making enterprise; and
(i) The studies undertaken in connection with processing the application or monitoring the grant have a public benefit; or
(ii) The facility or project will provide a benefit or special service to the general public or to a program of the Secretary;
(4) You need a grant to prevent or mitigate damages to any lands or property or to mitigate hazards or danger to public health and safety resulting from an act of God, an act of war, or negligence of the United States;
(5) You have a grant and need to secure a new or amended grant in order to relocate an authorized facility to comply with public health and safety and environmental protection laws, regulations, and standards which were not in effect at the time BLM issued your original grant;
(6) You have a grant and need to secure a new grant to relocate facilities which you have to move because a Federal agency or federally-funded project needs the lands and the United States does not pay the costs associated with your relocation; or
(7) For whatever other reason, such as public benefits or public services provided, collecting processing and monitoring fees would be inconsistent with prudent and appropriate management of public lands and with your equitable interests or the equitable interests of the United States.
(b) Fee determination. With your written application, submit your analysis of how each of the factors, as applicable, in paragraph (a) of this section pertain to your application. BLM will notify you in writing of the BLM State Director’s fee determination. You may appeal this decision under § 2801.10 of this part.
§ 2804.22 How will the availability of funds affect the timing of BLM’s processing?
If BLM has insufficient funds to process your application, we will not process it until funds become available or you elect to pay full actual costs under § 2804.14(f) of this part.
§ 2804.23 When will the BLM use a competitive process?
(a) If there are two or more competing applications for the same facility or system and your application is in:
(1) Processing Category 1 through 4. You must reimburse the Federal Government for processing costs as if the other application or applications had not been filed.
(2) Processing Category 6. You are responsible for processing costs identified in your application. If BLM cannot readily separate costs, such as costs associated with preparing environmental analyses, you and any competing applicants must pay an equal share or a proportion agreed to in writing among all applicants and BLM. If you agree to share costs that are common to your application and that of a competing applicant, and the competitor does not pay the agreed upon amount, you are liable for the entire amount due. The applicants must pay the entire processing fee in advance. BLM will not process your application until we receive the advance payments.
(b) Who determines whether competition exists? BLM determines whether the applications are compatible in a single right-of-way system or are competing applications for the same system.
(c) If we determine that competition exists, we will describe the procedures for a competitive bid through a bid announcement in the
(d) Competitive process for solar and wind energy development outside designated leasing areas. Lands outside designated leasing areas may be made available for solar and wind energy applications through a competitive application process established by the BLM under § 2804.30.
(e) Competitive process for solar and wind energy development inside designated leasing areas. Lands inside designated leasing areas may be offered competitively under subpart 2809.
§ 2804.24 Do I always have to submit an application for a grant using Standard Form 299?
You do not have to file an application using Standard Form 299 if:
(a) The BLM offers lands competitively under § 2804.23(c) and you have already submitted an application for the facility or system;
(b) The BLM offers lands for competitive lease under subpart 2809 of this part; or
(c) You are an oil and gas operator. You may include your right-of-way requirements for a FLPMA grant as part of your Application for Permit to Drill or Sundry Notice under the regulations in parts 3160 through 3190 of this chapter.
§ 2804.25 How will BLM process my application?
(a) The BLM will notify you in writing when it receives your application. This notification will also:
(1) Identify your processing fee described at § 2804.14; and
(2) Inform you of any other grant applications which involve all or part of the lands for which you applied.
(b) The BLM will not process your application if you have any:
(1) Outstanding unpaid debts owed to the Federal Government. Outstanding debts are those currently unpaid debts owed to the Federal Government after all administrative collection actions have occurred, including any appeal proceedings under applicable Federal regulations and the Administrative Procedure Act; or
(2) Trespass action pending against you for any activity on BLM-administered lands (see § 2808.12), except those to resolve the trespass with a right-of-way as authorized in this part, or a lease or permit under the regulations found at 43 CFR part 2920, but only after outstanding unpaid debts are paid.
(c) The BLM may require you to submit additional information necessary to process the application. This information may include a detailed construction, operation, rehabilitation, and environmental protection plan (i.e., a POD), and any needed cultural resource surveys or inventories for threatened or endangered species. If the BLM needs more information, the BLM will identify this information in a written deficiency notice asking you to provide the additional information within a specified period of time.
(1) For solar or wind energy development projects, and transmission lines with a capacity of 100 kV or more, you must commence any required resource surveys or inventories within one year of the request date, unless otherwise specified by the BLM; or
(2) If you are unable to meet any of the requirements of this section, you must show good cause and submit a request for an alternative under § 2804.40.
(d) Customer service standard. The BLM will process your completed application as follows:
| Processing category | Processing time | Conditions |
|---|---|---|
| 1-4 | 60 calendar days | If processing your application will take longer than 60 calendar days, the BLM will notify you in writing of this fact prior to the 30th calendar day and inform you of when you can expect a final decision on your application. |
| 5 | As specified in the Master Agreement | The BLM will process applications as specified in the Agreement. |
| 6 | Over 60 calendar days | The BLM will notify you in writing within the initial 60-day processing period of the estimated processing time. |
(e) In processing an application, the BLM will:
(1) Hold public meetings if sufficient public interest exists to warrant their time and expense. The BLM will publish a notice in the
(2) If your application is for solar or wind energy development:
(i) Hold a public meeting in the area affected by the potential right-of-way;
(ii) Apply screening criteria to prioritize processing applications with lesser resource conflicts over applications with greater resource conflicts and categorize screened applications according to the criteria listed in § 2804.35; and
(iii) Evaluate the application based on the information provided by the applicant and input from other parties, such as Federal, State, and local government agencies, and tribes, as well as comments received in preliminary application review meetings held under § 2804.12(b)(4) and the public meeting held under paragraph (e)(2)(i) of this section. The BLM will also evaluate your application based on whether you propose to site the development appropriately (e.g. outside of a designated leasing area or exclusion area) and whether you address known resource values discussed in the preliminary application review meetings. Based on these evaluations, the BLM will either deny your application or continue processing it.
(3) Determine whether a POD schedule submitted with your application meets the development schedule or other requirements described by the BLM, such as in § 2804.12(b);
(4) Complete appropriate National Environmental Policy Act (NEPA) compliance for the application, as required by 43 CFR part 46 and 40 CFR parts 1500 through 1508;
(5) Determine whether your proposed use complies with applicable Federal and State laws;
(6) If your application is for a road, determine whether it is in the public interest to require you to grant the United States an equivalent authorization across lands that you own;
(7) Consult, as necessary, on a government-to-government basis with tribes and other governmental entities; and
(8) Take any other action necessary to fully evaluate and decide whether to approve or deny your application.
(f)(1) The BLM may segregate, if it finds it necessary for the orderly administration of the public lands, lands included in a right-of-way application under this subpart for the generation of electrical energy from wind or solar sources. In addition, the BLM may also segregate lands that it identifies for potential rights-of-way for electricity generation from wind or solar sources when initiating a competitive process for solar or wind development on particular lands. Upon segregation, such lands would not be subject to appropriation under the public land laws, including location under the Mining Law of 1872 (30 U.S.C. 22 et seq.), but would remain open under the Mineral Leasing Act of 1920 (30 U.S.C. 181 et seq.) or the Materials Act of 1947 (30 U.S.C. 601 et seq.). The BLM would effect a segregation by publishing a
(2) The effective date of segregation is the date of publication of the notice in the
(i) When the BLM issues a decision granting, granting with modifications, or denying the application for a right-of-way;
(ii) Automatically at the end of the segregation period stated in the
(iii) Upon publication of a
(3) The segregation period may not exceed 2 years from the date of publication in the
§ 2804.26 Under what circumstances may BLM deny my application?
(a) BLM may deny your application if:
(1) The proposed use is inconsistent with the purpose for which BLM manages the public lands described in your application;
(2) The proposed use would not be in the public interest;
(3) You are not qualified to hold a grant;
(4) Issuing the grant would be inconsistent with the Act, other laws, or these or other regulations;
(5) You do not have or cannot demonstrate the technical or financial capability to construct the project or operate facilities within the right-of-way.
(i) Applicants must have or be able to demonstrate technical and financial capability to construct, operate, maintain, and terminate a project throughout the application process and authorization period. You can demonstrate your financial and technical capability to construct, operate, maintain, and terminate a project by:
(A) Documenting any previous successful experience in construction, operation, and maintenance of similar facilities on either public or non-public lands;
(B) Providing information on the availability of sufficient capitalization to carry out development, including the preliminary study stage of the project and the environmental review and clearance process; or
(C) Providing written copies of conditional commitments of Federal and other loan guarantees; confirmed power purchase agreements; engineering, procurement, and construction contracts; and supply contracts with credible third-party vendors for the manufacture or supply of key components for the project facilities.
(ii) Failure to demonstrate and sustain technical and financial capability is grounds for denying an application or terminating an authorization;
(6) The PODs required by §§ 2804.25(e)(3) and 2804.12(a)(8) and (c)(1) do not meet the development schedule or other requirements in the POD template and the applicant is unable to demonstrate why the POD should be approved;
(7) Failure to commence necessary surveys and studies, or plans for permit processing as required by § 2804.25(c); or
(8) The BLM’s evaluation of your solar or wind application made under § 2804.25(e)(2)(iii) provides a basis for a denial.
(b) If BLM denies your application, you may appeal this decision under § 2801.10 of this part.
(c) If you are unable to meet any of the requirements in this section you may request an alternative from the BLM (see § 2804.40).
§ 2804.27 What fees must I pay if BLM denies my application or if I withdraw my application?
If the BLM denies your application or you withdraw it, you must still pay any application filing fees under § 2804.12(b)(2), and any processing fee set forth at § 2804.14, unless you have a Processing Category 5 or 6 application. Then, the following conditions apply:
(a) If BLM denies your Processing Category 5 or 6 application, you are liable for all reasonable costs that the United States incurred in processing it. The money you have not paid is due within 30 calendar days after receiving a bill for the amount due.
(b) You may withdraw your application in writing before BLM issues a grant. If you do so, you are liable for all reasonable processing costs the United States has incurred up to the time you withdraw the application and for the reasonable costs of terminating your application. Any money you have not paid is due within 30 calendar days after receiving a bill for the amount due. Any money you paid that is not used to cover costs the United States incurred as a result of your application will be refunded to you.
§ 2804.28 What processing fees must I pay for a BLM grant application associated with Federal Energy Regulatory Commission (FERC) licenses or re-license applications under part I of the Federal Power Act (FPA)?
(a) You must reimburse BLM for the costs which the United States incurs in processing your grant application associated with a FERC project, other than those described at § 2801.6(b)(7) of this part. BLM also requires reimbursement for processing a grant application associated with a FERC project licensed before October 24, 1992, that involves the use of additional public lands outside the original area reserved under section 24 of the FPA.
(b) BLM will determine the amount you must pay by using the processing fee categories described at § 2804.14 of this subpart and bill you for the costs. FERC will address other costs associated with processing a FERC license or relicense (see 18 CFR chapter I).
§ 2804.29 What activities may I conduct on the lands covered by the proposed right-of-way while BLM is processing my application?
(a) You may conduct casual use activities on the BLM lands covered by the application, as may any other member of the public. BLM does not require a grant for casual use on BLM lands.
(b) For any activities on BLM lands that are not casual use, you must obtain prior BLM approval.
§ 2804.30 What is the competitive process for solar or wind energy development for lands outside of designated leasing areas?
(a) Available land. The BLM may offer through a competitive process any land not inside a designated leasing area and open to right-of-way applications under § 2802.10.
(b) Variety of competitive procedures available. The BLM may use any type of competitive process or procedure to conduct its competitive offer and any method, including the use of the Internet, to conduct the actual auction or competitive bid procedure. Possible bid procedures could include, but are not limited to: Sealed bidding, oral auctions, modified competitive bidding, electronic bidding, and any combination thereof.
(c) Competitive offer. The BLM may identify a parcel for competitive offer if competition exists or may include land in a competitive offer on its own initiative.
(d) Notice of competitive offer. The BLM will publish a notice in the
(1) The date, time, and location, if any, of the competitive offer;
(2) The legal land description of the parcel to be offered;
(3) The bidding methodology and procedures to be used in conducting the competitive offer, which may include any of the competitive procedures identified in § 2804.30(b);
(4) The minimum bid required (see § 2804.30(e)(2));
(5) The qualification requirements for potential bidders (see § 2803.10); and
(6) The requirements for the successful bidder to submit a schedule for the submission of a POD for the lands involved in the competitive offer (see § 2804.12(c)(1)).
(e) Bidding – (1) Bid submissions. The BLM will accept your bid only if it includes payment for the minimum bid and at least 20 percent of the bonus bid.
(2) Minimum bid. The minimum bid is not prorated among all bidders, but paid entirely by the successful bidder. The minimum bid consists of:
(i) The administrative costs incurred by the BLM and other Federal agencies in preparing for and conducting the competitive offer, including required environmental reviews; and
(ii) An amount determined by the authorizing officer and disclosed in the notice of competitive offer. This amount will be based on known or potential values of the parcel. In setting this amount, the BLM will consider factors that include, but are not limited to, the acreage rent and megawatt capacity fee.
(3) Bonus bid. The bonus bid consists of any dollar amount that a bidder wishes to bid in addition to the minimum bid.
(4) If you are not the successful bidder, as defined in paragraph (f) of this section, the BLM will refund your bid and any application filing fees, less the reasonable costs incurred by the United States in connection with your application, under § 2804.12(c)(2).
(f) Successful bidder. The successful bidder is determined by the highest total bid. If you are the successful bidder, you become the preferred applicant only if, within 15 calendar days after the day of the offer, you submit the balance of the bonus bid to the BLM office conducting the competitive offer. You must make payments by personal check, cashier’s check, certified check, bank draft, money order, or by other means deemed acceptable by the BLM, payable to the “Department of the Interior – Bureau of Land Management.”
(g) Preferred applicant. The preferred applicant may apply for an energy project-area testing grant, an energy site-specific testing grant, or a solar or wind energy development grant for the parcel identified in the offer. Grant approval is not guaranteed by winning the subject bid and is solely at the BLM’s discretion. The BLM will not accept applications on lands where a preferred applicant has been identified, unless allowed by the preferred applicant.
(h) Reservations. (1) The BLM may reject bids regardless of the amount offered. If the BLM rejects your bid under this provision, you will be notified in writing and such notice will include the reasons for the rejection and any refunds to which you are entitled.
(2) The BLM may make the next highest bidder the preferred applicant if the first successful bidder fails to satisfy the requirements under paragraph (f) of this section.
(3) If the BLM is unable to determine the successful bidder, such as in the case of a tie, the BLM may re-offer the lands competitively to the tied bidders, or to all bidders.
(4) If lands offered under this section receive no bids the BLM may:
(i) Re-offer the lands through the competitive process under this section; or
(ii) Make the lands available through the non-competitive application process found in subparts 2803, 2804, and 2805 of this part, if the BLM determines that doing so is in the public interest.
§ 2804.31 How will the BLM call for site testing for solar and wind energy?
(a) Call for site testing. The BLM may, at its own discretion, initiate a call for site testing. The BLM will publish this call for site testing in the
(1) The date, time, and location that site testing applications identified under § 2801.9(d)(1) of this part may be submitted;
(2) The date by which applicants will be notified of the BLM’s decision on timely submitted site testing applications;
(3) The legal land description of the area for which site testing applications are being requested; and
(4) The qualification requirements for applicants (see § 2803.10).
(b) You may request that the BLM hold a call for site testing for certain public lands. The BLM may proceed with a call for site testing at its own discretion.
(c) The BLM may identify lands surrounding the site testing as designated leasing areas under § 2802.11. If a designated leasing area is established, a competitive offer for a development lease under subpart 2809 may be held at the discretion of the BLM.
§ 2804.35 How will the BLM prioritize my solar or wind energy application?
The BLM will prioritize your application by placing it into one of three categories and may re-categorize your application based on new information received through surveys, public meetings, or other data collection, or after any changes to the application. The BLM will generally prioritize the processing of leases awarded under subpart 2809 before applications submitted under subpart 2804. For applications submitted under subpart 2804, the BLM will categorize your application based on the following screening criteria.
(a) High-priority applications are given processing priority over medium- and low-priority applications and may include lands that meet the following criteria:
(1) Lands specifically identified as appropriate for solar or wind energy development, other than designated leasing areas;
(2) Previously disturbed sites or areas adjacent to previously disturbed or developed sites;
(3) Lands currently designated as Visual Resource Management Class IV; or
(4) Lands identified as suitable for disposal in BLM land use plans.
(b) Medium-priority applications are given priority over low-priority applications and may include lands that meet the following criteria:
(1) BLM special management areas that provide for limited development, including recreation sites and facilities;
(2) Areas where a project may adversely affect conservation lands, including lands with wilderness characteristics that have been identified in an updated wilderness characteristics inventory;
(3) Right-of-way avoidance areas;
(4) Areas where project development may adversely affect resources and properties listed nationally such as the National Register of Historic Places, National Natural Landmarks, or National Historic Landmarks;
(5) Sensitive habitat areas, including important species use areas, riparian areas, or areas of importance for Federal or State sensitive species;
(6) Lands currently designated as Visual Resource Management Class III;
(7) Department of Defense operating areas with land use or operational mission conflicts; or
(8) Projects with proposed groundwater uses within groundwater basins that have been allocated by State water resource agencies.
(c) Low-priority applications may not be feasible to authorize. These applications may include lands that meet the following criteria:
(1) Lands near or adjacent to lands designated by Congress, the President, or the Secretary for the protection of sensitive viewsheds, resources, and values (e.g., units of the National Park System, Fish and Wildlife Service Refuge System, some National Forest System units, and the BLM National Landscape Conservation System), which may be adversely affected by development;
(2) Lands near or adjacent to Wild, Scenic, and Recreational Rivers and river segments determined suitable for Wild or Scenic River status, if project development may have significant adverse effects on sensitive viewsheds, resources, and values;
(3) Designated critical habitat for federally threatened or endangered species, if project development may result in the destruction or adverse modification of that critical habitat;
(4) Lands currently designated as Visual Resource Management Class I or Class II;
(5) Right-of-way exclusion areas; or
(6) Lands currently designated as no surface occupancy for oil and gas development in BLM land use plans.
§ 2804.40 Alternative requirements.
If you are unable to meet any of the requirements in this subpart you may request approval for an alternative requirement from the BLM. Any such request is not approved until you receive BLM approval in writing. Your request to the BLM must:
(a) Show good cause for your inability to meet a requirement;
(b) Suggest an alternative requirement and explain why that requirement is appropriate; and
(c) Be received in writing by the BLM in a timely manner, before the deadline to meet a particular requirement has passed.
Subpart 2805 – Terms and Conditions of Grants
§ 2805.10 How will I know whether the BLM has approved or denied my application or if my bid for a solar or wind energy development grant or lease is successful or unsuccessful?
(a) The BLM will send you a written response when it has made a decision on your application or if you are the successful bidder for a solar or wind energy development grant or lease. If we approve your application, we will send you an unsigned grant for your review and signature. If you are the successful bidder for a solar or wind energy lease inside a designated leasing area under § 2809.15, we may send you an unsigned lease for your review and signature. If your bid is unsuccessful, it will be refunded under § 2804.30(e)(4) or § 2809.14(d) and you will receive written notice from us.
(b) Your unsigned grant or lease document:
(1) Will include any terms, conditions, and stipulations that we determine to be in the public interest, such as modifying your proposed use or changing the route or location of the facilities;
(2) May include terms that prevent your use of the right-of-way until you have an approved Plan of Development (POD) and BLM has issued a Notice to Proceed; and
(3) Will impose a specific term for the grant or lease. Each grant or lease that we issue for 20 or more years will contain a provision requiring periodic review at the end of the twentieth year and subsequently at 10-year intervals. We may change the terms and conditions of the grant or lease, including leases issued under subpart 2809, as a result of these reviews in accordance with § 2805.15(e).
(c) If you agree with the terms and conditions of the unsigned grant, you should sign and return it to BLM with any payment required under § 2805.16 of this subpart. BLM will sign the grant and return it to you with a final decision issuing the grant if the regulations in this part, including § 2804.26, remain satisfied. You may appeal this decision under § 2801.10 of this part.
(d) If BLM denies your application, we will send you a written decision that will:
(1) State the reasons for the denial (see § 2804.26 of this part);
(2) Identify any processing costs you must pay (see § 2804.14 of this part); and
(3) Notify you of your right to appeal this decision under § 2801.10 of this part.
§ 2805.11 What does a grant contain?
The grant states what your rights are on the lands subject to the grant and contains information about:
(a) What lands you can use or occupy. The lands may or may not correspond to those for which you applied. BLM will limit the grant to those lands which BLM determines:
(1) You will occupy with authorized facilities;
(2) Are necessary for constructing, operating, maintaining, and terminating the authorized facilities;
(3) Are necessary to protect the public health and safety;
(4) Will not unnecessarily damage the environment; and
(5) Will not result in unnecessary or undue degradation.
(b) How long you can use the right-of-way. Each grant will state the length of time that you are authorized to use the right-of-way.
(1) BLM will consider the following factors in establishing a reasonable term:
(i) The public purpose served;
(ii) Cost and useful life of the facility;
(iii) Time limitations imposed by licenses or permits required by other Federal agencies and state, tribal, or local governments; and
(iv) The time necessary to accomplish the purpose of the grant.
(2) Specific terms for solar and wind energy grants and leases are as follows:
(i) For an energy site-specific testing grant, the term is 3 years or less, without the option of renewal;
(ii) For an energy project-area testing grant, the initial term is 3 years or less, with the option to renew for one additional 3-year period when the renewal application is also accompanied by a solar or wind energy development application and a POD as required by § 2804.25(e)(3);
(iii) For a short-term grant for all other associated actions not specifically included in paragraphs (b)(2)(i) and (ii) of this section, such as geotechnical testing and other temporary land disturbing activities, the term is 3 years or less;
(iv) For solar and wind energy development grants, the term is up to 30 years (plus the initial partial year of issuance) with adjustable terms and conditions. The grantee may submit an application for renewal under § 2805.14(g); and
(v) For solar and wind energy development leases located inside designated leasing areas, the term is fixed for 30 years (plus the initial partial year of issuance). The lessee may submit an application for renewal under § 2805.14(g).
(3) All grants and leases, except those issued for a term of 3 years or less and those issued in perpetuity, will expire on December 31 of the final year of the grant or lease. For grants and leases with terms greater than 3 years, the actual term includes the number of full years specified, plus the initial partial year, if any.
(c) How you can use the right-of-way. You may only use the right-of-way for the specific use the grant authorizes.
§ 2805.12 What terms and conditions must I comply with?
(a) By accepting a grant or lease, you agree to comply with and be bound by the following terms and conditions. During construction, operation, maintenance, and termination of the project you must:
(1) To the extent practicable, comply with all existing and subsequently enacted, issued, or amended Federal laws and regulations and State laws and regulations applicable to the authorized use;
(2) Rebuild and repair roads, fences, and established trails destroyed or damaged by the project;
(3) Build and maintain suitable crossings for existing roads and significant trails that intersect the project;
(4) Do everything reasonable to prevent and suppress wildfires on or in the immediate vicinity of the right-of-way area;
(5) Not discriminate against any employee or applicant for employment during any stage of the project because of race, creed, color, sex, sexual orientation, or national origin. You must also require subcontractors to not discriminate;
(6) Pay monitoring fees and rent described in § 2805.16 and subpart 2806;
(7) Assume full liability if third parties are injured or damages occur to property on or near the right-of-way (see § 2807.12);
(8) Comply with project-specific terms, conditions, and stipulations, including requirements to:
(i) Restore, revegetate, and curtail erosion or conduct any other rehabilitation measure the BLM determines necessary;
(ii) Ensure that activities in connection with the grant comply with air and water quality standards or related facility siting standards contained in applicable Federal or State law or regulations;
(iii) Control or prevent damage to:
(A) Scenic, aesthetic, cultural, and environmental values, including fish and wildlife habitat;
(B) Public and private property; and
(C) Public health and safety;
(iv) Provide for compensatory mitigation for residual impacts associated with the right-of-way;
(v) Protect the interests of individuals living in the general area who rely on the area for subsistence uses as that term is used in Title VIII of Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111 et seq.);
(vi) Ensure that you construct, operate, maintain, and terminate the facilities on the lands in the right-of-way in a manner consistent with the grant or lease, including the approved POD, if one was required;
(vii) When the State standards are more stringent than Federal standards, comply with State standards for public health and safety, environmental protection, and siting, constructing, operating, and maintaining any facilities and improvements on the right-of-way; and
(viii) Grant the BLM an equivalent authorization for an access road across your land if the BLM determines that a reciprocal authorization is needed in the public interest and the authorization the BLM issues to you is also for road access;
(9) Immediately notify all Federal, State, tribal, and local agencies of any release or discharge of hazardous material reportable to such entity under applicable law. You must also notify the BLM at the same time and send the BLM a copy of any written notification you prepared;
(10) Not dispose of or store hazardous material on your right-of-way, except as provided by the terms, conditions, and stipulations of your grant;
(11) Certify your compliance with all requirements of the Emergency Planning and Community Right-to-Know Act of 1986, (42 U.S.C. 11001 et seq.), when you receive, assign, renew, amend, or terminate your grant;
(12) Control and remove any release or discharge of hazardous material on or near the right-of-way arising in connection with your use and occupancy of the right-of-way, whether or not the release or discharge is authorized under the grant. You must also remediate and restore lands and resources affected by the release or discharge to the BLM’s satisfaction and to the satisfaction of any other Federal, State, tribal, or local agency having jurisdiction over the land, resource, or hazardous material;
(13) Comply with all liability and indemnification provisions and stipulations in the grant;
(14) As the BLM directs, provide diagrams or maps showing the location of any constructed facility;
(15) As the BLM directs, provide, or give access to, any pertinent environmental, technical, and financial records, reports, and other information, such as Power Purchase and Interconnection Agreements or the production and sale data for electricity generated from the approved facilities on public lands. Failure to comply with such requirements may, at the discretion of the BLM, result in suspension or termination of the right-of-way authorization. The BLM may use this and similar information for the purpose of monitoring your authorization and for periodic evaluation of financial obligations under the authorization, as appropriate. Any records the BLM obtains will be made available to the public subject to all applicable legal requirements and limitations for inspection and duplication under the Freedom of Information Act. Any information marked confidential or proprietary will be kept confidential to the extent allowed by law; and
(16) Comply with all other stipulations that the BLM may require.
(b) You must comply with the bonding requirements under § 2805.20. The BLM will not issue a Notice to Proceed or give written approval to proceed with ground disturbing activities until you comply with this requirement.
(c) By accepting a grant or lease for solar or wind energy development, you also agree to comply with and be bound by the following terms and conditions. You must:
(1) Not begin any ground disturbing activities until the BLM issues a Notice to Proceed (see § 2807.10) or written approval to proceed with ground disturbing activities;
(2) Complete construction within the timeframes in the approved POD, but no later than 24 months after the start of construction, unless the project has been approved for staged development, or as otherwise authorized by the BLM;
(3) If an approved POD provides for staged development, unless otherwise approved by the BLM:
(i) Begin construction of the initial phase of development within 12 months after issuance of the Notice to Proceed, but no later than 24 months after the effective date of the right-of-way authorization;
(ii) Begin construction of each stage of development (following the first) within 3 years of the start of construction of the previous stage of development, and complete construction of that stage no later than 24 months after the start of construction of that stage, unless otherwise authorized by the BLM; and
(iii) Have no more than 3 development stages, unless otherwise authorized by the BLM;
(4) Maintain all onsite electrical generation equipment and facilities in accordance with the design standards in the approved POD;
(5) Repair and place into service, or remove from the site, damaged or abandoned facilities that have been inoperative for any continuous period of 3 months and that present an unnecessary hazard to the public lands. You must take appropriate remedial action within 30 days after receipt of a written noncompliance notice, unless you have been provided an extension of time by the BLM. Alternatively, you must show good cause for any delays in repairs, use, or removal; estimate when corrective action will be completed; provide evidence of diligent operation of the facilities; and submit a written request for an extension of the 30-day deadline. If you do not comply with this provision, the BLM may suspend or terminate the authorization under §§ 2807.17 through 2807.19; and
(6) Comply with the diligent development provisions of the authorization or the BLM may suspend or terminate your grant or lease under §§ 2807.17 through 2807.19. Before suspending or terminating the authorization, the BLM will send you a notice that gives you a reasonable opportunity to correct any noncompliance or to start or resume use of the right-of-way (see § 2807.18). In response to this notice, you must:
(i) Provide reasonable justification for any delays in construction (for example, delays in equipment delivery, legal challenges, and acts of God);
(ii) Provide the anticipated date of completion of construction and evidence of progress toward the start or resumption of construction; and
(iii) Submit a written request under paragraph (e) of this section for extension of the timelines in the approved POD. If you do not comply with the requirements of paragraph (c)(7) of this section, the BLM may deny your request for an extension of the timelines in the approved POD.
(7) In addition to the RCE requirements of § 2805.20(a)(5) for a grant, the bond secured for a grant or lease must cover the estimated costs of cultural resource and Indian cultural resource identification, protection, and mitigation for project impacts.
(d) For energy site or project testing grants:
(1) You must install all monitoring facilities within 12 months after the effective date of the grant or other authorization. If monitoring facilities under a site testing and monitoring right-of-way authorization have not been installed within 12 months after the effective date of the authorization or consistent with the timeframe of the approved POD, you must request an extension pursuant to paragraph (e) of this section;
(2) You must maintain all onsite equipment and facilities in accordance with the approved design standards;
(3) You must repair and place into service, or remove from the site, damaged or abandoned facilities that have been inoperative for any continuous period of 3 months and that present an unnecessary hazard to the public lands; and
(4) If you do not comply with the diligent development provisions of either the site testing and monitoring authorization or the project testing and monitoring authorization, the BLM may terminate your authorization under § 2807.17.
(e) Notification of noncompliance and request for alternative requirements. (1) As soon as you anticipate that you will not meet any stipulation, term, or condition of the approved right-of-way grant or lease, or in the event of your noncompliance with any such stipulation, term, or condition, you must notify the BLM in writing and show good cause for the noncompliance, including an explanation of the reasons for the failure.
(2) You may also request that the BLM consider alternative stipulations, terms, or conditions. Any request for an alternative stipulation, term, or condition must comply with applicable law in order to be considered. Any proposed alternative to applicable bonding requirements must provide the United States with adequate financial assurance for potential liabilities associated with your right-of-way grant or lease. Any such request is not approved until you receive BLM approval in writing.
§ 2805.13 When is a grant effective?
A grant is effective after both you and BLM sign it. You must accept its terms and conditions in writing and pay any necessary rent and monitoring fees as set forth in subpart 2806 of this part and § 2805.16 of this subpart. Your written acceptance constitutes an agreement between you and BLM that your right to use the public lands, as specified in the grant, is subject to the terms and conditions of the grant and applicable laws and regulations.
§ 2805.14 What rights does a grant convey?
The grant conveys to you only those rights which it expressly contains. BLM issues it subject to the valid existing rights of others, including the United States. Rights which the grant conveys to you include the right to:
(a) Use the described lands to construct, operate, maintain, and terminate facilities within the right-of-way for authorized purposes under the terms and conditions of the grant;
(b) If your grant specifically authorizes, allow other parties to use your facility for the purposes specified in your grant and you may charge for such use. If your grant does not specifically authorize it, you may not let anyone else use your facility and you may not charge for its use unless BLM authorizes or requires it in writing;
(c) Allow others to use the land as your agent in the exercise of the rights that the grant specifies;
(d) Do minor trimming, pruning, and removing of vegetation to maintain the right-of-way or facility;
(e) Use common varieties of stone and soil which are necessarily removed during construction of the project, without additional BLM authorization or payment, in constructing the project within the authorized right-of-way;
(f) Assign the grant to another, provided that you obtain the BLM’s prior written approval, unless your grant specifically states that that such approval is unnecessary; and
(g) Apply to renew your solar or wind energy development grant or lease, under § 2807.22; and
(h) Apply to renew your energy project-area testing grant for one additional term of 3 years or less when the renewal application also includes an energy development application under § 2801.9(d)(2).
§ 2805.15 What rights does the United States retain?
The United States retains and may exercise any rights the grant does not expressly convey to you. These include BLM’s right to:
(a) Access the lands covered by the grant at any time and enter any facility you construct on the right-of-way. BLM will give you reasonable notice before it enters any facility on the right-of-way;
(b) Require common use of your right-of-way, including facilities (see § 2805.14(b)), subsurface, and air space, and authorize use of the right-of-way for compatible uses.
You may not charge for the use of the lands made subject to such additional right-of-way grants;
(c) Retain ownership of the resources of the land, including timber and vegetative or mineral materials and any other living or non-living resources. You have no right to use these resources, except as noted in § 2805.14(e) of this subpart;
(d) Determine whether or not your grant is renewable; and
(e) Change the terms and conditions of your grant as a result of changes in legislation, regulation, or as otherwise necessary to protect public health or safety or the environment.
§ 2805.16 If I hold a grant, what monitoring fees must I pay?
(a) You must pay a fee to the BLM for the reasonable costs the Federal Government incurs in inspecting and monitoring the construction, operation, maintenance, and termination of the project and protection and rehabilitation of the public lands your grant covers. Instead of paying the BLM a fee for the reasonable costs incurred by other Federal agencies in monitoring your grant, you may pay the other Federal agencies directly for such costs. The BLM will annually adjust the Category 1 through 4 monitoring fees in the manner described at § 2804.14(b). The BLM will update Category 5 monitoring fees as specified in the Master Agreement. Category 6 monitoring fees are addressed at § 2805.17(c). The BLM categorizes the monitoring fees based on the estimated number of work hours necessary to monitor your grant. Category 1 through 4 monitoring fees are one-time fees and are not refundable. The monitoring categories and work hours are as follows:
Monitoring Categories
| Monitoring category | Federal work hours involved |
|---|---|
| (1) Inspecting and monitoring of new grants, assignments, renewals, and amendments to existing grants | Estimated Federal work hours are >1 ≤8. |
| (2) Inspecting and monitoring of new grants, assignments, renewals, and amendments to existing grants | Estimated Federal work hours are >8 ≤24. |
| (3) Inspecting and monitoring of new grants, assignments, renewals, and amendments to existing grants | Estimated Federal work hours are >24 ≤36. |
| (4) Inspecting and monitoring of new grants, assignments, renewals, and amendments to existing grants | Estimated Federal work hours are >36 ≤50. |
| (5) Master Agreements | Varies. |
| (6) Inspecting and monitoring of new grants, assignments, renewals, and amendments to existing grants | Estimated Federal work hours are >50. |
(b) The monitoring cost schedule is available from any BLM State, district, or field office or by writing: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Washington, DC 20003. The BLM also posts the current schedule at http://www.blm.gov.
§ 2805.17 When do I pay monitoring fees?
(a) Monitoring Categories 1 through 4. Unless BLM otherwise directs, you must pay monitoring fees when you submit to BLM your written acceptance of the terms and conditions of the grant.
(b) Monitoring Category 5. You must pay monitoring fees as specified in the Master Agreement. BLM will not issue your grant until it receives the required payment.
(c) Monitoring Category 6. BLM may periodically estimate the costs of monitoring your use of the grant. BLM will include this fee in the costs associated with processing fees described at § 2804.14 of this part. If BLM has underestimated the monitoring costs, we will notify you of the shortfall. If your payments exceed the reasonable costs that Federal employees incurred for monitoring, BLM will either reimburse you the difference, or adjust the next billing to reflect the overpayment. Unless BLM gives you written authorization, you may not offset or deduct the overpayment from your payments.
(d) Monitoring Categories 1-4 and 6. If you disagree with the category BLM has determined for your grant, you may appeal the decision under § 2801.10 of this part.
§ 2805.20 Bonding requirements.
If you hold a grant or lease under this part, you must comply with the following bonding requirements:
(a) The BLM may require that you obtain, or certify that you have obtained, a performance and reclamation bond or other acceptable bond instrument to cover any losses, damages, or injury to human health, the environment, or property in connection with your use and occupancy of the right-of-way, including costs associated with terminating the grant, and to secure all obligations imposed by the grant and applicable laws and regulations. If you plan to use hazardous materials in the operation of your grant, you must provide a bond that covers liability for damages or injuries resulting from releases or discharges of hazardous materials. The BLM will periodically review your bond for adequacy and may require a new bond, an increase or decrease in the value of an existing bond, or other acceptable security at any time during the term of the grant or lease.
(1) The BLM must be listed as an additionally named insured on the bond instrument if a State regulatory authority requires a bond to cover some portion of environmental liabilities, such as hazardous material damages or releases, reclamation, or other requirements for the project. The bond must:
(i) Be redeemable by the BLM;
(ii) Be held or approved by a State agency for the same reclamation requirements as specified by our right-of-way authorization; and
(iii) Provide the same or greater financial guarantee that we require for the portion of environmental liabilities covered by the State’s bond.
(2) Bond acceptance. The BLM authorized officer must review and approve all bonds, including any State bonds, prior to acceptance, and at the time of any right-of-way assignment, amendment, or renewal.
(3) Bond amount. Unless you hold a solar or wind energy lease under subpart 2809, the bond amount will be determined based on the preparation of a RCE, which the BLM may require you to prepare and submit. The estimate must include our cost to administer a reclamation contract and will be reviewed periodically for adequacy. The BLM may also consider other factors, such as salvage value, when determining the bond amount.
(4) You must post a bond on or before the deadline that we give you.
(5) Bond components that must be addressed when determining the RCE amount include, but are not limited to:
(i) Environmental liabilities such as use of hazardous materials waste and hazardous substances, herbicide use, the use of petroleum-based fluids, and dust control or soil stabilization materials;
(ii) The decommissioning, removal, and proper disposal, as appropriate, of any improvements and facilities; and
(iii) Interim and final reclamation, re-vegetation, recontouring, and soil stabilization. This component must address the potential for flood events and downstream sedimentation from the site that may result in offsite impacts.
(6) You may ask us to accept a replacement performance and reclamation bond at any time after the approval of the initial bond. We will review the replacement bond for adequacy. A surety company is not released from obligations that accrued while the surety bond was in effect unless the replacement bond covers those obligations to our satisfaction.
(7) You must notify us that reclamation has occurred and you may request that the BLM reevaluate your bond. If we determine that you have completed reclamation, we may release all or part of your bond.
(8) If you hold a grant, you are still liable under § 2807.12 if:
(i) We release all or part of your bond;
(ii) The bond amount does not cover the cost of reclamation; or
(iii) There is no bond in place;
(b) If you hold a grant for solar energy development outside of designated leasing areas, you must provide a performance and reclamation bond (see paragraph (a) of this section) prior to the BLM issuing a Notice to Proceed (see § 2805.12(c)(1)). We will determine the bond amount based on the RCE (see paragraph (a)(3) of this section) and it must be no less than $10,000 per acre that will be disturbed;
(c) If you hold a grant for wind energy development outside of designated leasing areas, you must provide a performance and reclamation bond (see paragraph (a) of this section) prior to the BLM issuing a Notice to Proceed (see § 2805.12(c)(1)). We will determine the bond amount based on the RCE (see paragraph (a)(3) of this section) and it must be no less than $10,000 per authorized turbine less than 1 MW in nameplate capacity or $20,000 per authorized turbine equal to or greater than 1 MW in nameplate capacity; and
(d) For short-term right-of-way grants for energy site or project-area testing, the bond amount must be no less than $2,000 per authorized meteorological tower or instrumentation facility location and must be provided before the written approval to proceed with ground disturbing activities (see § 2805.12(c)(1)).
Subpart 2806 – Annual Rents and Payments
General Provisions
§ 2806.10 What rent must I pay for my grant?
(a) You must pay in advance a rent BLM establishes based on sound business management principles and, as far as practical and feasible, using comparable commercial practices. Rent does not include processing or monitoring fees and rent is not offset by such fees. BLM may exempt, waive, or reduce rent for a grant under §§ 2806.14 and 2806.15 of this subpart.
(b) If BLM issued your grant on or before October 21, 1976, under then existing statutory authority, upon request, BLM will conduct an informal hearing before a proposed rent increase becomes effective. This applies to rent increases due to a BLM-initiated change in the rent or from initially being put on a rent schedule. You are not entitled to a hearing on annual adjustments once you are on a rent schedule.
§ 2806.11 How will BLM charge me rent?
(a) BLM will charge rent beginning on the first day of the month following the effective date of the grant through the last day of the month when the grant terminates. Example: If a grant became effective on January 10 and terminated on September 16, the rental period would be February 1 through September 30, or 8 months.
(b) BLM will set or adjust the annual billing periods to coincide with the calendar year by prorating the rent based on 12 months.
(c) If you disagree with the rent that BLM charges, you may appeal the decision under § 2801.10 of this part.
§ 2806.12 When and where do I pay rent?
(a) You must pay rent for the initial rental period before the BLM issues you a grant or lease.
(1) If your non-linear grant or lease is effective on:
(i) January 1 through September 30 and qualifies for annual payments, your initial rent bill is pro-rated to include only the remaining full months in the initial year; or
(ii) October 1 through December 31 and qualifies for annual payments, your initial rent bill is pro-rated to include the remaining full months in the initial year plus the next full year.
(2) If your non-linear grant allows for multi-year payments, such as a short term grant issued for energy site-specific testing, you may request that your initial rent bill be for the full term of the grant instead of the initial rent bill periods provided under paragraph (a)(1)(i) or (ii) of this section.
(b) You must make all rental payments for linear rights-of-way according to the payment plan described in § 2806.24.
(c) After the first rental payment, all rent is due on January 1 of the first year of each succeeding rental period for the term of your grant.
(d) You must make all rental payments as instructed by us or as provided for by Secretarial order or legislative authority.
§ 2806.13 What happens if I do not pay rents and fees or if I pay the rents or fees late?
(a) If the BLM does not receive the rent or fee payment required in subpart 2806 within 15 calendar days after the payment was due under § 2806.12, we will charge you a late payment fee of $25 or 10 percent of the amount you owe, whichever is greater, per authorization.
(b) If BLM does not receive your rent payment and late payment fee within 30 calendar days after rent was due, BLM may collect other administrative fees provided by statute.
(c) If BLM does not receive your rent, late payment fee, and any administrative fees within 90 calendar days after the rent was due, BLM may terminate your grant under § 2807.17 of this part and you may not remove any facility or equipment without BLM’s written permission (see § 2807.19 of this part). The rent due, late payment fees, and any administrative fees remain a debt that you owe to the United States.
(d) If you pay the rent, late payment fee, and any administrative fees after BLM has terminated the grant, BLM does not automatically reinstate the grant. You must file a new application with BLM. BLM will consider the history of your failure to timely pay rent in deciding whether to issue you a new grant.
(e) Subject to applicable laws and regulations, we will retroactively bill for uncollected or under-collected rent, fees, and late payments, if:
(1) A clerical error is identified;
(2) An adjustment to rental schedules is not applied; or
(3) An omission or error in complying with the terms and conditions of the authorized right-of-way is identified.
(f) You may appeal any adverse decision BLM takes against your grant under § 2801.10 of this part.
(g) We will not approve any further activities associated with your right-of-way until we receive any outstanding payments that are due.
§ 2806.14 Under what circumstances am I exempt from paying rent?
(a)You do not have to pay rent for your use if:
(1) BLM issues the grant under a statute which does not allow BLM to charge rent;
(2) You are a Federal, state, or local government or its agent or instrumentality, unless you are:
(i) Using the facility, system, space, or any part of the right-of-way area for commercial purposes; or
(ii) A municipal utility or cooperative whose principal source of revenue is customer charges;
(3) You have been granted an exemption under a statute providing for such; or
(4) Electric or telephone facilities constructed on the right-of-way were financed in whole or in part, or eligible for financing, under the Rural Electrification Act of 1936, as amended (REA) (7 U.S.C. 901 et seq.), or are extensions of such facilities. You do not need to have sought financing from the Rural Utilities Service to qualify for this exemption. BLM may require you to document the facility’s eligibility for REA financing. For communication site facilities, adding or including non-eligible facilities as, for example, by tenants or customers, on the right-of-way will subject the holder to rent in accordance with §§ 2806.30 through 2806.44 of this subpart.
(b) The exemptions in this section do not apply if you are in trespass.
§ 2806.15 Under what circumstances may BLM waive or reduce my rent?
(a) BLM may waive or reduce your rent payment, even to zero in appropriate circumstances. BLM may require you to submit information to support a finding that your grant qualifies for a waiver or a reduction of rent.
(b) BLM may waive or reduce your rent if you show BLM that:
(1) You are a non-profit organization, corporation, or association which is not controlled by, or is not a subsidiary of, a profit making corporation or business enterprise and the facility or project will provide a benefit or special service to the general public or to a program of the Secretary;
(2) You provide without charge, or at reduced rates, a valuable benefit to the public at large or to the programs of the Secretary of the Interior;
(3) You hold a valid Federal authorization in connection with your grant and the United States is already receiving compensation for this authorization. This paragraph does not apply to oil and gas leases issued under part 3100 of this chapter; or
(4) Your grant involves a cost share road or a reciprocal right-of-way agreement not subject to subpart 2812 of this chapter. In these cases, BLM will determine the rent based on the proportion of use.
(c) The BLM State Director may waive or reduce your rent payment if the BLM State Director determines that paying the full rent will cause you undue hardship and it is in the public interest to waive or reduce your rent. In your request for a waiver or rental reduction you must include a suggested alternative rental payment plan or timeframe within which you anticipate resuming full rental payments. BLM may also require you to submit specific financial and technical data or other information that corrects or modifies the statement of financial capability required by § 2804.12(a)(5) of this part.
§ 2806.16 When must I make estimated rent payments to BLM?
To expedite the processing of your grant application, BLM may estimate rent payments and collect that amount before it issues the grant. The amount may change once BLM determines the actual rent of the right-of-way. BLM will credit any rental overpayment, and you are liable for any underpayment. This section does not apply to rent payments made under a rent schedule in this part.
Linear Rights-of-Way
§ 2806.20 What is the rent for a linear right-of-way grant?
(a) Except as described in § 2806.26 of this chapter, the BLM will use the Per Acre Rent Schedule (see paragraph (c) of this section) to calculate rent for all linear right-of-way authorizations, regardless of the granting authority (FLPMA, MLA, and their predecessors). Counties (or other geographical areas) are assigned to an appropriate zone in accordance with § 2806.21. The BLM will adjust the per acre rent values in the schedule annually in accordance with § 2806.22(a), and it will revise the schedule at the end of each 10-year period in accordance with § 2806.22(b).
(b) The annual per acre rent for all types of linear right-of-way facilities is the product of 4 factors: The per acre zone value multiplied by the encumbrance factor multiplied by the rate of return multiplied by the annual adjustment factor (see § 2806.22(a)).
(c) You may obtain a copy of the current Per Acre Rent Schedule from any BLM State, district, or field office or by writing: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Washington, DC 20003. We also post the current rent schedule at http://www.blm.gov.
§ 2806.21 When and how are counties or other geographical areas assigned to a County Zone Number and Per Acre Zone Value?
Counties (or other geographical areas) are assigned to a County Zone Number and Per Acre Zone Value based upon 80 percent of their average per acre land and building value published in the Census of Agriculture (Census) by the National Agricultural Statistics Service (NASS). The initial assignment of counties to the zones will cover years 2006 through 2010 of the Per Acre Rent Schedule and is based upon data contained in the most recent NASS Census (2002). Subsequent re-assignments of counties will occur every 5 years (in 2011 based upon 2007 NASS Census data, in 2016 based upon 2012 NASS Census data, and so forth) following the publication of the NASS Census.
§ 2806.22 When and how does the Per Acre Rent Schedule change?
(a) Each calendar year the BLM will adjust the per acre rent values in § 2806.20 for all types of linear right-of-way facilities in each zone based on the average annual change in the IPD-GDP for the 10-year period immediately preceding the year that the NASS Census data becomes available. For example, the average annual change in the IPD-GDP from 1994 to 2003 (the 10-year period immediately preceding the year (2004) that the 2002 National Agricultural Statistics Service Census data became available) was 1.9 percent. This annual adjustment factor is applied to years 2006 through 2015 of the Per Acre Rent Schedule. Likewise, the average annual change in the IPD-GDP from 2004 to 2013 (the 10-year period immediately preceding the year (2014) when the 2012 NASS Census data will become available) will be applied to years 2016 through 2025 of the Per Acre Rent Schedule.
(b) The BLM will review the NASS Census data from the 2012 NASS Census, and each subsequent 10-year period, and as appropriate, revise the number of county zones and the per acre zone values. Any revision must include 100 percent of the number of counties and listed geographical areas for all states and the Commonwealth of Puerto Rico and must reasonably reflect the increases or decreases in the average per acre land and building values contained in the NASS Census.
§ 2806.23 How will the BLM calculate my rent for linear rights-of-way the Per Acre Rent Schedule covers?
(a) Except as provided by §§ 2806.25 and 2806.26, the BLM calculates your rent by multiplying the rent per acre for the appropriate county (or other geographical area) zone from the current schedule by the number of acres (as rounded up to the nearest tenth of an acre) in the right-of-way area that fall in each zone and multiplying the result by the number of years in the rental payment period (the length of time for which the holder is paying rent).
(b) If the BLM has not previously used the rent schedule to calculate your rent, we may do so after giving you reasonable written notice.
§ 2806.24 How must I make rental payments for a linear grant?
(a) Term grants. For linear grants, except those issued in perpetuity, you must make either nonrefundable annual payments or a nonrefundable payment for more than 1 year, as follows:
(1) One-time payments. You may pay in advance the total rent amount for the entire term of the grant or any remaining years.
(2) Multiple payments. If you choose not to make a one-time payment, you must pay according to one of the following methods:
(i) Payments by individuals. If your annual rent is $100 or less, you must pay at 10-year intervals, not to exceed the term of the grant. If your annual rent is greater than $100, you may pay annually or at 10-year intervals, not to exceed the term of the grant. For example, if you have a grant with a remaining term of 30 years, you may pay in advance for 10 years, 20 years, or 30 years, but not any other multi-year period.
(ii) Payments by all others. If your annual rent is $500 or less, you must pay rent at 10-year intervals, not to exceed the term of the grant. If your annual rent is greater than $500, you may pay annually or at 10-year intervals, not to exceed the term of the grant.
(b) Perpetual grants. For linear grants issued in perpetuity (except as noted in §§ 2806.25 and 2806.26), you must make either nonrefundable annual payments or a nonrefundable payment for more than 1 year, as follows:
(1) Payments by individuals. If your annual rent is $100 or less, you must pay at 10-year intervals, not to exceed 30 years. If your annual rent is greater than $100, you may pay annually or at 10-year intervals, not to exceed 30 years.
(2) Payments by all others. If your annual rent is $500 or less, you must pay rent at 10-year intervals, not to exceed 30 years. If your annual rent is greater than $500, you may pay annually or at 10-year intervals, not to exceed 30 years.
(c) Proration of payments. The BLM prorates the first year rental amount based on the number of months left in the calendar year after the effective date of the grant. If your grant requires, or you chose a 10-year payment term, or multiples thereof, the initial rent bill consists of the remaining partial year plus the next 10 years, or multiple thereof.
§ 2806.25 How may I make rental payments when land encumbered by my perpetual linear grant (other than an easement issued under § 2807.15(b)) is being transferred out of Federal ownership?
(a) One-time payment option for existing perpetual grants. If you have a perpetual grant and the land your grant encumbers is being transferred out of Federal ownership, you may choose to make a one-time rental payment. The BLM will determine the one-time payment for a perpetual grant by dividing the current annual rent for the subject property by an overall capitalization rate calculated from market data, where the overall capitalization rate is the difference between a market yield rate and a percent annual rent increase as described in the formula in paragraphs (a)(1), (2), and (3) of this section. The formula for this calculation is: One-time Rental Payment = Annual Rent/ (Y−CR), where:
(1) Annual Rent = Current Annual Rent Applicable to the Subject Property from the Per Acre Rent Schedule;
(2) Y = Yield Rate from the Per Acre Rent Schedule (5.27 percent); and
(3) CR = Annual Percent Change in Rent as Determined by the Most Recent 10-Year Average of the difference in the IPD-GDP Index from January of one year to January of the following year.
(b) One-time payment for grants converted to perpetual grants under § 2807.15(b). If the land your grant encumbers is being transferred out of Federal ownership, and you request a conversion of your grant to a perpetual right-of-way grant, you must make a one-time rental payment in accordance with § 2806.25(a).
(c) In paragraphs (a) and (b) of this section, the annual rent is determined from the Per Acre Rent Schedule (see § 2806.20(c)) as updated under § 2806.22. However, the per acre zone value and zone number used in this annual rental determination will be based on the per acre land value from acceptable market information or the appraisal report, if any, for the land transfer action and not the county average per acre land and building value from the NASS Census. You may also submit an appraisal report on your own initiative in accordance with paragraph (d) of this section.
(d) When no acceptable market information is available and no appraisal report has been completed for the land transfer action or when the BLM requests it, you must:
(1) Prepare an appraisal report using Federal appraisal standards, at your expense, that explains how you estimated the land value per acre, the rate of return, and the encumbrance factor; and
(2) Submit the appraisal report for consideration by the BLM State Director with jurisdiction over the lands encumbered by your authorization.
§ 2806.26 How may I make rental payments when land encumbered by my perpetual easement issued under § 2807.15(b) is being transferred out of Federal ownership?
(a) The BLM will use the appraisal report for the land transfer action (i.e., direct or indirect land sales, land exchanges, and other land disposal actions) and other acceptable market information to determine the one-time rental payment for a perpetual easement issued under § 2807.15(b).
(b) When no acceptable market information is available and no appraisal report has been completed for the land transfer action or when the BLM requests it, you must prepare an appraisal report as required under § 2806.25(d). You may also submit an appraisal report on your own initiative in accordance with § 2806.25(d).
Communication Site Rights-of-Way
§ 2806.30 What are the rents for communication site rights-of-way?
(a) Rent schedule. (1) The BLM uses a rent schedule to calculate the rent for communication site rights-of-way. The schedule is based on nine population strata (the population served), as depicted in the most recent version of the Ranally Metro Area (RMA) Population Ranking, and the type of communication use or uses for which we normally grant communication site rights-of-way. These uses are listed as part of the definition of “communication use rent schedule,” set out at § 2801.5(b). You may obtain a copy of the current schedule from any BLM State, district, or field office or by writing: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Washington, DC 20003. We also post the current communication use rent schedule at http://www.blm.gov.
(2) We update the schedule annually based on two sources: The U.S. Department of Labor Consumer Price Index for All Urban Consumers, U.S. City Average (CPI-U), as of July of each year (difference in CPI-U from July of one year to July of the following year), and the RMA population rankings.
(3) BLM will limit the annual adjustment based on the Consumer Price Index to no more than 5 percent. At least every 10 years BLM will review the rent schedule to ensure that the schedule reflects fair market value.
(b) Uses not covered by the schedule. The communication use rent schedule does not apply to:
(1) Communication site uses, facilities, and devices located entirely within the exterior boundaries of an oil and gas lease, and directly supporting the operations of the oil and gas lease (see parts 3160 through 3190 of this chapter);
(2) Communication facilities and uses ancillary to and authorized under a linear grant, such as a railroad grant or an oil and gas pipeline grant;
(3) Communication uses not listed on the schedule, such as telephone lines, fiber optic cables, and new technologies;
(4) Grants for which BLM determines the rent by competitive bidding; or
(5) Communication facilities and uses for which the BLM State Director concurs that:
(i) The expected annual rent, as BLM estimates from market data, exceeds the rent from the rent schedule by five times; or
(ii) The communication site serves a population of one million or more and the expected annual rent for the communication use or uses is more than $10,000 above the rent from the rent schedule.
§ 2806.31 How will BLM calculate rent for a right-of-way for communication uses in the schedule?
(a) Basic rule. BLM calculates rents for:
(1) Single-use facilities by applying the rent from the communication use rent schedule (see § 2806.30 of this subpart) for the type of use and the population strata served; and
(2) Multiple-use facilities, whose authorizations provide for subleasing, by setting the rent of the highest value use in the facility or facilities as the base rent (taken from the rent schedule) and adding to it 25 percent of the rent from the rent schedule for all tenant uses in the facility or facilities, if a tenant use is not used as the base rent (rent = base rent + 25 percent of all rent due to additional tenant uses in the facility or facilities) (see also §§ 2806.32 and 2806.34 of this subpart).
(b) Exclusions. When calculating rent, BLM will exclude customer uses, except as provided for at §§ 2806.34(b)(4) and 2806.42 of this subpart. BLM will also exclude those uses exempted from rent by § 2806.14 of this subpart, and any uses whose rent has been waived or reduced to zero as described in § 2806.15 of this subpart.
(c) Annual statement. By October 15 of each year, you, as a grant or lease holder, must submit to BLM a certified statement listing any tenants and customers in your facility or facilities and the category of use for each tenant or customer as of September 30 of the same year. BLM may require you to submit any additional information needed to calculate your rent. BLM will determine the rent based on the certified statement provided. We require only facility owners or facility managers to hold a grant or lease (unless you are an occupant in a federally-owned facility as described in § 2806.42 of this subpart), and will charge you rent for your grant or lease based on the total number of communication uses within the right-of-way and the type of uses and population strata the facility or site serves.
§ 2806.32 How does BLM determine the population strata served?
(a) BLM determines the population strata served as follows:
(1) If the site or facility is within a designated RMA, BLM will use the population strata of the RMA;
(2) If the site or facility is within a designated RMA, and it serves two or more RMAs, BLM will use the population strata of the RMA having the greatest population;
(3) If the site or facility is outside an RMA, and it serves one or more RMAs, BLM will use the population strata of the RMA served having the greatest population;
(4) If the site or facility is outside an RMA and the site does not serve an RMA, BLM will use the population strata of the community it serves having the greatest population, as identified in the current edition of the Rand McNally Road Atlas;
(5) If the site or facility is outside an RMA, and it serves a community of less than 25,000, BLM will use the lowest population strata shown on the rent schedule.
(b)(1) BLM considers all facilities (and all uses within the same facility) located at one site to serve the same RMA or community. However, BLM may make case-by-case exceptions in determining the population served at a particular site by uses not located within the same facility and not authorized under the same grant or lease. BLM has the sole responsibility to make this determination. For example, when a site has a mix of high-power and low-power uses that are authorized by separate grants or leases, and only the high-power uses are capable of serving an RMA or community with the greatest population, BLM may separately determine the population strata served by the low-power uses (if not collocated in the same facility with the high-power uses), and calculate their rent as described in § 2806.30 of this subpart.
(2) For purposes of rent calculation, all uses within the same facility and/or authorized under the same grant or lease must serve the same population strata.
(3) For purposes of rent calculation, BLM will not modify the population rankings published in the Rand McNally Commercial Atlas and Marketing Guide or the population of the community served.
BLM calculates the rent for a grant or lease authorizing a single-use communication facility from the communication use rent schedule (see § 2806.30 of this subpart), based on your authorized single use and the population strata it serves (see § 2806.32 of this subpart).
(a) Basic rule. BLM first determines the population strata the communication facility serves according to § 2806.32 of this subpart and then calculates the rent assessed to facility owners and facility managers for a grant or lease for a communication facility that authorizes subleasing with tenants, customers, or both, as follows:
(1) Using the communication use rent schedule. BLM will determine the rent of the highest value use in the facility or facilities as the base rent, and add to it 25 percent of the rent from the rent schedule (see § 2806.30 of this subpart) for each tenant use in the facility or facilities;
(2) If the highest value use is not the use of the facility owner or facility manager, BLM will consider the owner’s or manager’s use like any tenant or customer use in calculating the rent (see § 2806.35(b) for facility owners and § 2806.39(a) for facility managers);
(3) If a tenant use is the highest value use, BLM will exclude the rent for that tenant’s use when calculating the additional 25 percent amount under paragraph (a)(1) of this section for tenant uses;
(4) If a holder has multiple uses authorized under the same grant or lease, such as a TV and a FM radio station, BLM will calculate the rent as in paragraph (a)(1) of this section. In this case, the TV rent would be the highest value use and BLM would charge the FM portion according to the rent schedule as if it were a tenant use.
(b) Special applications. The following provisions apply when calculating rents for communication uses exempted from rent under § 2806.14 of this subpart or communication uses whose rent has been waived or reduced to zero under § 2806.15 of this subpart:
(1) BLM will exclude exempted uses or uses whose rent has been waived or reduced to zero (see §§ 2806.14 and 2806.15 of this subpart) of either a facility owner or a facility manager in calculating rents. BLM will exclude similar uses (see §§ 2806.14 and 2806.15 of this subpart) of a customer or tenant if they choose to hold their own grant or lease (see § 2806.36 of this subpart) or are occupants in a Federal facility (see § 2806.42(a) of this subpart);
(2) BLM will charge rent to a facility owner whose own use is either exempted from rent or whose rent has been waived or reduced to zero (see §§ 2806.14 and 2806.15 of this subpart), but who has tenants in the facility, in an amount equal to the rent of the highest value tenant use plus 25 percent of the rent from the rent schedule for each of the remaining tenant uses subject to rent;
(3) BLM will not charge rent to a facility owner, facility manager, or tenant (when holding a grant or lease) when all of the following occur:
(i) BLM exempts from rent, waives, or reduces to zero the rent for the holder’s use (see §§ 2806.14 and 2806.15 of this subpart);
(ii) Rent from all other uses in the facility is exempted, waived, or reduced to zero, or BLM considers such uses as customer uses; and
(iii) The holder is not operating the facility for commercial purposes (see § 2801.5(b) of this part) with respect to such other uses in the facility; and
(4) If a holder, whose own use is exempted from rent or whose rent has been waived or reduced to zero, is conducting a commercial activity with customers or tenants whose uses are also exempted from rent or whose rent has been waived or reduced to zero (see §§ 2806.14 and 2806.15 of this subpart), BLM will charge rent, notwithstanding section 2806.31(b), based on the highest value use within the facility. This paragraph (b)(4) does not apply to facilities exempt from rent under § 2806.14(a)(4) except when the facility also includes ineligible facilities.
§ 2806.35 How will BLM calculate rent for private mobile radio service (PMRS), internal microwave, and “other” category uses?
If an entity engaged in a PMRS, internal microwave, or “other” use is:
(a) Using space in a facility owned by either a facility owner or facility manager, BLM will consider the entity to be a customer and not include these uses in the rent calculation for the facility; or
(b) The facility owner, BLM will follow the provisions in § 2806.31 of this subpart to calculate rent for a lease involving these uses. However, we include the rent from the rent schedule for a PMRS, internal microwave, or other use in the rental calculation only if the value of that use is equal to or greater than the value of any other use in the facility. BLM excludes these uses in the 25 percent calculation (see § 2806.31(a) of this subpart) when their value does not exceed the highest value in the facility.
§ 2806.36 If I am a tenant or customer in a facility, must I have my own grant or lease and if so, how will this affect my rent?
(a) You may have your own authorization, but BLM does not require a separate grant or lease for tenants and customers using a facility authorized by a BLM grant or lease that contains a subleasing provision. BLM charges the facility owner or facility manager rent based on the highest value use within the facility (including any tenant or customer use authorized by a separate grant or lease) and 25 percent of the rent from the rent schedule for each of the other uses subject to rent (including any tenant or customer use a separate grant or lease authorizes and the facility owner’s use if it is not the highest value use).
(b) If you own a building, equipment shelter, or tower on public lands for communication purposes, you must have an authorization under this part, even if you are also a tenant or customer in someone else’s facility.
(c) BLM will charge tenants and customers who hold their own grant or lease in a facility, as grant or lease holders, the full annual rent for their use based on the BLM communication use rent schedule. BLM will also include such tenant or customer use in calculating the rent the facility owner or facility manager must pay.
BLM will include the single use in calculating rent for each grant or lease authorizing that use. For example, a television station locates its antenna on a tower authorized by grant or lease “A” and locates its related broadcast equipment in a building authorized by grant or lease “B.” The statement listing tenants and customers for each facility (see § 2806.31(c) of this subpart) must include the television use because each facility is benefitting economically from having the television broadcast equipment located there, even though the combined equipment is supporting only one single end use.
§ 2806.38 Can I combine multiple grants or leases for facilities located on one site into a single grant or lease?
If you hold authorizations for two or more facilities on the same site, you can combine all those uses under one grant or lease, with BLM’s approval. The highest value use in all the combined facilities determines the base rent. BLM then charges for each remaining use in the combined facilities at 25 percent of the rent from the rent schedule. These uses include those uses we previously calculated as base rents when BLM authorized each of the facilities on an individual basis.
§ 2806.39 How will BLM calculate rent for a lease for a facility manager’s use?
(a) BLM will follow the provisions in § 2806.31 of this subpart to calculate rent for a lease involving a facility manager’s use. However, we include the rent from the rent schedule for a facility manager’s use in the rental calculation only if the value of that use is equal to or greater than the value of any other use in the facility. BLM excludes the facility manager’s use in the 25 percent calculation (see § 2806.31(a) of this subpart) when its value does not exceed the highest value in the facility.
(b) If you are a facility owner and you terminate your use within the facility, but want to retain the lease for other purposes, BLM will continue to charge you for your authorized use until BLM amends the lease to change your use to facility manager or to some other communication use.
§ 2806.40 How will BLM calculate rent for a grant or lease for ancillary communication uses associated with communication uses on the rent schedule?
If the ancillary communication equipment is used solely in direct support of the primary use (see the definition of communication use rent schedule in § 2801.5 of this part), BLM will calculate and charge rent only for the primary use.
When a communication facility is ancillary to, and authorized by BLM under, a grant for a linear use, or some other type of use authorization (e.g., a mineral lease or sundry notice), BLM will determine the rent using the linear rent schedule (see § 2806.20 of this subpart) or rent scheme associated with the other authorization, and not the communication use rent schedule.
(a) If you are an occupant of a federally-owned communication facility, you must have your own grant or lease and pay rent in accordance with these regulations.
(b) If a Federal agency holds a grant or lease and agrees to operate the facility as a facility owner under § 2806.31 of this subpart, occupants do not need a separate BLM grant or lease and BLM will calculate and charge rent to the Federal facility owner under §§ 2806.30 through 2806.44 of this subpart.
§ 2806.43 How does BLM calculate rent for passive reflectors and local exchange networks?
(a) BLM calculates rent for passive reflectors and local exchange networks by using the same rent schedules for passive reflectors and local exchange networks as the Forest Service uses for the region in which the facilities are located. You may obtain the pertinent schedules from the Forest Service or from any BLM state or field office in the region in question. For passive reflectors and local exchange networks not covered by a Forest Service regional schedule, we use the provisions in § 2806.70 to determine rent. See Forest Service regulations at 36 CFR chapter II.
(b) For the purposes of this subpart, the term:
(1) Passive reflector includes various types of nonpowered reflector devices used to bend or ricochet electronic signals between active relay stations or between an active relay station and a terminal. A passive reflector commonly serves a microwave communication system. The reflector requires point-to-point line-of-sight with the connecting relay stations, but does not require electric power; and
(2) Local exchange network means radio service which provides basic telephone service, primarily to rural communities.
This section applies to a grant or lease that authorizes a mixture of communication uses, some of which are subject to the communication use rent schedule and some of which are not. We will determine rent for these leases under the provisions of this section.
(a) The BLM establishes the rent for each of the uses in the facility that are not covered by the communication use rent schedule using § 2806.70.
(b) BLM establishes the rent for each of the uses in the facility that are covered by the rent schedule using §§ 2806.30 and 2806.31 of this subpart.
(c) BLM determines the facility owner or facility manager’s rent by identifying the highest rent in the facility of those established under paragraphs (a) and (b) of this section, and adding to it 25 percent of the rent of all other uses subject to rent.
Solar Energy Rights-of-Way
§ 2806.50 Rents and fees for solar energy rights-of-way.
If you hold a right-of-way authorizing solar energy site-specific or project-area testing, or solar energy development, you must pay an annual rent and fee in accordance with this section and subpart. Your solar energy right-of-way authorization will either be a grant (if issued under subpart 2804) or a lease (if issued under subpart 2809). Rents and fees for either type of authorization consist of an acreage rent that must be paid prior to issuance of the authorization and a phased-in MW capacity fee. Both the acreage rent and the phased-in MW capacity fee are charged and calculated consistent with § 2806.11 and prorated consistent with § 2806.12(a). The MW capacity fee will vary depending on the size and technology of the solar energy development project.
§ 2806.51 Scheduled Rate Adjustment.
(a) The BLM will adjust your acreage rent and MW capacity fee over the course of your authorization as described in these regulations. For new grants or leases, you may choose either the standard rate adjustment method (see § 2806.52(a)(5) and (b)(3) for grants; see § 2806.54(a)(4) or (c) for leases) or the scheduled rate adjustment method (see § 2806.52(d) for grants; see § 2806.54(d) for leases). Once you select a rate adjustment method, that method will be fixed until you renew your grant or lease (see § 2807.22).
(b) For new grants or leases, if you select the scheduled rate adjustment method you must notify the BLM of your decision in writing. Your decision must be received by the BLM before your grant or lease is issued. If you do not select the scheduled rate adjustment method, the standard rate adjustment method will apply.
(c) If you hold a grant that is in effect prior to January 18, 2017, you may either accept the standard rate adjustment method or request in writing that the BLM apply the scheduled rate adjustment method, as set forth in § 2806.52(d), to your grant. To take advantage of the scheduled rate adjustment option, your request must be received by the BLM before December 19, 2018. The BLM will continue to apply the standard rate adjustment method to adjust your rates unless and until it receives your request to use the scheduled rate adjustment method.
§ 2806.52 Rents and fees for solar energy development grants.
You must pay an annual acreage rent and MW capacity fee for your solar energy development grant as follows:
(a) Acreage rent. The BLM will calculate the acreage rent by multiplying the number of acres (rounded up to the nearest tenth of an acre) within the authorized area times the annual per acre zone rate from the solar energy acreage rent schedule in effect at the time the authorization is issued.
(1) Per acre zone rate. The annual per acre zone rate from the solar energy acreage rent schedule is calculated using the per acre zone value (as assigned under paragraph (a)(2) of this section), encumbrance factor, rate of return, and the annual adjustment factor. The calculation for determining the annual per acre zone rate is A × B × C × D = E where:
(i) A is the per acre zone value = the same per acre zone values described in the linear rent schedule in § 2806.20(c);
(ii) B is the encumbrance factor = 100 percent;
(iii) C is the rate of return = 5.27 percent;
(iv) D is the annual adjustment factor = the average annual change in the IPD-GDP for the 10-year period immediately preceding the year that the NASS Census data becomes available (see § 2806.22(a)). The BLM will adjust the per acre zone rates each year based on the average annual change in the IPD-GDP as determined under § 2806.22(a). Adjusted rates are effective each year on January 1; and
(v) E is the annual per acre zone rate.
(2) Assignment of counties. The BLM will calculate the per acre zone rate in paragraph (a)(1) of this section by using a State-specific factor to assign a county to a zone in the solar energy acreage rent schedule. The BLM will calculate a State-specific factor and apply it to the NASS data (county average per acre land and building value) to determine the per acre value and assign a county (or other geographical area) to a zone. The State-specific factor represents the percent difference between improved agricultural land and unimproved rangeland values, using NASS data. The calculation for determining the State-specific factor is (A/B)−(C/D) = E where:
(i) A = the NASS Census statewide average per acre value of non-irrigated acres;
(ii) B = the NASS Census statewide average per acre land and building value;
(iii) C = the NASS Census total statewide acres in farmsteads, homes, buildings, livestock facilities, ponds, roads, wasteland, etc.;
(iv) D = the total statewide acres in farms; and
(v) E = the State-specific percent factor or 20 percent, whichever is greater.
(3) The initial assignment of counties to the zones on the solar energy acreage rent schedule will be based upon the most recent NASS Census data (2012) for years 2016 through 2020. The BLM may on its own or in response to requests consider making regional adjustments to those initial assignments, based on evidence that the NASS Census values do not accurately reflect the value of the BLM-managed lands in a given area. The BLM will update this rent schedule once every 5 years by re-assigning counties to reflect the updated NASS Census values as described in § 2806.21 and recalculate the State-specific percent factor once every 10 years as described in § 2806.22(b).
(4) Acreage rent payment. You must pay the acreage rent regardless of the stage of development or operations on the entire public land acreage described in the right-of-way authorization. The BLM State Director may approve a rental payment plan consistent with § 2806.15(c).
(5) Acreage rent adjustments. This paragraph (a)(5) applies unless you selected the scheduled rate adjustment method (see § 2806.51). The BLM will adjust the acreage rent annually to reflect the change in the per acre zone rates as specified in paragraph (a)(1) of this section. The BLM will use the most current per acre zone rates to calculate the acreage rent for each year of the grant term.
(6) You may obtain a copy of the current per acre zone rates for solar energy development (solar energy acreage rent schedule) from any BLM State, district, or field office or by writing: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Attention: Renewable Energy Coordination Office, Washington, DC 20003. The BLM also posts the current solar energy acreage rent schedule for solar energy development at http://www.blm.gov.
(b) MW capacity fee. The MW capacity fee is calculated by multiplying the approved MW capacity by the MW rate (for the applicable type of technology employed by the project) from the MW rate schedule (see paragraph (b)(2) of this section). You must pay the MW capacity fee annually when electricity generation begins or is scheduled to begin in the approved POD, whichever comes first:
(1) MW rate. The MW rate is calculated by multiplying the total hours per year, by the net capacity factor, by the MWh price, by the rate of return. For an explanation of each of these terms, see the definition of MW rate in § 2801.5(b).
(2) MW rate schedule. You may obtain a copy of the current MW rate schedule for solar energy development from any BLM State, district, or field office or by writing: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Attention: Renewable Energy Coordination Office, Washington, DC 20003. The BLM also posts the current MW rate schedule for solar energy development at http://www.blm.gov.
(3) Periodic adjustments in the MW rate. This paragraph (b)(3) applies unless you selected the scheduled rate adjustment method (see § 2806.51). The BLM will adjust the MW rate applicable to your grant every 5 years, beginning in 2021, by recalculating the following two components of the MW rate formula:
(i) The adjusted MWh price is the average of the annual weighted average wholesale price per MWh for the major trading hubs serving the 11 Western States of the continental United States for the full 5 calendar-year period preceding the adjustment, rounded to the nearest dollar increment; and
(ii) The adjusted rate of return is the 10-year average of the 20-year U.S. Treasury bond yield for the full 10 calendar-year period preceding the adjustment, rounded to the nearest one-tenth percent, with a minimum rate of return of 4 percent.
(4) MW rate phase-in. This paragraph (b)(4) applies unless you selected the scheduled rate adjustment method (see § 2806.51). If you hold a solar energy development grant, the MW rate will be phased in as follows:
(i) There is a 3-year phase-in of the MW rate when electricity generation begins or is scheduled to begin in the approved POD, whichever comes first, at the rates of:
(A) 25 percent for the first year. This rate applies for the first partial calendar year of operations, from the date electricity generation begins until Dec. 31 of that year;
(B) 50 percent for the second year; and
(C) 100 percent for the third and subsequent years of operations.
(ii) After generation of electricity starts and an approved POD provides for staged development:
(A) The 3-year phase-in of the MW rate applies to each stage of development; and
(B) The MW capacity fee is calculated using the authorized MW capacity approved for that stage plus any previously approved stages, multiplied by the MW rate.
(5) The general payment provisions for rents described in this subpart, except for § 2806.14(a)(4), also apply to the MW capacity fee.
(c) Initial implementation of the acreage rent and MW capacity fee. This paragraph (c) applies unless you selected the scheduled rate adjustment method (see § 2806.51). If you hold a solar energy grant and made payments for billing year 2016, the BLM will reduce by 50 percent the net increase in annual costs between billing year 2017 and billing year 2016. The net increase will be calculated based on a full calendar year.
(d) Scheduled rate adjustment. Under the scheduled rate adjustment method (see § 2806.51), the BLM will update your per acre zone rate and MW rate as follows:
(1) The BLM will calculate your payments using the per acre zone rate (see § 2806.52(a)(1)) and MW rate (see § 2806.52(b)(1)) in place when your grant is issued, or for existing grants, the per acre zone rate and MW rate in place prior to December 19, 2016, as adjusted under paragraph (d)(6) of this section;
(2) The per acre zone rate will increase:
(i) Annually, beginning after the first full calendar year plus any initial partial year following issuance of your grant, by the average annual change in the IPD-GDP as described in § 2806.22(b); and
(ii) Every 5 years, beginning after the first 5 calendar years, plus any initial partial year, following issuance of your grant, by 20 percent;
(3) The MW rate will increase by 20 percent every 5 years, beginning after the first 5 years, plus the initial partial year, if any, your grant is in effect;
(4) The BLM will not apply the phase-in to your MW rate under § 2806.52(b)(4) or the reduction under § 2806.52(c);
(5) If the approved POD for your project provides for staged development, the BLM will calculate the MW capacity fee using the MW capacity approved for the current stage plus any previously approved stages, multiplied by the MW rate, as described under this section.
(6) For grants in place prior to January 18, 2017 that select the scheduled rate adjustment method offered under § 2806.51(c), the per acre zone rate and the MW rate in place prior to December 19, 2016 will be adjusted for the first year’s payment using the scheduled rate adjustment method as follows:
(i) The per acre zone rate will increase by the average annual change in the IPD-GDP as described in § 2806.22(b) plus 20 percent;
(ii) The MW rate will increase by 20 percent; and
(iii) Subsequent increases will be performed as set forth in paragraphs (d)(2) and (3) of this section from the date of the initial adjustment under this paragraph (d).
§ 2806.54 Rents and fees for solar energy development leases.
If you hold a solar energy development lease obtained through competitive bidding under subpart 2809 of this part, you must make annual payments in accordance with this section and subpart, in addition to the one-time, upfront bonus bid you paid to obtain the lease. The annual payment includes an acreage rent for the number of acres included within the solar energy lease and an additional MW capacity fee based on the total authorized MW capacity for the approved solar energy project on the public lands.
(a) Acreage rent. The BLM will calculate and bill you an acreage rent that must be paid prior to issuance of your lease as described in § 2806.52(a). This acreage rent will be based on the following:
(1) Per acre zone rate. See § 2806.52(a)(1).
(2) Assignment of counties. See § 2806.52(a)(2) and (3).
(3) Acreage rent payment. See § 2806.52(a)(4).
(4) Acreage rent adjustments. This paragraph (a)(4) applies unless you selected the scheduled rate adjustment method (see § 2806.51). Once the acreage rent is determined under § 2806.52(a), no further adjustments in the annual acreage rent will be made until year 11 of the lease term and each subsequent 10-year period thereafter. The BLM will use the per acre zone rates in effect when it adjusts the annual acreage rent at those 10-year intervals,
(b) MW capacity fee. See § 2806.52(b) introductory text and (b)(1), (2), and (3).
(c) MW rate phase-in. This paragraph (c) applies unless you selected the scheduled rate adjustment method (see § 2806.51). If you hold a solar energy development lease, the MW capacity fee will be phased in, starting when electricity begins to be generated. The MW capacity fee for years 1-20 will be calculated using the MW rate in effect when the lease is issued. The MW capacity fee for years 21-30 will be calculated using the MW rate in effect in year 21 of the lease. These rates will be phased-in as follows:
(1) For years 1 through 10 of the lease, plus any initial partial year, the MW capacity fee is calculated by multiplying the project’s authorized MW capacity by 50 percent of the applicable solar technology MW rate, as described in § 2806.52(b)(2).
(2) For years 11 through 20 of the lease, the MW capacity fee is calculated by multiplying the project’s authorized MW capacity by 100 percent of the applicable solar technology MW rate, as described in § 2806.52(b)(2).
(3) For years 21 through 30 of the lease, the MW capacity fee is calculated by multiplying the project’s authorized MW capacity by 100 percent of the applicable solar technology MW rate, as described in § 2806.52(b)(2).
(4) If the lease is renewed, the MW capacity fee is calculated using the MW rates at the beginning of the renewed lease period and will remain at that rate through the initial 10-year period of the renewal term. The MW capacity fee will be adjusted using the MW rate at the beginning of each subsequent 10-year period of the renewed lease term.
(5) If an approved POD provides for staged development, the MW capacity fee is calculated using the MW capacity approved for that stage plus any previously approved stages, multiplied by the MW rate as described under this section.
(d) Scheduled rate adjustment. Under the scheduled rate adjustment (see § 2806.51), the BLM will update your per acre zone rate and MW rate as follows:
(1) The BLM will calculate your payments using the per acre zone rate (see § 2806.52(a)(1)) and MW rate (see § 2806.52(b)(1)) in place when your lease is issued;
(2) The per acre zone rate will increase every 10 years, beginning after the first 10 years, plus the initial partial year, if any, your lease is in effect, by the average annual change in the IPD-GDP for the preceding 10-year period as described in § 2806.22(b) plus 40 percent;
(3) The MW rate will increase by 40 percent every 10 years, beginning after the first 10 years, plus the initial partial year, if any, your lease is in effect;
(4) The BLM will not apply the phase-in to your MW rate under § 2806.52(c). Instead, for years 1 through 5, plus any initial partial year, the BLM will calculate the MW capacity fee by multiplying the project’s authorized MW capacity by 50 percent of the applicable solar technology MW rate. This phase-in will not be applied to renewed leases; and
(5) If the approved POD for your project provides for staged development, the BLM will calculate the MW capacity fee using the MW capacity approved for the current stage plus any previously approved stages, multiplied by the MW rate, as described under this section.
If a solar energy development project includes separate right-of-way authorizations issued for support facilities only (administration building, groundwater wells, construction lay down and staging areas, surface water management and control structures, etc.) or linear right-of-way facilities (pipelines, roads, power lines, etc.), rent is determined using the Per Acre Rent Schedule for linear facilities (see § 2806.20(c)).
§ 2806.58 Rent for energy development testing grants.
(a) Grants for energy site-specific testing. You must pay $100 per year for each meteorological tower or instrumentation facility location. BLM offices with approved small site rental schedules may use those fee structures if the fees in those schedules charge more than $100 per meteorological tower per year. In lieu of annual payments, you may instead pay for the entire term of the grant (3 years or less).
(b) Grants for energy project-area testing. You must pay $2,000 per year or $2 per acre per year for the lands authorized by the grant, whichever is greater. There is no additional rent for the installation of each meteorological tower or instrumentation facility located within the site testing and monitoring project-area.
Wind Energy Rights-of-Way
§ 2806.60 Rents and fees for wind energy rights-of-way.
If you hold a right-of-way authorizing wind energy site-specific testing or project-area testing or wind energy development, you must pay an annual rent and fee in accordance with this section and subpart. Your wind energy development right-of-way authorization will either be a grant (if issued under subpart 2804) or a lease (if issued under subpart 2809). Rents and fees for either type of authorization consist of an acreage rent that must be paid prior to issuance of the authorization and a phased-in MW capacity fee. Both the acreage rent and the phased-in MW capacity fee are charged and calculated consistent with § 2806.11 and prorated consistent with § 2806.12(a). The MW capacity fee will vary depending on the size of the wind energy development project.
§ 2806.61 Scheduled Rate Adjustment.
(a) The BLM will adjust your acreage rent and MW capacity fee over the course of your authorization as described in these regulations. For new grants or leases, you may choose either the standard rate adjustment method (see § 2806.52(a)(5) and (b)(3) for grants; see § 2806.54(a)(4) or (c) for leases) or the scheduled rate adjustment method (see § 2806.52(d) for grants; see § 2806.54(d) for leases). Once you select a rate adjustment method, that method will be fixed until you renew your grant or lease (see § 2807.22).
(b) For new grants or leases, if you select the scheduled rate adjustment method you must notify the BLM of your decision in writing. Your decision must be received by the BLM before your grant or lease is issued. If you do not select the scheduled rate adjustment method, the standard rate adjustment method will apply.
(c) If you hold a grant that is in effect prior to January 18, 2017, you may either accept the standard rate adjustment method or request in writing that the BLM apply the scheduled rate adjustment method, as set forth in § 2806.52(d), to your grant. To take advantage of the scheduled rate adjustment option, your request must be received by the BLM before December 19, 2018. The BLM will continue to apply the standard rate adjustment method to adjust your rates unless and until it receives your request to use the scheduled rate adjustment method.
§ 2806.62 Rents and fees for wind energy development grants.
You must pay an annual acreage rent and MW capacity fee for your wind energy development grant as follows:
(a) Acreage rent. The BLM will calculate the acreage rent by multiplying the number of acres (rounded up to the nearest tenth of an acre) within the authorized area times the per acre zone rate from the wind energy acreage rent schedule in effect at the time the authorization is issued.
(1) Per acre zone rate. The annual per acre zone rate from the wind energy acreage rent schedule is calculated using the per acre zone value (as assigned in accordance with paragraph (a)(2) of this section), encumbrance factor, rate of return, and the annual adjustment factor. The calculation for determining the annual per acre zone rate is A × B × C × D = E where:
(i) A is the per acre zone value = the same per- acre zone values described in the linear rent schedule in § 2806.20(c);
(ii) B is the encumbrance factor = 10 percent;
(iii) C is the rate of return = 5.27 percent;
(iv) D is the annual adjustment factor = the average annual change in the IPD-GDP for the 10-year period immediately preceding the year that the NASS Census data becomes available (see § 2806.22(a)). The BLM will adjust the per acre rates each year based on the average annual change in the IPD-GDP as determined under § 2806.22(a). Adjusted rates are effective each year on January 1; and
(v) E is the annual per acre zone rate.
(2) Assignment of counties. The BLM will calculate the per acre zone rate in paragraph (a)(1) of this section by using a State-specific factor to assign a county to a zone in the wind energy acreage rent schedule. The BLM will calculate a State-specific factor and apply it to the NASS data (county average per acre land and building value) to determine the per acre value and assign a county (or other geographical area) to a zone. The State-specific factor represents the percent difference between improved agricultural land and unimproved rangeland values, using NASS data. The calculation per acre for determining the State-specific factor is (A/B)−(C/D) = E where:
(i) A = the NASS Census statewide average per acre value of non-irrigated acres;
(ii) B = the NASS Census statewide average per acre land and building value;
(iii) C = the NASS Census total statewide acres in farmsteads, homes, buildings, livestock facilities, ponds, roads, wasteland, etc.;
(iv) D = the total statewide acres in farms; and
(v) E = the State-specific percent factor or 20 percent, whichever is greater.
(3) The initial assignment of counties to the zones on the wind energy acreage rent schedule will be based upon the most recent NASS Census data (2012) for years 2016 through 2020. The BLM may on its own or in response to requests consider making regional adjustments to those initial assignments, based on evidence that the NASS Census values do not accurately reflect those of the BLM-managed lands. The BLM will update this rent schedule once every 5 years by re-assigning counties to reflect the updated NASS Census values as described in § 2806.21 and recalculate the State-specific percent factor once every 10 years as described in § 2806.22(b).
(4) Acreage rent payment. You must pay the acreage rent regardless of the stage of development or operations on the entire public land acreage described in the right-of-way authorization. The BLM State Director may approve a rental payment plan consistent with § 2806.15(c).
(5) Acreage rent adjustments. This paragraph (a)(5) applies unless you selected the scheduled rate adjustment method (see § 2806.61). The BLM will adjust the acreage rent annually to reflect the change in the per acre zone rates as specified in paragraph (a)(1) of this section. The BLM will use the most current per acre zone rates to calculate the acreage rent for each year of the grant term.
(6) The acreage rent must be paid as described in § 2806.62(a) except for the initial implementation of the wind energy acreage rent schedule of section § 2806.62(c).
(7) You may obtain a copy of the current per acre zone rates for wind energy development (wind energy acreage rent schedule) from any BLM State, district, or field office or by writing: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Attention: Renewable Energy Coordination Office, Washington, DC 20003. The BLM also posts the current wind energy acreage rent schedule for wind energy development at http://www.blm.gov.
(b) MW capacity fee. The MW capacity fee is calculated by multiplying the approved MW capacity by the MW rate. You must pay the MW capacity fee annually when electricity generation begins or is scheduled to begin in the approved POD, whichever comes first.
(1) MW rate. The MW rate is calculated by multiplying the total hours per year by the net capacity factor, by the MWh price, by the rate of return. For an explanation of each of these terms, see the definition of MW rate in § 2801.5(b).
(2) MW rate schedule. You may obtain a copy of the current MW rate schedule for wind energy development from any BLM State, district, or field office or by writing: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Attention: Renewable Energy Coordination Office, Washington, DC 20003. The BLM also posts the current MW rate schedule for wind energy development at http://www.blm.gov.
(3) Periodic adjustments in the MW rate. This paragraph (b)(3) applies unless you selected the scheduled rate adjustment method (see § 2806.61). We will adjust the MW rate every 5 years, beginning in 2021, by recalculating the following two components of the MW rate formula:
(i) The adjusted MWh price is the average of the annual weighted average wholesale price per MWh for the major trading hubs serving the 11 Western States of the continental United States for the full 5 calendar-year period preceding the adjustment, rounded to the nearest dollar increment; and
(ii) The adjusted rate of return is the 10-year average of the 20-year U.S. Treasury bond yield for the full 10 calendar-year period preceding the adjustment, rounded to the nearest one-tenth percent, with a minimum rate of return of 4 percent.
(4) MW rate phase-in. This paragraph (b)(4) applies unless you selected the scheduled rate adjustment method (see § 2806.61). If you hold a wind energy development grant, the MW rate will be phased in as follows:
(i) There is a 3-year phase-in of the MW rate when electricity generation begins or is scheduled to begin in the approved POD, whichever comes first, at the rates of:
(A) 25 percent for the first year. This rate applies for the first partial calendar year of operations;
(B) 50 percent for the second year; and
(C) 100 percent for the third and subsequent years of operations.
(ii) After generation of electricity starts and an approved POD provides for staged development:
(A) The 3-year phase-in of the MW rate applies to each stage of development; and
(B) The MW capacity fee is calculated using the authorized MW capacity approved for that stage, plus any previously approved stages, multiplied by the MW rate.
(iii) The MW rate may be phased in further, as described in paragraph (c) of this section.
(5) The general payment provisions for rents described in this subpart, except for § 2806.14(a)(4), also apply to the MW capacity fee.
(c) Initial implementation of the acreage rent and MW capacity fee. This paragraph (c) applies unless you selected the scheduled rate adjustment method (see § 2806.61).
(1) If you hold a wind energy grant and made payments for billing year 2016, the BLM will reduce by 50 percent the net increase in annual costs between billing year 2017 and billing year 2016. The net increase will be calculated based on a full calendar year.
(2) If the BLM accepted your application for a wind energy development grant, including a plan of development and cost recovery agreement, prior to September 30, 2014, the BLM will phase in your payment of the acreage rent and MW capacity fee by reducing the:
(i) Acreage rent of the grant by 50 percent for the initial partial year of the grant; and
(ii) MW capacity fee by 75 percent for the first (initial partial) and second years and by 50 percent for the third and fourth years for which the BLM requires payment of the MW capacity fee. This reduction to the MW capacity fee applies to each stage of development.
(d) Scheduled rate adjustment. Under the scheduled rate adjustment (see § 2806.61), the BLM will update your per acre zone rate and MW rate as follows:
(1) The BLM will calculate your payments using the per acre zone rate (see § 2806.62(a)(1)) and MW rate (see § 2806.62(b)(1)) in place when your grant is issued, or for existing grants, the per acre zone rate and MW rate in place prior to December 19, 2016, as adjusted under paragraph (d)(6) of this section;
(2) The per acre zone rate will increase:
(i) Annually, beginning after the first full year plus the initial partial year, if any, your grant is in effect by the average annual change in the IPD-GDP as described in § 2806.22(b); and
(ii) Every 5 years, beginning after the first 5 years, plus the initial partial year, if any, your grant is in effect, by 20 percent;
(3) The MW rate will increase by 20 percent every 5 years, beginning after the first 5 years, plus the initial partial year, if any, your grant is in effect;
(4) The BLM will not apply the phase-in to your MW rate under § 2806.62(b)(4) or the reduction under § 2806.62(c); and
(5) If the approved POD for your project provides for staged development, the BLM will calculate the MW capacity fee using the MW capacity approved for that stage in question plus any previously approved stages, multiplied by the MW rate as described under this section.
(6) For grants in place prior to January 18, 2017 that select the scheduled rate adjustment method offered under § 2806.61(c), the per acre zone rate and the MW rate in place prior to December 19, 2016 will be adjusted for the first year’s payment using the scheduled rate adjustment method as follows:
(i) The per acre zone rate will increase by the average annual change in the IPD-GDP as described in § 2806.22(b) plus 20 percent;
(ii) The MW rate will increase by 20 percent; and
(iii) Subsequent increases will be performed as set forth in paragraphs (d)(2) and (3) of this section from the date of the initial adjustment under paragraph (d)(6) of this section.
§ 2806.64 Rents and fees for wind energy development leases.
If you hold a wind energy development lease obtained through competitive bidding under subpart 2809 of this part, you must make annual payments in accordance with this section and subpart, in addition to the one-time, up front bonus bid you paid to obtain the lease. The annual payment includes an acreage rent for the number of acres included within the wind energy lease and an additional MW capacity fee based on the total authorized MW capacity for the approved wind energy project on the public lands.
(a) Acreage rent. The BLM will calculate and bill you an acreage rent that must be paid prior to issuance of your lease as described in § 2806.62(a). This acreage rent will be based on the following:
(1) Per acre zone rate. See § 2806.62(a)(1).
(2) Assignment of counties. See § 2806.62(a)(2) and (3).
(3) Acreage rent payment. See § 2806.62(a)(4).
(4) Acreage rent adjustments. This paragraph (a)(4) applies unless you selected the scheduled rate adjustment method (see § 2806.61). Once the acreage rent is determined under § 2806.62(a), no further adjustments in the annual acreage rent will be made until year 11 of the lease term and each subsequent 10-year period thereafter. We will use the per acre zone rates in effect at the time the acreage rent is due (at the beginning of each 10-year period) to calculate the annual acreage rent for each of the subsequent 10-year periods.
(b) MW capacity fee. See § 2806.62(b) introductory text and (b)(1), (2), and (3).
(c) MW rate phase-in. This paragraph (c) applies unless you selected the scheduled rate adjustment method (see § 2806.61). If you hold a wind energy development lease, the MW capacity fee will be phased in, starting when electricity begins to be generated. The MW capacity fee for years 1-20 will be calculated using the MW rate in effect when the lease is issued. The MW capacity fee for years 21-30 will be calculated using the MW rate in effect in year 21 of the lease. These rates will be phased-in as follows:
(1) For years 1 through 10 of the lease, plus any initial partial year, the MW capacity fee is calculated by multiplying the project’s authorized MW capacity by 50 percent of the wind energy technology MW rate, as described in § 2806.62(b)(2);
(2) For years 11 through 20 of the lease, the MW capacity fee is calculated by multiplying the project’s authorized MW capacity by 100 percent of the wind energy technology MW rate described in § 2806.62(b)(2);
(3) For years 21 through 30 of the lease, the MW capacity fee is calculated by multiplying the project’s authorized MW capacity by 100 percent of the wind energy technology MW rate as described in § 2806.62(b)(2);
(4) If the lease is renewed, the MW capacity fee is calculated using the MW rates at the beginning of the renewed lease period and will remain at that rate through the initial 10 year period of the renewal term. The MW capacity fee will continue to adjust at the beginning of each subsequent 10 year period of the renewed lease term to reflect the then currently applicable MW rates; and
(5) If an approved POD provides for staged development, the MW capacity fee is calculated using the MW capacity approved for that stage plus any previously approved stage, multiplied by the MW rate, as described in this section.
(d) Scheduled rate adjustment. Under the scheduled rate adjustment (see § 2806.61), the BLM will update your per acre zone rate and MW rate as follows:
(1) The BLM will calculate your payments using the per acre zone rate (see § 2806.62(a)(1)) and MW rate (see § 2806.62(b)(1)) in place when your lease is issued;
(2) The per acre zone rate will increase every 10 years, beginning after the first 10 years, plus the initial partial year, if any, your lease is in effect, by the average annual change in the IPD-GDP for the preceding 10-year period as described in § 2806.22(b) plus 40 percent;
(3) The MW rate will increase by 40 percent every 10 years, beginning after the first 10 years, plus the initial partial year, if any, your lease is in effect;
(4) The BLM will not apply the phase-in to your MW rate under § 2806.62(c). Instead, for years 1 through 5, plus any initial partial year, the BLM will calculate the MW capacity fee by multiplying the project’s authorized MW capacity by 50 percent of the applicable solar technology MW rate. This phase-in will not be applied to renewed leases; and
(5) If the approved POD for your project provides for staged development, the BLM will calculate the MW capacity fee using the MW capacity approved for that stage in question plus any previously approved stages, multiplied by the MW rate as described under this section.
If a wind energy development project includes separate right-of-way authorizations issued for support facilities only (administration building, groundwater wells, construction lay down and staging areas, surface water management, and control structures, etc.) or linear right-of-way facilities (pipelines, roads, power lines, etc.), rent is determined using the Per Acre Rent Schedule for linear facilities (see § 2806.20(c)).
§ 2806.68 Rent for energy development testing grants.
(a) Grant for energy site-specific testing. You must pay $100 per year for each meteorological tower or instrumentation facility location. BLM offices with approved small site rental schedules may use those fee structures if the fees in those schedules charge more than $100 per meteorological tower per year. In lieu of annual payments, you may instead pay for the entire term of the grant (3 years or less).
(b) Grant for energy project-area testing. You must pay $2,000 per year or $2 per acre per year for the lands authorized by the grant, whichever is greater. There is no additional rent for the installation of each meteorological tower or instrumentation facility located within the site testing and monitoring project area.
Other Rights-of-Way
§ 2806.70 How will the BLM determine the payment for a grant or lease when the linear, communication use, solar energy, or wind energy payment schedules do not apply?
When we determine that the linear, communication use, solar, or wind energy payment schedules do not apply, we may determine your payment through a process based on comparable commercial practices, appraisals, competitive bids, or other reasonable methods. We will notify you in writing of the payment determination. If you disagree with the payment determination, you may appeal our final determination under § 2801.10.
Subpart 2807 – Grant Administration and Operation
§ 2807.10 When can I start activities under my grant?
When you can start depends on the terms of your grant. You can start activities when you receive the grant you and BLM signed, unless the grant includes a requirement for BLM to provide a written Notice to Proceed. If your grant contains a Notice to Proceed requirement, you may not initiate construction, operation, maintenance, or termination until BLM issues you a Notice to Proceed.
§ 2807.11 When must I contact BLM during operations?
You must contact BLM:
(a) At the times specified in your grant;
(b) When your use requires a substantial deviation from the grant. You must seek an amendment to your grant under § 2807.20 and obtain the BLM’s approval before you begin any activity that is a substantial deviation;
(c) When there is a change affecting your application or grant, including, but not limited to, changes in:
(1) Mailing address;
(2) Partners;
(3) Financial conditions; or
(4) Business or corporate status;
(d) Whenever site-specific circumstances or conditions result in the need for changes to an approved right-of-way grant or lease, POD, site plan, mitigation measures, or construction, operation, or termination procedures that are not substantial deviations in location or use authorized by a right-of-way grant or lease. Changes for authorized actions, project materials, or adopted mitigation measures within the existing, approved right-of-way area must be submitted to us for review and approval;
(e) To identify and correct discrepancies or inconsistencies;
(f) When you submit a certification of construction, if the terms of your grant require it. A certification of construction is a document you submit to BLM after you have finished constructing a facility, but before you begin operating it, verifying that you have constructed and tested the facility to ensure that it complies with the terms of the grant and with applicable Federal and state laws and regulations; or
(g) When BLM requests it. You must update information or confirm that information you submitted before is accurate.
§ 2807.12 If I hold a grant, for what am I liable?
(a) If you hold a grant, you are liable to the United States and to third parties for any damage or injury they incur in connection with your use and occupancy of the right-of-way.
(b) You are strictly liable for any activity or facility associated with your right-of-way area which BLM determines presents a foreseeable hazard or risk of damage or injury to the United States. BLM will specify in the grant any activity or facility posing such hazard or risk, and the financial limitations on damages commensurate with such hazard or risk.
(1) BLM will not impose strict liability for damage or injury resulting primarily from an act of war, an act of God, or the negligence of the United States, except as otherwise provided by law.
(2) As used in this section, strict liability extends to costs incurred by the Federal government to control or abate conditions, such as fire or oil spills, which threaten life, property, or the environment, even if the threat occurs to areas that are not under Federal jurisdiction. This liability is separate and apart from liability under other provisions of law.
(3) You are strictly liable to the United States for damage or injury up to $2 million for any one incident. BLM will update this amount annually to adjust for changes in the Consumer Price Index for All Urban Consumers, U.S. City Average (CPI-U) as of July of each year (difference in CPI-U from July of one year to July of the following year), rounded to the nearest $1,000. This financial limitation does not apply to the release or discharge of hazardous substances on or near the grant, or where liability is otherwise not subject to this financial limitation under applicable law.
(4) BLM will determine your liability for any amount in excess of the $2 million strict liability limitation (as adjusted) through the ordinary rules of negligence.
(5) The rules of subrogation apply in cases where a third party caused the damage or injury.
(c) If you cannot satisfy claims for injury or damage, all owners of any interests in, and all affiliates or subsidiaries of any holder of, a grant, except for corporate stockholders, are jointly and severally liable to the United States.
(d) If BLM issues a grant to more than one person, each is jointly and severally liable.
(e) By accepting the grant, you agree to fully indemnify or hold the United States harmless for liability, damage, or claims arising in connection with your use and occupancy of the right-of-way area.
(f) We address liability of state, tribal, and local governments in § 2807.13 of this subpart.
(g) The provisions of this section do not limit or exclude other remedies.
§ 2807.13 As grant holders, what liabilities do state, tribal, and local governments have?
(a) If you are a state, tribal, or local government or its agency or instrumentality, you are liable to the fullest extent law allows at the time that BLM issues your grant. If you do not have the legal power to assume full liability, you must repair damages or make restitution to the fullest extent of your powers.
(b) BLM may require you to provide a bond, insurance, or other acceptable security to:
(1) Protect the liability exposure of the United States to claims by third parties arising out of your use and occupancy of the right-of-way;
(2) Cover any losses, damages, or injury to human health, the environment, and property incurred in connection with your use and occupancy of the right-of-way; and
(3) Cover any damages or injuries resulting from the release or discharge of hazardous materials incurred in connection with your use and occupancy of the right-of-way.
(c) Based on your record of compliance and changes in risk and conditions, BLM may require you to increase or decrease the amount of your bond, insurance, or security.
(d) The provisions of this section do not limit or exclude other remedies.
§ 2807.14 How will BLM notify me if someone else wants a grant for land subject to my grant or near or adjacent to it?
BLM will notify you in writing when it receives a grant application for land subject to your grant or near or adjacent to it. BLM will consider your written recommendations as to how the proposed use affects the integrity of, or your ability to operate, your facilities. The notice will contain a time period within which you must respond. The notice may also notify you of additional opportunities to comment.
§ 2807.15 How is grant administration affected if the land my grant encumbers is transferred to another Federal agency or out of Federal ownership?
(a) If there is a proposal to transfer the land your grant encumbers to another Federal agency, BLM may, after reasonable notice to you, transfer administration of your grant for the lands BLM formerly administered to another Federal agency, unless doing so would diminish your rights. If BLM determines your rights would be diminished by such a transfer, BLM can still transfer the land, but retain administration of your grant under existing terms and conditions.
(b) The BLM will provide reasonable notice to you if there is a proposal to transfer the land your grant encumbers out of Federal ownership. If you request, the BLM will negotiate new grant terms and conditions with you. This may include increasing the term of your grant to a perpetual grant or providing for an easement. These changes, if any, become effective prior to the time the land is transferred out of Federal ownership. The BLM may then, in conformance with existing policies and procedures:
(1) Transfer the land subject to your grant or easement. In this case, administration of your grant or easement for the lands BLM formerly administered is transferred to the new owner of the land;
(2) Transfer the land, but BLM retains administration of your grant or easement; or
(3) Reserve to the United States the land your grant or easement encumbers, and BLM retains administration of your grant or easement.
(c) You and the new land owner may agree to negotiate new grant terms and conditions any time after the land encumbered by your grant is transferred out of Federal ownership.
§ 2807.16 Under what conditions may BLM order an immediate temporary suspension of my activities?
(a) If BLM determines that you have violated one or more of the terms, conditions, or stipulations of your grant, we can order an immediate temporary suspension of activities within the right-of-way area to protect public health or safety or the environment. BLM can require you to stop your activities before holding an administrative proceeding on the matter.
(b) BLM may issue the immediate temporary suspension order orally or in writing to you, your contractor or subcontractor, or to any representative, agent, or employee representing you or conducting the activity. When you receive the order, you must stop the activity immediately. BLM will, as soon as practical, confirm an oral order by sending or hand delivering to you or your agent at your address a written suspension order explaining the reasons for it.
(c) You may file a written request for permission to resume activities at any time after BLM issues the order. In the request, give the facts supporting your request and the reasons you believe that BLM should lift the order. BLM must grant or deny your request within 5 business days after receiving it. If BLM does not respond within 5 business days, BLM has denied your request. You may appeal the denial under § 2801.10 of this part.
(d) The immediate temporary suspension order is effective until you receive BLM’s written notice to proceed with your activities.
§ 2807.17 Under what conditions may BLM suspend or terminate my grant?
(a) BLM may suspend or terminate your grant if you do not comply with applicable laws and regulations or any terms, conditions, or stipulations of the grant (such as rent payments), or if you abandon the right-of-way.
(b) A grant also terminates when:
(1) The grant contains a term or condition that has been met that requires the grant to terminate;
(2) BLM consents in writing to your request to terminate the grant; or
(3) It is required by law to terminate.
(c) Your failure to use your right-of-way for its authorized purpose for any continuous 5-year period creates a presumption of abandonment. BLM will notify you in writing of this presumption. You may rebut the presumption of abandonment by proving that you used the right-of-way or that your failure to use the right-of-way was due to circumstances beyond your control, such as acts of God, war, or casualties not attributable to you.
(d) The BLM may suspend or terminate another Federal agency’s grant only if:
(1) The terms and conditions of the Federal agency’s grant allow it; or
(2) The agency head holding the grant consents to it.
(e) You may appeal a decision under this section under § 2801.10 of this part.
§ 2807.18 How will I know that BLM intends to suspend or terminate my grant?
(a) Before BLM suspends or terminates your grant under § 2807.17(a) of this subpart, it will send you a written notice stating that it intends to suspend or terminate your grant and giving the grounds for such action. The notice will give you a reasonable opportunity to correct any noncompliance or start or resume use of the right-of-way, as appropriate.
(b) To suspend or terminate a grant issued as an easement, BLM must give you written notice and refer the matter to the Office of Hearings and Appeals for a hearing before an ALJ under 5 U.S.C. 554. No hearing is required if the grant provided by its terms for termination on the occurrence of a fixed or agreed upon condition, event, or time. If the ALJ determines that grounds for suspension or termination exist and such action is justified, BLM will suspend or terminate the grant.
§ 2807.19 When my grant terminates, what happens to any facilities on it?
(a) After your grant terminates, you must remove any facilities within the right-of-way within a reasonable time, as determined by BLM, unless BLM instructs you otherwise in writing, or termination is due to non-payment of rent (see § 2806.13(c) of this part).
(b) After removing the facilities, you must remediate and restore the right-of-way area to a condition satisfactory to BLM, including the removal and clean up of any hazardous materials.
(c) If you do not remove all facilities within a reasonable period as determined by BLM, BLM may declare them to be the property of the United States. However, you are still liable for the costs of removing them and for remediating and restoring the right-of-way area.
§ 2807.20 When must I amend my application, seek an amendment of my grant, or obtain a new grant?
(a) You must amend your application or seek an amendment of your grant when there is a proposed substantial deviation in location or use.
(b) The requirements to amend an application or grant are the same as those for a new application, including paying processing and monitoring fees and rent according to §§ 2804.14, 2805.16, and 2806.10 of this part.
(c) Any activity not authorized by your grant may subject you to prosecution under applicable law and to trespass charges under subpart 2808 of this part.
(d) If your grant was issued prior to October 21, 1976, and there is a proposed substantial deviation in the location or use or terms and conditions of your right-of-way grant, you must apply for a new grant consistent with the remainder of this section. BLM may respond to your request in one of the following ways:
(1) If BLM approves your application, BLM will terminate your old grant and you will receive a new grant under 43 U.S.C. 1761 et seq. and the regulations in this part. BLM may include the same terms and conditions in the new grant as were in the original grant as to annual rent, duration, and nature of interest if BLM determines, based on current land use plans and other management decisions, that it is in the public interest to do so; or
(2) Alternatively, BLM may keep the old grant in effect and issue a new grant for the new use or location, or terms and conditions.
(e) You must apply for a new grant to allow realignment of your railroad and appurtenant communication facilities. BLM must issue a decision within 6 months after it receives your complete application. BLM may include the same terms and conditions in the new grant as were in the original grant as to annual rent, duration, and nature of interest if:
(1) These terms are in the public interest;
(2) The lands are of approximately equal value; and
(3) The lands involved are not within an incorporated community.
§ 2807.21 May I assign or make other changes to my grant or lease?
(a) With the BLM’s approval, you may assign, in whole or in part, any right or interest in a grant or lease. Assignment actions that may require BLM approval include, but are not limited to, the following:
(1) The transfer by the holder (assignor) of any right or interest in the grant or lease to a third party (assignee); and
(2) Changes in ownership or other related change in control transactions involving the BLM right-of-way holder and another business entity (assignee), including corporate mergers or acquisitions, but not transactions within the same corporate family.
(b) The BLM may require a grant or lease holder to file new or revised information in some circumstances that do not constitute an assignment (see subpart 2803 and §§ 2804.12(e) and 2807.11). Circumstances that would not constitute an assignment but may necessitate this filing include, but are not limited to:
(1) Transactions within the same corporate family;
(2) Changes in the holder’s name only (see paragraph (h) of this section); and
(3) Changes in the holder’s articles of incorporation.
(c) In order to assign a grant or lease, the proposed assignee must file an assignment application and follow the same procedures and standards as for a new grant or lease, including paying application and processing fees, and the grant must be in compliance with the terms and conditions of § 2805.12. The preliminary application review meetings and public meeting under §§ 2804.12 and 2804.25 are not required for an assignment. We will not approve any assignment until the assignor makes any outstanding payments that are due (see § 2806.13(g)).
(d) The assignment application must also include:
(1) Documentation that the assignor agrees to the assignment; and
(2) A signed statement that the proposed assignee agrees to comply with and be bound by the terms and conditions of the grant that is being assigned and all applicable laws and regulations.
(e) Your assignment is not recognized until the BLM approves it in writing. We will approve the assignment if doing so is in the public interest. Except for leases issued under subpart 2809 of this part, we may modify the grant or lease or add bonding and other requirements, including additional terms and conditions, to the grant or lease when approving the assignment, unless a modification to a lease issued under subpart 2809 of this part is required under § 2805.15(e). We may decrease rents if the new holder qualifies for an exemption (see § 2806.14) or waiver or reduction (see § 2806.15) and the previous holder did not. Similarly, we may increase rents if the previous holder qualified for an exemption or waiver or reduction and the new holder does not. If we approve the assignment, the benefits and liabilities of the grant or lease apply to the new grant or lease holder.
(f) The processing time and conditions described at § 2804.25(d) of this part apply to assignment applications.
(g) Only interests in issued right-of-way grants and leases are assignable. Except for applications submitted by a preferred applicant under § 2804.30(g), pending right-of-way applications do not create any property rights or other interest and may not be assigned from one entity to another, except that an entity with a pending application may continue to pursue that application even if that entity becomes a wholly owned subsidiary of a new third party.
(h) To complete a change in name only, (i.e., when the name change in question is not the result of an underlying change in control of the right-of-way grant), the following requirements must be met:
(1) The holder must file an application requesting a name change and follow the same procedures as for a new grant, including paying processing fees. However, the application fees (see subpart 2804 of this part) and the preliminary application review and public meetings (see §§ 2804.12 and 2804.25) are not required. The name change request must include:
(i) If the name change is for an individual, a copy of the court order or other legal document effectuating the name change; or
(ii) If the name change is for a corporation, a copy of the corporate resolution(s) proposing and approving the name change, a copy of the acceptance of the change in name by the State or Territory in which it is incorporated, and a copy of the appropriate resolution, order or other documentation showing the name change.
(2) When reviewing a proposed name change only, we may determine it is necessary to:
(i) Modify a grant issued under subpart 2804 to add bonding and other requirements, including additional terms and conditions to the grant; or
(ii) Modify a lease issued under subpart 2809 in accordance with § 2805.15(e).
(3) Your name change is not recognized until the BLM approves it in writing.
§ 2807.22 How do I renew my grant or lease?
(a) If your grant or lease specifies the terms and conditions for its renewal, and you choose to renew it, you must request a renewal from the BLM at least 120 calendar days before your grant or lease expires consistent with the renewal terms and conditions specified in your grant or lease. We will renew the grant or lease if you are in compliance with the renewal terms and conditions; the other terms, conditions, and stipulations of the grant or lease; and other applicable laws and regulations.
(b) If your grant or lease does not specify the terms and conditions for its renewal, you may apply to us to renew the grant or lease. You must send us your application at least 120 calendar days before your grant or lease expires. In your application you must show that you are in compliance with the terms, conditions, and stipulations of the grant or lease and other applicable laws and regulations, and explain why a renewal of your grant or lease is necessary. We may approve or deny your application to renew your grant or lease.
(c) Submit your application under paragraph (a) or (b) of this section and include the same information necessary for a new application (see subpart 2804 of this part). You must reimburse BLM in advance for the administrative costs of processing the renewal in accordance with § 2804.14 of this part.
(d) We will review your application and determine the applicable terms and conditions of any renewed grant or lease.
(e) BLM will not renew grants issued before October 21, 1976. If you hold such a grant and would like to continue to use the right-of-way beyond your grant’s expiration date, you must apply to BLM for a new FLPMA grant (see subpart 2804 of this part). You must send BLM your application at least 120 calendar days before your grant expires.
(f) If you make a timely and sufficient application for a renewal of your existing grant or lease, or for a new grant or lease, in accordance with this section, the existing grant does not expire until we have issued a decision to approve or deny the application.
(g) If BLM denies your application, you may appeal the decision under § 2801.10 of this part.
Subpart 2808 – Trespass
§ 2808.10 What is trespass?
(a) Trespass is using, occupying, or developing the public lands or their resources without a required authorization or in a way that is beyond the scope and terms and conditions of your authorization. Trespass is a prohibited act.
(b) Trespass includes acts or omissions causing unnecessary or undue degradation to the public lands or their resources. In determining whether such degradation is occurring, BLM may consider the effects of the activity on resources and land uses outside the area of the activity.
(c) There are two kinds of trespass, willful and non-willful.
(1) Willful trespass is voluntary or conscious trespass and includes trespass committed with criminal or malicious intent. It includes a consistent pattern of actions taken with knowledge, even if those actions are taken in the belief that the conduct is reasonable or legal.
(2) Non-willful trespass is trespass committed by mistake or inadvertence.
§ 2808.11 What will BLM do if it determines that I am in trespass?
(a) BLM will notify you in writing of the trespass and explain your liability. Your liability includes:
(1) Reimbursing the United States for all costs incurred in investigating and terminating the trespass;
(2) Paying the rental for the lands, as provided for in subpart 2806 of this part, for the current and past years of trespass, or, where applicable, the cumulative value of the current use fee, amortization fee, and maintenance fee for unauthorized use of any BLM-administered road; and
(3) Rehabilitating and restoring any damaged lands or resources. If you do not rehabilitate and restore the lands and resources within the time set by BLM in the notice, you will be liable for the costs the United States incurs in rehabilitating and restoring the lands and resources.
(b) In addition to amounts you owe under paragraph (a) of this section, BLM may assess penalties as follows:
(1) For willful or repeated non-willful trespass, the penalty is two times the rent. For roads, the penalty is two times the charges for road use, amortization, and maintenance which have accrued since the trespass began.
(2) For non-willful trespass not resolved within 30 calendar days after receiving the written notice under paragraph (a) of this section, the penalty is an amount equal to the rent. To resolve the trespass you must meet one of the conditions identified in 43 CFR 9239.7-1. For roads, the penalty is an amount equal to the charges for road use, amortization, and maintenance which have accrued since the trespass began.
(c) The penalty will not be less than the fee for a Processing Category 2 application (see § 2804.14 of this part) for non-willful trespass or less than three times this amount for willful or repeated non-willful trespass. You must pay whichever is the higher of:
(1) The amount computed in paragraph (b) of this section; or
(2) The minimum penalty amount in paragraph (c) of this section.
(d) In addition to civil penalties under paragraph (b) of this section, you may be tried before a United States magistrate judge and fined no more than $1,000 or imprisoned for no more than 12 months, or both, for a knowing and willful trespass, as provided at 43 CFR 9262.1 and 43 U.S.C. 1733(a).
(e) Until you comply with the requirements of 43 CFR 9239.7-1, BLM will not process any of your applications for any activities on BLM lands.
(f) You may appeal a trespass decision under § 2801.10 of this part.
(g) Nothing in this section limits your liability under any other Federal or state law.
§ 2808.12 May I receive a grant if I am or have been in trespass?
Until you satisfy your liability for a trespass, BLM will not process any applications you have pending for any activity on BLM-administered lands. A history of trespass will not necessarily disqualify you from receiving a grant. In order to correct a trespass, you must apply under the procedures described at subpart 2804 of this part. BLM will process your application as if it were a new use. Prior unauthorized use does not create a preference for receiving a grant.
Subpart 2809 – Competitive Process for Leasing Public Lands for Solar and Wind Energy Development Inside Designated Leasing Areas
§ 2809.10 General.
(a) Lands inside designated leasing areas may be made available for solar and wind energy development through a competitive leasing offer process established by the BLM under this subpart.
(b) The BLM may include lands in a competitive offer on its own initiative.
(c) The BLM may solicit nominations by publishing a call for nominations under § 2809.11(a).
(d) The BLM will generally prioritize the processing of “leases” awarded under this subpart over the processing of non-competitive “grant” applications under subpart 2804, including those that are “high priority” under § 2804.35.
§ 2809.11 How will the BLM solicit nominations?
(a) Call for nominations. The BLM will publish a notice in the
(b) Nomination submission. A nomination must be in writing and must include the following:
(1) Nomination fee. If you nominate a specific parcel of land under paragraph (a) of this section, you must also include a non-refundable nomination fee of $5 per acre. We will adjust the nomination fee once every 10 years using the change in the IPD-GDP for the preceding 10-year period and round it to the nearest half dollar. This 10 year average will be adjusted at the same time as the per acre rent schedule for linear rights-of-way under § 2806.22;
(2) Nominator’s name and personal or business address. The name of only one citizen, association, partnership, corporation, or municipality may appear as the nominator. All communications relating to leasing will be sent to that name and address, which constitutes the nominator’s name and address of record; and
(3) The legal land description and a map of the nominated lands.
(c) We may consider informal expressions of interest suggesting lands to be included in a competitive offer. If you submit a written expression of interest, you must provide a description of the suggested lands and rationale for their inclusion in a competitive offer.
(d) In order to submit a nomination, you must be qualified to hold a grant or lease under § 2803.10.
(e) Nomination withdrawals. A nomination cannot be withdrawn, except by the BLM for cause, in which case all nomination monies will be refunded to the nominator.
§ 2809.12 How will the BLM select and prepare parcels?
(a) The BLM will identify parcels for competitive offer based on nominations and expressions of interest or on its own initiative.
(b) The BLM and other Federal agencies, as applicable, will conduct necessary studies and site evaluation work, including applicable environmental reviews and public meetings, before offering lands competitively.
§ 2809.13 How will the BLM conduct competitive offers?
(a) Variety of competitive procedures available. The BLM may use any type of competitive process or procedure to conduct its competitive offer, and any method, including the use of the Internet, to conduct the actual auction or competitive bid procedure. Possible bid procedures could include, but are not limited to: Sealed bidding, oral auctions, modified competitive bidding, electronic bidding, and any combination thereof.
(b) Notice of competitive offer. We will publish a notice in the
(1) The date, time, and location, if any, of the competitive offer;
(2) The legal land description of the parcel to be offered;
(3) The bidding methodology and procedures to be used in conducting the competitive offer, which may include any of the competitive procedures identified in paragraph (a) of this section;
(4) The minimum bid required (see § 2809.14(a)), including an explanation of how we determined this amount;
(5) The qualification requirements for potential bidders (see § 2803.10);
(6) If a variable offset (see § 2809.16) is offered:
(i) The percent of each offset factor;
(ii) How bidders may pre-qualify for each offset factor; and
(iii) The documentation required to pre-qualify for each offset factor; and
(7) The terms and conditions of the lease, including the requirements for the successful bidder to submit a POD for the lands involved in the competitive offer (see § 2809.18) and any lease mitigation requirements, including compensatory mitigation for residual impacts associated with the right-of-way.
(c) We will notify you in writing of our decision to conduct a competitive offer at least 30 days prior to the competitive offer if you nominated lands and paid the nomination fees required by § 2809.11(b)(1).
§ 2809.14 What types of bids are acceptable?
(a) Bid submissions. The BLM will accept your bid only if:
(1) It includes the minimum bid and at least 20 percent of the bonus bid; and
(2) The BLM determines that you are qualified to hold a grant or lease under § 2803.10. You must include documentation of your qualifications with your bid, unless we have previously approved your qualifications under § 2809.10(d) or § 2809.11(d).
(b) Minimum bid. The minimum bid is not prorated among all bidders, but must be paid entirely by the successful bidder. The minimum bid consists of:
(1) The administrative costs incurred by the BLM and other Federal agencies in preparing for and conducting the competitive offer, including required environmental reviews; and
(2) An amount determined by the authorized officer and disclosed in the notice of competitive offer. This amount will be based on known or potential values of the parcel. In setting this amount, the BLM will consider factors that include, but are not limited to, the acreage rent and megawatt capacity fee.
(c) Bonus bid. The bonus bid consists of any dollar amount that a bidder wishes to bid in addition to the minimum bid.
(d) If you are not the successful bidder, as defined in § 2809.15(a), the BLM will refund your bid.
§ 2809.15 How will the BLM select the successful bidder?
(a) The bidder with the highest total bid, prior to any variable offset, is the successful bidder and may be offered a lease in accordance with § 2805.10.
(b) The BLM will determine the variable offsets for the successful bidder in accordance with § 2809.16 before issuing final payment terms.
(c) Payment terms. If you are the successful bidder, you must:
(1) Make payments by personal check, cashier’s check, certified check, bank draft, or money order, or by other means deemed acceptable by the BLM, payable to the Department of the Interior – Bureau of Land Management;
(2) By the close of official business hours on the day of the offer or such other time as the BLM may have specified in the offer notices, submit for each parcel:
(i) Twenty percent of the bonus bid (before the offsets are applied under paragraph (b) of this section); and
(ii) The total amount of the minimum bid specified in § 2809.14(b);
(3) Within 15 calendar days after the day of the offer, submit the balance of the bonus bid (after the variable offsets are applied under paragraph (b) of this section) to the BLM office conducting the offer; and
(4) Within 15 calendar days after the day of the offer, submit the acreage rent for the first full year of the solar or wind energy development lease as provided in § 2806.54(a) or § 2806.64(a), respectively. This amount will be applied toward the first 12 months acreage rent, if the successful bidder becomes the lessee.
(d) The BLM will offer you a right-of-way lease if you are the successful bidder and:
(1) Satisfy the qualifications in § 2803.10;
(2) Make the payments required under paragraph (c) of this section; and
(3) Do not have any trespass action pending against you for any activity on BLM-administered lands (see § 2808.12) or have any unpaid debts owed to the Federal Government.
(e) The BLM will not offer a lease to the successful bidder and will keep all money that has been submitted, if the successful bidder does not satisfy the requirements of paragraph (d) of this section. In this case, the BLM may offer the lease to the next highest bidder under § 2809.17(b) or re-offer the lands under § 2809.17(d).
§ 2809.16 When do variable offsets apply?
(a) The successful bidder may be eligible for an offset of up to 20 percent of the bonus bid based on the factors identified in the notice of competitive offer.
(b) The BLM may apply a variable offset to the bonus bid of the successful bidder. The notice of competitive offer will identify each factor of the variable offset, the specific percentage for each factor that would be applied to the bonus bid, and the documentation required to be provided to the BLM prior to the day of the offer to qualify for the offset. The total variable offset cannot be greater than 20 percent of the bonus bid.
(c) The variable offset may be based on any of the following factors:
(1) Power purchase agreement;
(2) Large generator interconnect agreement;
(3) Preferred solar or wind energy technologies;
(4) Prior site testing and monitoring inside the designated leasing area;
(5) Pending applications inside the designated leasing area;
(6) Submission of nomination fees;
(7) Submission of biological opinions, strategies, or plans;
(8) Environmental benefits;
(9) Holding a solar or wind energy grant or lease on adjacent or mixed land ownership;
(10) Public benefits; and
(11) Other similar factors.
(d) The BLM will determine your variable offset prior to the competitive offer.
§ 2809.17 Will the BLM ever reject bids or re-conduct a competitive offer?
(a) The BLM may reject bids regardless of the amount offered. If the BLM rejects your bid under this provision, you will be notified in writing and such notice will include the reason(s) for the rejection and what refunds to which you are entitled. If the BLM rejects a bid, the bidder may appeal that decision under § 2801.10.
(b) We may offer the lease to the next highest qualified bidder if the successful bidder does not execute the lease or is for any reason disqualified from holding the lease.
(c) If we are unable to determine the successful bidder, such as in the case of a tie, we may re-offer the lands competitively (under § 2809.13) to the tied bidders or to all prospective bidders.
(d) If lands offered under § 2809.13 receive no bids, we may:
(1) Re-offer the lands through the competitive process under § 2809.13; or
(2) Make the lands available through the non-competitive application process found in subparts 2803, 2804, and 2805 of this part, if we determine that doing so is in the public interest.
§ 2809.18 What terms and conditions apply to leases?
The lease will be issued subject to the following terms and conditions:
(a) Lease term. The term of your lease includes the initial partial year in which it is issued, plus 30 additional full years. The lease will terminate on December 31 of the final year of the lease term. You may submit an application for renewal under § 2805.14(g).
(b) Rent. You must pay rent as specified in:
(1) Section 2806.54, if your lease is for solar energy development; or
(2) Section 2806.64, if your lease is for wind energy development.
(c) POD. You must submit, within 2 years of the lease issuance date, a POD that:
(1) Is consistent with the development schedule and other requirements in the POD template posted at http://www.blm.gov; and
(2) Addresses all pre-development and development activities.
(d) Cost recovery. You must pay the reasonable costs for the BLM or other Federal agencies to review and approve your POD and to monitor your lease. To expedite review of your POD and monitoring of your lease, you may notify BLM in writing that you are waiving paying reasonable costs and are electing to pay the full actual costs incurred by the BLM.
(e) Performance and reclamation bond. (1) For Solar Energy Development, you must provide a bond in the amount of $10,000 per acre prior to written approval to proceed with ground disturbing activities.
(2) For Wind Energy Development, you must provide a bond in the amount of $10,000 per authorized turbine less than 1 MW in nameplate capacity or $20,000 per authorized turbine equal or greater than 1 MW in nameplate capacity prior to written approval to proceed with ground disturbing activities.
(3) For testing and monitoring sites authorized under a development lease, you must provide a bond in the amount of $2,000 per site prior to receiving written approval to proceed with ground disturbing activities.
(4) The BLM will adjust the solar and wind energy development bond amounts every 10 years using the change in the IPD-GDP for the preceding 10-year period rounded to the nearest $100. This 10-year average will be adjusted at the same time as the Per Acre Rent Schedule for linear rights-of-way under § 2806.22.
(f) Assignments. You may assign your lease under § 2807.21, and if an assignment is approved, the BLM will not make any changes to the lease terms or conditions, as provided for by § 2807.21(e) except for modifications required under § 2805.15(e).
(g) Due diligence of operations. You must start construction within 5 years and begin generation of electricity no later than 7 years from the date of lease issuance, as specified in your approved POD. A request for an extension may be granted for up to 3 years with a show of good cause and approval by the BLM.
§ 2809.19 Applications in designated leasing areas or on lands that later become designated leasing areas.
(a) Applications for solar or wind energy development filed on lands outside of designated leasing areas, which subsequently become designated leasing areas will:
(1) Continue to be processed by the BLM and are not subject to the competitive leasing offer process of this subpart, if such applications are filed prior to the publication of the notice of intent or other public announcement from the BLM of the proposed land use plan amendment to designate the solar or wind leasing area; or
(2) Remain in pending status unless withdrawn by the applicant, denied, or issued a grant by the BLM, or the subject lands become available for application or leasing under this part, if such applications are filed on or after the date of publication of the notice of intent or other public announcement from the BLM of the proposed land use plan amendment to designate the solar or wind leasing area.
(3) Resume being processed by the BLM if your application is pending under paragraph (a)(2) of this section and the lands become available for application under § 2809.17(d)(2).
(b) An applicant that submits a bid on a parcel of land for which an application is pending under paragraph (a)(2) of this section may:
(1) Qualify for a variable offset under § 2809.16; and
(2) Receive a refund for any unused application fees or processing costs if the lands identified in the application are subsequently leased to another entity under § 2809.13.
(c) After the effective date of this regulation, the BLM will not accept a new application for solar or wind energy development inside designated leasing areas (see §§ 2804.12(b)(1) and 2804.23(e)), except as provided by § 2809.17(d)(2).
(d) You may file a new application under part 2804 for testing and monitoring purposes inside designated leasing areas. If the BLM approves your application, you will receive a short term grant in accordance with § 2805.11(b)(2)(i) or (ii), which may qualify you for an offset under § 2809.16.
PART 2810 – TRAMROADS AND LOGGING ROADS
Subpart 2812 – Over O. and C. and Coos Bay Revested Lands
§ 2812.0-3 Authority.
Sections 303 and 310 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1732, 1733, and 1740), and the Act of August 28, 1937 (43 U.S.C. 1181a and 1181b), provide for the conservation and management of the Oregon and California Railroad lands and the Coos Bay Wagon Road lands and authorize the Secretary of the Interior to issue regulations providing for the use, occupancy, and development of the public lands through permits and rights-of-way.
§ 2812.0-5 Definitions.
Except as the context may otherwise indicate, as the terms are used in this paragraph:
(a) Bureau means Bureau of Land Management.
(b) Timber of the United States or federal timber means timber owned by the United States or managed by any agency thereof, including timber on allotted and tribal Indian lands in the O. and C. area.
(c) State Director means the State Director, Bureau of Land Management, or his authorized representative.
(d) Authorized Officer means an employee of the Bureau of Land Management to whom has been delegated the authority to take action.
(e) O. and C. lands means the Revested Oregon and California Railroad and Reconveyed Coos Bay Wagon Road Grant Lands, other lands administered by the Bureau under the provisions of the act approved August 28, 1937, and the public lands administered by the Bureau of Land Management which are in Oregon and in and west of Range 8 E., Willamette Meridian, Oregon.
(f) Tramroads include tramways, and wagon or motor-truck roads to be used in connection with logging, and the manufacturing of lumber; it also includes railroads to be used principally for the transportation, in connection with such activities, of the property of the owner of such railroad.
(g) Management means police protection, fire presuppression and suppression, inspection, cruising, reforesting, thinning, stand improvement, inventorying, surveying, construction and maintenance of improvements, disposal of land, the eradication of forest insects, pests and disease, and other activities of a similar nature.
(h) Licensee of the United States is, with respect to any road or right-of-way, any person who is authorized to remove timber or forest products from lands of the United States, or to remove timber or forest products from other lands committed by a cooperative agreement to coordinated administration with the timber of the United States over such road or right-of-way while it is covered by an outstanding permit, or while a former permittee is entitled to receive compensation for such use under the provisions of these regulations. A licensee is not an agent of the United States.
(i) Direct control of a road, right-of-way, or land, by an applicant for a permit hereunder means that such applicant has authority to permit the United States and its licensees to use such road, right-of-way of land in accordance with this paragraph.
(j) Indirect control of a road, right-of-way, or land, by an applicant hereunder means that such road, right-of-way, or land, is not directly controlled by him but is subject to use by him or by:
(1) A principal, disclosed or undisclosed, of the applicant; or
(2) A beneficiary of any trust or estate administered or established by the applicant; or
(3) Any person having or exercising the right to designate the immediate destination of the timber to be transported over the right-of-way for which application is made; or
(4) Any person who at any time has owned, or controlled the disposition of the timber to be transported over the right-of-way applied for, and during the 24 months preceding the filing of the application has disposed of such ownership or control to the applicant or his predecessor, under an agreement reserving or conferring upon the grantor the right to share directly or indirectly in the proceeds realized upon the grantee’s disposal to third persons of the timber or products derived therefrom or the right to reacquire ownership or control of all or any part of the timber prior to the time when it undergoes its first mechanical alteration from the form of logs; or
(5) Any person who stands in such relation to the applicant that there is liable to be absence of arm’s length bargaining in transactions between them relating to such road, rights-of-way, or lands.
§ 2812.0-6 Statement of policy.
(a) The intermingled character of the O. and C. lands presents peculiar problems of management which require for their solution the cooperation between the Federal Government and the owners of the intermingled lands, particularly with respect to timber roads.
(b) It is well established that the value of standing timber is determined in significant part by the cost of transporting the logs to the mill. Where there is an existing road which is adequate or can readily be made adequate for the removal of timber in the area, the failure to make such road available for access to all the mature and overmature timber it could tap leads to economic waste. Blocks of timber which are insufficient in volume or value to support the construction of a duplicating road may be left in the woods for lack of access over the existing road. Moreover, the duplication of an existing road reduces the value of the federal and other timber which is tapped by the existing road.
(c) It is also clear that the Department of the Interior, which is responsible for the conservation of the resources of the O. and C. lands and is charged specifically with operating the timber lands on a sustained-yield basis, must have access to these lands for the purpose of managing them and their resources. In addition, where the public interest requires the disposition of Federal timber by competitive bidding, prospective bidders must have an opportunity to reach the timber to be sold. Likewise, where other timber is committed by cooperative agreement to coordinated administration with timber of the United States, there must be access to both.
(d) Accordingly, to the extent that in the judgment of the authorized officer it appears necessary to accomplish these purposes, when the United States, acting through the Bureau of Land Management, grants a right-of-way across O. and C. lands to a private operator, the private operator will be required to grant to the United States for use by it and its licensees:
(1) Rights-of-way across lands controlled directly or indirectly by him;
(2) The right to use, to the extent indicated in §§ 2812.3-5 and 2812.3-6, any portions of the road system or rights-of-way controlled directly or indirectly by the private operator which is adequate or can economically be made adequate to accommodate the probable normal requirements of both the operator and of the United States and its licensees, and which form an integral part of or may be added to the road system with which the requested right-of-way will connect;
(3) The right to extend such road system across the operator’s lands to reach federal roads or timber; and
(4) In addition, in the limited circumstances set forth in § 2812.3-2 of this subpart the right to use certain other roads and rights-of-way. The permit will describe by legal subdivisions the lands of the operator as to which the United States receives rights. In addition, the extent and duration of the rights received by the United States will be specifically stated in the permit and ordinarily will embrace only those portions of such road system, rights-of-way and lands as may be actually needed for the management and removal of federal timber, or other timber committed by a cooperative agreement to coordinated administration with timber of the United States.
(e) When the United States or a licensee of the United States uses any portion of a permittee’s road system for the removal of forest products, the permittee will be entitled to receive just compensation, including a fair share of the maintenance and amortization charges attributable to such road, and to prescribe reasonable road operating rules, in accordance with §§ 2812.3-7 to 2812.4-4.
(f) As some examples of how this policy would be applied in particular instances, the United States may issue a permit under subpart 2812 without requesting any rights with respect to roads, rights-of-way or lands which the authorized officer finds will not be required for management of or access to Federal timber, or timber included in a cooperative agreement. Where, however, the authorized officer finds that there is a road controlled directly or indirectly by the applicant, which will be needed for such purposes and which he finds either has capacity to accommodate the probable normal requirements both of the applicant and of the Government and its licensees, or such additional capacity can be most economically provided by an investment in such road system by the Government rather than by the construction of a duplicate road, he may require, for the period of time during which the United States and its licensees will have need for the road, the rights to use the road for the marketing and management of its timber and of timber included in a cooperative agreement in return for the granting of rights-of-way across O. and C. lands, and an agreement that the road builder will be paid a fair share of the cost of the road and its maintenance. Where it appears to the authorized officer that such a road will not be adequate or cannot economically be enlarged to handle the probable normal requirements both of the private operator and of the United States and its licensees, or even where the authorized officer has reasonable doubt as to such capacity, he will not request rights over such a road. Instead, the Bureau will make provision for its own road system either by providing in its timber sale contracts that in return for the road cost allowance made in fixing the appraised value of the timber, timber purchasers will construct or extend a different road system, or by expending for such construction or by extension monies appropriated for such purposes by the Congress, or, where feasible, by using an existing duplicating road over which the Government has obtained road rights. In such circumstances, however, road cost and maintenance allowances made in the stumpage price of O. and C. timber will be required to be applied to the road which the Bureau has the right to use, and thereafter will not in any circumstances be available for amortization or maintenance costs of the applicant’s road.
(g) When a right-of-way permit is issued for a road or road system over which the United States obtains rights of use for itself and its licensees, the authorized officer will seek to agree with the applicant respecting such matters as the time, route, and specifications for the future development of the road system involved; the portion of the capital and maintenance costs of the road system to be borne by the timber to be transported over the road system by the United States and its licensees; a formula for determining the proportion of the capacity of the road system which is to be available to the United States and its licensees for the transportation of forest products; and other similar matters respecting the use of the road by the United States and its licensees and the compensation payable therefor. To the extent that any such matter is not embraced in such an agreement, it will be settled by negotiation between the permittee and the individual licensees of the United States who use the road, and, in the event of their disagreement, by private arbitration between them in accordance with the laws of the State of Oregon.
(h) The authorized officer may in his discretion, issue short term right-of-way permits for periods not exceeding three years, subject to one-year extensions in his discretion. Such permits shall specify the volume of timber which may be carried over the right-of-way and the area from which such timber may be logged. The permits shall be revocable by the authorized officer, the State Director, or the Secretary for violation of their terms and conditions or of these regulations or if hazardous conditions result from the construction, maintenance or use of the rights-of-way by the permittees or those acting under their authority. As a condition for the granting of such permits, the applicant must comply with §§ 2812.3-1 and 2812.3-3 of this subpart to the extent that rights-of-way and road use rights are needed to remove government timber offered for sale in the same general area during the period for which the short term right-of-way is granted.
(i) The authorized officer may, in his discretion, issue to private operators rights-of-way across O. and C. lands, needed for the conduct of salvage operations, for a period not to exceed five years. A salvage operation as used in this paragraph means the removal of trees injured or killed by windstorms, insect infestation, disease, or fire, together with any adjacent green timber needed to make an economic logging show. As a condition of the granting of such rights-of-way, the operator will be required, when the authorized officer deems it necessary, to grant to the United States and its licensees for the conduct of salvage operations on O. and C. lands for a period not to exceed five years, rights-of-way across lands controlled directly or indirectly by him and to grant the right to use to the extent indicated in §§ 2812.3-5 and 2812.3-6 any portions of the road system controlled directly or indirectly by the private operator which is adequate or can economically be made adequate to accommodate the requirements of both the operator and of the United States and its licensees.
§ 2812.0-7 Cross reference.
For disposal of timber or material to a trespasser, see § 9239.0-9 of this chapter.
§ 2812.0-9 Information collection.
The information collection requirements contained in part 2810 of Group 2800 have been approved by the Office of Management and Budget under 44 U.S.C. 3507 and assigned clearance numbers 1004-0102 and 1004-0107. The information is being collected to permit the authorized officer to determine if use of the public lands should be granted for rights-of-way grants or temporary use permits. The information will be used to make this determination. A response is required to obtain a benefit.
§ 2812.1 Application procedures.
§ 2812.1-1 Filing.
(a) An application for a permit for a right-of-way over the O. and C. lands must be submitted in duplicate on a form prescribed by the Director and filed in the appropriate district office. Application forms will be furnished upon request.
(b) Any application filed hereunder, including each agreement submitted by the applicant as a part thereof or as a condition precedent to the issuance of a permit, may be withdrawn by the applicant by written notice delivered to the authorized officer prior to the time the permit applied for has been issued to, and accepted by, the applicant.
§ 2812.1-2 Contents.
(a) An individual applicant and each member of any unincorporated association which is an applicant must state in the application whether he is a native born or a naturalized citizen of the United States. Naturalized citizens will be required to furnish evidence of naturalization pursuant to the provisions of § 2802.1-4.
(b) An application by a private corporation must be accompanied by two copies of its articles of incorporation, one of which must be certified by the proper official of the company under its corporate seal, or by the secretary of the State where organized. A corporation organized in a State other than Oregon must submit a certificate issued by the State of Oregon attesting that the corporation is authorized to transact business within that State. The requirements of this paragraph shall be deemed satisfied if the corporation, having once filed the required documents, makes specific reference to the date and case number of such previous applications, states what changes, if any, have been made since the prior filings, and includes a statement that the right of the company to do business in the State of Oregon has not lapsed or terminated.
(c) Where the application is for a right-of-way on any portion of which the applicant proposes to construct a road, it must be accompanied by two copies of a map prepared on a scale of 4 inches or 8 inches to the mile. Showing the survey of the right-of-way so that it may be accurately located on the ground. The map should comply with the following requirements, except as the authorized officer may waive in any particular instance all or any of such requirements:
Courses and distances of the center line of the right-of-way should be given; the courses referred to the true meridian and the distance in feet and decimals thereof. The initial and terminal points of the survey must be accurately connected by course and distance to the nearest readily identifiable corner of the public land surveys, or, if there be no such corner within two miles, then connected to two permanent and prominent monuments or natural objects. All subdivisions of the public lands surveys, any part of which is within the limits of the survey, should be shown in their entirety, based upon the official subsisting plat with subdivisions, section, township, and range clearly marked. The width of the right-of-way should be given; and if not of uniform width, the locations and amount of change must be definitely shown. There shall also be a statement on the face of or appended to the map indicating the grade and usable width of the road to be constructed, the type of material which will be used for the surface, the type and extent of the drainage facilities, and the type of construction and estimated capacity of any bridges. The map should bear upon its face the statement of the person who made the survey, if any, and the certificate of the applicant; such statement and certificate should be as set out in Forms as approved by the Director.
(d) Where the application is for the use of an existing road, a map adequate to show the location thereof will be required, together with a statement of the specific nature and location of any proposed improvements to such road. A blank map suitable for most cases may be procured from the appropriate district forester.
(e) Every application for a right-of-way must also be accompanied by a diagram indicating the roads and rights-of-way which form an integral part of the road system with which the requested right-of-way will connect, the portions of such road system which the applicant directly controls within the meaning of § 2812.0-5(i), the portions thereof which the applicant indirectly controls within the meaning of § 2812.0-5(j), and the portions thereof as to which the applicant has no control within the meaning of such sections. As to the portions over which the applicant has no control, he must furnish a statement showing for the two years preceding the date of the filing of the application, all periods of time that he had direct or indirect control thereof, and the date and nature of any changes in such control. The diagram shall also contain the name of the person whom the applicant believes directly controls any portion of such road system which the applicant does not directly control. Where a right-of-way for a railroad is involved, the applicant must indicate which portions of the right-of-way will be available for use as truck roads upon the removal of the rails and ties and the probable date of such removal. Blank diagram forms, suitable for most cases, may be obtained from the appropriate district forester.
Any use, occupancy, or development of the Revested Oregon and California Railroad and Reconveyed Coos Bay Wagon Road Grant Lands (O&C) lands (as is defined in 43 CFR 2812.0-5(e)), for tramroads without an authorization pursuant to this subpart, or which is beyond the scope and specific limitations of such an authorization, or that cause unnecessary or undue degradation, is prohibited and shall constitute a trespass as defined in § 2808.10 of this chapter. Anyone determined by the authorized officer to be in violation of this section shall be notified of such trespass in writing and shall be liable to the United States for all costs and payments determined in the same manner as set forth in subpart 2808 of this chapter.
§ 2812.2 Nature of permit.
§ 2812.2-1 Nonexclusive license.
Permits for rights-of-way for tramroads, do not constitute easements, and do not confer any rights on the permittee to any material for construction or other purposes except, in accordance with the provisions of §§ 2812.6-2 and 2812.8-3, such materials as may have been placed on such lands by a permittee. The permits are merely nonexclusive licenses to transport forest products owned by the permittee. Such permits may be canceled pursuant to § 2812.8.
A permittee may not authorize other persons to use the right-of-way for the transportation of forest products which are not owned by the permittee. Any person, other than the permittee or a licensee of the United States who desires to use the right-of-way for such purposes, is required to make application therefor and to comply with all the provisions of these regulations relating to applications and applicants: Provided, however, That upon the request of a permittee the authorized officer may, with respect to an independent contractor who desires to use such right-of-way for the transportation of forest products owned by such independent contractor and derived from timber or logs acquired by him from such permittee, waive the requirements of this sentence. Where the right-of-way involved has been substantially improved by the holder of an outstanding permit, any subsequent permit issued for the same right-of-way will be conditioned upon the subsequent permittee’s agreement while the prior permit is outstanding, to be bound by the road rules of and to pay fair compensation to, the prior permittee, such rules and compensation to be agreed upon by the prior and subsequent permittee in accordance with the procedures and standards established by the regulations in §§ 2812.4-1, 2812.4-3, and 2812.4-4 of this subpart.
§ 2812.2-3 Construction in advance of permit.
The authorized officer may grant an applicant authority to construct improvements on a proposed right-of-way prior to a determination whether the permit should issue. Such advance authority shall not be construed as any representation or commitment that a permit will issue. Upon demand by the authorized officer, the applicant will fully and promptly comply with all the requirements imposed under and by this paragraph. Advance construction will not be authorized unless and until applicant has complied with §§ 2812.1-1, 2812.1-2, 2812.3-1 and 2812.5-1.
§ 2812.3 Right-of-way and road use agreement.
§ 2812.3-1 Rights over lands controlled by applicant.
Where, in the judgment of the authorized officer, it appears necessary in order to carry out the policy set forth in § 2812.0-6, he may require the applicant, as a condition precedent to the issuance of the permit:
(a) To grant to the United States, for use by it and its licensees and permittees, rights-of-way across lands in the O. and C. area directly controlled by the applicant; and as to lands in such area which are indirectly controlled by him, either to obtain such rights for the United States or to make a showing satisfactory to the authorized officer that he has negotiated therefor in good faith and to waive as to the United States, its licensees and permittees any exclusive or restricted right he may have to such lands as are indirectly controlled by him.
(b) In addition, to agree to permit the United States and its licensees, upon the payment of fair compensation as hereinafter provided, to use under the terms and conditions of this paragraph such portion as the applicant directly controls of the road system and rights-of-way which are an integral part of or may be added to the road system with which the right-of-way applied for will connect, and as to the portions of such road system or rights-of-way as the applicant indirectly controls, either to obtain such rights for the United States and its licensees or to make a showing satisfactory to the authorized officer that he has negotiated therefor in good faith and, in such latter circumstance, to waive as to the United States and its licensees any exclusive or restricted right he may have in such portion of the road system and rights-of-way.
§ 2812.3-2 Other roads and rights-of-way controlled by applicant.
In addition to the private road systems and rights-of-way described in § 2812.3-1 in the event the applicant controls directly or indirectly other roads or rights-of-way in any O. and C. area where the authorized officer of the Bureau finds that, as of the time of filing or during the pendency of the application, the United States is unreasonably denied access to its timber for management purposes or where, as of such time, competitive bidding by all prospective purchasers of timber managed by the Bureau in the O. and C. area, or of other Federal timber intermingled with or adjacent to such timber, is substantially precluded by reason of the applicant’s control, direct or indirect, of such roads or rights-of-way, the authorized officer may require the applicant to negotiate an agreement granting to the United States and its licensees the right to use, in accordance with the terms and conditions of this paragraph such portion of such roads or rights-of-way as may be necessary to accommodate such management or competitive bidding.
§ 2812.3-3 Form of grant to the United States, recordation.
Any grant of rights to the United States under this section shall be executed on a form prescribed by the Director which shall constitute and form a part of any permit issued upon the application involved. The applicant shall record such agreement in the office of land records of the county or counties in which the roads, rights-of-way, or lands, subject to the agreement are located, and submit evidence of such recordation to the appropriate district manager.
§ 2812.3-4 Where no road use agreement is required.
Where, in the judgment of the authorized officer, it is consistent with the policy set forth in subpart 2811 he may issue a permit without requesting the applicant to grant any rights to the United States under this paragraph.
§ 2812.3-5 Use by the United States and its licensees of rights received from a permittee.
The use by the United States and its licensees of any of the rights received from a permittee hereunder shall be limited to that which is necessary for management purposes, or to reach, by the most reasonably direct route, involving the shortest practicable use of the permittee’s road system, a road or highway which is suitable for the transportation of forest products in the type and size of vehicle customarily used for such purposes and which is legally available for public use for ingress to and the removal of forest products from Government lands or from other lands during such periods of time as the timber thereon may be committed by a cooperative agreement to coordinated administration with timber of the United States. However, the type and size of vehicle which may be used by the licensee on the permittee’s road shall be governed by §§ 2812.3-7 and 2812.4-3.
§ 2812.3-6 Duration and location of rights granted or received by the United States.
The rights-of-way granted by the United States under any permit issued under § 2812.6, subject to the provisions of § 2812.7, will be for a stated term or terms which may vary for each portion of the right-of-way granted; such term or terms will normally be coincident with the probable period of use for the removal of forest products by the permittee and any successor in interest of the various portions of the right-of-way requested. In the same manner the permit will also state the duration of the rights of the United States to use and to permit its licensees to use, and the location by legal subdivisions of, each of the various portions, if any, of the roads, rights-of-way, and lands which a permittee hereunder authorizes the United States and its licensees to use; and, similarly, the duration of such rights received by the United States will normally be coincident with the probable period of use for the removal of forest products, by the United States and its existing and prospective licensees, of such roads, rights-of-way, and lands.
§ 2812.3-7 Permittee’s agreement with United States respecting compensation and adjustment of road use.
(a) Where the United States receives rights over any road, right-of-way, or lands, controlled directly or indirectly by a permittee, the authorized officer will seek to arrive at an advance agreement with the permittee respecting any or all of such matters as the time, route, and specifications for the development of the road system in the area; the total volume of timber to be moved over such road system, and the proportion of such timber which belongs to the United States or is embraced in a cooperative agreement for coordinated management with timber of the United States managed by the Bureau; the consequent proportion of the capital costs of the road system to be borne by such timber of the United States or embraced in such cooperative agreement; the period of time over, or rate at which, the United States or its licensees shall be required to amortise such capital cost; provisions for road maintenance; the use in addition to the uses set forth in § 2812.3-5 which the United States and its licensees may make of the road system involved, a formula for determining the proportionate capacity of the road system or portions thereof which shall be available to the United States and its licensees for the transportation of forest products; the amount and type of insurance to be carried, and the type of security to be furnished by licensees of the United States who use such road; and such other similar matters as the authorized officer may deem appropriate. To the extent necessary to fulfill the obligations of the United States under any such advance agreement, subsequent contracts for the sale of timber managed by the Bureau and tapped by such road system, and subsequent cooperative agreements for the coordinated management of such timber with other timber, will contain such provisions as may be necessary or appropriate to require such licensees to comply with the terms of the advance agreement. Where such an advance agreement between the United States and the permittee includes provisions relating to the route and specifications for extensions of the road system involved, the authorized officer may agree that upon the filing of proper applications in the future the applicant or his successor in interest shall receive the necessary permits for such road extensions as may cross lands managed by the Bureau: Provided, however, That the applicant shall have substantially complied with the terms of such advance agreement and of the outstanding permits theretofore issued to him.
(b) The provisions of § 2812.4 shall not be applicable to any matters embraced in an agreement made pursuant to this section.
§ 2812.4 Arbitration and agreements.
§ 2812.4-1 Agreements and arbitration between permittee and licensee respecting compensation payable by licensee to permittee for use of road.
(a) In the event the United States exercises the rights received from a permittee hereunder to license a person to remove forest products over any road, right-of-way, or lands of the permittee or of his successor in interest, to the extent that such matters are not covered by an agreement under § 2812.3-7 of this subpart, such licensee will be required to pay the permittee or his successor in interest such compensation and to furnish him such security, and to carry such liability insurance as the permittee or his successor in interest and the licensee may agree upon. If the parties do not agree, then upon the written request of either party delivered to the other party, the matter shall be referred to and finally determined by arbitration in accordance with the procedures established by § 2812.4-4. During the pendency of such arbitration proceedings the licensee shall be entitled to use the road, right-of-way, or lands involved upon payment, or tender thereof validly maintained, to the permittee of an amount to be determined by the authorized officer and upon the furnishing to the permittee of a corporate surety bond in an amount equal to the difference between the amount fixed by the authorized officer and the amount sought by the permittee. The licensee shall also, as a condition of use in such circumstances, maintain such liability insurance in such amounts covering any additional hazard and risk which might accrue by reason of the licensee’s use of the road, as the authorized officer may prescribe.
(b) The arbitrators shall base their award as to the compensation to be paid by the licensee to the permittee or his successor in interest upon the amortization of the replacement costs for a road of the type involved, including in such replacement costs an extraordinary cost peculiar to the construction of the particular road involved and subtracting therefrom any capital investment made by the United States or its licensees in the particular road involved or in improvements thereto used by and useful to the permittee or his successor in interest plus a reasonable interest allowance on the resulting cost figure, taking into account the risk involved, plus costs of maintenance if furnished by the permittee or his successor, including costs of gates and gateman. In arriving at the amortization item, the arbitrators shall take into account the probable period of time, past and present, during which such road may be in existence, and the volume of timber which has been moved and the volume of timber currently merchantable, which probably will be moved from all sources over such road. The arbitrators shall also take into account the extent to which the use which the licensee might otherwise economically make of the road system is limited by § 2812.3-5. In addition, the arbitrators may fix the rate at which payments shall be made by the licensee during his use of the road. The arbitrators shall require the licensee to provide adequate bond, cash deposit, or other security to indemnify the permittee or his successor in interest against failure of the licensee to comply with the terms of the award and against damage to the road not incident to normal usage and for any other reasonable purpose, and also to carry appropriate liability insurance covering any additional hazard and risks which may accrue by reason of the licensee’s use of the road.
(c) Where improvements or additions are required to enable a licensee to use a road or right-of-way to remove timber or forest products, the cost of such improvements will be allowable to the licensee.
(d) The full value at current stumpage prices will be allocable against a licensee for all timber to be cut, removed, or destroyed by the licensee on a permittee’s land in the construction or improvement of the road involved.
§ 2812.4-2 Compensation payable by United States to permittee for use of road.
In the event the United States itself removes forest products over any road or right-of-way of the permittee or his successor in interest, the United States, if there has been no agreement under § 2812.3-7 covering the matter, shall pay to the permittee or his successor in interest reasonable compensation as determined by the State Director, who shall base his determination upon the same standards established by this paragraph for arbitrators in the determination of the compensation to be paid by a licensee to a permittee: Provided, however, That no bond or other security or liability insurance is to be required of the United States. When the United States constructs or improves a road on a permittee’s land or right-of-way it shall pay to the permittee the full value at current stumpage prices of all timber of the permittee cut, removed, or destroyed in the construction or maintenance of such road or road improvements. Current stumpage prices shall be determined by the application of the standard appraisal formula, used in appraising O. and C. timber for sale, to the volume and grade of timber. Such volume and grade shall be determined by a cruise made by the permittee or, at his request, by the authorized officer. If either the permittee or the authorized officer does not accept the cruise made by the other, the volume and grade shall be determined by a person or persons acceptable both to the permittee and the State Director.
§ 2812.4-3 Agreements and arbitration between permittee and licensee respecting adjustment of road use.
(a) When the United States exercises the right received under this paragraph to use or to license any person to use a road of a permittee, the permittee or his successor in interest shall not unreasonably obstruct the United States or such licensee in such use. If there has been no agreement under § 2812.3-7 covering such matters, the permittee shall have the right to prescribe reasonable operating regulations, to apply uniformly as between the permittee and such licensee, covering the use of such road for such matters as speed and load limits, scheduling of hauls during period of use by more than one timber operator, coordination of peak periods of use, and such other matters as are reasonably related to safe operations and protection of the road; if the capacity of such road should be inadequate to accommodate the use thereof which such licensee and permittee desire to make concurrently, they shall endeavor to adjust their respective uses by agreement.
(b) If the permittee and such licensee are unable to agree as to the reasonableness of such operating regulations or on the adjustment of their respective uses where the capacity of the road is inadequate to accommodate their concurrent use, then upon the written request of either party delivered to the other party, the matter shall be referred to and finally determined by arbitration in accordance with the procedures established by § 2812.4-4.
(c) The arbitrators may make such disposition of a dispute involving the reasonableness of such operating regulations as appears equitable to them, taking into account the capacity and the construction of the road and the volume of use to which it will be subjected. In the determination of a dispute arising out of the inadequacy of the capacity of a road to accommodate the concurrent use by a permittee and a licensee, the arbitrators may make such disposition thereof as appears equitable to them, taking into account, among other pertinent facts, the commitments of the permittee and the licensee with respect to the cutting and removal of the timber involved and the disposition of the products derived therefrom; the extent to which each of the parties may practicably satisfy any of the aforesaid commitments from other timber currently controlled by him; the past normal use of such road by the permittee; the extent to which federal timber has contributed to the amortization of the capital costs of such road; and the extent to which the United States or its licensees have enlarged the road capacity.
§ 2812.4-4 Arbitration procedure.
(a) Within 10 days after the delivery of a written request for arbitration under § 2812.4-1 or § 2812.4-3 of this subpart each of the parties to the disagreement shall appoint an arbitrator and the two arbitrators thus appointed shall select a third arbitrator. If either party fails to appoint an arbitrator as provided herein, the other party may apply to a court of record of the State of Oregon for the appointment of such an arbitrator, as provided by the laws of such State. If within ten days of the appointment of the second of them, the original two arbitrators are unable to agree upon a third arbitrator who will accept the appointment, either party may petition such a court of record of the State of Oregon for the appointment of a third arbitrator. Should any vacancy occur by reason of the resignation, death or inability of one or more of the arbitrators to serve, the vacancy shall be filled according to the procedures applicable to the appointment of the arbitrator whose death, disability, or other inability to serve, created the vacancy.
(b) By mutual agreement, the parties may submit to a single arbitration proceeding controversies arising under both §§ 2812.4-1 and 2812.4-3.
(c) The arbitrators shall hear and determine the controversy and make, file, and serve their award in accordance with the substantive standards prescribed in §§ 2812.4-1 and 2812.4-3, for the type of controversy involved and in accordance with the procedures established by the laws of the State of Oregon pertaining to arbitration proceedings. A copy of the award shall also be served at the same time upon the authorized officer or the State Director, either personally or by registered mail.
(d) Costs of the arbitration proceedings shall be assessed by the arbitrators against either or both of the parties, as may appear equitable to the arbitrators, taking into account the original contentions of the parties, the ultimate decision of the arbitrators and such other matter as may appear relevant to the arbitrators.
§ 2812.5 Payment to the United States, bond.
§ 2812.5-1 Payment required for O. and C. timber.
An applicant will be required to pay to the Bureau of Land Management, in advance of the issuance of the permit, the full stumpage value as determined by the authorized officer of the estimated volume of all timber to be cut, removed, or destroyed, on O. and C. lands in the construction or operation of the road.
§ 2812.5-2 Payment to the United States for road use.
(a) A permittee shall pay a basic fee of $5 per year per mile or fraction thereof for the use of any existing road or of any road constructed by the permittee upon the right-of-way. If the term of the permit is for 5 years or less, the entire basic fee must be paid in advance of the issuance of the permit. If the term of the permit is longer than 5 years, the basic fee for each 5-year period or for the remainder of the last period, if less than 5 years, must be paid in advance at 5-year intervals: Provided, however, That in those cases where the permittee has executed under §§ 2812.3-1 to 2812.3-5 an agreement respecting the use of roads, rights-of-way or lands, no such basic fee shall be paid: Provided further, This paragraph shall not apply where payment for road use is required under § 2812.3-1(b).
(b) Where the permittee receives a right to use a road constructed or acquired by the United States, which road is under the administrative jurisdiction of the Bureau of Land Management, the permittee will be required to pay to the United States a fee to be determined by the authorized officer who may also fix the rate at which payments shall be made by the permittee during his use of the road. The authorized officer shall base his determination upon the amortization of the replacement costs for a road of the type involved, together with a reasonable interest allowance on such costs plus costs of maintenance if furnished by the United States and any extraordinary costs peculiar to the construction or acquisition of the particular road. In the case of federally acquired or constructed access roads, an allowance representing a reasonable allocation for recreational or other authorized uses shall be deducted from the replacement costs of the road before the amortization item is computed. A similar allowance and deduction shall be made in cases involving roads constructed as a part of a timber sale contract when, and if, subsequent to completion of such contract any such road becomes subject to recreational or other authorized uses. In arriving at the amortization item, the authorized officer shall take into account the probable period of time, past and present, during which such road may be in existence, and the volume of timber which has been moved, and the volume of timber currently merchantable which probably will be moved from all sources over such road: Provided, however, That this subdivision shall not apply where the permittee transports forest products purchased from the United States through the Bureau of Land Management, or where payment for such road use to another permittee is required under this subpart 2812: Provided further, That where the United States is entitled to charge a fee for the use of a road, the authorized officer may waive such fee if the permittee grants to the United States and its licensees the right to use, without charge, permittee’s roads of approximately equal value as determined under the methods provided in this subdivision and § 2812.4-1(b), as may be applicable.
(c) If an application is filed to use a road built on O. and C. lands by the applicant or his predecessor in interest under a permit which has expired, the authorized officer may issue a new permit which provides that as to such road the applicant’s road use payments shall be determined in accordance with paragraph (b) of this section except that he shall be required to pay a road use fee which is adequate to amortize only his proportionate share of any capital improvements which have been or may be placed on the road by the United States or its licensees together with a reasonable interest allowance thereon plus cost of maintenance if furnished by the United States: Provided, however, That if the application is for use of a road which has been built by a predecessor in interest the permit shall provide that the applicant may use the road only for the purpose of reaching the lands of the predecessor in interest that were served by the road. As a condition for the granting of such a permit, the applicant must comply with §§ 2812.3-1 to 2812.3-5 to the extent that rights-of-way and road use rights are needed to manage lands of the United States or to remove timber therefrom.
§ 2812.5-3 Bonds in connection with existing roads.
An applicant for permit or a permittee desiring to use an existing road owned or controlled by the United States, shall prior to such use post a bond on a form prescribed by the Director. The amount of the bond shall be determined by the authorized officer but in no event less than five hundred dollars ($500) per mile or fraction thereof. The bond shall be executed by an approved corporate surety, or the permittee may deposit an equivalent amount in cash or negotiable securities of the United States and the bond shall be conditioned upon compliance with subpart 2812 and the terms and conditions of the permit.
§ 2812.6 Approval and terms of permit.
§ 2812.6-1 Approval.
(a) Upon the applicant’s compliance with the appropriate provisions of this paragraph and if it is determined that the approval of the application will be in the public interest, the authorized officer may, in his discretion, issue an appropriate permit, upon a form prescribed by the Director.
(b) The authorized officer may waive the requirements of §§ 2812.1-2 (c) and (e) and 2812.5-3 in the case of a natural person who applies for a right-of-way for not to exceed a period of twelve weeks. Not more than one such waiver shall be allowed in each consecutive twelve calendar months on behalf of or for the benefit of the same person.
§ 2812.6-2 Terms and conditions of permit.
(a) As to all permits: Every permittee shall agree:
(1) To comply with the applicable regulations in effect as of the time when the permit is issued and, as to the permittee’s roads as to which the United States has received rights under §§ 2812.3-1 to 2812.3-5 with such additional regulations as may be issued from time to time relating to the use of roads for the purpose of access by properly licensed hunters and fishermen and by other recreationalists to lands of the United States in the O. and C. area which are suitable for such recreational purposes, where such use will not unreasonably interfere with the use of the road by the permittee for the transportation of forest products or unduly enhance the risk of fire, collision, or other hazards on such road and on lands in the vicinity thereof. If, notwithstanding the request of the authorized officer that the permittee allow use of a road in conformity with such additional regulations the permittee shall unreasonably withhold his assent, the authorized officer shall refer the disagreement through the proper channels to the Director of the Bureau for his consideration, and, if the Director concurs in the conclusion of the authorized officer and if the matter is still in dispute, he shall refer the matter to the Secretary of the Interior for his consideration. In the event of the Secretary’s concurrence in the conclusions of the authorized officer, and if the permittee nevertheless unreasonably withholds such assent, the United States may institute such judicial proceedings as may be appropriate to enforce said regulations.
(2) Not to cut, remove, or destroy any timber not previously purchased on the right-of-way without having first obtained specific authority from the authorized officer and making payment therefor.
(3) To take adequate precaution to prevent forest, brush, and grass fires; to endeavor with all available personnel to suppress any fire originating on or threatening the right-of-way on which a road is being used or constructed by the permittee or any fire caused by the permittee; to do no burning on or near the right-of-way without State permit during the seasons that permits are required and in no event to set fire on or near the right-of-way that will result in damage to any natural resource or improvement.
(4) To submit to arbitration proceedings and to be bound by the resulting arbitral awards, pursuant to §§ 2812.4-1, 2812.4-3, and 2812.4-4.
(5) In the event that the United States acquires by purchase or eminent domain the land or any interest therein, over which there passes a road which the United States has acquired the right to use under §§ 2812.3-1 to 2812.3-5 of this subpart to waive compensation for the value of the road, equivalent to the proportion that the amount the United States has contributed bears to the total actual cost of construction of the road. Such contribution shall include any investment in or amortization of the cost of such road, or both, as the case may be, made by the United States or a licensee either by way of direct expenditures upon such road, or by way of payment by the United States or a licensee to the permittee, or by way of allowance made by the United States to the permittee in any timber sales contract for such amortization or capital investment.
(6) To construct all roads and other improvements as described in the application for the permit, except as the authorized officer may authorize modification or abandonment of any such proposed construction.
(7) To use the permit and right-of-way afforded subject to all valid existing rights, to such additional rights-of-way as may be granted under this paragraph to a reservation of rights-of-way for ditches and canals constructed under authority of the United States.
(8) Not to discriminate against any employee or applicant for employment because of race, creed, color, or national origin, and to require an identical provision to be included in all subcontracts.
(9) Except as the authorized officer may otherwise permit or direct to clean up and remove from the road and right-of-way within six months after the expiration or other termination of the permit, all debris, refuse, and waste material which may have resulted from his operations and use of said road; to repair all damage to said road resulting directly or indirectly from his use thereof; and to remove therefrom all structures, timbers, and other objects that may have been installed or placed thereon by him in connection with said operations or use; Provided, however, That the road and all usable road improvements shall be left in place.
(10) Upon request of an authorized officer, to submit to the Bureau within 30 days with permission to publish, the detailed terms and conditions, including the fee which the permittee will ask as a condition of such licensee’s use for the removal of forest products over any road or right-of-way which the United States and its licensees have acquired a right to use under §§ 2812.1-3 to 2812.1-5.
(11) To grant to the United States, upon request of an authorized officer in lieu of the rights-of-way across legal subdivisions granted pursuant to §§ 2812.1-3 to 2812.1-5, such permanent easements on specifically described locations as may be necessary to permit the Bureau to construct roads on such legal subdivisions with appropriated funds: Provided, That at the time of the grant of such permanent easements the Bureau shall release, except for necessary connecting spur roads, the rights-of-way across such legal subdivisions previously granted: Provided further, That if the United States builds a road on such permanent easements it shall pay for any timber of the permittee which is cut, removed, or destroyed in accordance with § 2812.4-2. The authorized officer shall waive the requirement under this paragraph, however, if the permittee makes a satisfactory showing to the authorized officer that he does not own a sufficient interest in the land to grant a permanent easement, and that he has negotiated therefor in good faith without success.
(b) As to permits for the use of an existing road: In addition, every permittee to whom a permit is issued for the use of an existing road is required to agree:
(1) To maintain such a road in an adequate and satisfactory condition or to arrange therefor with the other users of the road. In the absence of satisfactory performance, the authorized officer may have such maintenance work performed as may be necessary in his judgment, determine the proportionate share allocable to each user, and collect the cost thereof from the parties or the sureties on the bonds furnished by said parties.
(2) Upon the expiration or other termination of his right to its use, to leave said road and right-of-way in at least as good a condition as existed prior to the commencement of his use.
§ 2812.7 Assignment of permit.
Any proposed assignment of a permit must be submitted in duplicate, within 90 days after the date of its execution, to the authorized officer for approval, accompanied by the same showing and undertaking by the assignee as is required of an applicant by §§ 2812.1-2 and 2812.3-1 to 2812.3-5, and must be supported by a stipulation that the assignee agrees to comply with and be bound by the terms and conditions of the permit and the applicable regulations of the Department of the Interior in force as of the date of such approval of the assignment.
§ 2812.8 Cause for termination of permittee’s rights.
§ 2812.8-1 Notice of termination.
(a) The authorized officer in his discretion may elect upon 30 days’ notice to terminate any permit or right-of-way issued under this paragraph if:
(1) In connection with the application made therefor, the applicant represented any material fact knowing the same to be false or made such representation in reckless disregard of the truth; or
(2) A permittee, subsequent to the issuance of a permit or right-of-way to him, represents any material fact to the Bureau, in accordance with any requirement of such permit or this paragraph, knowing such representation to be false, or makes such representation in reckless disregard of the truth.
(b) The authorized officer in his discretion may elect to terminate any permit or right-of-way issued under this paragraph, if the permittee shall fail to comply with any of the provisions of such regulations or make defaults in the performance or obligation of any of the conditions of the permit, and such failure or default shall continue for 60 days after service of written notice thereof by the authorized officer.
(c) Notice of such termination shall be served personally or by registered mail upon the permittee, shall specify the misrepresentation, failure or default involved, and shall be final, subject, however, to the permittee’s right of appeal.
(d) Termination of the permit and of the right-of-way under this section shall not operate to terminate any right granted to the United States pursuant to this paragraph, nor shall it affect the right of the permittee, after the termination of his permit and right-of-way to receive compensation and to establish road operating rules with respect to roads controlled by him which the United States has the right to use and to permit its licensees to use; nor shall it relieve the permittee of his duty under this paragraph, to submit to and be bound by arbitration pursuant to §§ 2812.4-1, 2812.4-3, and 2812.4-4.
§ 2812.8-2 Remedies for violations by licensee.
(a) No licensee of the United States will be authorized to use the roads of a permittee except under the terms of a timber sale contract or a cooperative agreement with the United States which will require the licensee to comply with all the applicable provisions of this paragraph, and any agreements or awards made pursuant thereto. If a licensee fails to comply with the regulations, agreements, or awards, the authorized officer will take such action as may be appropriate under the provisions of the timber sale contract or cooperative agreement.
(b) A permittee who believes that a licensee is violating the provisions of such a timber sale contract or cooperative agreement pertaining to use of the permittee’s roads, rights-of-way, or lands, may petition the authorized officer, setting forth the grounds for his belief, to take such action against the licensee as may be appropriate under the contract or the cooperative agreement. In such event the permittee shall be bound by the decision of the authorized officer, subject, however, to a right of appeal pursuant to § 2812.9 and subject, further, to the general provisions of law respecting review of administrative determinations. In the alternative, a permittee who believes that a licensee has violated the terms of the timber sale contract or cooperative agreement respecting the use of the permittee’s roads may proceed against the licensee in any court of competent jurisdiction to obtain such relief as may be appropriate in the premises.
§ 2812.8-3 Disposition of property on termination of permit.
Upon the expiration or other termination of the permittee’s rights, in the absence of an agreement to the contrary, the permittee will be allowed 6 months in which to remove or otherwise dispose of all property or improvements, other than the road and usable improvements to the road, placed by him on the right-of-way, but if not removed within this period, all such property and improvements shall become the property of the United States.
§ 2812.9 Appeals.
An appeal pursuant to part 4 of 43 CFR Subtitle A, may be taken from any final decision of the authorized officer, to the Board of Land Appeals, Office of the Secretary.
PART 2880 – RIGHTS-OF-WAY UNDER THE MINERAL LEASING ACT
Subpart 2881 – General Information
§ 2881.2 What is the objective of BLM’s right-of-way program?
It is BLM’s objective to grant rights-of-way under the regulations in this part to any qualified individual, business, or government entity and to direct and control the use of rights-of-way on public lands in a manner that:
(a) Protects the natural resources associated with Federal lands and adjacent lands, whether private or administered by a government entity;
(b) Prevents unnecessary or undue degradation to public lands;
(c) Promotes the use of rights-of-way in common considering engineering and technological compatibility, national security, and land use plans; and
(d) Coordinates, to the fullest extent possible, all BLM actions under the regulations in this part with state and local governments, interested individuals, and appropriate quasi-public entities.
§ 2881.5 What acronyms and terms are used in the regulations in this part?
(a) Acronyms. Unless an acronym is listed in this section, the acronyms listed in part 2800 of this chapter apply to this part. As used in this part:
MLA means the Mineral Leasing Act of 1920, as amended (30 U.S.C. 185).
TAPS means the Trans-Alaska Oil Pipeline System.
TUP means a temporary use permit.
(b) Terms. Unless a term is defined in this part, the defined terms in part 2800 of this chapter apply to this part. As used in this part, the term:
Act means section 28 of the Mineral Leasing Act of 1920, as amended (30 U.S.C. 185).
Actual costs means the financial measure of resources the Federal government expends or uses in processing a right-of-way application or in monitoring the construction, operation, and termination of a facility authorized by a grant or permit. Actual costs include both direct and indirect costs, exclusive of management overhead costs.
Casual use means activities ordinarily resulting in no or negligible disturbance of the public lands, resources, or improvements. Examples of casual use include: Surveying, marking routes, and collecting data to prepare applications for grants or TUPs.
Facility means an improvement or structure, whether existing or planned, that is, or would be, owned and controlled by the grant or TUP holder within the right-of-way or TUP area.
Federal lands means all lands owned by the United States, except lands:
(1) In the National Park System;
(2) Held in trust for an Indian or Indian tribe; or
(3) On the Outer Continental Shelf.
Grant means any authorization or instrument BLM issues under section 28 of the Mineral Leasing Act, 30 U.S.C. 185, authorizing a nonpossessory, nonexclusive right to use Federal lands to construct, operate, maintain, or terminate a pipeline. The term includes those authorizations and instruments BLM and its predecessors issued for like purposes before November 16, 1973, under then existing statutory authority. It does not include authorizations issued under FLPMA (43 U.S.C. 1761 et seq.).
Monitoring means those actions, subject to § 2886.11 of this part, that the Federal government performs to ensure compliance with the terms, conditions, and stipulations of a grant or TUP.
(1) For Monitoring Categories 1 through 4, the actions include inspecting construction, operation, maintenance, and termination of permanent or temporary facilities and protection and rehabilitation activities until the holder completes rehabilitation of the right-of-way or TUP area and BLM approves it;
(2) For Monitoring Category 5 (Master Agreements), those actions agreed to in the Master Agreement; and
(3) For Monitoring Category 6, those actions agreed to between BLM and the applicant before BLM issues the grant or TUP.
Oil or gas means oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced from them.
Pipeline means a line crossing Federal lands for transportation of oil or gas. The term includes feeder lines, trunk lines, and related facilities, but does not include a lessee’s or lease operator’s production facilities located on its oil and gas lease.
Pipeline system means all facilities, whether or not located on Federal lands, used by a grant holder in connection with the construction, operation, maintenance, or termination of a pipeline.
Production facilities means a lessee’s or lease operator’s pipes and equipment used on its oil and gas lease to aid in extracting, processing, and storing oil or gas. The term includes:
(1) Storage tanks and processing equipment;
(2) Gathering lines upstream from such tanks and equipment, or in the case of gas, upstream from the point of delivery; and
(3) Pipes and equipment, such as water and gas injection lines, used in the production process for purposes other than carrying oil and gas downstream from the wellhead.
Related facilities means those structures, devices, improvements, and sites, located on Federal lands, which may or may not be connected or contiguous to the pipeline, the substantially continuous use of which is necessary for the operation or maintenance of a pipeline, such as:
(1) Supporting structures;
(2) Airstrips;
(3) Roads;
(4) Campsites;
(5) Pump stations, including associated heliports, structures, yards, and fences;
(6) Valves and other control devices;
(7) Surge and storage tanks;
(8) Bridges;
(9) Monitoring and communication devices and structures housing them;
(10) Terminals, including structures, yards, docks, fences, and storage tank facilities;
(11) Retaining walls, berms, dikes, ditches, cuts and fills; and
(12) Structures and areas for storing supplies and equipment.
Right-of-way means the Federal lands BLM authorizes a holder to use or occupy under a grant.
Substantial deviation means a change in the authorized location or use which requires:
(1) Construction or use outside the boundaries of the right-of-way or TUP area; or
(2) Any change from, or modification of, the authorized use. Examples of substantial deviation include: Adding equipment, overhead or underground lines, pipelines, structures, or other facilities not included in the original grant or TUP.
Temporary use permit or TUP means a document BLM issues under 30 U.S.C. 185 that is a revocable, nonpossessory privilege to use specified Federal lands in the vicinity of and in connection with a right-of-way, to construct, operate, maintain, or terminate a pipeline or to protect the environment or public safety. A TUP does not convey any interest in land.
Third party means any person or entity other than BLM, the applicant, or the holder of a right-of-way authorization.
§ 2881.7 Scope.
(a) What do these regulations apply to? The regulations in this part apply to:
(1) Issuing grants and TUPs for pipelines to transport oil or gas, and administering, amending, assigning, renewing, and terminating them;
(2) All grants and permits BLM and its predecessors previously issued under section 28 of the Act; and
(3) Pipeline systems, or parts thereof, within a Federal oil and gas lease owned by:
(i) A party who is not the lessee or lease operator; or
(ii) The lessee or lease operator which are downstream from a custody transfer metering device.
(b) What don’t these regulations apply to? The regulations in this part do not apply to:
(1) Production facilities on an oil and gas lease which operate for the benefit of the lease. The lease authorizes these production facilities;
(2) Pipelines crossing Federal lands under the jurisdiction of a single Federal department or agency other than BLM, including bureaus and agencies within the Department of the Interior;
(3) Authorizations BLM issues to Federal agencies for oil or gas transportation under § 2801.6 of this chapter; or
(4) Authorizations BLM issues under Title V of the Federal Land Policy and Management Act of 1976 (see part 2800 of this chapter).
(c) Notwithstanding the definition of “grant” in section 2881.5 of this subpart, the regulations in this part apply, consistent with 43 U.S.C. 1652(c), to any authorization issued by the Secretary of the Interior or his or her delegate under 43 U.S.C. 1652(b) for the Trans-Alaska Oil Pipeline System.
§ 2881.9 Severability.
If a court holds any provisions of the regulations in this part or their applicability to any person or circumstances invalid, the remainder of these rules and their applicability to other people or circumstances will not be affected.
§ 2881.10 How do I appeal a BLM decision issued under the regulations in this part?
(a) You may appeal a BLM decision issued under the regulations in this part in accordance with part 4 of this title.
(b) All BLM decisions under this part remain in effect pending appeal unless the Secretary of the Interior rules otherwise, or as noted in this part. You may petition for a stay of a BLM decision under this part with the Office of Hearings and Appeals, Department of the Interior. Unless otherwise noted in this part, BLM will take no action on your application while your appeal is pending.
§ 2881.11 When do I need a grant from BLM for an oil and gas pipeline?
You must have a BLM grant under 30 U.S.C. 185 for an oil or gas pipeline or related facility to cross Federal lands under:
(a) BLM’s jurisdiction; or
(b) The jurisdiction of two or more Federal agencies.
§ 2881.12 When do I need a TUP for an oil and gas pipeline?
You must obtain a TUP from BLM when you require temporary use of more land than your grant authorizes in order to construct, operate, maintain, or terminate your pipeline, or to protect the environment or public safety.
Subpart 2882 – Lands Available for MLA Grants and TUPs
§ 2882.10 What lands are available for grants or TUPs?
(a) For lands BLM exclusively manages, we use the same criteria to determine whether lands are available for grants or TUPs as we do to determine whether lands are available for FLPMA grants (see subpart 2802 of this chapter).
(b) BLM may require common use of a right-of-way and may restrict new grants to existing right-of-way corridors where safety and other considerations allow. Generally, BLM land use plans designate right-of-way corridors.
(c) Where a proposed oil or gas right-of-way involves lands managed by two or more Federal agencies, see § 2884.26 of this part.
Subpart 2883 – Qualifications for Holding MLA Grants and TUPs
§ 2883.10 Who may hold a grant or TUP?
To hold a grant or TUP under these regulations, you must be:
(a)(1) A United States citizen, an association of such citizens, or a corporation, partnership, association, or similar business entity organized under the laws of the United States, or of any state therein; or
(2) A state or local government; and
(b) Financially and technically able to construct, operate, maintain, and terminate the proposed facilities.
§ 2883.11 Who may not hold a grant or TUP?
Aliens may not acquire or hold any direct or indirect interest in grants or TUPs, except that they may own or control stock in corporations holding grants or TUPs if the laws of their country do not deny similar or like privileges to citizens of the United States.
§ 2883.12 How do I prove I am qualified to hold a grant or TUP?
(a) If you are a private individual, BLM requires no proof of citizenship with your application;
(b) If you are a partnership, corporation, association, or other business entity, submit the following information, as applicable, in your application:
(1) Copies of the formal documents creating the business entity, such as articles of incorporation, and including the corporate bylaws;
(2) Evidence that the party signing the application has the authority to bind the applicant;
(3) The name, address, and citizenship of each participant (e.g., partner, associate, or other) in the business entity;
(4) The name, address, and citizenship of each shareholder owning 3 percent or more of each class of shares, and the number and percentage of any class of voting shares of the business entity which such shareholder is authorized to vote;
(5) The name and address of each affiliate of the business entity;
(6) The number of shares and the percentage of any class of voting stock owned by the business entity, directly or indirectly, in any affiliate controlled by the business entity; and
(7) The number of shares and the percentage of any class of voting stock owned by an affiliate, directly or indirectly, in the business entity controlled by the affiliate.
(c) If you have already supplied this information to BLM and the information remains accurate, you only need to reference the existing or previous BLM serial number under which it is filed.
§ 2883.13 What happens if BLM issues me a grant or TUP and later determines that I am not qualified to hold it?
If BLM issues you a grant or TUP, and later determines that you are not qualified to hold it, BLM will terminate your grant or TUP under 30 U.S.C. 185(o). You may appeal this decision under § 2881.10 of this part.
§ 2883.14 What happens to my application, grant, or TUP if I die?
(a) If an applicant or grant or TUP holder dies, any inheritable interest in the application, grant, or TUP will be distributed under state law.
(b) If the distributee of a grant or TUP is not qualified to hold a grant or TUP under § 2883.10 of this subpart, BLM will recognize the distributee as grant or TUP holder and allow the distributee to hold its interest in the grant or TUP for up to two years. During that period, the distributee must either become qualified or divest itself of the interest.
Subpart 2884 – Applying for MLA Grants or TUPs
§ 2884.10 What should I do before I file my application?
(a) When you determine that a proposed oil and gas pipeline system would cross Federal lands under BLM jurisdiction, or under the jurisdiction of two or more Federal agencies, you should notify BLM.
(b) Before filing an application with BLM, we encourage you to make an appointment for a preapplication meeting with the appropriate personnel in the BLM field office nearest the lands you seek to use. During the preapplication meeting BLM can:
(1) Identify potential routing and other constraints;
(2) Determine whether or not the lands are located within a designated or existing right-of-way corridor;
(3) Tentatively schedule the processing of your proposed application;
(4) Provide you information about qualifications for holding grants and TUPs, and inform you of your financial obligations, such as processing and monitoring costs and rents; and
(5) Identify any work which will require obtaining one or more TUPs.
(c) BLM may share this information with Federal, state, tribal, and local government agencies to ensure that these agencies are aware of any authorizations you may need from them.
(d) BLM will keep confidential any information in your application that you mark as “confidential” or “proprietary” to the extent allowed by law.
§ 2884.11 What information must I submit in my application?
(a) File your application on Form SF-299 or as part of an Application for Permit to Drill or Reenter (BLM Form 3160-3) or Sundry Notice and Report on Wells (BLM Form 3160-5), available from any BLM office. Provide a complete description of the project, including:
(1) The exact diameters of the pipes and locations of the pipelines;
(2) Proposed construction and reclamation techniques; and
(3) The estimated life of the facility.
(b) File with BLM copies of any applications you file with other Federal agencies, such as the Federal Energy Regulatory Commission (see 18 CFR chapter I), for licenses, certificates, or other authorities involving the right-of-way.
(c) BLM may ask you to submit additional information beyond that required in the form to assist us in processing your application. This information may include:
(1) A list of any Federal and state approvals required for the proposal;
(2) A description of alternative route(s) and mode(s) you considered when developing the proposal;
(3) Copies of, or reference to, all similar applications or grants you have submitted, currently hold, or have held in the past;
(4) A statement of the need and economic feasibility of the proposed project;
(5) The estimated schedule for constructing, operating, maintaining, and terminating the project (a POD). Your POD must be consistent with the development schedule and other requirements as noted on the POD template for oil and gas pipelines at http://www.blm.gov;
(6) A map of the project, showing its proposed location and showing existing facilities adjacent to the proposal;
(7) A statement certifying that you are of legal age and authorized to do business in the state(s) where the right-of-way would be located, and that you have submitted correct information to the best of your knowledge;
(8) A statement of the environmental, social, and economic effects of the proposal;
(9) A statement of your financial and technical capability to construct, operate, maintain, and terminate the project;
(10) Proof that you are a United States citizen; and
(11) Any other information BLM considers necessary to process your application.
(d) Before BLM reviews your application for a grant, grant amendment, or grant renewal, you must submit the following information and material to ensure that the facilities will be constructed, operated, and maintained as common carriers under 30 U.S.C. 185(r):
(1) Conditions for, and agreements among, owners or operators to add pumping facilities and looping, or otherwise to increase the pipeline or terminal’s throughput capacity in response to actual or anticipated increases in demand;
(2) Conditions for adding or abandoning intake, offtake, or storage points or facilities; and
(3) Minimum shipment or purchase tenders.
(e) If conditions or information affecting your application change, promptly notify BLM and submit to BLM in writing the necessary changes to your application. BLM may deny your application if you fail to do so.
§ 2884.12 What is the processing fee for a grant or TUP application?
(a) You must pay a processing fee with the application to cover the costs to the Federal Government of processing your application before the Federal Government incurs them. Subject to applicable laws and regulations, if processing your application will involve Federal agencies other than the BLM, your fee may also include the reasonable costs estimated to be incurred by those Federal agencies. Instead of paying the BLM a fee for the estimated work of other Federal agencies in processing your application, you may pay other Federal agencies directly for the costs estimated to be incurred by them in processing your application. The fees for Processing Categories 1 through 4 are one-time fees and are not refundable. The fees are categorized based on an estimate of the amount of time that the Federal Government will expend to process your application and issue a decision granting or denying the application.
(b) There is no processing fee if work is estimated to take 1 hour or less. Processing fees are based on categories. We update the processing fees for Categories 1 through 4 in the schedule each calendar year, based on the previous year’s change in the IPD-GDP, as measured second quarter to second quarter. We will round these changes to the nearest dollar. We will update Category 5 processing fees as specified in the Master Agreement. These processing categories and the estimated range of Federal work hours for each category are:
Processing Categories
| Processing category | Federal work hours involved |
|---|---|
| (1) Applications for new grants or TUPs, assignments, renewals, and amendments to existing grants or TUPs | Estimated Federal work hours are >1 ≤8. |
| (2) Applications for new grants or TUPs, assignments, renewals, and amendments to existing grants or TUPs | Estimated Federal work hours are >8 ≤24. |
| (3) Applications for new grants or TUPs, assignments, renewals, and amendments to existing grants or TUPs | Estimated Federal work hours are >24 ≤36. |
| (4) Applications for new grants or TUPs, assignments, renewals, and amendments to existing grants or TUPs | Estimated Federal work hours are >36 ≤50. |
| (5) Master Agreements | Varies. |
| (6) Applications for new grants or TUPs, assignments, renewals, and amendments to existing grants or TUPs | Estimated Federal work hours are >50. |
(c) You may obtain a copy of the current schedule from any BLM State, district, or field office or by writing: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Washington, DC 20003. The BLM also posts the current schedule at http://www.blm.gov.
(d) After an initial review of your application, BLM will notify you of the processing category into which your application fits. You must then submit the appropriate payment for that category before BLM begins processing your application. Your signature on a cost recovery Master Agreement constitutes your agreement with the processing category decision. If you disagree with the category that BLM has determined for your application, you may appeal the decision under § 2881.10 of this part. If you paid the processing fee and you appeal a Processing Category 1 through 4 or a Processing Category 6 determination to IBLA, BLM will process your application while the appeal is pending. If IBLA finds in your favor, you will receive a refund or adjustment of your processing fee.
(e) In processing your application, BLM may determine at any time that the application requires preparing an EIS. If this occurs, BLM will send you a decision changing your processing category to Processing Category 6. You may appeal the decision under § 2881.10 of this part.
(f) If you hold an authorization relating to TAPS, BLM will send you a written statement seeking reimbursement of actual costs within 60 calendar days after the close of each quarter. Quarters end on the last day of March, June, September, and December. In processing applications and administering authorizations relating to TAPS, the Department of the Interior will avoid unnecessary employment of personnel and needless expenditure of funds.
§ 2884.13 Who is exempt from paying processing and monitoring fees?
You are exempt from paying processing and monitoring fees if you are a state or local government or an agency of such a government and BLM issues the grant for governmental purposes benefitting the general public. If your principal source of revenue results from charges you levy on customers for services similar to those of a profit-making corporation or business, you are not exempt.
§ 2884.14 When does BLM reevaluate the processing and monitoring fees?
BLM reevaluates the processing and monitoring fees (see § 2885.23 of this part) for each category and the categories themselves within 5 years after they go into effect and at 10-year intervals after that. When reevaluating processing and monitoring fees, BLM considers all factors that affect the fees, including, but not limited to, any changes in:
(a) Technology;
(b) The procedures for processing applications and monitoring grants;
(c) Statutes and regulations relating to the right-of-way program; or
(d) The IPD-GDP.
§ 2884.15 What is a Master Agreement (Processing Category 5) and what information must I provide to BLM when I request one?
(a) A Master Agreement (Processing Category 5) is a written agreement covering processing and monitoring fees (see § 2885.23 of this part) negotiated between BLM and you that involves multiple BLM grant or TUP approvals for projects within a defined geographic area.
(b) Your request for a Master Agreement must:
(1) Describe the geographic area covered by the Agreement and the scope of the activity you plan;
(2) Include a preliminary work plan. This plan must state what work you must do and what work BLM must do to process your application. Both parties must periodically update the work plan, as specified in the Agreement, and mutually agree to the changes;
(3) Contain a preliminary cost estimate and a timetable for processing the application and completing the project;
(4) State whether you want the Agreement to apply to future applications in the same geographic area that are not part of the same project(s); and
(5) Contain any other relevant information that BLM needs to process the application.
§ 2884.16 What provisions do Master Agreements contain and what are their limitations?
(a) A Master Agreement:
(1) Specifies that you must comply with all applicable laws and regulations;
(2) Describes the work you will do and the work BLM will do to process the application;
(3) Describes the method of periodic billing, payment, and auditing;
(4) Describes the processes, studies, or evaluations you will pay for;
(5) Explains how BLM will monitor the grant and how BLM will recover monitoring costs;
(6) Describes existing agreements between the BLM and other Federal agencies for cost reimbursement;
(7) Contains provisions allowing for periodic review and updating, if required;
(8) Contains specific conditions for terminating the Agreement; and
(9) Contains any other provisions BLM considers necessary.
(b) BLM will not enter into any Agreement that is not in the public interest.
§ 2884.17 How will BLM process my Processing Category 6 application?
(a) For Processing Category 6 applications, you and the BLM must enter into a written agreement that describes how we will process your application. The final agreement consists of a work plan, a financial plan, and a description of any existing agreements you have with other Federal agencies for cost reimbursement associated with such application.
(b) In processing your application, BLM will:
(1) Determine the issues subject to analysis under NEPA;
(2) Prepare a preliminary work plan;
(3) Develop a preliminary financial plan, which estimates the actual costs of processing your application and monitoring your project;
(4) Discuss with you:
(i) The preliminary plans and data;
(ii) The availability of funds and personnel;
(iii) Your options for the timing of processing and monitoring fee payments; and
(iv) Financial information you must submit; and
(5) Complete final scoping and develop final work and financial plans which reflect any work you have agreed to do. BLM will also present you with the final estimate of the costs you must reimburse the United States, including the cost for monitoring the project.
(c) BLM retains the option to prepare any environmental documents related to your application. If BLM allows you to prepare any environmental documents and conduct any studies that BLM needs to process your application, you must do the work following BLM standards. For this purpose, you and BLM may enter into a written agreement. BLM will make the final determinations and conclusions arising from such work.
(d) BLM will periodically, as stated in the agreement, estimate processing costs for a specific work period and notify you of the amount due. You must pay the amount due before BLM will continue working on your application. If your payment exceeds the costs that the United States incurred for the work, BLM will either adjust the next billing to reflect the excess, or refund you the excess under 43 U.S.C. 1734. You may not deduct any amount from a payment without BLM’s prior written approval.
(e) We may collect funds to reimburse the Federal Government for reasonable costs for processing applications and other documents under this part relating to the Federal lands.
§ 2884.18 What if there are two or more competing applications for the same pipeline?
(a) If there are two or more competing applications for the same pipeline and your application is in:
(1) Processing Categories 1 through 4. You must reimburse the Federal Government for processing costs as if the other application or applications had not been filed.
(2) Processing Category 6. You are responsible for processing costs identified in your application. If BLM cannot readily separate costs, such as costs associated with preparing environmental analyses, you and any competing applicants must pay an equal share or a proportion agreed to in writing among all applicants and BLM. If you agree to share costs that are common to your application and that of a competing applicant, and the competitor does not pay the agreed upon amount, you are liable for the entire amount due. The applicants must pay the entire processing fee in advance. BLM will not process the application until we receive the advance payments.
(b) Who determines whether competition exists? BLM determines whether the applications are compatible in a single right-of-way or are competing applications to build the same pipeline.
(c) If we determine that competition exists, we will describe the procedures for a competitive bid through a bid announcement in the
§ 2884.19 Where do I file my application for a grant or TUP?
(a) If BLM has exclusive jurisdiction over the lands involved, file your application with the BLM Field Office having jurisdiction over the lands described in the application.
(b) If another Federal agency has exclusive jurisdiction over the land involved, file your application with that agency and refer to its regulations for its requirements.
(c) If there are no BLM-administered lands involved, but the lands are under the jurisdiction of two or more Federal agencies, you may file your application at the BLM office in the vicinity of the pipeline. BLM will notify you where to direct future communications about the pipeline.
(d) If two or more Federal agencies, including BLM, have jurisdiction over the lands in the application, file it at any BLM office having jurisdiction over a portion of the Federal lands. BLM will notify you where to direct future communications about the pipeline.
§ 2884.20 What are the public notification requirements for my application?
(a) When the BLM receives your application, it will publish a notice in the
(1) A description of the pipeline system; and
(2) A statement of where the application and related documents are available for review.
(b) BLM will send copies of the published notice for review and comment to the:
(1) Governor of each state within which the pipeline system would be located;
(2) Head of each local or tribal government or jurisdiction within which the pipeline system would be located; and
(3) Heads of other Federal agencies whose jurisdiction includes lands within which the pipeline system would be located.
(c) If your application involves a pipeline that is 24 inches or more in diameter, BLM will also send notice of the application to the appropriate committees of Congress in accordance with 30 U.S.C. 185(w).
(d) We may hold public hearings or meetings on your application if we determine that there is sufficient interest to warrant the time and expense of such hearings or meetings. We will publish a notice in the
§ 2884.21 How will BLM process my application?
(a) BLM will notify you in writing when it receives your application and will identify your processing fee described at § 2884.12 of this subpart.
(b) The BLM will not process your application if you have any trespass action pending against you for any activity on BLM-administered lands (see § 2888.11) or have any unpaid debts owed to the Federal Government. The only applications the BLM would process are those to resolve the trespass with a right-of-way as authorized in this part, or a lease or permit under the regulations found at 43 CFR part 2920, but only after outstanding debts are paid. Outstanding debts are those currently unpaid debts owed to the Federal Government after all administrative collection actions have occurred, including any appeal proceedings under applicable Federal regulations and the Administrative Procedure Act.
(c) Customer service standard. BLM will process your completed application as follows:
| Processing category | Processing time | Conditions |
|---|---|---|
| 1-4 | 60 calendar days | If processing your application will take longer than 60 calendar days, BLM will notify you in writing of this fact prior to the 30th calendar day and inform you of when you can expect a final decision on your application. |
| 5 | As specified in the Master Agreement | BLM will process applications as specified in the Agreement. |
| 6 | Over 60 calendar days | BLM will notify you in writing within the initial 60 day processing period of the estimated processing time. |
(d) Before issuing a grant or TUP, BLM will:
(1) Complete a NEPA analysis for the application or approve a NEPA analysis previously completed for the application, as required by 40 CFR parts 1500 through 1508;
(2) Determine whether or not your proposed use complies with applicable Federal and state laws, regulations, and local ordinances;
(3) Consult, as necessary, with other governmental entities;
(4) Hold public meetings, if sufficient public interest exists to warrant their time and expense. The BLM will publish a notice in the
(5) Take any other action necessary to fully evaluate and decide whether to approve or deny your application.
§ 2884.22 Can BLM ask me for additional information?
(a) If we ask for additional information, we will follow the procedures in § 2804.25(c) of this chapter.
(b) BLM may also ask other Federal agencies for additional information, for terms and conditions or stipulations which the grant or TUP should contain, and for advice as to whether or not to issue the grant or TUP.
§ 2884.23 Under what circumstances may BLM deny my application?
(a) BLM may deny your application if:
(1) The proposed use is inconsistent with the purpose for which BLM or other Federal agencies manage the lands described in your application;
(2) The proposed use would not be in the public interest;
(3) You are not qualified to hold a grant or TUP;
(4) Issuing the grant or TUP would be inconsistent with the Act, other laws, or these or other regulations;
(5) You do not have or cannot demonstrate the technical or financial capability to construct the pipeline or operate facilities within the right-of-way or TUP area; or
(6) You do not adequately comply with a deficiency notice (see § 2804.25(c) of this chapter) or with any requests from the BLM for additional information needed to process the application.
(b) If you are unable to meet any of the requirements in this section you may request an alternative from the BLM (see § 2884.30).
(c) If BLM denies your application, you may appeal the decision under § 2881.10 of this part.
§ 2884.24 What fees do I owe if BLM denies my application or if I withdraw my application?
If BLM denies your application, or you withdraw it, you owe the processing fee set forth at § 2884.12(b) of this subpart, unless you have a Processing Category 5 or 6 application. Then, the following conditions apply:
(a) If BLM denies your Processing Category 5 or 6 application, you are liable for all actual costs that the United States incurred in processing it. The money you have not paid is due within 30 calendar days after receiving a bill for the amount due; and
(b) You may withdraw your application in writing before BLM issues a grant or TUP. If you do so, you are liable for all actual processing costs the United States has incurred up to the time you withdraw the application and for the actual costs of terminating your application. Any money you have not paid is due within 30 calendar days after receiving a bill for the amount due.
§ 2884.25 What activities may I conduct on BLM lands covered by my application for a grant or TUP while BLM is processing my application?
(a) You may conduct casual use activities on BLM lands covered by the application, as may any other member of the public. BLM does not require a grant or TUP for casual use on BLM lands.
(b) For any activities on BLM lands that are not casual use, you must obtain prior BLM approval. To conduct activities on lands administered by other Federal agencies, you must obtain any prior approval those agencies require.
§ 2884.26 When will BLM issue a grant or TUP when the lands are managed by two or more Federal agencies?
If the application involves lands managed by two or more Federal agencies, BLM will not issue or renew the grant or TUP until the heads of the agencies administering the lands involved have concurred. Where concurrence is not reached, the Secretary of the Interior, after consultation with these agencies, may issue or renew the grant or TUP, but not through lands within a Federal reservation where doing so would be inconsistent with the purposes of the reservation.
§ 2884.27 What additional requirement is necessary for grants or TUPs for pipelines 24 or more inches in diameter?
If an application is for a grant or TUP for a pipeline 24 inches or more in diameter, BLM will not issue or renew the grant or TUP until after we notify the appropriate committees of Congress in accordance with 30 U.S.C. 185(w).
§ 2884.30 Showing of good cause.
If you are unable to meet any of the processing requirements in this subpart, you may request approval for an alternative requirement from the BLM. Any such request is not approved until you receive BLM approval in writing. Your request to the BLM must:
(a) Show good cause for your inability to meet a requirement;
(b) Suggest an alternative requirement and explain why that requirement is appropriate; and
(c) Be received in writing by the BLM in a timely manner, before the deadline to meet a particular requirement has passed.
Subpart 2885 – Terms and Conditions of MLA Grants and TUPs
§ 2885.10 When is a grant or TUP effective?
A grant or TUP is effective after both you and BLM sign it. You must accept its terms and conditions in writing and pay any necessary rent and monitoring fees as set out in §§ 2885.19 and 2885.23 of this subpart. Your written acceptance constitutes an agreement between you and the United States that your right to use the Federal lands, as specified in the grant or TUP, is subject to the terms and conditions of the grant or TUP and applicable laws and regulations.
§ 2885.11 What terms and conditions must I comply with?
(a)
(a) Duration. All grants, except those issued for a term of 3 years or less, will expire on December 31 of the final year of the grant. The term of a grant may not exceed 30 years, with the initial partial year of the grant considered to be the first year of the term. The term of a TUP may not exceed 3 years. The BLM will consider the following factors in establishing a reasonable term:
(1) The cost of the pipeline and related facilities you plan to construct, operate, maintain, or terminate;
(2) The pipeline’s or related facility’s useful life;
(3) The public purpose served; and
(4) Any potentially conflicting land uses; and
(b) Terms and conditions of use. BLM may modify your proposed use or change the route or location of the facilities in your application. By accepting a grant or TUP, you agree to use the lands described in the grant or TUP for the purposes set forth in the grant or TUP. You also agree to comply with, and be bound by, the following terms and conditions. During construction, operation, maintenance, and termination of the project you must:
(1) To the extent practicable, comply with all existing and subsequently enacted, issued, or amended Federal laws and regulations, and state laws and regulations applicable to the authorized use;
(2) Rebuild and repair roads, fences, and established trails destroyed or damaged by constructing, operating, maintaining, or terminating the project;
(3) Build and maintain suitable crossings for existing roads and significant trails that intersect the project;
(4) Do everything reasonable to prevent and suppress fires on or in the immediate vicinity of the right-of-way or TUP area;
(5) Not discriminate against any employee or applicant for employment during any phase of the project because of race, creed, color, sex, or national origin. You must also require subcontractors to not discriminate;
(6) Pay the rent and monitoring fees described in §§ 2885.19 and 2885.23 of this subpart;
(7) The BLM may require that you obtain, or certify that you have obtained, a performance and reclamation bond or other acceptable security to cover any losses, damages, or injury to human health, the environment, and property incurred in connection with your use and occupancy of the right-of-way or TUP area, including terminating the grant or TUP, and to secure all obligations imposed by the grant or TUP and applicable laws and regulations. Your bond must cover liability for damages or injuries resulting from releases or discharges of hazardous materials. We may require a bond, an increase or decrease in the value of an existing bond, or other acceptable security at any time during the term of the grant or TUP. This bond is in addition to any individual lease, statewide, or nationwide oil and gas bonds you may have. All other provisions in§ 2805.12(b) of this chapter regarding bond requirements for grants and leases issued under FLPMA also apply to grants or TUPs for oil and gas pipelines issued under this part;
(8) Assume full liability if third parties are injured or damages occur to property on or near the right-of-way or TUP area (see § 2886.13 of this part);
(9) Comply with project-specific terms, conditions, and stipulations, including requirements to:
(i) Restore, revegetate, and curtail erosion or any other rehabilitation measure BLM determines is necessary;
(ii) Ensure that activities in connection with the grant or TUP comply with air and water quality standards or related facility siting standards contained in applicable Federal or state law or regulations;
(iii) Control or prevent damage to scenic, aesthetic, cultural, and environmental values, including fish and wildlife habitat, and to public and private property and public health and safety;
(iv) Protect the interests of individuals living in the general area who rely on the area for subsistence uses as that term is used in Title VIII of ANILCA (16 U.S.C. 3111 et seq.); and
(v) Ensure that you construct, operate, maintain, and terminate the facilities on the lands in the right-of-way or TUP area in a manner consistent with the grant or TUP;
(10) Immediately notify all Federal, state, tribal, and local agencies of any release or discharge of hazardous material reportable to such entity under applicable law. You must also notify BLM at the same time, and send BLM a copy of any written notification you prepared;
(11) Not dispose of or store hazardous material on your right-of-way or TUP area, except as provided by the terms, conditions, and stipulation of your grant or TUP;
(12) Certify that your compliance with all requirements of the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. 11001 et seq., when you receive, assign, renew, amend, or terminate your grant or TUP;
(13) Control and remove any release or discharge of hazardous material on or near the right-of-way or TUP area arising in connection with your use and occupancy of the right-of-way or TUP area, whether or not the release or discharge is authorized under the grant or TUP. You must also remediate and restore lands and resources affected by the release or discharge to BLM’s satisfaction and to the satisfaction of any other Federal, state, tribal, or local agency having jurisdiction over the land, resource, or hazardous material;
(14) Comply with all liability and indemnification provisions and stipulations in the grant or TUP;
(15) As BLM directs, provide diagrams or maps showing the location of any constructed facility;
(16) Construct, operate, and maintain the pipeline as a common carrier. This means that the pipeline owners and operators must accept, convey, transport, or purchase without discrimination all oil or gas delivered to the pipeline without regard to where the oil and gas was produced (i.e., whether on Federal or non-federal lands). Where natural gas not subject to state regulatory or conservation laws governing its purchase by pipeline companies is offered for sale, each pipeline company must purchase, without discrimination, any such natural gas produced in the vicinity of the pipeline. Common carrier provisions of this paragraph do not apply to natural gas pipelines operated by a:
(i) Person subject to regulation under the Natural Gas Act (15 U.S.C. 717 et seq.); or
(ii) Public utility subject to regulation by state or municipal agencies with the authority to set rates and charges for the sale of natural gas to consumers within the state or municipality.
(17) Within 30 calendar days after BLM requests it, file rate schedules and tariffs for oil and gas, or derivative products, transported by the pipeline as a common carrier with the agency BLM prescribes, and provide BLM proof that you made the required filing;
(18) With certain exceptions (listed in the statute), not export domestically produced crude oil by pipeline without Presidential approval (see 30 U.S.C. 185(u) and (s) and 50 U.S.C. App. 2401);
(19) Not exceed the right-of-way width that is specified in the grant without BLM’s prior written authorization. If you need a right-of-way wider than 50 feet plus the ground occupied by the pipeline and related facilities, see § 2885.14 of this subpart;
(20) Not use the right-of-way or TUP area for any use other than that authorized by the grant or TUP. If you require other pipelines, looping lines, or other improvements not authorized by the grant or TUP, you must first secure BLM’s written authorization;
(21) Not use or construct on the land in the right-of-way or TUP area until:
(i) BLM approves your detailed plan for construction, operation, and termination of the pipeline, including provisions for rehabilitation of the right-of-way or TUP area and environmental protection; and
(ii) You receive a Notice to Proceed for all or any part of the right-of-way or TUP area. In certain situations BLM may waive this requirement in writing; and
(22) Comply with all other stipulations that BLM may require.
§ 2885.12 What rights does a grant or TUP convey?
The grant or TUP conveys to you only those rights which it expressly contains. BLM issues it subject to the valid existing rights of others, including the United States. Rights which the grant or TUP conveys to you include the right to:
(a) Use the described lands to construct, operate, maintain, and terminate facilities within the right-of-way or TUP area for authorized purposes under the terms and conditions of the grant or TUP;
(b) Allow others to use the land as your agent in the exercise of the rights that the grant or TUP specifies;
(c) Do minor trimming, pruning, and removing of vegetation to maintain the right-of-way or TUP area or facility;
(d) Use common varieties of stone and soil which are necessarily removed during construction of the pipeline, without additional BLM authorization or payment, in constructing the pipeline within the authorized right-of-way or TUP area; and
(e) Assign the grant or TUP to another, provided that you obtain the BLM’s prior written approval, unless your grant or TUP specifically states that such approval is unnecessary.
§ 2885.13 What rights does the United States retain?
The United States retains and may exercise any rights the grant or TUP does not expressly convey to you. These include the United States’ right to:
(a) Access the lands covered by the grant or TUP at any time and enter any facility you construct on the right-of-way or TUP area. BLM will give you reasonable notice before it enters any facility on the right-of-way or TUP area;
(b) Require common use of your right-of-way or TUP area, including subsurface and air space, and authorize use of the right-of-way or TUP area for compatible uses. You may not charge for the use of the lands made subject to such additional right-of-way grants;
(c) Retain ownership of the resources of the land covered by the grant or TUP, including timber and vegetative or mineral materials and any other living or non-living resources. You have no right to use these resources, except as noted in § 2885.12 of this subpart;
(d) Determine whether or not your grant is renewable; and
(e) Change the terms and conditions of your grant or TUP as a result of changes in legislation, regulation, or as otherwise necessary to protect public health or safety or the environment.
(a) You may apply to BLM at any time for a right-of-way wider than 50 feet plus the ground occupied by the pipeline and related facilities. In your application you must show that the wider right-of-way is necessary to:
(1) Properly operate and maintain the pipeline after you have constructed it;
(2) Protect the environment; or
(3) Provide for public safety.
(b) BLM will notify you in writing of its finding(s) and its decision on your application for a wider right-of-way. If the decision is adverse to you, you may appeal it under § 2881.10 of this part.
§ 2885.15 How will BLM charge me rent?
(a) BLM will charge rent beginning on the first day of the month following the effective date of the grant or TUP through the last day of the month when the grant or TUP terminates. Example: If a grant or TUP becomes effective on January 10 and terminates on September 16, the rental period would be February 1 through September 30, or 8 months.
(b) There are no reductions or waivers of rent for grants or TUPs, except as provided under § 2885.20(b).
(c) BLM will set or adjust the annual billing periods to coincide with the calendar year by prorating the rent based on 12 months.
(d) If you disagree with the rent that BLM charges, you may appeal the decision under § 2881.10 of this part.
§ 2885.16 When do I pay rent?
(a) You must pay rent for the initial rental period before we issue you a grant or TUP. We prorate the initial rental amount based on the number of full months left in the calendar year after the effective date of the grant or TUP. If your grant qualifies for annual payments, the initial rent consists of the remaining partial year plus the next full year. If your grant or TUP allows for multi-year payments, your initial rent payment may be for the full term of the grant or TUP. See § 2885.21 for additional information on payment of rent.
(b) You make all other rental payments according to the payment plan described in § 2885.21 of this subpart.
(c) After the first rental payment, all rent is due on January 1 of the first year of each succeeding rental period for the term of your grant.
§ 2885.17 What happens if I do not pay rents and fees or if I pay the rents or fees late?
(a) If BLM does not receive the rent payment within 15 calendar days after the rent was due under § 2885.16 of this subpart, BLM will charge you a late payment fee of $25.00 or 10 percent of the rent you owe, whichever is greater, not to exceed $500 per authorization.
(b) If BLM does not receive your rent payment and late payment fee within 30 calendar days after rent was due, BLM may collect other administrative fees provided by statute.
(c) If BLM does not receive your rent, late payment fee, and any administrative fees within 90 calendar days after the rent was due, BLM may terminate your grant under § 2886.17 of this part and you may not remove any facility or equipment without BLM’s written permission. The rent due, late payment fees, and any administrative fees remain a debt that you owe to the United States.
(d) If you pay the rent, late payment fees, and any administrative fees after BLM has terminated the grant, BLM does not automatically reinstate the grant. You must file a new application with BLM. BLM will consider the history of your failure to timely pay rent in deciding whether to issue you a new grant.
(e) We will retroactively bill for uncollected or under-collected rent, including late payment and administrative fees, upon discovery if:
(1) A clerical error is identified;
(2) An adjustment to rental schedules is not applied; or
(3) An omission or error in complying with the terms and conditions of the authorized right-of-way is identified.
(f) You may appeal any adverse decision BLM takes against your grant or TUP under § 2881.10 of this part.
§ 2885.18 When must I make estimated rent payments to BLM?
To expedite the processing of your application for a grant or TUP, BLM may estimate rent payments and require you to pay that amount when it issues the grant or TUP. The rent amount may change once BLM determines the actual rent of the grant or TUP. BLM will credit you any rental overpayment, and you are liable for any underpayment. This section does not apply to rent payments made under the rent schedule in this part.
§ 2885.19 What is the rent for a linear right-of-way grant?
(a) The BLM will use the Per Acre Rent Schedule (see paragraph (b) of this section) to calculate the rent. Counties (or other geographical areas) are assigned to a County Zone Number and Per Acre Zone Value based upon 80 percent of their average per acre land and building value published in the NASS Census. The initial assignment of counties to the zones in the Per Acre Rent Schedule for the 5-year period from 2006 to 2010 is based upon data contained in the most recent NASS Census (2002). Subsequent assignments of counties will occur every 5 years following the publication of the NASS Census. The Per Acre Rent Schedule is also adjusted periodically as follows:
(1) Each calendar year the BLM will adjust the per acre rent values in §§ 2806.20 and 2885.19(b) for all types of linear right-of-way facilities in each zone based on the average annual change in the IPD-GDP for the 10-year period immediately preceding the year that the NASS Census data becomes available. For example, the average annual change in the IPD-GDP from 1994 to 2003 (the 10-year period immediately preceding the year (2004) that the 2002 NASS Census data became available) is 1.9 percent. This annual adjustment factor is applied to years 2006 through 2015 of the Per Acre Rent Schedule. Likewise, the average annual change in the IPD-GDP from 2004 to 2013 (the 10-year period immediately preceding the year (2014) when the 2012 NASS Census data will become available) will be applied to years 2016 through 2025 of the Per Acre Rent Schedule.
(2) The BLM will review the NASS Census data from the 2012 NASS Census, and each subsequent 10-year period, and as appropriate, revise the number of county zones and the per acre zone values. Any revision must include 100 percent of the number of counties and listed geographical areas for all states and the Commonwealth of Puerto Rico and must reasonably reflect the increases or decreases in the average per acre land and building values contained in the NASS Census.
(b) You may obtain a copy of the current Per Acre Rent Schedule from any BLM State, district, or field office or by writing: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Washington, DC 20003. The BLM also posts the current rent schedule at http://www.blm.gov.
§ 2885.20 How will the BLM calculate my rent for linear rights-of-way the Per Acre Rent Schedule covers?
(a) Except as provided by § 2885.22, the BLM calculates your rent by multiplying the rent per acre for the appropriate county (or other geographical area) zone from the current schedule by the number of acres (as rounded up to the nearest tenth of an acre) in the right-of-way or TUP area that fall in each zone and multiplying the result by the number of years in the rental payment period (the length of time for which the holder is paying rent).
(b) Phase-in provisions. If, as the result of any revisions made to the Per Acre Rent Schedule under § 2885.19(a)(2), the payment of your new annual rental amount would cause you undue hardship, you may qualify for a 2-year phase-in period if you are a small business entity as that term is defined in Small Business Administration regulations and if it is in the public interest. We will require you to submit information to support your claim. If approved by the BLM State Director, payment of the amount in excess of the previous year’s rent may be phased-in by equal increments over a 2-year period. In addition, the BLM will adjust the total calculated rent for year 2 of the phase-in period by the annual index provided by § 2885.19(a)(1).
(c) If the BLM has not previously used the rent schedule to calculate your rent, we may do so after giving you reasonable written notice.
§ 2885.21 How must I make rental payments for a linear grant or TUP?
(a) Term grants or TUPs. For TUPs you must make a one-time nonrefundable payment for the term of the TUP. For grants, except those that have been issued in perpetuity, you must make either nonrefundable annual payments or a nonrefundable payment for more than 1 year, as follows:
(1) One-time payments. You may pay in advance the total rent amount for the entire term of the grant or any remaining years.
(2) Multiple payments. If you choose not to make a one-time payment, you must pay according to one of the following methods:
(i) Payments by individuals. If your annual rent is $100 or less, you must pay at 10-year intervals not to exceed the term of the grant. If your annual rent is greater than $100, you may pay annually or at 10-year intervals, not to exceed the term of the grant. For example, if you have a grant with a remaining term of 30 years, you may pay in advance for 10 years, 20 years, or 30 years, but not any other multi-year period.
(ii) Payments by all others. If your annual rent is $500 or less, you must pay rent at 10-year intervals, not to exceed the term of the grant. If your annual rent is greater than $500, you may pay annually or at 10-year intervals, not to exceed the term of the grant.
(b) Perpetual grants issued prior to November 16, 1973. Except as provided by § 2885.22(a), you must make either nonrefundable annual payments or a nonrefundable payment for more than 1 year, as follows:
(1) Payments by individuals. If your annual rent is $100 or less, you must pay at 10-year intervals, not to exceed 30 years. If your annual rent is greater than $100, you may pay annually or at 10-year intervals, not to exceed 30 years.
(2) Payments by all others. If your annual rent is $500 or less, you must pay rent at 10-year intervals, not to exceed 30 years. If your annual rent is greater than $500, you may pay annually or at 10-year intervals, not to exceed 30 years.
(c) Proration of payments. The BLM considers the first partial calendar year in the initial rental payment period (the length of time for which the holder is paying rent) to be the first year of the term. The BLM prorates the first year rental amount based on the number of months left in the calendar year after the effective date of the grant.
§ 2885.22 How may I make rental payments when land encumbered by my term or perpetual linear grant is being transferred out of Federal ownership?
(a) One-time payment option for existing perpetual grants issued prior to November 16, 1973. If you have a perpetual grant and the land your grant encumbers is being transferred out of Federal ownership, you may choose to make a one-time rental payment. The BLM will determine the one-time payment for perpetual right-of-way grants by dividing the current annual rent for the subject property by an overall capitalization rate calculated from market data, where the overall capitalization rate is the difference between a market yield rate and a percent annual rent increase as described in the formula in paragraphs (a)(1), (2), and (3) of this section. The formula for this calculation is: One-time Payment = Annual Rent/(Y−CR), where:
(1) Annual Rent = Current Annual Rent Applicable to the Subject Property from the Per Acre Rent Schedule;
(2) Y = Yield Rate from the Per Acre Rent Schedule (5.27 percent); and
(3) CR = Annual Percent Change in Rent as Determined by the Most Recent 10-Year Average of the difference in the IPD-GDP Index from January of one year to January of the following year.
(b) In paragraph (a) of this section, the annual rent is determined from the Per Acre Rent Schedule (see § 2885.19(b)), as updated under § 2885.19(a)(1) and(2). However, the per acre zone value and zone number used in this annual rental determination will be based on the per acre land value from acceptable market information or an appraisal report, if any, for the land transfer action and not the county average per acre land and building value from the NASS Census. You may also submit an appraisal report on your own initiative in accordance with § 2806.25(d) of this chapter.
(c) When no acceptable market information is available and no appraisal report has been completed for the land transfer action, or when the BLM requests it, you must prepare an appraisal report as required under § 2806.25(d) of this chapter.
(d) Term Grant. If the land your grant encumbers is being transferred out of Federal ownership, you may pay in advance the total rent amount for the entire term of the grant or any remaining years. The BLM will use the annual rent calculated from the Per Acre Rent Schedule multiplied by the number of years in the rent payment period (the length of time for which the holder is paying rent) to determine the one-time rent. However, this amount must not exceed the one-time rent payment for a perpetual grant as determined under paragraphs (a) and (b) of this section.
When a communication use is ancillary to, and authorized by BLM under, a grant or TUP for a linear use, or some other type of authorization (e.g., a mineral lease or sundry notice), BLM will determine the rent using the linear rent schedule (see § 2885.19 of this subpart) or rent scheme associated with the other authorization, and not the communication use rent schedule (see § 2806.30 of this chapter).
§ 2885.24 If I hold a grant or TUP, what monitoring fees must I pay?
(a) Monitoring fees. Subject to § 2886.11, you must pay a fee to the BLM for any costs the Federal Government incurs in inspecting and monitoring the construction, operation, maintenance, and termination of the pipeline and protection and rehabilitation of the affected public lands your grant or TUP covers. We update the monitoring fees for Categories 1 through 4 in the schedule each calendar year, based on the previous year’s change in the IPD-GDP, as measured second quarter to second quarter. We will round these changes to the nearest dollar. We will update Category 5 monitoring fees as specified in the Master Agreement. We categorize the monitoring fees based on the estimated number of work hours necessary to monitor your grant or TUP. Monitoring fees for Categories 1 through 4 are one-time fees and are not refundable. These monitoring categories and the estimated range of Federal work hours for each category are:
Monitoring Categories
| Monitoring category | Federal work hours involved |
|---|---|
| (1) Inspecting and monitoring of new grants and TUPs, assignments, renewals, and amendments to existing grants and TUPs | Estimated Federal work hours are >1 ≤8. |
| (2) Inspecting and monitoring of new grants and TUPs, assignments, renewals, and amendments to existing grants and TUPs | Estimated Federal work hours are >8 ≤24. |
| (3) Inspecting and monitoring of new grants and TUPs, assignments, renewals, and amendments to existing grants and TUPs | Estimated Federal work hours are >24 ≤36. |
| (4) Inspecting and monitoring of new grants and TUPs, assignments, renewals, and amendments to existing grants and TUPS | Estimated Federal work hours are >36 ≤50. |
| (5) Master Agreements | Varies. |
| (6) Inspecting and monitoring of new grants and TUPs, assignments, renewals, and amendments to existing grants and TUPs | Estimated Federal work hours >50. |
(b) The current monitoring cost schedule is available from any BLM State, district, or field office or by writing: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134LM, Washington, DC 20003. The BLM also posts the current schedule at http://www.blm.gov.
§ 2885.25 When do I pay monitoring fees?
(a) Monitoring Categories 1 through 4. Unless BLM otherwise directs, you must pay monitoring fees when you submit to BLM your written acceptance of the terms and conditions of the grant or TUP.
(b) Monitoring Category 5. You must pay the monitoring fees as specified in the Master Agreement. BLM will not issue your grant or TUP until it receives the required payment.
(c) Monitoring Category 6. BLM may periodically estimate the costs of monitoring your use of the grant or TUP. BLM will include this fee in the costs associated with processing fees described at § 2884.12 of this part. If BLM has underestimated the monitoring costs, we will notify you of the shortfall. If your payments exceed the actual costs that Federal employees incurred for monitoring, BLM will either reimburse you the difference, or adjust the next billing to reflect the overpayment. Unless BLM gives you written authorization, you may not offset or deduct the overpayment from your payments.
(d) Monitoring Categories 1-4 and 6. If you disagree with the category BLM has determined for your application, you may appeal the decision under § 2881.10 of this part.
Subpart 2886 – Operations on MLA Grants and TUPs
§ 2886.10 When can I start activities under my grant or TUP?
(a) When you can start depends on the terms of your grant or TUP. You can start activities when you receive the grant or TUP you and BLM signed, unless the grant or TUP includes a requirement for BLM to provide a written Notice to Proceed. If your grant or TUP contains a Notice to Proceed requirement, you may not initiate construction, operation, maintenance, or termination until BLM issues you a Notice to Proceed.
(b) Before you begin operating your pipeline or related facility authorized by a grant or TUP, you must certify in writing to BLM that the pipeline system:
(1) Has been constructed and tested according to the terms of the grant or TUP; and
(2) Is in compliance with all required plans, specifications, and Federal and state laws and regulations.
§ 2886.11 Who regulates activities within my right-of-way or TUP area?
After BLM has issued the grant or TUP, the head of the agency having administrative jurisdiction over the Federal lands involved will regulate your grant or TUP activities in conformance with the Act, appropriate regulations, and the terms and conditions of the grant or TUP. BLM and the other agency head may reach another agreement under 30 U.S.C. 185(c).
§ 2886.12 When must I contact BLM during operations?
You must contact BLM:
(a) At the times specified in your grant or TUP;
(b) When your use requires a substantial deviation from the grant or TUP. You must seek an amendment to your grant or TUP under § 2887.10 and obtain our approval before you begin any activity that is a substantial deviation;
(c) When there is a change affecting your application, grant, or TUP including, but not limited to changes in:
(1) Mailing address;
(2) Partners;
(3) Financial conditions; or
(4) Business or corporate status; and
(d) Whenever site-specific circumstances or conditions arise that result in the need for changes to an approved right-of-way grant or TUP, POD, site plan, mitigation measures, or construction, operation, or termination procedures that are not substantial deviations in location or use authorized by a right-of-way grant or TUP. Changes for authorized actions, project materials, or adopted mitigation measures within the existing, approved right-of-way or TUP area must be submitted to the BLM for review and approval;
(e) To identify and correct discrepancies or inconsistencies;
(f) When you submit a certification of construction, if the terms of your grant require it. A certification of construction is a document you submit to the BLM after you have finished constructing a facility, but before you begin operating it, verifying that you have constructed and tested the facility to ensure that it complies with the terms of the grant and with applicable Federal and State laws and regulations; and
(g) When BLM requests it, such as to update information or confirm that information you submitted before is accurate.
§ 2886.13 If I hold a grant or TUP, for what am I liable?
(a) If you hold a grant or TUP, you are liable to the United States and to third parties for any damage or injury they incur in connection with your use and occupancy of the right-of-way or TUP area.
(b) You are strictly liable for any activity or facility associated with your right-of-way or TUP area which BLM determines presents a foreseeable hazard or risk of damage or injury to the United States. BLM will specify in the grant or TUP any activity or facility posing such hazard or risk, and the financial limitations on damages commensurate with such hazard or risk.
(1) BLM will not impose strict liability for damage or injury resulting primarily from an act of war or the negligence of the United States, except as otherwise provided by law.
(2) As used in this section, strict liability extends to costs incurred by the Federal government to control or abate conditions, such as fire or oil spills, which threaten life, property, or the environment, even if the threat occurs to areas that are not under Federal jurisdiction. This liability is separate and apart from liability under other provisions of law.
(3) You are strictly liable to the United States for damage or injury up to $2 million for any one incident. BLM will update this amount annually to adjust for changes in the Consumer Price Index for All Urban Consumers, U.S. City Average (CPI-U) as of July of each year (difference in CPI-U from July of one year to July of the following year), rounded to the nearest $1,000. This financial limitation does not apply to the release or discharge of hazardous substances on or near the grant or TUP area, or where liability is otherwise not subject to this financial limitation under applicable law.
(4) BLM will determine your liability for any amount in excess of the $2 million strict liability limitation (as adjusted) through the ordinary rules of negligence.
(5) The rules of subrogation apply in cases where a third party caused the damage or injury.
(c) If you cannot satisfy claims for injury or damage, all owners of any interests in, and all affiliates or subsidiaries of any holder of, a grant or TUP, except for corporate stockholders, are jointly and severally liable to the United States.
(d) If BLM issues a grant or TUP to more than one holder, each is jointly and severally liable.
(e) By accepting the grant or TUP, you agree to fully indemnify or hold the United States harmless for liability, damage, or claims arising in connection with your use and occupancy of the right-of-way or TUP area.
(f) We address liability of state, tribal, and local governments in § 2886.14 of this subpart.
(g) The provisions of this section do not limit or exclude other remedies.
§ 2886.14 As grant or TUP holders, what liabilities do state, tribal, and local governments have?
(a) If you are a state, tribal, or local government or its agency or instrumentality, you are liable to the fullest extent law allows at the time that BLM issues your grant or TUP. If you do not have the legal power to assume full liability, you must repair damages or make restitution to the fullest extent of your powers.
(b) BLM may require you to provide a bond, insurance, or other acceptable security to:
(1) Protect the liability exposure of the United States to claims by third parties arising out of your use and occupancy of the right-of-way or TUP area;
(2) Cover any losses, damages, or injury to human health, the environment, and property incurred in connection with your use and occupancy of the right-of-way or TUP area; and
(3) Cover any damages or injuries resulting from the release or discharge of hazardous materials incurred in connection with your use and occupancy of the right-of-way or TUP area.
(c) Based on your record of compliance and changes in risk and conditions, BLM may require you to increase or decrease the amount of your bond, insurance, or security.
(d) The provisions of this section do not limit or exclude other remedies.
§ 2886.15 How is grant or TUP administration affected if the BLM land my grant or TUP encumbers is transferred to another Federal agency or out of Federal ownership?
(a) If there is a proposal to transfer the BLM land your grant or TUP encumbers to another Federal agency, BLM may, after reasonable notice to you, transfer administration of your grant or TUP, for the lands BLM formerly administered, to another Federal agency, unless doing so would diminish your rights. If BLM determines your rights would be diminished by such a transfer, BLM can still transfer the land, but retain administration of your grant or TUP under existing terms and conditions.
(b) The BLM will provide reasonable notice to you if there is a proposal to transfer the BLM land your grant or TUP encumbers out of Federal ownership. If you request, the BLM will negotiate new grant or TUP terms and conditions with you. This may include increasing the term of your grant to a 30-year term or replacing your TUP with a grant. These changes, if any, become effective prior to the time the land is transferred out of Federal ownership. The BLM may then, in conformance with existing policies and procedures:
(1) Transfer the land subject to your grant or TUP. In this case, administration of your grant or TUP for the lands BLM formerly administered is transferred to the new owner of the land;
(2) Transfer the land, but BLM retains administration of your grant or TUP; or
(3) Reserve to the United States the land your grant or TUP encumbers, and BLM retains administration of your grant or TUP.
(c) You and the new land owner may agree to negotiate new grant or TUP terms and conditions any time after the land encumbered by your grant or TUP is transferred out of Federal ownership.
§ 2886.16 Under what conditions may BLM order an immediate temporary suspension of my activities?
(a) Subject to § 2886.11, BLM can order an immediate temporary suspension of grant or TUP activities within the right-of-way or TUP area to protect public health or safety or the environment. BLM can require you to stop your activities before holding an administrative proceeding on the matter and may order immediate remedial action.
(b) BLM may issue the immediate temporary suspension order orally or in writing to you, your contractor or subcontractor, or to any representative, agent, or employee representing you or conducting the activity. BLM may take this action whether or not any action is being or has been taken by other Federal or state agencies. When you receive the order, you must stop the activity immediately. BLM will, as soon as practical, confirm an oral order by sending or hand delivering to you or your agent at your address a written suspension order explaining the reasons for it.
(c) You may file a written request for permission to resume activities at any time after BLM issues the order. In the request, give the facts supporting your request and the reasons you believe that BLM should lift the order. BLM must grant or deny your request within 5 business days after receiving it. If BLM does not respond within 5 business days, BLM has denied your request. You may appeal the denial under § 2881.10 of this part.
(d) The immediate temporary suspension order is effective until you receive BLM’s written notice to proceed with your activities.
§ 2886.17 Under what conditions may BLM suspend or terminate my grant or TUP?
(a) Subject to § 2886.11, BLM may suspend or terminate your grant if you do not comply with applicable laws and regulations or any terms, conditions, or stipulations of the grant, or if you abandon the right-of-way.
(b) Subject to § 2886.11, BLM may suspend or terminate your TUP if you do not comply with applicable laws and regulations or any terms, conditions, or stipulations of the TUP, or if you abandon the TUP area.
(c) A grant or TUP also terminates when:
(1) The grant or TUP contains a term or condition that has been met that requires the grant or TUP to terminate;
(2) BLM consents in writing to your request to terminate the grant or TUP; or
(3) It is required by law to terminate.
(d) Your failure to use your right-of-way for its authorized purpose for any continuous 2-year period creates a presumption of abandonment. BLM will notify you in writing of this presumption. You may rebut the presumption of abandonment by proving that you used the right-of-way or that your failure to use the right-of-way was due to circumstances beyond your control, such as acts of God, war, or casualties not attributable to you.
(e) You may appeal a decision under this section under § 2881.10 of this part.
§ 2886.18 How will I know that BLM intends to suspend or terminate my grant or TUP?
(a) Grants. When BLM determines that it will suspend or terminate your grant under § 2886.17 of this subpart, it will send you a written notice of this determination. The determination will provide you a reasonable opportunity to correct the violation, start your use, or resume your use of the right-of-way, as appropriate. In the notice BLM will state the date by which you must correct the violation or start or resume use of the right-of-way.
(1) If you have not corrected the violation or started or resumed use of the right-of-way by the date specified in the notice, BLM will refer the matter to the Office of Hearings and Appeals. An ALJ in the Office of Hearings and Appeals will provide an appropriate administrative proceeding under 5 U.S.C. 554 and determine whether grounds for suspension or termination exist. No administrative proceeding is required where the grant by its terms provides that it terminates on the occurrence of a fixed or agreed upon condition, event, or time.
(2) BLM will suspend or terminate the grant if the ALJ determines that grounds exist for suspension or termination and the suspension or termination is justified.
(b) TUPs. When BLM determines that it will suspend or terminate your TUP, it will send you a written notice and provide you a reasonable opportunity to correct the violation or start or resume use of the TUP area. The notice will also provide you information on how to file a written request for reconsideration.
(1) You may file a written request with the BLM office that issued the notice, asking for reconsideration of the determination to suspend or terminate your TUP. BLM must receive this request within 10 business days after you receive the notice.
(2) BLM will provide you with a written decision within 20 business days after receiving your request for reconsideration. The decision will include a finding of fact made by the next higher level of authority than that who made the suspension or termination determination. The decision will also inform you whether BLM suspended or terminated your TUP or cancelled the notice made under paragraph (b) of this section.
(3) If the decision is adverse to you, you may appeal it under § 2881.10 of this part.
§ 2886.19 When my grant or TUP terminates, what happens to any facilities on it?
(a) Subject to § 2886.11, after your grant or TUP terminates, you must remove any facilities within the right-of-way or TUP area within a reasonable time, as determined by BLM, unless BLM instructs you otherwise in writing, or termination is due to non-payment of rent (see § 2885.17(c) of this part).
(b) After removing the facilities, you must remediate and restore the right-of-way or TUP area to a condition satisfactory to BLM, including the removal and clean-up of any hazardous materials.
(c) If you do not remove all facilities within a reasonable period, as determined by BLM, BLM may declare them to be the property of the United States. However, you are still liable for the costs of removing them and for remediating and restoring the right-of-way or TUP area.
Subpart 2887 – Amending, Assigning, or Renewing MLA Grants and TUPs
§ 2887.10 When must I amend my application, seek an amendment of my grant or TUP, or obtain a new grant or TUP?
(a) You must amend your application or seek an amendment of your grant or TUP when there is a proposed substantial deviation in location or use.
(b) The requirements to amend an application or a grant or TUP are the same as those for a new application, including paying processing and monitoring fees and rent according to §§ 2884.12, 2885.23, 2885.19, and 2886.11 of this part.
(c) Any activity not authorized by your grant or TUP may subject you to prosecution under applicable law and to trespass charges under subpart 2888 of this part.
(d) Notwithstanding paragraph (a) of this section, if you hold a pipeline grant issued before November 16, 1973, and there is a proposed substantial deviation in location or use of the right-of-way, you must apply for a new grant.
(e) BLM may ratify or confirm a grant that was issued before November 16, 1973, if we can modify the grant to comply with the Act and these regulations. BLM and you must jointly agree to any modification of a grant made under this paragraph.
§ 2887.11 May I assign or make other changes to my grant or TUP?
(a) With the BLM’s approval, you may assign, in whole or in part, any right or interest in a grant or TUP. Assignment actions that may require BLM approval include, but are not limited to, the following:
(1) The transfer by the holder (assignor) of any right or interest in the grant or TUP to a third party (assignee); and
(2) Changes in ownership or other related change in control transactions involving the BLM right-of-way grant holder or TUP holder and another business entity (assignee), including corporate mergers or acquisitions, but not transactions within the same corporate family.
(b) The BLM may require a grant or lease holder to file new or revised information in some circumstances that do not constitute an assignment (see subpart 2883 and §§ 2884.11(c) and 2886.12). Circumstances that would not constitute an assignment but may necessitate this filing include, but are not limited to:
(1) Transactions within the same corporate family;
(2) Changes in the holder’s name only (see paragraph (h) of this section); and
(3) Changes in the holder’s articles of incorporation.
(c) In order to assign a grant or TUP, the proposed assignee, subject to § 2886.11, must file an application and follow the same procedures and standards as for a new grant or TUP, including paying processing fees (see § 2884.12).
(d) The assignment application must also include:
(1) Documentation that the assignor agrees to the assignment; and
(2) A signed statement that the proposed assignee agrees to comply with and to be bound by the terms and conditions of the grant or TUP that is being assigned and all applicable laws and regulations.
(e) Your assignment is not recognized until the BLM approves it in writing. We will approve the assignment if doing so is in the public interest. The BLM may modify the grant or TUP or add bonding and other requirements, including terms and conditions, to the grant or TUP when approving the assignment. If we approve the assignment, the benefits and liabilities of the grant or TUP apply to the new grant or TUP holder.
(f) The processing time and conditions described at § 2884.21 apply to assignment applications.
(g) Only interests in issued right-of-way grants and TUPs are assignable. Pending right-of-way and TUP applications do not create any property rights or other interest and may not be assigned from one entity to another, except that an entity with a pending application may continue to pursue that application even if that entity becomes a wholly owned subsidiary of a new third party.
(h) Change in name only of holder. Name-only changes are made by individuals, partnerships, corporations, and other right-of-way and TUP holders for a variety of business or legal reasons. To complete a change in name only, (i.e., when the name change in question is not the result of an underlying change in control of the right-of-way grant or TUP), the following requirements must be met:
(1) The holder must file an application requesting a name change and follow the same procedures as for a new grant or TUP, including paying processing fees (see subpart 2884 of this part). The name change request must include:
(i) If the name change is for an individual, a copy of the court order or other legal document effectuating the name change; or
(ii) If the name change is for a corporation, a copy of the corporate resolution(s) proposing and approving the name change, a copy of the filing/acceptance of the change in name by the State or territory in which it is incorporated, and a copy of the appropriate resolution(s), order(s), or other documentation showing the name change.
(2) In connection with processing of a name change only, the BLM retains the authority under § 2885.13(e) to modify the grant or TUP, or add bonding and other requirements, including additional terms and conditions, to the grant or TUP.
(3) Your name change is not recognized until the BLM approves it in writing.
§ 2887.12 How do I renew my grant?
(a) You must apply to BLM to renew the grant at least 120 calendar days before your grant expires. BLM will renew the grant if the pipeline is being operated and maintained in accordance with the grant, these regulations, and the Act. If your grant has expired or terminated, you must apply for a new grant under subpart 2884 of this part.
(b) BLM may modify the terms and conditions of the grant at the time of renewal, and you must pay the processing fees (see § 2884.12 of this part) in advance.
(c) The time and conditions for processing applications for rights-of-way, as described at § 2884.21 of this part, apply to applications for renewals.
(d) If you make a timely and sufficient application for a renewal of your existing grant or for a new grant in accordance with this section, the existing grant does not expire until we have issued a decision to approve or deny the application.
(e) If we deny your application, you may appeal the decision under § 2881.10.
Subpart 2888 – Trespass
§ 2888.10 What is trespass?
(a) Trespass is using, occupying, or developing the public lands or their resources without a required authorization or in a way that is beyond the scope and terms and conditions of your authorization. Trespass is a prohibited act.
(b) Trespass includes acts or omissions causing unnecessary or undue degradation to the public lands or their resources. In determining whether such degradation is occurring, BLM may consider the effects of the activity on resources and land uses outside the area of the activity.
(c) The BLM will administer trespass actions for grants and TUPs as set forth in §§ 2808.10(c), and 2808.11 of this chapter.
(d) Other Federal agencies will address trespass on non-BLM lands under their respective laws and regulations.
§ 2888.11 May I receive a grant if I am or have been in trespass?
Until you satisfy your liability for a trespass, BLM will not process any applications you have pending for any activity on BLM-administered lands. A history of trespass will not necessarily disqualify you from receiving a grant. In order to correct a trespass, you must apply under the procedures described at subpart 2884 of this part. BLM will process your application as if it were a new use. Prior unauthorized use does not create a preference for receiving a grant.
PART 2910 – LEASES
Subpart 2911 – Airport
§ 2911.0-1 Purpose.
This subpart sets forth procedures for issuance of airport leases on the public lands.
§ 2911.0-3 Authority.
The Act of May 24, 1928, as amended (49 U.S.C. Appendix, 211-213), authorizes the Secretary of the Interior to lease for use as a public airport, any contiguous unreserved and unappropriated public lands not to exceed 2,560 acres in area.
§ 2911.0-5 Definitions.
As used in this subpart, the term:
(a) Act means the Act of May 24, 1928, as amended (49 U.S.C. Appendix, 211-213).
(b) Authorized officer means any employee of the Bureau of Land Management who has been delegated the authority to perform the duties described in this subpart.
(c) Administrator means the Administrator of the Federal Aviation Administration.
(d) Applicant means any individual who is a citizen of the United States; a group or association of citizens of the United States; any corporation, organized under the laws of the United States or of any State, authorized to conduct business in the State in which the land involved is located; or a State or political subdivisions or instrumentality thereof, including counties and municipalities; who submits an application for an airport lease under this subpart.
(e) Public airport means an airport open to use by all persons without prior permission of the airport lessee or operator, and without restrictions within the physical capacities of its available facilities.
§ 2911.0-8 Lands available for leasing.
Any contiguous unreserved and unappropriated public lands, surveyed or unsurveyed, not exceeding 2,560 acres in area, may be leased under the provisions of the Act, subject to valid existing rights under the public land laws.
§ 2911.1 Terms and conditions.
(a) The lessee shall, within 1 year from the date of issuance of the lease, equip the airport as required by the Administrator and file a report thereof in the Bureau of Land Management District office having jurisdiction over the lands under lease.
(b) At any time during the term of the lease, the Administrator may have an inspection made of the airport, and if the airport does not comply with the ratings set by the Federal Aviation Administration, the Administrator shall submit a written statement describing the deficiencies to the Bureau of Land Management District office having jurisdiction over the lands under lease for appropriate action.
(c) The authorized officer may cancel, in whole or in part, a lease issued under the Act for any of the following reasons: Lessee failure to use the leased premises or any part thereof for a period of at least 6 months; use of the property or any part thereof for a purpose other than the authorized use; failure to pay the annual rental in full on or before the date due; failure to maintain the premises according to the ratings set by the Federal Aviation Administration; failure to comply with the regulations in this part or the terms of the lease.
(d) Leases under the Act shall be for a period not to exceed 20 years and may be renewed for like periods.
(e) Annual rental for leases to any citizen of the United States, any group or association of citizens, or any corporation organized under the laws of the United States or any State shall be at appraised fair market rental, with a minimum annual rental payment of $100. State or political subdivisions thereof, including counties and municipalities, shall pay to the lessor an annual rental calculated at the appraised fair market value of the rental of the property less 50%, with a minimum annual rental payment of $100. In fixing the rentals, consideration shall be given to all pertinent facts and circumstances, including use of the airport by government departments and agencies. Rental of each lease shall be reconsidered and revised at 5-year intervals to reflect current appraised fair market value. The first annual rental payment shall be made prior to issuance of the lease. All subsequent payments shall be paid on or before the anniversary date of issuance of the lease.
(f) The lessee shall agree that all departments and agencies of the United States operating aircraft shall have free and unrestricted use of the airport and, with the approval of the authorized officer, such departments or agencies shall have the right to erect and install therein such structures and improvements as are deemed advisable by the heads of such departments and agencies. Whenever the President may deem it necessary for military purposes, the Secretary of the Army may assume full control of the airport.
(g) The lessee shall submit to the Administrator for approval regulations governing operations of the airport.
§ 2911.2 Procedures.
§ 2911.2-1 Preapplication activity.
Persons seeking to lease public lands under this subpart shall first consult with the authorized officer in the District or Resource Area Office in which the lands are located. Such consultation is necessary to determine land availability and conformity of proposed use with approved land use plans, explain associated statutory and regulatory requirements, familiarize the potential applicant with respective management responsibilities, set forth the application processing procedures for the proposed action, and identify potential conflicts. Upon completion of the consultation, persons seeking to lease public lands for a public airport may submit an application for consideration by the authorized officer.
§ 2911.2-2 Applications.
(a) Each application shall clearly describe the lands applied for by legal subdivisions and/or by metes and bounds and contain a plan of development and use signed by the applicant or by a duly authorized agent or officer of the applicant. When required by the authorized officer, the application shall include copies of the appropriate State, county, or municipal airport licenses or permits, as well as such additional States and local clearances as may be required.
(b) Each application shall be accompanied by a non-refundable filing fee of $100. Each applicant shall also be required to pay the cost of publication of a Notice of Reality Action in the
(c) If approval of an application results in cancellation of a grazing permit of lease or a reduction in grazing acreage, the provisions of § 4110.4-2 of this title shall apply.
§ 2911.2-3 Report by Administrator; Notice of Realty Action.
(a) Upon receipt of the application, the authorized officer shall send 1 copy to the Administrator for a determination concerning what fuel facilities, lights, and other furnishings are necessary to meet the rating set by that agency. After receiving the report of the Administrator, and before making a determination to issue a lease, the authorized officer shall publish a Notice of Realty Action in the
(b) The notice of realty action may segregate the lands or interests in lands to be conveyed to the extent that they will not be subject to appropriation under the public land laws, including the mining laws. The segregative effect of the notice of realty action shall terminate either upon issuance of a document of conveyance or 1 year from the date of publication in the
§ 2911.2-4 Execution of lease.
Upon receipt of the payments required by § 2911.2-2(b) of this title and not less than 45 days following the publications required by § 2911.2-4 of this title, the authorized officer shall make a decision on the application and, if the application is approved, issue the lease.
Subpart 2912 – Recreation and Public Purposes Act
§ 2912.0-7 Cross reference.
The general requirements and procedures under the Recreation and Public Purposes Act are contained in part 2740 of this title.
§ 2912.1 Nature of interest.
§ 2912.1-1 Terms and conditions of lease.
(a) The term of leases under the Recreation and Public Purposes Act, hereafter referred to as the Act, shall be fixed by the authorized officer but shall not exceed 20 years for nonprofit associations and nonprofit corporations, and 25 years for Federal, State, and local governmental entities. A lease may contain, at the discretion of the authorized officer, a provision giving the lessee the privilege of renewing the lease for a like period.
(b) Leases shall be issued on a form approved by the Director, Bureau of Land Management and shall contain terms and conditions required by law, and public policy, and which the authorized officer considers necessary for the proper development of the land, for the protection of Federal property, and for the protection of the public interest.
(c) Leases shall be terminable by the authorized officer upon failure of the lessee to comply with the terms of the lease, upon a finding, after notice and opportunity for hearing, that all or part of the land is being devoted to a use other than the use authorized by the lease, or upon a finding that the land has not been used by the lessee for the purpose specified in the lease for any consecutive period specified by the authorized officer. The specified period of non-use or unauthorized use shall not be less than 2 years nor more than 5 years.
(d) Reasonable annual rentals shall be established by the Secretary of the Interior and shall be payable in advance. Upon notification of the amount of the yearly rental, a lease applicant shall be required to pay at least the first year’s rental before the lease shall be issued. Upon the voluntary relinquishment of a lease before the expiration of its term, any rental paid for the unexpired portion of the term shall be returned to the lessee upon a proper application for repayment to the extent that the amount paid covers a full lease year or years of the remainder of the term of the original lease. Leases for recreational or historic-monument purposes to a State, county or other State or Federal instrumentality or political subdivision shall be issued without monetary consideration.
(e) Leases are not transferable except with the consent of the authorized officer. Transferees shall have all the qualifications of applicants under the Act and shall be subject to all the terms and conditions of the regulations in this part.
(f) A lessee shall not be permitted to cut timber from the leased lands without prior permission from the authorized officer.
(g) All leases shall reserve to the United States all minerals together with the right to mine and remove the same under applicable laws and regulations to be established by the Secretary of the Interior.
§ 2912.2 Renewal of leases.
A lessee with a privilege of renewal must notify the authorized officer at least 180 days before the end of the lease period that it will exercise the privilege.
§ 2912.3 Substitution of a new lease.
A lessee may apply for a new lease at any time. Applications for new leases shall be accompanied by consent of the lessee to cancellation of the existing lease upon the issuance of the new lease and by three copies of a statement showing (a) the need for a new lease and (b) any changes in the use or management of the lands or the terms and conditions of the lease which the applicant desires.
Subpart 2916 – Alaska Fur Farm
§ 2916.0-3 Authority.
The Act of July 3, 1926 (44 Stat. 821, 48 U.S.C. secs. 360, 361), authorizes the Secretary of the Interior to lease public lands on the mainland of or islands in Alaska, with the exception of the Pribilof Islands, for fur farming, for periods not exceeding ten years.
§ 2916.0-6 Policy.
(a) The authority to lease the public lands in Alaska for fur-farming purposes was granted in order to promote the development of the production of furs in Alaska.
(b) No lease for the purpose of raising beavers will be granted on any area already occupied by a beaver colony nor will any such lease be granted on streams or lakes where the activities of beavers may interfere with the run or spawning of salmon.
(c) In order to offer more people an opportunity to lease lands, and to avoid tying up large areas of land unnecessarily, fur-farming leases on public lands will not be granted for areas greater than are justified by the needs and experience of the applicant.
§ 2916.0-8 Area subject to lease.
(a) Acreage limitation and exceptions. (1) On the mainland such leases may be for an area not exceeding 640 acres. A lease may cover an entire island, provided the area thereof does not exceed 30 square miles, and provided the need for such entire island is clearly established. Islands so close together that animals can cross from one to the other and whose combined area does not exceed 30 square miles, will be treated as one island. Islands having an area of more than 30 square miles will be treated as mainland.
(2) Where a lease is granted for an area in excess of 640 acres on an island, the manager may, after notice to the lessee, reduce the area to an amount not less than 640 acres, if he determines that the lessee cannot reasonably use all of the area for which the lease was granted.
(b) Lands subject to lease. (1) Vacant, unreserved, and unappropriated public lands are subject to lease.
(2) Except for lands under the jurisdiction of the Fish and Wildlife Service and the National Park Service, public lands withdrawn or reserved for any purpose are subject to lease, if the department or agency having jurisdiction thereof consents to the issuance of the lease.
§ 2916.1 Terms and conditions.
§ 2916.1-1 Commencement of operations; stocking lands.
The lessee shall, within one year from the date of issuance of the lease, commence operations by taking possession of the leased area, and by placing thereon within that period such improvements as may be needed for such operations and as will show good faith, and shall thereafter develop the fur-farming enterprise on the leased area with reasonable diligence. The lessee shall stock the leased area with the minimum of fur-bearing animals required by the lease within the periods specified in the lease.
§ 2916.1-2 Rights reserved; protection of improvements and roads.
Nothing in this part or any lease issued under this part shall interfere with or prevent:
(a) The prospecting, locating, development, entering, leasing, or patenting of mineral resources in the leased area under laws applicable thereto.
(b) The use and disposal of timber or other resources on or in the leased area under applicable laws.
(c) The use and occupation of parts of leased areas for the taking, preparing, manufacturing, or storing of fish or fish products, or the utilization of the lands for purposes of trade or business, to the extent and in the manner provided by law, and as authorized by the State Director.
(d) The acquisition or granting of rights-of-way or easements under applicable laws and regulations.
(e) Hunting and fishing under applicable Federal and State hunting and fishing laws and regulations, but the authorized officer may prohibit or restrict, or he may authorize the lessee to prohibit or restrict hunting or fishing on such parts of the leased area and for such periods as he may determine to be necessary in order to prevent any substantial interference with the purposes for which the lease is issued.
§ 2916.2 Procedures.
§ 2916.2-1 Applications.
(a) Qualifications of applicants. Any person who is a citizen of the United States, or any group or association composed of such persons, or any corporation organized under the laws of the United States, or of any State thereof, authorized to conduct business in Alaska may file an application.
(b) Contents of application. An application for lease should be filed in duplicate in the proper office. No specific form of application is required, but the application should contain or be accompanied by the following:
(1) Applicant’s full name, post office address, the general nature of his present business, and the principal place of business.
(2)(i) A statement of the age and of the citizenship status, whether native-born or naturalized, of the applicant, if an individual, or of each partner or member of a partnership or association. A copartnership or an association applicant shall file a copy of whatever written articles of association its members have executed.
(ii) A corporation shall file a certified copy of its articles of incorporation, evidence that it is authorized to transact business in Alaska, and a copy of the corporate minutes or resolutions authorizing the filing of the application and the execution of the lease.
(3) Description of the land for which the lease is desired, by legal subdivision, section, township, and range, if surveyed, and by metes and bounds, with the approximate area, if unsurveyed. The metes and bounds description should be connected by course and distance with some corner of the public-land surveys, if practicable, or with reference to rivers, creeks, mountains, towns, islands, or other prominent topographical points or natural objects or monuments.
(4) A statement as to the applicant’s experience in and knowledge of fur farming.
(5) A statement as to the kind of fur-bearing animals to be raised, and, if foxes, the color type; the number of fur-bearing animals the applicant proposes to have on the leased land within one year from the date of the lease, and whether it is proposed to purchase or trap the stock; and that before commencing operations of any lease which may be issued, the applicant will procure from the appropriate State game agency whatever licenses are required under Alaska law.
(6) A detailed statement of the reasons for the need for any area in excess of 640 acres but not exceeding 30 square miles, when the land applied for is comprised of an island, or islands.
(7) A statement of the nature and results of the investigation made by applicant as to whether the land and climate are suited to raising the kind of animals proposed to be stocked.
(8) A statement as to whether the land is occupied, claimed, or used by natives of Alaska or others; and, if so the nature of the use and occupancy and the improvements thereon, if any.
(9) If beavers are to be raised, a statement as to whether a beaver colony exists on the land, and whether salmon streams or lakes are on or adjacent to the land proposed to be leased.
(10) A statement that the applicant is acting solely on his own account and not under any agreement or understanding with another.
(11) The serial numbers of all other applications filed or leases obtained under this act by applicant, or applicant’s spouse or business associate, or in which applicant has a direct or indirect interest.
(12) The showing as to hot or medicinal springs required by § 2311.2(a) of this chapter.
(13) All applications must be accompanied by an application service fee of $10 which will not be returnable.
(c) Form of lease; rental and royalty; report of annual operations. (1) Leases will be issued on a form approved by the Director.
(2) Prior to the issuance of a lease and annually thereafter, the lessee shall pay an advance rental of $5 per annum if the lease embraces 10 acres or less, a rental of $25 per annum if the leased area is more than 10 acres but not more than 640 acres, and a rental of $50 per annum if the leased area exceeds 640 acres.
(3) Within 60 days after the end of each lease year the lessee shall file with the land office a report on a form approved by the Director, in duplicate, showing his operations under the lease and his gross receipts thereunder from the sale of live animals and pelts for the preceding lease year. The lessee shall pay, at the time of filing the report, a royalty of 1 percent of such gross receipts deducting therefrom the amount of the advance rental payment made for such preceding lease year.
§ 2916.2-2 Assignments and subleases.
A proposed assignment on a lease, in whole or in part, or a sublease, must be filed in duplicate with the proper office within 90 days from the date of its execution; must contain all of the terms and conditions agreed upon by the parties thereto; and must be supported by a statement that the assignee or sublessee agrees to be bound by the provisions of the lease. The assignee or sublessee must submit with the assignment or sublease the information or statements required by § 2916.2-1(b) (1), (2), (4), (5), (10), and (11). No assignment or sublease will be recognized unless and until approved by the authorizing officer.
§ 2916.2-3 Renewal of leases.
Upon an application filed in the proper office within 90 days preceding the expiration date of the lease, if it is determined that a renewal lease should be granted, the lessee will be offered such lease by the authorized officer, upon such terms and conditions and for such duration as may be fixed, not exceeding 10 years. The filing of an application for renewal does not confer on the lessee any preference right to a renewal. The timely filing of an application will, however authorize the exclusive fur-farming use of the lands by the lessee in accordance with the terms of the prior lease pending final action on the renewal application.
§ 2916.2-4 Termination of lease; cancellation.
(a) Action by authorized officer. (1) The authorized officer may terminate a lease at the request of the lessee if the lessee shall make satisfactory showing that such termination will not adversely affect the public interest and that he has paid all charges due the Government thereunder.
(2) A lease may be canceled if the lessee shall fail to comply with any of the provisions of this part or of the lease, or shall devote the lease area primarily to any purpose other than the rearing of fur-bearing animals as authorized. No lease will be canceled until the lessee has been formally notified of such default and such default shall continue for 60 days after service of such notice.
(b) Removal of improvements and personal property. (1) Improvements or personal property may not be removed from the lands, except fur-bearing animals disposed of in the regular course of business, unless all moneys due the United States under the lease have been paid. The lessee shall be allowed 90 days from the date of expiration or termination of the lease within which to remove his personal property and such improvements as are not disposed of in the manner set forth in paragraph (b)(2) of this section, which he has a right to remove; if not removed or otherwise disposed of within the said period, such improvements or personal property shall become the property of the United States.
(2) Upon the expiration of the lease or the earlier termination thereof, the authorizing officer may, in his discretion and upon a written petition filed by the lessee within 30 days from the date of such expiration or termination, require the subsequent lease applicant, prior to the execution of a new lease, to agree to compensate the lessee for any improvements of a permanent nature that he may have placed upon the leased area for fur-farming purposes during the period of the lease. If the interested parties are unable to reach an agreement as to the amount of compensation, the amount shall be fixed by the authorizing officer. All such agreements to be effective, must be approved by the authorizing officer. The failure of the subsequent lessee to pay the former lessee in accordance with such agreement will be just cause for cancellation of the lease.
PART 2920 – LEASES, PERMITS AND EASEMENTS
Subpart 2920 – Leases, Permits and Easements: General Provisions
§ 2920.0-1 Purpose.
The purpose of the regulations in this part is to establish procedures for the orderly and timely processing of proposals for non-Federal use of the public lands. The procedural and informational requirements set by these regulations vary in relation to the nature of the anticipated use.
§ 2920.0-3 Authority.
Sections 302, 303 and 310 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1732, 1733, 1740) authorize the Secretary of the Interior to issue regulations providing for the use, occupancy, and development of the public lands through leases, permits, and easements.
§ 2920.0-5 Definitions.
As used in this part, the term:
(a) Authorized officer means any employee of the Bureau of Land Management to whom has been delegated the authority to perform the duties described in this part.
(b) Easement means an authorization for a non-possessory, non-exclusive interest in lands which specifies the rights of the holder and the obligation of the Bureau of Land Management to use and manage the lands in a manner consistent with the terms of the easement.
(c) Lease means an authorization to possess and use public lands for a fixed period of time.
(d) Permit means a short-term revocable authorization to use public lands for specified purposes.
(e) Land use proposal means an informal statement, in writing, from any person to the authorized officer requesting consideration of a specified use of the public lands.
(f) Land use plan means resource management plans or management framework plans prepared by the Bureau of Land Management pursuant to its land use planning system.
(g) Public lands means lands or interests in lands administered by the Bureau of Land Management, except lands located on the Outer Continental Shelf and lands held for the benefit of Indians, Aleuts and Eskimos.
(h) Person means any person or entity legally capable of conveying and holding lands or interests therein, under the laws of the State within which the lands or interests therein are located, who is a citizen of the United States, or in the case of a corporation, is subject to the laws of any State or of the United States.
(i) Proponent means any person who submits a land use proposal, either on his/her own initiative or in response to a notice for submission of such proposals.
(j) Applicant means any person who submits an application for a land use authorization under this part.
(k) Casual use means any short term non-commercial activity which does not cause appreciable damage or disturbance to the public lands, their resources or improvements, and which is not prohibited by closure of the lands to such activities.
(l) Land use authorization means any authorization to use the public lands issued under this part.
(m) Knowing and willful means that a violation is knowingly and willfully committed if it constitutes the voluntary or conscious performance of an act which is prohibited or the voluntary or conscious failure to perform an act or duty that is required. The terms does not include performances or failures to perform which are honest mistakes or which are merely inadvertent. The term includes, but does not require, performances or failures to perform which result from a criminal or evil intent or from a specific intent to violate the law. The knowing or willful nature of conduct may be established by plain indifference to or reckless disregard of the requirements of law, regulations, orders, or terms of a lease. A consistent pattern of performance or failure to perform also may be sufficient to establish the knowing or willful nature of the conduct, where such consistent pattern is neither the result of honest mistake or mere inadvertency. Conduct which is otherwise regarded as being knowing or willful is rendered neither accidental nor mitigated in character by the belief that the conduct is reasonable or legal.
§ 2920.0-6 Policy.
(a) Land use authorizations shall be issued only at fair market value and only for those uses that conform with Bureau of Land Management plans, policy, objectives and resource management programs. Conformance with land use authorizations will be determined through the planning process and procedures provided in part 1600 of this title.
(b) In determining the informational and procedural requirements, the authorized officer will consider the duration of the anticipated use, its impact on the public lands and resources and the investment required by the anticipated use.
§ 2920.0-9 Information collection.
(a) The information collection requirements contained in Part 2920 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq., and assigned clearance number 1004-0009. The BLM will use the information in considering land use proposals and applications. You must respond to obtain a benefit under Section 302 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1732).
(b) Public reporting burden for this information is estimated to average 7.43 hours, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Information Collection Clearance Officer, Bureau of Land Management (DW-101), Building 50, Denver Federal Center, P.O. Box 25047, Denver, Colorado 80225, and to the Office of Management and Budget, Paperwork Reduction Project, 1004-0009, Washington, D.C. 20503.
§ 2920.1 Uses.
§ 2920.1-1 Authorized use.
Any use not specifically authorized under other laws or regulations and not specifically forbidden by law may be authorized under this part. Uses which may be authorized include residential, agricultural, industrial, and commercial, and uses that cannot be authorized under title V of the Federal Land Policy and Management Act or section 28 of the Mineral Leasing Act. Land use authorizations shall be granted under the following categories:
(a) Leases shall be used to authorize uses of public lands involving substantial construction, development, or land improvement and the investment of large amounts of capital which are to be amortized over time. A lease conveys a possessory interest and is revocable only in accordance with its terms and the provisions of § 2920.9-3 of this title. Leases shall be issued for a term, determined by the authorized officer, that is consistent with the time required to amortize the capital investment.
(b) Permits shall be used to authorize uses of public lands for not to exceed 3 years that involve either little or no land improvement, construction, or investment, or investment which can be amortized within the term of the permit. A permit conveys no possessory interest. The permit is renewable at the discretion of the authorized officer and may be revoked in accordance with its terms and the provisions of § 2920.9-3 of this title. Permits shall be issued on a form approved by the Director, Bureau of Land Management, that has been filed by the applicant with the appropriate Bureau of Land Management office.
(c) Easements may be used to assure that uses of public lands are compatible with non-Federal uses occurring on adjacent or nearby land. The term of the easement shall be determined by the authorized officer. An easement granted under this part may be issued only for purposes not authorized under title V of the Federal Land Policy and Management Act or section 28 of the Mineral Leasing Act.
(d) No land use authorization is required under the regulations in this part for casual use of the public lands.
(a) Any use, occupancy, or development of the public lands, other than casual use as defined in § 2920.0-5(k) of this title, without authorization under the procedures in § 2920.1-1 of this title, shall be considered a trespass. Anyone determined by the authorized officer to be in trespass on the public lands shall be notified of such trespass and shall be liable to the United States for:
(1) The administrative costs incurred by the United States as a consequence of such trespass; and
(2) The fair market value rental of the lands for the current year and past years of trespass; and
(3) Rehabilitating and stabilizing the lands that were the subject of such trespass, or if the person determined to be in trespass does not rehabilitate and stabilize the lands determined to be in trespass within the period set by the authorized officer in the notice, he/she shall be liable for the costs incurred by the United States in rehabilitating and stabilizing such lands.
(b) In addition, the following penalties may be assessed by the authorized officer for a trespass not timely resolved under paragraph (a) of this section and where the trespass is determined to be:
(1) Nonwillful, twice the fair market rental value which has accrued since the inception of the trespass, not to exceed a total of 6 years; or
(2) Knowing and willful, three times the fair market rental value which has accrued since the inception of the trespass, not to exceed a total of 6 years.
(c) For any person found to be in trespass on the public lands under this section, the authorized officer may take action under § 2920.9-3 of this title to terminate, revoke, or cancel any land use authorization issued to such person under this part.
(d) Failure to satisfy the liability and penalty requirements imposed under this section for unauthorized use of the public lands may result in denial of:
(1) A use authorization under this part; and
(2) A request to purchase or exchange public lands filed under subparts 2711 and 2201 of this title.
(e) Any person who knowingly and willfully violates the regulations in this part by using the public lands without the authorization required by this part, in addition to the civil penalties provided for in this part, may be subject to a fine of not more than $1,000 or imprisonment of not more than 12 months, or both under subpart 9262 of this title.
(f) Any person adversely affected by a decision issued under this section, may appeal that decision under the provisions of part 4 of this title.
§ 2920.2 Procedures for public-initiated land use proposals.
§ 2920.2-1 Discussion of proposals.
(a) Suggestions by land use proponent. Any person who seeks to use public lands may contact the Bureau of Land Management office having jurisdiction over the public lands in question and discuss the land use proposal. This contact should be made as early as possible so that administrative requirements and potential conflicts with other land uses can be identified.
(b) Response by the authorized officer. The authorized officer will discuss with the land use proponent whether the requested land use, suitability or non-suitability of the requested land use based on a preliminary examination of existing land use plans, where available, is or is not in conformance with Bureau of Land Management policies and programs for the lands, local zoning ordinances and any other pertinent information. The authorized officer will discuss administrative requirements for the type of land use authorization which may be granted (lease, permit or easement), including, but not limited to: additional information which may be required; qualifications; cost reimbursement requirements; associated clearances, other permits or licenses which may be required; environmental and management considerations; and special requirements such as competitive bidding and identification of on-the-ground investigations which may be required in order to issue a land use authorization.
§ 2920.2-2 Minimum impact permits.
(a) The authorized officer may, without publication of a notice of realty action, issue a permit for a land use upon a determination that the proposed use is in conformance with Bureau of Land Management plans, policies and programs, local zoning ordinances and any other requirements and will not cause appreciable damage or disturbance to the public lands, their resources or improvements.
(b) Permit decisions made under paragraph (a) of this section take effect immediately upon execution, and remain in effect during the period of time specified in the decision to issue the permit. Any person whose interest is adversely affected by a decision to grant or deny a permit under paragraph (a) of this section may appeal to the Board of Land Appeals under part 4 of this title. However, decisions and permits issued under paragraph (a) of this section will remain in effect until stayed.
§ 2920.2-3 Other land use proposals.
(a) A proposal for a land use authorization, including permits not covered by § 2920.2-2 of this title, shall be submitted in writing to the Bureau of Land Management office having jurisdiction over the public lands covered by the proposal.
(b) The submission of a proposal gives no right to use the public lands.
§ 2920.2-4 Proposal content.
(a) Proposals for a land use authorization shall include a description of the proposed land use in sufficient detail to enable the authorized officer to evaluate the feasibility of the proposed land use, the impacts if any, on the environment, the public or other benefits from the proposed land use, the approximate cost of the proposal, any threat to the public health and safety posed by the proposal and whether the proposal is, in the proponent’s opinion, in conformance with Bureau of Land Management plans, programs and policies for the public lands covered by the proposal. The description shall include, but not be limited to:
(1) Details of the proposed uses and activities;
(2) A description of all facilities for which authorization is sought, access needs and special types of easements that may be needed;
(3) A map of sufficient scale to allow all of the required information to be legible and a legal description of primary and alternative project locations; and
(4) A schedule for construction of any facilities.
(b) The proposal shall include the name, legal mailing address and telephone number of the land use proponent.
§ 2920.2-5 Proposal review.
(a) A land use proposal shall, upon submission, be reviewed to determine if the public lands covered by the proposal are appropriate for the proposed land use and if the proposal is otherwise legal.
(b) If the proposal is found to be appropriate for further consideration, the authorized officer shall examine the proposal and make one of the following determinations:
(1) The proposed land use is in conformance with the appropriate land use plan and can be approved;
(2) The proposed land use has not been addressed in an existing land use plan and shall be addressed in accordance with the procedure in part 1600 of this title;
(3) The proposed land use is in an area not covered in an existing land use plan and shall be processed in accordance with the procedure in § 1601.8 of this title; or
(4) The proposed land use is not in conformance with the approved land use plan. This determination may be appealed under 43 CFR 4.400 for review of the question of conformance with the land use plan.
(c)(1) If a proposed land use does not meet the requirements of this subpart or is found not to be in conformance with the land use plan, the authorized officer shall so advise the proponent and shall provide a written explanation of the reasons the proposed use does not meet the requirements of this subpart and/or is not in conformance with an existing land use plan.
(2) Where a proposed land use is determined not to be in conformance with an approved land use plan, with the land use plan, the authorized officer may consider the proposal for land use as an application to amend or revise the existing land use plan under part 1600 of this title.
§ 2920.3 Bureau of Land Management initiated land use proposals.
Where, as a result of the land use planning process, the desirability of allowing use of the public lands or providing increased service to the public from such use of the public lands is demonstrated, the authorized officer may identify a use for the public land and notify the public that proposals for utilizing the land through a lease, permit or easement will be considered.
§ 2920.4 Notice of realty action.
(a) A notice of realty action indicating the availability of public lands for non-Federal uses through lease, permit or easement shall be issued, published and sent to parties of interest by the authorized officer, including, but not limited to, adjoining land owners and current or past land users, when a determination has been made that such public lands are available for a particular use either through the submission of a public initiated proposal or through the land use planning process.
(b) The notice shall include the use proposed for the public lands and shall notify the public that applications for a lease, permit or easement shall be considered. The notice shall specify the form of negotiation, whether by competitive or non-competitive bidding, under which the land use authorization shall be issued. A notice of realty action is not a specific action implementing a resource management plan or amendment.
(c) The notice of realty action shall be published once in the
(d) An application submitted before a notice of realty action is published shall not be processed and shall be returned to the person who submitted it. Return of an application shall not be subject to appeal or protest.
§ 2920.5 Application procedure.
(a) Only after publication of a notice of realty action shall an application for a land use authorization be filed with the Bureau of Land Management office having jurisdiction over the public lands covered by the application.
(b) The filing of an application gives no right to use the public lands.
§ 2920.5-2 Application content.
(a) Applications for land use authorizations shall include a reference to the notice of realty action under which the application is filed and a description of the proposed land use in sufficient detail to enable the authorized officer to evaluate the feasibility of the proposed land use, the impacts, if any, on the environment, the public or other benefits from the land use, the approximate cost of the proposed land use, any threat to the public health and safety posed by the proposed use and whether the proposed use is, in the opinion of the applicant, in conformance with the Bureau of Land Management plans, programs and policies for the public lands covered by the proposed use. The description shall include, but not be limited to:
(1) Details of the proposed uses and activities;
(2) A description of all facilities for which authorization is sought, access needs and special types of easements that may be needed;
(3) A map of sufficient scale to allow all of the required information to be legible and a legal description of primary and alternative project locations; and
(4) A schedule for construction of any facilities.
(b) Additional information:
(1) After review of the project description, the authorized officer may require the applicant(s) to fund or to perform additional studies or submit additional environmental data, or both, so as to enable the Bureau of Land Management to prepare an environmental analysis in accordance with section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and comply with the requirements of the National Historic Preservation Act of 1966 (16 U.S.C. 470); The Archeological and Historic Preservation Act of 1974 (16 U.S.C. 469 et seq.); Executive Order 11593, “Protection and Enhancement of the Cultural Environment” of May 13, 1971 (36 FR 8921); “Procedures for the Protection of Historic and Cultural Properties” (36 CFR part 300); and other laws and regulations as applicable.
(2) An application for the use of public lands may require additional private, State, local or other Federal agency licenses, permits, easements, certificates or other approval documents. The authorized officer may require the applicant to furnish such documents, or proof of application for such documents, as part of the application.
(3) The authorized officer may require evidence that the applicant has, or prior to commencement of construction will have, the technical and financial capability to construct, operate, maintain and terminate the authorized land use.
(c) The application shall include the name and legal mailing address of the applicant.
(d) Business Associations. If the applicant is other than an individual, the application shall include the name and address of an agent authorized to receive notice of actions pertaining to the application.
(e) Federal departments and agencies. Federal departments and agencies are not qualified to hold land use authorizations under this authority.
(f) If any of the information required in this section has already been submitted as part of a land use proposal submitted under § 2920.2 of this title, the application need only refer to that proposal by filing date, office and case number. The applicant shall certify that there have been no changes in any of the information.
§ 2920.5-3 Application review.
Every application shall be reviewed to determine if it conforms to the notice of realty action. If the application does not meet the requirements of this subpart, the application may be denied, and the applicant shall be so advised in writing, with an explanation.
§ 2920.5-4 Competitive or non-competitive bids.
(a) Competitive. Land use authorizations may be offered on a competitive basis if, in the judgment of the authorized officer, a competitive interest exists or if no equities, such as prior use of the lands, warrant non-competitive land use authorization. Land use authorizations shall be awarded on the basis of the public benefit to be provided, the financial and technical capability of the bidder to undertake the project and the bid offered. A bid at less than fair market value shall not be considered. Each bidder shall submit information required by the notice of realty action.
(b) Non-competitive. Land use authorizations may be offered on a negotiated, non-competitive basis, when, in the judgement of the authorized officer equities, such as prior use of the lands, exist, no competitive interest exists or where competitive bidding would represent unfair competitive and economic disadvantage to the originator of the unique land use concept. The non-competitive bid shall not be for less than fair market value.
§ 2920.5-5 Application processing.
(a) After review of applications filed, the authorized officer shall select one application for further processing in accordance with the notice of realty action. The authorized officer shall provide public notice of the selection of an applicant and notify the selected applicant, in writing, of the selection. All other applications shall be rejected and returned to the applicants.
(b) The selected land use applicant shall submit any additional information that the authorized officer considers necessary to process the land use authorization.
§ 2920.6 Reimbursement of costs.
(a) When two or more applications are submitted for a land use authorization, each applicant shall be liable for the identifiable costs of processing his (or her) application. Where the costs of processing two or more applications cannot be readily identified with particular applications, all applicants shall be liable for such costs, to be divided equally among them.
(b) The selected land use applicant shall reimburse the United States for reasonable administrative and other costs incurred by the United States in processing a land use authorization application and in monitoring construction, operation, maintenance and rehabilitation of facilities authorized under this part, including preparation of reports and statements required by the National Environmental Policy Act of 1969 (43 U.S.C. 4321 et seq.). The reimbursement of costs shall be in accordance with the provisions of §§ 2804.14 and 2805.16 of this chapter.
(c) The authorized officer may, before beginning any processing of a land use authorization application, require payment, as may be needed, to cover the estimated costs of processing the application. Before granting a land use authorization, the authorized officer shall assess and collect the actual costs of processing after furnishing the applicant with a statement of costs. This payment shall be determined in accordance with the provisions of §§ 2804.14 and 2805.16 of this chapter.
(d) A selected applicant who withdraws, in writing, a land use application before a final decision is reached on the authorization is responsible for all costs incurred by the United States in processing the application up to the day that the authorized officer receives notice of the withdrawal and for costs subsequently incurred by the United States in terminating the proposed land use authorization process. Reimbursement of such costs shall be paid within 30 days of receipt of notice from the authorized officer of the amount due.
(e) Advance payments based on a schedule of rates developed by the authorized officer, are required for monitoring of operations and maintenance during the term of the land use authorization, which amount shall be paid simultaneously with the rental payment required by § 2920.8(a) of this title.
(f) The selected applicant shall, before a land use authorization is issued, submit a payment based on a schedule of rates developed by the Director, Bureau of Land Management, for monitoring rehabilitation or restoration of the lands upon expiration of the land use authorization.
(g) If payment, as required by paragraphs (b), (d) and (e) of this section, exceeds actual costs to the United States, refund may be made by the authorized officer from applicable funds under authority of 43 U.S.C. 1734, or the authorized officer may adjust the next billing to reflect the overpayment. Neither an applicant nor a holder of land use authorization shall set off or otherwise deduct any debt due to or any sum claimed to be owed them by the United States without the prior written approval of the authorized officer.
(h) The authorized officer shall, on request, give a selected applicant an estimate, based on the best available cost information, of the costs, which may be incurred by the United States in processing the proposed land use authorization. However, reimbursement shall not be limited to the estimate of the authorized officer if actual costs exceed the projected estimate.
(i) When through partnership, joint venture or other business arrangement, more than one person, partnership, corporation, association or other entity jointly make application for a land use authorization, each such party shall be jointly and severally liable for the costs under this section.
(j) Requests for modification of or addition to the land use authorization or reconstruction or relocation of any authorized facilities shall be treated as a new application for cost recovery purposes and are subject to the cost requirements of this section.
§ 2920.7 Terms and conditions.
(a) In all land use authorizations the United States reserves the right to use the public lands or to authorize the use of the public lands by the general public in any way compatible or consistent with the authorized land use and such reservations shall be included as a part of all land use authorizations. Authorized representatives of the Department of the Interior, other Federal agencies and State and local law enforcement personnel shall at all times have the right to enter the premises on official business. Holders shall not close or otherwise obstruct the use of roads or trails commonly in public use.
(b) Each land use authorization shall contain terms and conditions which shall:
(1) Carry out the purposes of applicable law and regulations issued thereunder;
(2) Minimize damage to scenic, cultural and aesthetic values, fish and wildlife habitat and otherwise protect the environment;
(3) Require compliance with air and water quality standards established pursuant to applicable Federal or State law; and
(4) Require compliance with State standards for public health and safety, environmental protection, siting, construction, operation and maintenance of, or for, such use if those standards are more stringent than applicable Federal standards.
(c) Land use authorizations shall also contain such other terms and conditions as the authorized officer considers necessary to:
(1) Protect Federal property and economic interests;
(2) Manage efficiently the public lands which are subject to the use or adjacent to or occupied by such use;
(3) Protect lives and property;
(4) Protect the interests of individuals living in the general area of the use who rely on the fish, wildlife and other biotic resources of the area for subsistence purposes;
(5) Require the use to be located in an area which shall cause least damage to the environment, taking into consideration feasibility and other relevant factors; and
(6) Otherwise protect the public interest.
(d) A holder shall be required to secure authorization under applicable law to pay in advance the fair market value, as determined by the authorized officer, of any mineral, vegetative materials (including timber) to be cut, removed, used or destroyed on public lands.
(e) A holder shall not use the public lands for any purposes other than those specified in the land use authorization without the approval of the authorized officer.
(f) Liability provisions:
(1) Holders of a land use authorization and all owners of any interest in, and all affiliates or subsidiaries of any holder of a land use authorization issued under these regulations shall pay the United States the full value for all injuries or damage to public lands or other property of the United States caused by the holder or by its employees, agents or servants, or by a contractor, its employees, agents or servants, except holders shall be held to standards of strict liability where the Secretary of the Interior determines that the activities taking place on the area covered by the land use authorization present a foreseeable hazard or risk of danger to public lands or other property of the United States. Strict liability shall not be applied where such damages or injuries result from acts of war or negligence of the United States.
(2) Holders of a land use authorization and all owners of any interest in, and affiliates or subsidiaries of any holder of a land use authorization issued under these regulations shall pay third parties the full value of all injuries or damage to life, person or property caused by the holder, its employees, agents or servants or by a contractor, its employees, agents or servants.
(3) Holders of a land use authorization shall indemnify or hold harmless the United States against any liability for damages to life, person or property arising from the authorized occupancy or use of the public lands under the land use authorization. Where a land use authorization is issued to a State or local government or any agency or instrumentality thereof, which has no legal power to assume such liability with respect to damages caused by it to lands or property, such State or local government or agency in lieu thereof shall be required to repair all damages.
(g) The authorized officer may require a bond or other security satisfactory to him/her to insure the fulfillment of the terms and conditions of the land use authorization.
(h) Any land use authorization existing on the effective date of this regulation is not affected by this regulation and shall continue to be administered under the statutory authority under which it was issued. However, by filing a proposal for amendment or renewal, the holder of a land use authorization shall be considered to have agreed to convert the entire authorization to the current statutory authority and the regulations in effect at the time of approval of the amendment or renewal.
(i) The holder of a land use authorization who has complied with the provisions thereof, shall, upon the filing of a request for renewal, be the preferred user for a new land use authorization provided that the public lands are not needed for another use. Renewal, if granted, shall be subject to new terms and conditions. If so specified in the terms of a permit, the permit may be automatically renewable upon payment of the annual rental unless the authorized officer notifies the permittee within 60 days of the expiration date of the permit that the permit shall not be renewed.
(j) Land use authorizations may be transferred in whole or in part but only under the following conditions:
(1) The transferee shall comply with the provisions of § 2920.2-3 of this title;
(2) The authorized officer may modify the terms and conditions of the land use authorization and the transferee shall agree, in writing, to comply with and be bound by the terms and conditions of the authorization as modified; and
(3) Transfers shall not take effect until approved by the authorized officer.
(k) If public lands included in a lease or easement are to be disposed of, the conveyance shall be made subject to the lease or easement. Permits shall be revoked prior to disposal of the public lands.
§ 2920.8 Fees.
(a) Rental. (1) Holders of a land use authorization shall pay annually or otherwise as determined by the authorized officer, in advance, a rental as determined by the authorized officer. The rental shall be based either upon the fair market value of the rights authorized in the land use authorization or as determined by competitive bidding. In no case shall the rental be less than fair market value.
(2) Rental fees for leases and easements may be adjusted every 5 years or earlier, as determined by the authorized officer, to reflect current fair market value.
(3) The rental fees required by this section are payable when due, and a late charge of 1 percent per month of the unpaid amount or $15 per month, whichever is greater, shall be assessed if subsequent billings are required. Failure to pay the rental fee in a timely manner is cause for termination of the land use authorization.
(b) Processing and monitoring fee. Each request for renewal, transfer, or assignment of a lease or easement shall be accompanied by a non-refundable processing and monitoring fee determined in accordance with the provisions of §§ 2804.14 and 2805.16 of this chapter.
§ 2920.9-1 Construction phase.
(a) Unless otherwise stated in the land use authorization, construction may proceed immediately upon receipt and acceptance of the land use authorization by the selected applicant.
(b) Where an authorization to use public lands provides that no construction shall occur until specific permission to begin construction is granted, no construction shall occur until an appropriate Notice to Proceed has been issued by the authorized officer, following the submission and approval of required plans or documents.
(c) The authorized officer shall inspect and monitor construction as necessary, to assure compliance with approved plans and protection of the resources, the environment and the public health, safety and welfare.
(d) The holder of a land use authorization may be required to designate a field representative who can accept and act on guidance and instructions from the authorized officer.
(e) The holder of a land use authorization may be required to provide proof of construction to the approved plan and required standards. Thereafter, operation of the authorized facilities may begin.
§ 2920.9-2 Operation and maintenance.
The authorized officer shall inspect and monitor the operation and maintenance of the land use authorization area, its facilities and improvements to assure compliance with the plan of management and protection of the resources, the environment and the public health, safety and welfare, and the holder of the land use authorization shall take corrective action as required by the authorized officer.
§ 2920.9-3 Termination and suspension.
(a) Land use authorizations may be terminated under the following circumstances:
(1) If a land use authorization provides by its terms that it shall terminate on the occurrence of a fixed or agreed-upon event, the land use authorization shall thereupon automatically terminate by operation of law upon the occurrence of such event.
(2) Noncompliance with applicable law, regulations or terms and conditions of the land use authorization.
(3) Failure of the holder to use the land use authorization for the purpose for which it was authorized. Failure to construct or nonuse for any continuous 2-year period shall constitute a presumption of abandonment and termination.
(4) Mutual agreement that the land use authorization should be terminated.
(5) Nonpayment of rent for 2 consecutive months, following notice of payment due.
(6) So that the public lands covered by the permit can be disposed of or used for any other purpose.
(b)(1) Upon determination that there is noncompliance with the terms and conditions of a land use authorization which adversely affects the public health, safety or welfare or the environment, the authorized officer shall issue an immediate temporary suspension.
(2) The authorized officer may give an immediate temporary susension order orally or in writing at the site of the activity to the holder or a contractor or subcontractor of the holder, or to any representative, agent, employee or contractor of any of them, and the suspended activity shall cease at that time. As soon as practicable, the authorized officer shall confirm the order by a written notice to the holder addressed to the holder or the holder’s designated agent. The authorized officer may also take such action considered necessary to require correction of such defects prior to an administrative proceeding.
(3) The authorized officer may order immediate temporary suspension of an activity regardless of any action that has been or is being taken by another Federal agency or a State agency.
(4) An order of temporary suspension of activities shall remain effective until the authorized officer issues an order permitting resumption of activities.
(5) Any time after an order of suspension has been issued, the holder may file with the authorized officer a request for permission to resume. The request shall be in writing and shall contain a statement of the facts supporting the request.
(6) The authorized officer may render an order to either grant or deny the request to resume within 5 working days of the date the request is filed. If the authorized officer does not render an order on the request within 5 working days, the request shall be considered denied, the holder shall have the same right to appeal the denial as if an order denying the request had been issued.
(c) Process for termination or suspension other than temporary immediate suspension.
(1) Prior to commencing any proceeding to suspend or terminate a land use authorization, the authorized officer shall give written notice to the holder of the legal grounds for such action and shall give the holder a reasonable time to correct any noncompliance.
(2) After due notice of termination or suspension to the holder of a land use authorization, if noncompliance still exists after a reasonable time, the authorized officer shall give written notice to the holder and refer the matter to the Office of Hearings and Appeals for a hearing before an Administrative Law Judge pursuant to 43 CFR 4.420-4.439. The authorized officer shall suspend or revoke the land use authorization if the Administrative Law Judge determines that grounds for suspension or revocation exists and that such action is justified.
(3) The authorized officer shall terminate a suspension order when the authorized officer determines that the violation causing such suspension has been rectified.
(d) Upon termination, revocation or cancellation of a land use authorization, the holder shall remove all structures and improvements except those owned by the United States within 60 days of the notice of termination, revocation or cancellation and shall restore the site to its pre-use condition, unless otherwise agreed upon in writing or in the land use authorization. If the holder fails to remove all such structures or improvements within a reasonable period, they shall become the property of the United States, but that shall not relieve the holder of liability for the cost of their removal and restoration of the site.
PART 2930 – PERMITS FOR RECREATION ON PUBLIC LANDS
Subpart 2931 – Permits for Recreation; General
§ 2931.1 What are the purposes of these regulations?
The regulations in this part –
(a) State when you need a permit to use public lands and waters for recreation, including recreation-related business;
(b) Tell you how to obtain the permit;
(c) State the fees you must pay to obtain the permit; and
(d) Establish the framework for BLM’s administration of your permit.
The regulations in this part establish permit and fee systems for:
(a) Special Recreation Permits for commercial use, organized group activities or events, competitive use, and for use of special areas; and
(b) Recreation use permits for use of fee areas such as campgrounds and day use areas.
The statutory authorities underlying the regulations in this part are the Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq., and the Federal Land Recreation Enhancement Act, 16 U.S.C. 6801 et seq.
(a) The Federal Land Policy and Management Act (FLPMA) contains the Bureau of Land Management’s (BLM’s) general land use management authority over the public lands, and establishes outdoor recreation as one of the principal uses of those lands (43 U.S.C. 1701(a)(8)). Section 302(b) of FLPMA directs the Secretary of the Interior to regulate through permits or other instruments the use of the public lands, which includes commercial recreation use. Section 303 of FLPMA authorizes the BLM to promulgate and enforce regulations, and establishes the penalties for violations of the regulations.
(b) The Federal Land Recreation Enhancement Act (REA) authorizes the BLM to collect fees for recreational use in areas meeting certain criteria (16 U.S.C. 6802(f) and (g)(2)), and to issue special recreation permits for group activities and recreation events (16 U.S.C. 6802(h).
(c) 18 U.S.C. 3571 and 3581 et seq. establish sentences of fines and imprisonment for violation of regulations.
§ 2931.8 Appeals.
(a) If you are adversely affected by a decision under this part, you may appeal the decision under parts 4 and 1840 of this title.
(b) All decisions BLM makes under this part will go into effect immediately and will remain in effect while appeals are pending unless a stay is granted under § 4.21(b) of this title.
§ 2931.9 Information collection.
The information collection requirements in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1004-0119. BLM will use the information to determine whether we should grant permits to applicants for Special Recreation Permits on public lands. You must respond to requests for information to obtain a benefit.
Subpart 2932 – Special Recreation Permits for Commercial Use, Competitive Events, Organized Groups, and Recreation Use in Special Areas
§ 2932.5 Definitions.
Actual expenses means money spent directly on the permitted activity. These may include costs of such items as food, rentals of group equipment, transportation, and permit or use fees. Actual expenses do not include the rental or purchase of personal equipment, amortization of equipment, salaries or other payments to participants, bonding costs, or profit.
Commercial use means recreational use of the public lands and related waters for business or financial gain.
(1) The activity, service, or use is commercial if –
(i) Any person, group, or organization makes or attempts to make a profit, receive money, amortize equipment, or obtain goods or services, as compensation from participants in recreational activities occurring on public lands led, sponsored, or organized by that person, group, or organization;
(ii) Anyone collects a fee or receives other compensation that is not strictly a sharing of actual expenses, or exceeds actual expenses, incurred for the purposes of the activity, service, or use;
(iii) There is paid public advertising to seek participants; or
(iv) Participants pay for a duty of care or an expectation of safety.
(2) Profit-making organizations and organizations seeking to make a profit are automatically classified as commercial, even if that part of their activity covered by the permit is not profit-making or the business as a whole is not profitable.
(3) Use of the public lands by scientific, educational, and therapeutic institutions or non-profit organizations is commercial and subject to a permit requirement when it meets any of the threshold criteria in paragraphs (1) and (2) of this definition. The non-profit status of any group or organization does not alone determine that an event or activity arranged by such a group or organization is noncommercial.
Competitive use means –
(1) Any organized, sanctioned, or structured use, event, or activity on public land in which 2 or more contestants compete and either or both of the following elements apply:
(i) Participants register, enter, or complete an application for the event;
(ii) A predetermined course or area is designated; or
(2) One or more individuals contesting an established record such as for speed or endurance.
Organized group activity means a structured, ordered, consolidated, or scheduled event on, or occupation of, public lands for the purpose of recreational use that is not commercial or competitive.
Special area means:
(1) An area officially designated by statute, or by Presidential or Secretarial order;
(2) An area for which BLM determines that the resources require special management and control measures for their protection; or
(3) An area covered by joint agreement between BLM and a State under Title II of the Sikes Act (16 U.S.C. 670a et seq.)
Vending means the sale of goods or services, not from a permanent structure, associated with recreation on the public lands or related waters, such as food, beverages, clothing, firewood, souvenirs, photographs or film (video or still), or equipment repairs.
§ 2932.10 When you need Special Recreation Permits.
§ 2932.11 When do I need a Special Recreation Permit?
(a) Except as provided in § 2932.12, you must obtain a Special Recreation Permit for:
(1) Commercial use, including vending associated with recreational use; or
(2) Competitive use.
(b) If BLM determines that it is necessary, based on planning decisions, resource concerns, potential user conflicts, or public health and safety, we may require you to obtain a Special Recreation Permit for –
(1) Recreational use of special areas;
(2) Noncommercial, noncompetitive, organized group activities or events; or
(3) Academic, educational, scientific, or research uses that involve:
(i) Means of access or activities normally associated with recreation;
(ii) Use of areas where recreation use is allocated; or
(iii) Use of special areas.
§ 2932.12 When may BLM waive the requirement to obtain a permit?
We may waive the requirement to obtain a permit if:
(a) The use or event begins and ends on non-public lands or related waters, traverses less than 1 mile of public lands or 1 shoreline mile, and poses no threat of appreciable damage to public land or water resource values;
(b) BLM sponsors or co-sponsors the use. This includes any activity or event that BLM is involved in organizing and hosting, or sharing responsibility for, arranged through authorizing letters or written agreements; or
(c) The use is a competitive event that –
(1) Is not commercial;
(2) Does not award cash prizes;
(3) Is not publicly advertised;
(4) Poses no appreciable risk for damage to public land or related water resource values; and
(5) Requires no specific management or monitoring.
(d) The use is an organized group activity or event that –
(1) Is not commercial;
(2) Is not publicly advertised;
(3) Poses no appreciable risk for damage to public land or related water resource values; and
(4) Requires no specific management or monitoring.
§ 2932.13 How will I know if individual use of a special area requires a Special Recreation Permit?
BLM will publish notification of the requirement to obtain a Special Recreation Permit to enter a special area in the
§ 2932.14 Do I need a Special Recreation Permit to hunt, trap, or fish?
(a) If you hold a valid State license, you do not need a Special Recreation Permit to hunt, trap, or fish. You must comply with State license requirements for these activities. BLM Special Recreation Permits do not alone authorize you to hunt, trap, or fish. However, you must have a Special Recreation Permit if BLM requires one for recreational use of a special area where you wish to hunt, trap, or fish.
(b) Outfitters and guides providing services to hunters, trappers, or anglers must obtain Special Recreation Permits from BLM. Competitive event operators and organized groups may also need a Special Recreation Permit for these activities.
§ 2932.20 Special Recreation Permit applications.
§ 2932.21 Why should I contact BLM before submitting an application?
If you wish to apply for a Special Recreation Permit, we strongly urge you to contact the appropriate BLM office before submitting your application. You may need early consultation to become familiar with BLM practices and responsibilities, and the terms and conditions that we may require in a Special Recreation Permit. Because of the lead time involved in processing Special Recreation Permit applications, you should contact BLM in sufficient time to complete a permit application ahead of the 180 day requirement (see § 2932.22(a)).
§ 2932.22 When do I apply for a Special Recreation Permit?
(a) For all uses requiring a Special Recreation Permit, except private, noncommercial use of special areas (see paragraph (b) of this section), you must apply to the local BLM office at least 180 days before you intend your use to begin. Through publication in the local media and on-site posting as necessary, a BLM office may require applications for specific types of use more than 180 days before your intended use. A BLM office may also authorize shorter application times for activities or events that do not require extensive environmental documentation or consultation.
(b) BLM field offices will establish Special Recreation Permit application procedures for private noncommercial individual use of special areas, including when to apply. As you begin to plan your use, you should call the field office with jurisdiction.
§ 2932.23 Where do I apply for a Special Recreation Permit?
You must apply to the local BLM office with jurisdiction over the land you wish to use.
§ 2932.24 What information must I submit with my application?
(a) Your application for a Special Recreation Permit for all uses, except individual and noncommercial group use of special areas, must include:
(1) A completed BLM Special Recreation Application and Permit form;
(2) Unless waived by BLM, a map or maps of sufficient scale and detail to allow identification of the proposed use area; and
(3) Other information that BLM requests, in sufficient detail to allow us to evaluate the nature and impact of the proposed activity, including measures you will use to mitigate adverse impacts.
(b) If you are an individual or noncommercial group wishing to use a special area, contact the local office with jurisdiction to find out the requirements, if any.
§ 2932.25 What will BLM do when I apply for a Special Recreation Permit?
BLM will inform you within 30 days after the filing date of your application if we must delay a decision on issuing the permit. An example of when this could happen is if we determine that we cannot complete required environmental assessments or consultations with other agencies within 180 days.
§ 2932.26 How will BLM decide whether to issue a Special Recreation Permit?
BLM has discretion over whether to issue a Special Recreation Permit. We will base our decision on the following factors to the extent that they are relevant:
(a) Conformance with laws and land use plans;
(b) Public safety,
(c) Conflicts with other uses,
(d) Resource protection,
(e) The public interest served,
(f) Whether in the past you complied with the terms of your permit or other authorization from BLM and other agencies, and
(g) Such other information that BLM finds appropriate.
§ 2932.30 Fees for Special Recreation Permits.
§ 2932.31 How does BLM establish fees for Special Recreation Permits?
(a) The BLM Director establishes fees, including minimum annual fees, for Special Recreation Permits for commercial activities, organized group activities or events, and competitive events.
(b) The BLM Director may adjust the fees as necessary to reflect changes in costs and the market, using the following types of data:
(1) The direct and indirect cost to the government;
(2) The types of services or facilities provided; and
(3) The comparable recreation fees charged by other Federal agencies, non-Federal public agencies, and the private sector located within the service area.
(c) The BLM Director will publish fees and adjusted fees in the
(d) The State Director with jurisdiction –
(1) Will set fees for other Special Recreation Permits (including any use of Special Areas, such as per capita special area fees applicable to all users, including private noncommercial visitors, commercial clients, and spectators),
(2) May adjust the fees when he or she finds it necessary,
(3) Will provide fee information in field offices, and
(4) Will provide newspaper or other appropriate public notice.
(e)(1) Commercial use. In addition to the fees set by the Director, BLM, if BLM needs more than 50 hours of staff time to process a Special Recreation Permit for commercial use in any one year, we may charge a fee for recovery of the processing costs.
(2) Competitive or organized group/event use. BLM may charge a fee for recovery of costs to the agency of analyses and permit processing instead of the Special Recreation Permit fee, if –
(i) BLM needs more than 50 hours of staff time to process a Special Recreation Permit for competitive or organized group/event use in any one year, and
(ii) We anticipate that permit fees on the fee schedule for that year will be less than the costs of processing the permit.
(3) Limitations on cost recovery. Cost recovery charges will be limited to BLM’s costs of issuing the permit, including necessary environmental documentation, on-site monitoring, and permit enforcement. Programmatic or general land use plan NEPA documentation are not subject to cost recovery charges, except if the documentation work done was done for or provides special benefits or services to an identifiable individual applicant.
(f) We will notify you in writing if you need to pay actual costs before processing your application.
§ 2932.32 When must I pay the fees?
You must pay the required fees before BLM will authorize your use and by the deadline or deadlines that BLM will establish in each case. We may allow you to make periodic payments for commercial use. We will not process or continue processing your application until you have paid the required fees or installments.
§ 2932.33 When are fees refundable?
(a) Overpayments. For multi-year commercial permits, if your actual fees due are less than the estimated fees you paid in advance, BLM will credit overpayments to the following year or season. For other permits, BLM will give you the option whether to receive refunds or credit overpayments to future permits, less processing costs.
(b) Underuse. (1) Except as provided in paragraph (b)(2) of this section, for areas where BLM’s planning process allocates use to commercial outfitters, or non-commercial users, or a combination, we will not make refunds for use of the areas we allocate to you in your permit if your actual use is less than your intended use.
(2) We may consider a refund if we have sufficient time to authorize use by others.
(c) Non-refundable fees. Application fees and minimum annual commercial use fees (those on BLM’s published fee schedule) are not refundable.
§ 2932.34 When may BLM waive Special Recreation Permit fees?
BLM may waive Special Recreation Permit fees on a case-by-case basis for accredited academic, scientific, and research institutions, therapeutic, or administrative uses.
§ 2932.40 Permit stipulations and terms.
§ 2932.41 What stipulations must I follow?
You must follow all stipulations in your approved Special Recreation Permit. BLM may impose stipulations and conditions to meet management goals and objectives and to protect lands and resources and the public interest.
§ 2932.42 How long is my Special Recreation Permit valid?
You may request a permit for a day, season of use, or other time period, up to a maximum of 10 years. BLM will determine the appropriate term on a case-by-case basis.
§ 2932.43 What insurance requirements pertain to Special Recreation Permits?
(a) All commercial and competitive applicants for Special Recreation Permits, except vendors, must obtain a property damage, personal injury, and public liability insurance policy that BLM judges sufficient to protect the public and the United States. Your policy must name the U.S. Government as additionally insured or co-insured and stipulate that you or your insurer will notify BLM 30 days in advance of termination or modification of the policy.
(b) We may also require vendors and other applicants, such as organized groups, to obtain and submit such a policy. BLM may waive the insurance requirement if we find that the vending or group activity will not cause appreciable environmental degradation or risk to human health or safety.
§ 2932.44 What bonds does BLM require for a Special Recreation Permit?
BLM may require you to submit a payment bond, a cash or surety deposit, or other financial guarantee in an amount sufficient to cover your fees or defray the costs of restoration and rehabilitation of the lands affected by the permitted use. We will return the bonds and financial guarantees when you have complied with all permit stipulations. BLM may waive the bonding requirement if we find that your activity will not cause appreciable environmental degradation or risk to human health and safety.
§ 2932.50 Administration of Special Recreation Permits.
§ 2932.51 When can I renew my Special Recreation Permit?
We will renew your Special Recreation Permit upon application at the end of its term only if –
(a) It is in good standing;
(b) Consistent with BLM management plans and policies; and
(c) You and all of your affiliates have a satisfactory record of performance.
§ 2932.52 How do I apply for a renewal?
(a) You must apply for renewal on the same form as for a new permit. You must include information that has changed since your application or your most recent renewal. If information about your operation or activities has not changed, you may merely state that and refer to your most recent application or renewal.
(b) BLM will establish deadlines in your permit for submitting renewal applications.
§ 2932.53 What will be my renewal term?
Renewals will generally be for the same term as the previous permit.
§ 2932.54 When may I transfer my Special Recreation Permit to other individuals, companies, or entities?
(a) BLM may transfer a commercial Special Recreation Permit only in the case of an actual sale of a business or a substantial part of the business. Only BLM can approve the transfer or assignment of permit privileges to another person or entity, also basing our decision on the criteria in § 2932.26.
(b) The approved transferee must complete the standard permit application process as provided in § 2932.20 through 2932.24. Once BLM approves your transfer of permit privileges and your transferee meets all BLM requirements, including payment of fees, BLM will issue a Special Recreation Permit to the transferee.
§ 2932.55 When must I allow BLM to examine my permit records?
(a) You must make your permit records available upon BLM request. BLM will not ask to inspect any of this material later than 3 years after your permit expires.
(b) BLM may examine any books, documents, papers, or records pertaining to your Special Recreation Permit or transactions relating to it, whether in your possession, or that of your employees, business affiliates, or agents.
§ 2932.56 When will BLM amend, suspend, or cancel my permit?
(a) BLM may amend, suspend, or cancel your Special Recreation Permit if necessary to protect public health, public safety, or the environment.
(b) BLM may suspend or cancel your Special Recreation Permit if you –
(1) Violate permit stipulations, or
(2) Are convicted of violating any Federal or State law or regulation concerning the conservation or protection of natural resources, the environment, endangered species, or antiquities.
(c) If we suspend your permit or a portion thereof, all of your responsibilities under the permit will continue during the suspension.
§ 2932.57 Prohibited acts and penalties.
(a) Prohibited acts. You must not –
(1) Fail to obtain a Special Recreation Permit and pay the fees required by this subpart;
(2) Violate the stipulations or conditions of a permit issued under this subpart;
(3) Knowingly participate in an event or activity subject to the permit requirements of this subpart if BLM has not issued a permit;
(4) Fail to post a copy of any commercial or competitive permit where all participants may read it;
(5) Fail to show a copy of your Special Recreation Permit upon request by either a BLM employee or a participant in your activity.
(6) Obstruct or impede pedestrians or vehicles, or harass visitors or other persons with physical contact while engaged in activities covered under a permit or other authorization; or
(7) Refuse to leave or disperse, when directed to do so by a BLM law enforcement officer or State or local law enforcement officer, whether you have a required Special Recreation Permit or not.
(b) Penalties. (1) If you are convicted of any act prohibited by paragraphs (a)(2) through (a)(7) of this section, or of failing to obtain a Special Recreation Permit under paragraph (a)(1) of this section, you may be subject to a sentence of a fine or imprisonment or both for a Class A misdemeanor in accordance with 18 U.S.C. 3571 and 3581 et seq. under the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a)).
(2) If you are convicted of failing to pay a fee required by paragraph (a)(1) of this section, you may be subject to a sentence of a fine not to exceed $100 for the first offense, or a sentence of a fine and or imprisonment for a Class A or B misdemeanor in accordance with 18 U.S.C. 3571 and 3581 et seq. for all subsequent offenses.
(3) You may also be subject to civil action for unauthorized use of the public lands or related waters and their resources, for violations of permit terms, conditions, or stipulations, or for uses beyond those allowed by permit.
Subpart 2933 – Recreation Use Permits for Fee Areas
§ 2933.10 Obtaining Recreation Use Permits.
§ 2933.11 When must I obtain a Recreation Use Permit?
You must obtain a Recreation Use Permit for individual or group use of fee areas. These are sites where we provide or administer specialized facilities, equipment, or services related to outdoor recreation. You may visit these areas for the uses and time periods BLM specifies. We will post these uses and limits at the entrance to the area or site, and provide this information in the local BLM office with jurisdiction over the area or site. You may contact this office for permit information when planning your visit.
§ 2933.12 Where can I obtain a Recreation Use Permit?
You may obtain a permit at self-service pay stations, from personnel at the site, or at other specified locations. Because these locations may vary from site to site, you should contact the local BLM office with jurisdiction over the area or site in advance for permit information.
§ 2933.13 When do I need a reservation to use a fee site?
Most sites are available on a first come/first serve basis. However, you may need a reservation to use some sites. You should contact the local BLM office with jurisdiction over the site or area to learn whether a reservation is required.
§ 2933.14 For what time may BLM issue a Recreation Use Permit?
You may obtain a permit for a day, season of use, year, or any other time period that we deem appropriate for the particular use. We will post this information on site, or make it available at the local BLM office with jurisdiction over the area or site, or both.
§ 2933.20 Fees for Recreation Use Permits.
§ 2933.21 When are fees charged for Recreation Use Permits?
You must pay a fee for individual or group recreational use if the area is posted to that effect. You may also find fee information at BLM field offices or BLM Internet websites.
§ 2933.22 How does BLM establish Recreation Use Permit fees?
BLM sets recreation use fees and adjusts them from time to time to reflect changes in costs and the market, using the following types of data:
(a) The direct and indirect cost to the government;
(b) The types of services or facilities provided; and
(c) The comparable recreation fees charged by other Federal agencies, non-Federal public agencies, and the private sector located within the service area.
§ 2933.23 When must I pay the fees?
You must pay the required fees upon occupying a designated recreation use facility, when you receive services, or as the BLM’s reservation system may require. These practices vary from site to site. You may contact the local BLM office with jurisdiction over the area or site for fee information.
§ 2933.24 When can I get a refund of Recreation Use Permit fees?
If we close the fee site for administrative or emergency reasons, we will refund the unused portion of your permit fee upon request.
§ 2933.30 Rules of conduct.
§ 2933.31 What rules must I follow at fee areas?
You must comply with all rules that BLM posts in the area. Any such site-specific rules supplement the general rules of conduct contained in subpart 8365 of this chapter relating to public safety, resource protection, and visitor comfort.
§ 2933.32 When will BLM suspend or revoke my permit?
(a) We may suspend your permit to protect public health, public safety, the environment, or you.
(b) We may revoke your permit if you commit any of the acts prohibited in subpart 8365 of this chapter, or violate any of the stipulations attached to your permit, or any site-specific rules posted in the area.
§ 2933.33 Prohibited acts and penalties.
(a) Prohibited acts. You must not –
(1) Fail to obtain a use permit or pay any fees required by this subpart;
(2) Violate the stipulations or conditions of a permit issued under this subpart;
(3) Fail to pay any fees within the time specified;
(4) Fail to display any required proof of payment of fees;
(5) Willfully and knowingly possess, use, publish as true, or sell to another, any forged, counterfeited, or altered document or instrument used as proof of or exemption from fee payment;
(6) Willfully and knowingly use any document or instrument used as proof of or exemption from fee payment, that the BLM issued to or intended another to use; or
(7) Falsely represent yourself to be a person to whom the BLM has issued a document or instrument used as proof of or exemption from fee payment.
(b) Evidence of nonpayment. The BLM will consider failure to display proof of payment on your unattended vehicle parked within a fee area, where payment is required to be prima facie evidence of nonpayment.
(c) Responsibility for penalties. If another driver incurs a penalty under this subpart when using a vehicle registered in your name, you and the driver are jointly responsible for the penalty, unless you show that the vehicle was used without your permission.
(d) Types of penalties. You may be subject to the following fines or penalties for violating the provisions of this subpart:
| If you are convicted of . . . | then you may be subject to . . . | under . . . |
|---|---|---|
| (1) Failing to obtain a permit under paragraph (a)(1) of this section, or any act prohibited by paragraph (a)(4), (5), or (6) of this section | A sentence of a fine and/or imprisonment for a Class A misdemeanor in accordance with 18 U.S.C. 3571 and 3581 | The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a)). |
| (2) Violating any regulation in this subpart or any condition of a Recreation Use Permit | A sentence of a fine and/or imprisonment for a Class A misdemeanor in accordance with 18 U.S.C. 3571 and 3581 | The Federal Land Policy and Management Act of 1976 (43 U.S.C. 1733(a)). |
| (3) Failing to pay a Recreation Use Permit fee required by paragraph (a)(1) of this section, or any act prohibited by paragraph (a)(3) of this section | A fine not to exceed $100 for the first offense, or a sentence of a fine and/or imprisonment for a Class A or B misdemeanor in accordance with 18 U.S.C. 3571 and 3581 | The Federal Lands Recreation Enhancement Act (16 U.S.C. 6811). |
SUBCHAPTER C – MINERALS MANAGEMENT (3000)
PART 3000 – MINERALS MANAGEMENT: GENERAL
Subpart 3000 – General
§ 3000.0-5 Definitions.
As used in Groups 3000 and 3100 of this title, the term:
(a) Gas means any fluid, either combustible or noncombustible, which is produced in a natural state from the earth and which maintains a gaseous or rarefied state at ordinary temperatures and pressure conditions.
(b) Oil means all nongaseous hydrocarbon substances other than those substances leasable as coal, oil shale or gilsonite (including all vein-type solid hydrocarbons).
(c) Secretary means the Secretary of the Interior.
(d) Director means the Director of the Bureau of Land Management.
(e) Authorized officer means any employee of the Bureau of Land Management authorized to perform the duties described in Group 3000 and 3100.
(f) Proper BLM office means the Bureau of Land Management office having jurisdiction over the lands subject to the regulations in Groups 3000 and 3100, except that all oil and gas lease offers, and assignments or transfers for lands in Alaska shall be filed in the Alaska State Office, Anchorage, Alaska.
(g) Public domain lands means lands, including mineral estates, which never left the ownership of the United States, lands which were obtained by the United States in exchange for public domain lands, lands which have reverted to the ownership of the United States through the operation of the public land laws and other lands specifically identified by the Congress as part of the public domain.
(h) Acquired lands means lands which the United States obtained by deed through purchase or gift, or through condemnation proceedings, including lands previously disposed of under the public land laws including the mining laws.
(i) Anniversary date means the same day and month in succeeding years as that on which the lease became effective.
(j) Act means the Mineral Leasing Act of 1920, as amended and supplemented (30 U.S.C. 181 et seq.).
(k) Party in interest means a party who is or will be vested with any interest under the lease as defined in paragraph (l) of this section. No one is a sole party in interest with respect to an application, offer, competitive bid or lease in which any other party has an interest;
(l) Interest means ownership in a lease or prospective lease of all or a portion of the record title, working interest, operating rights, overriding royalty, payments out of production, carried interests, net profit share or similar instrument for participation in the benefit derived from a lease. An interest may be created by direct or indirect ownership, including options. Interest does not mean stock ownership, stockholding or stock control in an application, offer, competitive bid or lease, except for purposes of acreage limitations in § 3101.2 of this title and qualifications of lessees in subpart 3102 of this title.
(m) Surface managing agency means any Federal agency outside of the Department of the Interior with jurisdiction over the surface overlying federally-owned minerals.
(n) Service means the Minerals Management Service.
(o) Bureau means the Bureau of Land Management.
§ 3000.1 Nondiscrimination.
Any person acquiring a lease under this chapter shall comply fully with the equal opportunity provisions of Executive Order 11246 of September 24, 1965, as amended, and the rules, regulations and relevant orders of the Secretary of Labor (41 CFR part 60 and 43 CFR part 17).
§ 3000.2 False statements.
Under the provisions of 18 U.S.C. 1001, it is a crime punishable by 5 years imprisonment or a fine of up to $10,000, or both, for any person knowingly and willfully to submit or cause to be submitted to any agency of the United States any false or fraudulent statement(s) as to any matter within the agency’s jurisdiction.
§ 3000.3 Unlawful interests.
No member of, or delegate to, Congress, or Resident Commissioner, and no employee of the Department of the Interior, except as provided in 43 CFR part 20, shall be entitled to acquire or hold any Federal lease, or interest therein. (Officer, agent or employee of the Department – see 43 CFR part 20; Member of Congress – see R.S. 3741; 41 U.S.C. 22; 18 U.S.C. 431-433.)
§ 3000.4 Appeals.
Except as provided in §§ 3101.7-3(b), 3120.1-3, 3165.4, and 3427.2 of this title, any party adversely affected by a decision of the authorized officer made pursuant to the provisions of Group 3000 or Group 3100 of this title shall have a right of appeal pursuant to part 4 of this title.
§ 3000.5 Limitations on time to institute suit to contest a decision of the Secretary.
No action contesting a decision of the Secretary involving any oil or gas lease, offer or application shall be maintained unless such action is commenced or taken within 90 days after the final decision of the Secretary relating to such matter.
§ 3000.6 Filing of documents.
All necessary documents shall be filed in the proper BLM office. A document shall be considered filed when it is received in the proper BLM office during regular business hours (see § 1821.2 of this title).
§ 3000.7 Multiple development.
The granting of a permit or lease for the prospecting, development or production of deposits of any one mineral shall not preclude the issuance of other permits or leases for the same lands for deposits of other minerals with suitable stipulations for simultaneous operation, nor the allowance of applicable entries, locations or selections of leased lands with a reservation of the mineral deposits to the United States.
§ 3000.8 Management of Federal minerals from reserved mineral estates.
Where nonmineral public land disposal statutes provide that in conveyances of title all or certain minerals shall be reserved to the United States together with the right to prospect for, mine and remove the minerals under applicable law and regulations as the Secretary may prescribe, the lease or sale, and administration and management of the use of such minerals shall be accomplished under the regulations of Groups 3000 and 3100 of this title. Such mineral estates include, but are not limited to, those that have been or will be reserved under the authorities of the Small Tract Act of June 1, 1938, as amended (43 U.S.C. 682(b)) and the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.).
§ 3000.9 Enforcement.
Provisions of section 41 of the Act shall be enforced by the United States Department of Justice.
§ 3000.10 What do I need to know about fees in general?
(a) Setting fees. Fees may be statutorily set fees, relatively nominal filing fees, or processing fees intended to reimburse BLM for its reasonable processing costs. For processing fees, BLM takes into account the factors in Section 304 (b) of the Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1734(b)) before deciding a fee. BLM considers the factors for each type of document when the processing fee is a fixed fee and for each individual document when the fee is decided on a case-by-case basis, as explained in § 3000.11.
(b) Conditions for filing. BLM will not accept a document that you submit without the proper filing or processing fee amounts except for documents where BLM sets the fee on a case-by-case basis. Fees are not refundable except as provided for case-by-case fees in § 3000.11. BLM will keep your fixed filing or processing fee as a service charge even if we do not approve your application or you withdraw it completely or partially.
(c) Periodic adjustment. We will periodically adjust fees established in this subchapter according to change in the Implicit Price Deflator for Gross Domestic Product, which is published quarterly by the U.S. Department of Commerce. Because the fee recalculations are simply based on a mathematical formula, we will change the fees in final rules without opportunity for notice and comment.
(d) Timing of fee applicability. (1) For a document BLM receives before November 7, 2005, we will not charge a fixed fee or a case-by-case fee under this subchapter for processing that document, except for fees applicable under then-existing regulations.
(2) For a document BLM receives on or after November 7, 2005, you must include required fixed fees with documents you file, as provided in § 3000.12(a) of this chapter, and you are subject to case-by-case processing fees as provided in § 3000.11 of this chapter and under other provisions of this chapter.
§ 3000.11 When and how does BLM charge me processing fees on a case-by-case basis?
(a) Fees in this subchapter are designated either as case-by-case fees or as fixed fees. The fixed fees are established in this subchapter for specified types of documents. However, if BLM decides at any time that a particular document designated for a fixed fee will have a unique processing cost, such as the preparation of an Environmental Impact Statement, we may set the fee under the case-by-case procedures in this section.
(b) For case-by-case fees, BLM measures the ongoing processing cost for each individual document and considers the factors in Section 304(b) of FLPMA on a case-by-case basis according to the following procedures:
(1) You may ask BLM’s approval to do all or part of any study or other activity according to standards BLM specifies, thereby reducing BLM’s costs for processing your document.
(2) Before performing any case processing, we will give you a written estimate of the proposed fee for reasonable processing costs after we consider the FLPMA Section 304(b) factors.
(3) You may comment on the proposed fee.
(4) We will then give you the final estimate of the processing fee amount after considering your comments and any BLM-approved work you will do.
(i) If we encounter higher or lower processing costs than anticipated, we will re-estimate our reasonable processing costs following the procedure in paragraphs (b)(1), (b)(2), (b)(3) and (b)(4) of this section, but we will not stop ongoing processing unless you do not pay in accordance with paragraph (b)(5) of this section.
(ii) If the fee you would pay under this paragraph (b)(4) is less than BLM’s actual costs as a result of consideration of the FLPMA Section 304(b) factors, and we are not able to process your document promptly because of the unavailability of funding or other resources, you will have the option to pay BLM’s actual costs to process your document. This will enable BLM to process your document sooner.
(iii) Once processing is complete, we will refund to you any money that we did not spend on processing costs.
(5)(i) We will periodically estimate what our reasonable processing costs will be for a specific period and will bill you for that period. Payment is due to BLM 30 days after you receive your bill. BLM will stop processing your document if you do not pay the bill by the date payment is due.
(ii) If a periodic payment turns out to be more or less than BLM’s reasonable processing costs for the period, we will adjust the next billing accordingly or make a refund. Do not deduct any amount from a payment without our prior written approval.
(6) You must pay the entire fee before we will issue the final document.
(7) You may appeal BLM’s estimated processing costs in accordance with the regulations in part 4, subpart E, of this title. You may also appeal any determination BLM makes under paragraph (a) of this section that a document designated for a fixed fee will be processed as a case-by-case fee. We will not process the document further until the appeal is resolved, in accordance with paragraph (b)(5)(i) of this section, unless you pay the fee under protest while the appeal is pending. If the appeal results in a decision changing the proposed fee, we will adjust the fee in accordance with paragraph (b)(5)(ii) of this section.
§ 3000.12 What is the fee schedule for fixed fees?
(a) The table in this section shows the fixed fees that must be paid to the BLM for the services listed for Fiscal Year (FY) 2023. These fees are nonrefundable and must be included with documents filed under this chapter. Fees will be adjusted annually according to the change in the Implicit Price Deflator for Gross Domestic Product (IPD-GDP) and the change in the Consumer Price Index for all goods and all urban consumers (CPI-U) by way of publication of a final rule in the
Table 1 to Paragraph (
| Document/action | FY 2023 fee |
|---|---|
| Oil & Gas (parts 3100, 3110, 3120, 3130, 3150): | |
| Competitive lease application | $185. |
| Assignment and transfer of record title or operating rights | 105. |
| Overriding royalty transfer, payment out of production | 15. |
| Name change, corporate merger or transfer to heir/devisee | 250. |
| Lease consolidation | 525. |
| Lease renewal or exchange | 475. |
| Lease reinstatement, Class I | 90. |
| Leasing under right-of-way | 475. |
| Geophysical exploration permit application – Alaska | 30. |
| Renewal of exploration permit – Alaska | 30. |
| Geothermal (part 3200): | |
| Noncompetitive lease application | 475. |
| Competitive lease application | 185. |
| Assignment and transfer of record title or operating rights | 105. |
| Name change, corporate merger or transfer to heir/devisee | 250. |
| Lease consolidation | 525. |
| Lease reinstatement | 90. |
| Nomination of lands | 135. |
| plus per acre nomination fee | 0.13. |
| Site license application | 70. |
| Assignment or transfer of site license | 70. |
| Coal (parts 3400, 3470): | |
| License to mine application | 15. |
| Exploration license application | 390. |
| Lease or lease interest transfer | 80. |
| Leasing of Solid Minerals Other Than Coal and Oil Shale (parts 3500, 3580): | |
| Applications other than those listed below | 45. |
| Prospecting permit application amendment | 80. |
| Extension of prospecting permit | 130. |
| Lease modification or fringe acreage lease | 35. |
| Lease renewal | 610. |
| Assignment, sublease, or transfer of operating rights | 35. |
| Transfer of overriding royalty | 35. |
| Use permit | 35. |
| Shasta and Trinity hardrock mineral lease | 35. |
| Renewal of existing sand and gravel lease in Nevada | 35. |
| Public Law 359; Mining in Powersite Withdrawals: General (part 3730): | |
| Notice of protest of placer mining operations | 15. |
| Mining Law Administration (parts 3800, 3810, 3830, 3860, 3870): | |
| Application to open lands to location | 15. |
| Notice of location * | 20. |
| Amendment of location | 15. |
| Transfer of mining claim/site | 15. |
| Recording an annual FLPMA filing | 15. |
| Deferment of assessment work | 130. |
| Recording a notice of intent to locate mining claims on Stockraising Homestead Act lands | 35. |
| Mineral patent adjudication | 3,585 (more than 10 claims).
1,790 (10 or fewer claims). |
| Adverse claim | 130. |
| Protest | 80. |
| Oil Shale Management (parts 3900, 3910, 3930): | |
| Exploration license application | 375. |
| Application for assignment or sublease of record title or overriding royalty | 75. |
| Onshore Oil and Gas Operations and Production (parts 3160, 3170): | |
| Application for Permit to Drill | 11,805. |
* To record a mining claim or site location, this processing fee along with the initial maintenance fee and the one-time location fee required by statute (43 CFR part 3833) must be paid.
(b) The amount of a fixed fee is not subject to appeal to the Interior Board of Land Appeals pursuant to part 4, subpart E, of this title.
PART 3100 – OIL AND GAS LEASING
Subpart 3100 – Onshore Oil and Gas Leasing: General
§ 3100.0-3 Authority.
(a) Public domain. (1) Oil and gas in public domain lands and lands returned to the public domain under section 2370 of this title are subject to lease under the Mineral Leasing Act of 1920, as amended and supplemented (30 U.S.C. 181 et seq.), by acts, including, but not limited to, section 1009 of the Alaska National Interest Lands Conservation Act (16 U.S.C. 3148).
(2) Exceptions. (i) Units of the National Park System, including lands withdrawn by section 206 of the Alaska National Interest Lands Conservation Act, except as provided in paragraph (g)(4) of this section;
(ii) Indian reservations;
(iii) Incorporated cities, towns and villages;
(iv) Naval petroleum and oil shale reserves and the National Petroleum Reserve – Alaska.
(v) Lands north of 68 degrees north latitude and east of the western boundary of the National Petroleum Reserve – Alaska;
(vi) Arctic National Wildlife Refuge in Alaska.
(vii) Lands recommended for wilderness allocation by the surface managing agency:
(viii) Lands within Bureau of Land Management wilderness study areas;
(ix) Lands designated by Congress as wilderness study areas, except where oil and gas leasing is specifically allowed to continue by the statute designating the study area;
(x) Lands within areas allocated for wilderness or further planning in Executive Communication 1504, Ninety-Sixth Congress (House Document numbered 96-119), unless such lands are allocated to uses other than wilderness by a land and resource management plan or have been released to uses other than wilderness by an Act of Congress; and
(xi) Lands within the National Wilderness Preservation System, subject to valid existing rights under section 4(d)(3) of the Wilderness Act established before midnight, December 31, 1983, unless otherwise provided by law.
(b) Acquired lands. (1) Oil and gas in acquired lands are subject to lease under the Mineral Leasing Act for Acquired Lands of August 7, 1947, as amended (30 U.S.C. 351-359).
(2) Exceptions. (i) Units of the National Park System, except as provided in paragraph (g)(4) of this section;
(ii) Incorporated cities, towns and villages;
(iii) Naval petroleum and oil shale reserves and the National Petroleum Reserve – Alaska;
(iv) Tidelands or submerged coastal lands within the continental shelf adjacent or littoral to lands within the jurisdiction of the United States;
(v) Lands acquired by the United States for development of helium, fissionable material deposits or other minerals essential to the defense of the country, except oil, gas and other minerals subject to leasing under the Act;
(vi) Lands reported as excess under the Federal Property and Administrative Services Act of 1949;
(vii) Lands acquired by the United States by foreclosure or otherwise for resale.
(viii) Lands recommended for wilderness allocation by the surface managing agency;
(ix) Lands within Bureau of Land Management wilderness study areas;
(x) Lands designated by Congress as wilderness study areas, except where oil and gas leasing is specifically allowed to continue by the statute designating the study area;
(xi) Lands within areas allocated for wilderness or further planning in Executive Communication 1504, Ninety-Sixth Congress (House Document numbered 96-119), unless such lands are allocated to uses other than wilderness by a land and resource management plan or have been released to uses other than wilderness by an Act of Congress; and
(xii) Lands within the National Wilderness Preservation System, subject to valid existing rights under section 4(d)(3) of the Wilderness Act established before midnight, December 31, 1983, unless otherwise provided by law.
(c) National Petroleum Reserve – Alaska is subject to lease under the Department of the Interior Appropriations Act, Fiscal Year 1981 (42 U.S.C. 6508).
(d) Where oil or gas is being drained from lands otherwise unavailable for leasing, there is implied authority in the agency having jurisdiction of those lands to grant authority to the Bureau of Land Management to lease such lands (see 43 U.S.C. 1457; also Attorney General’s Opinion of April 2, 1941 (Vol. 40 Op. Atty. Gen. 41)).
(e) Where lands previously withdrawn or reserved from the public domain are no longer needed by the agency for which the lands were withdrawn or reserved and such lands are retained by the General Services Administration, or where acquired lands are declared as excess to or surplus by the General Services Administration, authority to lease such lands may be transferred to the Department in accordance with the Federal Property and Administrative Services Act of 1949 and the Mineral Leasing Act for Acquired Lands, as amended.
(f) The Act of May 21, 1930 (30 U.S.C. 301-306), authorizes the leasing of oil and gas deposits under certain rights-of-way to the owner of the right-of-way or any assignee.
(g)(1)The Act of May 9, 1942 (56 Stat. 273), as amended by the Act of October 25, 1949 (63 Stat. 886), authorizes leasing on certain lands in Nevada.
(2) The Act of March 3, 1933 (47 Stat. 1487), as amended by the Act of June 5, 1936 (49 Stat. 1482) and the Act of June 29, 1936 (49 Stat. 2026), authorizes leasing on certain lands patented to the State of California.
(3) The Act of June 30, 1950 (16 U.S.C. 508(b)) authorizes leasing on certain National Forest Service Lands in Minnesota.
(4) Units of the National Park System. The Secretary is authorized to permit mineral leasing in the following units of the National Park System if he/she finds that such disposition would not have significant adverse effects on the administration of the area and if lease operations can be conducted in a manner that will preserve the scenic, scientific and historic features contributing to public enjoyment of the area, pursuant to the following authorities:
(i) Lake Mead National Recreation Area – The Act of October 8, 1964 (16 U.S.C. 460n et seq.).
(ii) Whiskeytown Unit of the Whiskeytown-Shasta-Trinity National Recreation Area – The Act of November 8, 1965 (79 Stat. 1295; 16 U.S.C. 460q et seq.).
(iii) Ross Lake and Lake Chelan National Recreation Areas – The Act of October 2, 1968 (82 Stat. 926; 16 U.S.C. 90 et seq.).
(iv) Glen Canyon National Recreation Area – The Act of October 27, 1972 (86 Stat. 1311; 16 U.S.C. 460dd et seq.).
(5) Shasta and Trinity Units of the Whiskeytown-Shasta-Trinity National Recreation Area. Section 6 of the Act of November 8, 1965 (Pub. L. 89-336; 79 Stat. 1295), authorizes the Secretary of the Interior to permit the removal of leasable minerals from lands (or interest in lands) within the recreation area under the jurisdiction of the Secretary of Agriculture in accordance with the Mineral Leasing Act of February 25, 1920, as amended (30 U.S.C. 181 et seq.), or the Acquired Lands Mineral Leasing Act of August 7, 1947 (30 U.S.C. 351-359), if he finds that such disposition would not have significant adverse effects on the purpose of the Central Valley project or the administration of the recreation area.
§ 3100.0-5 Definitions.
As used in this part, the term:
(a) Operator means any person or entity, including, but not limited to, the lessee or operating rights owner, who has stated in writing to the authorized officer that it is responsible under the terms and conditions of the lease for the operations conducted on the leased lands or a portion thereof.
(b) Unit operator means the person authorized under the agreement approved by the Department of the Interior to conduct operations within the unit.
(c) Record title means a lessee’s interest in a lease which includes the obligation to pay rent, and the rights to assign and relinquish the lease. Overriding royalty and operating rights are severable from record title interests.
(d) Operating right (working interest) means the interest created out of a lease authorizing the holder of that right to enter upon the leased lands to conduct drilling and related operations, including production of oil or gas from such lands in accordance with the terms of the lease.
(e) Transfer means any conveyance of an interest in a lease by assignment, sublease or otherwise. This definition includes the terms: Assignment which means a transfer of all or a portion of the lessee’s record title interest in a lease; and sublease which means a transfer of a non-record title interest in a lease, i.e., a transfer of operating rights is normally a sublease and a sublease also is a subsidiary arrangement between the lessee (sublessor) and the sublessee, but a sublease does not include a transfer of a purely financial interest, such as overriding royalty interest or payment out of production, nor does it affect the relationship imposed by a lease between the lessee(s) and the United States.
(f) National Wildlife Refuge System Lands means lands and water, or interests therein, administered by the Secretary as wildlife refuges, areas for the protection and conservation of fish and wildlife that are threatened with extinction, wildlife management areas or waterfowl production areas.
(g) Actual drilling operations includes not only the physical drilling of a well, but the testing, completing or equipping of such well for production.
(h)(1) Primary term of lease subject to section 4(d) of the Act prior to the revision of 1960 (30 U.S.C. 226-1(d)) means all periods of the life of the lease prior to its extension by reason of production of oil and gas in paying quantities; and
(2) Primary term of all other leases means the initial term of the lease. For competitive leases, except those within the National Petroleum Reserve – Alaska, this means 5 years and for noncompetitive leases this means 10 years.
(i) Lessee means a person or entity holding record title in a lease issued by the United States.
(j) Operating rights owner means a person or entity holding operating rights 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.
(k) Bid means an amount of remittance offered as partial compensation for a lease equal to or in excess of the national minimum acceptable bonus bid set by statute or by the Secretary, submitted by a person or entity for a lease parcel in a competitive lease sale.
§ 3100.0-9 Information collection.
(a)(1) The collections of information contained in § 3103.4-1(b) have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and are among the collections assigned clearance number 1004-0145. The information will be used to determine whether an oil and gas operator or owner may obtain a reduction in the royalty rate. Response is required to obtain a benefit in accordance with 30 U.S.C. 181, et seq., and 30 U.S.C. 351-359.
(2) Public reporting burden for the information collections assigned clearance number 1004-0145 is estimated to average 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Information Collection Clearance Officer (783), Bureau of Land Management, Washington, DC 20240, and the Office of Management and Budget, Paperwork Reduction Project, 1004-0145, Washington, DC 20503.
(b)(1) The collections of information contained in § 3103.4-1(c) and (d) have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1010-0090. The information will be used to determine whether an oil and gas lessee may obtain a reduction in the royalty rate. Response is required to obtain a benefit in accordance with 30 U.S.C. 181, et seq., and 30 U.S.C. 351-359.
(2) Public reporting burden for this information is estimated to average
§ 3100.1 Helium.
The ownership of and the right to extract helium from all gas produced from lands leased or otherwise disposed of under the Act have been reserved to the United States.
§ 3100.2 Drainage.
§ 3100.2-1 Compensation for drainage.
Upon a determination by the authorized officer that lands owned by the United States are being drained of oil or gas by wells drilled on adjacent lands, the authorized officer may execute agreements with the owners of adjacent lands whereby the United States and its lessees shall be compensated for such drainage. Such agreements shall be made with the consent of any lessee affected by an agreement. Such lands may also be offered for lease in accordance with part 3120 of this title.
§ 3100.2-2 Drilling and production or payment of compensatory royalty.
Where lands in any leases are being drained of their oil or gas content by wells either on a Federal lease issued at a lower rate of royalty or on non-Federal lands, the lessee shall both drill and produce all wells necessary to protect the leased lands from drainage. In lieu of drilling necessary wells, the lessee may, with the consent of the authorized officer, pay compensatory royalty in the amount determined in accordance with § 3162.2(a) of this title.
§ 3100.3 Options.
§ 3100.3-1 Enforceability.
(a) No option to acquire any interest in a lease shall be enforceable if entered into for a period of more than 3 years (including any renewal period that may be provided for in the option) without the approval of the Secretary.
(b) No option or renewal thereof shall be enforceable until a signed copy or notice of option has been filed in the proper BLM office. Each such signed copy or notice shall include:
(1) The names and addresses of the parties thereto;
(2) The serial number of the lease to which the option is applicable;
(3) A statement of the number of acres covered by the option and of the interests and obligations of the parties to the option, including the date and expiration date of the option; and
(4) The interest to be conveyed and retained in exercise of the option. Such notice shall be signed by all parties to the option or their duly authorized agents. The signed copy or notice of option required by this paragraph shall contain or be accompanied by a signed statement by the holder of the option that he/she is the sole party in interest in the option; if not, he/she shall set forth the names and provide a description of the interest therein of the other interested parties, and provide a description of the agreement between them, if oral, and a copy of such agreement, if written.
§ 3100.3-2 Effect of option on acreage.
The acreage to which the option is applicable shall be charged both to the grantor of the option and the option holder. The acreage covered by an unexercised option remains charged during its term until notice of its relinquishment or surrender has been filed in the proper BLM office.
§ 3100.3-3 Option statements.
Each option holder shall file in the proper BLM office within 90 days after June 30 and December 31 of each year a statement showing as of the prior June 30 and December 31, respectively:
(a) Any changes to the statements submitted under § 3100.3-1(b) of this title, and
(b) The number of acres covered by each option and the total acreage of all options held in each State.
§ 3100.4 Public availability of information.
(a) All data and information concerning Federal and Indian minerals submitted under this part 3100 and parts 3110 through 3190 of this chapter are subject to part 2 of this title, except as provided in paragraph (c) of this section. Part 2 of this title includes the regulations of the Department of the Interior covering the public disclosure of data and information contained in Department of the Interior records. Certain mineral information not protected from public disclosure under part 2 of this title may be made available for inspection without a Freedom of Information Act (FOIA) (5 U.S.C. 552) request.
(b) When you submit data and information under this part 3100 and parts 3110 through 3190 of this chapter that you believe to be exempt from disclosure to the public, you must clearly mark each page that you believe includes confidential information. BLM will keep all such data and information confidential to the extent allowed by § 2.13(c) of this title.
(c) Under the Indian Mineral Development Act of 1982 (IMDA) (25 U.S.C. 2101 et seq.), the Department of the Interior will hold as privileged proprietary information of the affected Indian or Indian tribe –
(1) All findings forming the basis of the Secretary’s intent to approve or disapprove any Minerals Agreement under IMDA; and
(2) All projections, studies, data, or other information concerning a Minerals Agreement under IMDA, regardless of the date received, related to –
(i) The terms, conditions, or financial return to the Indian parties;
(ii) The extent, nature, value, or disposition of the Indian mineral resources; or
(iii) The production, products, or proceeds thereof.
(d) For information concerning Indian minerals not covered by paragraph (c) of this section –
(1) BLM will withhold such records as may be withheld under an exemption to FOIA when it receives a request for information related to tribal or Indian minerals held in trust or subject to restrictions on alienation;
(2) BLM will notify the Indian mineral owner(s) identified in the records of the Bureau of Indian Affairs (BIA), and BIA, and give them a reasonable period of time to state objections to disclosure, using the standards and procedures of § 2.15(d) of this title, before making a decision about the applicability of FOIA exemption 4 to:
(i) Information obtained from a person outside the United States Government; when
(ii) Following consultation with a submitter under § 2.15(d) of this title, BLM determines that the submitter does not have an interest in withholding the records that can be protected under FOIA; but
(iii) BLM has reason to believe that disclosure of the information may result in commercial or financial injury to the Indian mineral owner(s), but is uncertain that such is the case.
Subpart 3101 – Issuance of Leases
§ 3101.1 Lease terms and conditions.
§ 3101.1-1 Lease form.
A lease shall be issued only on the standard form approved by the Director.
§ 3101.1-2 Surface use rights.
A lessee shall have the right to use so much of the leased lands as is necessary to explore for, drill for, mine, extract, remove and dispose of all the leased resource in a leasehold subject to: Stipulations attached to the lease; restrictions deriving from specific, nondiscretionary statutes; and such reasonable measures as may be required by the authorized officer to minimize adverse impacts to other resource values, land uses or users not addressed in the lease stipulations at the time operations are proposed. To the extent consistent with lease rights granted, such reasonable measures may include, but are not limited to, modification to siting or design of facilities, timing of operations, and specification of interim and final reclamation measures. At a minimum, measures shall be deemed consistent with lease rights granted provided that they do not: require relocation of proposed operations by more than 200 meters; require that operations be sited off the leasehold; or prohibit new surface disturbing operations for a period in excess of 60 days in any lease year.
§ 3101.1-3 Stipulations and information notices.
The authorized officer may require stipulations as conditions of lease issuance. Stipulations shall become part of the lease and shall supersede inconsistent provisions of the standard lease form. Any party submitting a bid under subpart 3120 of this title, or an offer under § 3110.1(b) of this title during the period when use of the parcel number is required pursuant to § 3110.5-1 of this title, shall be deemed to have agreed to stipulations applicable to the specific parcel as indicated in the List of Lands Available for Competitive Nominations or the Notice of Competitive Lease Sale available from the proper BLM office. A party filing a noncompetitive offer in accordance with § 3110.1(a) of this title shall be deemed to have agreed to stipulations applicable to the specific parcel as indicated in the List of Lands Available for Competitive Nominations or the Notice of Competitive Lease Sale, unless the offer is withdrawn in accordance with § 3110.6 of this title. An information notice has no legal consequences, except to give notice of existing requirements, and may be attached to a lease by the authorized officer at the time of lease issuance to convey certain operational, procedural or administrative requirements relative to lease management within the terms and conditions of the standard lease form. Information notices shall not be a basis for denial of lease operations.
§ 3101.1-4 Modification or waiver of lease terms and stipulations.
A stipulation included in an oil and gas lease shall be subject to modification or waiver only if the authorized officer determines that the factors leading to its inclusion in the lease have changed sufficiently to make the protection provided by the stipulation no longer justified or if proposed operations would not cause unacceptable impacts. If the authorized officer has determined, prior to lease issuance, that a stipulation involves an issue of major concern to the public, modification or waiver of the stipulation shall be subject to public review for at least a 30-day period. In such cases, the stipulation shall indicate that public review is required before modification or waiver. If subsequent to lease issuance the authorized officer determines that a modification or waiver of a lease term or stipulation is substantial, the modification or waiver shall be subject to public review for at least a 30-day period.
§ 3101.2 Acreage limitations.
§ 3101.2-1 Public domain lands.
(a) No person or entity shall take, hold, own or control more than 246,080 acres of Federal oil and gas leases in any one State at any one time. No more than 200,000 acres of such acres may be held under option.
(b) In Alaska, the acreage that can be taken, held, owned or controlled is limited to 300,000 acres in the northern leasing district and 300,000 acres in the southern leasing district, of which no more than 200,000 acres may be held under option in each of the 2 leasing districts. The boundary between the 2 leasing districts in Alaska begins at the northeast corner of the Tetlin National Wildlife Refuge as established on December 2, 1980 (16 U.S.C. 3101), at a point on the boundary between the United States and Canada, then northwesterly along the northern boundary of the refuge to the left limit of the Tanana River (63°9′38″ north latitude, 142°20′52″ west longitude), then westerly along the left limit to the confluence of the Tanana and Yukon Rivers, and then along the left limit of the Yukon River from said confluence to its principal southern mouth.
§ 3101.2-2 Acquired lands.
An acreage limitation separate from, but equal to the acreage limitation for public domain lands described in § 3101.2-1 of this title, applies to acquired lands. Where the United States owns only a fractional interest in the mineral resources of the lands involved in a lease, only that part owned by the United States shall be charged as acreage holdings. The acreage embraced in a future interest lease shall not be charged as acreage holdings until the lease for the future interest becomes effective.
§ 3101.2-3 Excepted acreage.
(a) The following acreage shall not be included in computing accountable acreage:
(1) Acreage under any lease any portion of which is committed to any Federally approved unit or cooperative plan or communitization agreement;
(2) Acreage under any lease for which royalty (including compensatory royalty or royalty in-kind) was paid in the preceding calendar year; and
(3) Acreage under leases subject to an operating, drilling or development contract approved by the Secretary.
(b) Acreage subject to offers to lease, overriding royalties and payments out of production shall not be included in computing accountable acreage.
§ 3101.2-4 Excess acreage.
(a) Where, as the result of the termination or contraction of a unit or cooperative plan, the elimination of a lease from an operating, drilling or development contract a party holds or controls excess accountable acreage, said party shall have 90 days from that date to reduce the holdings to the prescribed limitation and to file proof of the reduction in the proper BLM office. Where as a result of a merger or the purchase of the controlling interest in a corporation, acreage in excess of the amount permitted is acquired, the party holding the excess acreage shall have 180 days from the date of the merger or purchase to divest the excess acreage. If additional time is required to complete the divestiture of the excess acreage, a petition requesting additional time, along with a full justification for the additional time, may be filed with the authorized officer prior to the termination of the 180-day period provided herein.
(b) If any person or entity is found to hold accountable acreage in violation of the provisions of these regulations, lease(s) or interests therein shall be subject to cancellation or forfeiture in their entirety, until sufficient acreage has been eliminated to comply with the acreage limitation. Excess acreage or interest shall be cancelled in the inverse order of acquisition.
§ 3101.2-5 Computation.
The accountable acreage of a party owning an undivided interest in a lease shall be the party’s proportionate part of the total lease acreage. The accountable acreage of a party who is the beneficial owner of more than 10 percent of the stock of a corporation which holds Federal oil and gas leases shall be the party’s proportionate part of the corporation’s accountable acreage. Parties to a contract for development of leased lands and co-parties, except those operating, drilling or development contracts subject to § 3101.2-3 of this title, shall be charged with their proportionate interests in the lease. No holding of acreage in common by the same persons in excess of the maximum acreage specified in the laws for any one party shall be permitted.
§ 3101.2-6 Showing required.
At any time the authorized officer may require any lessee or operator to file with the Bureau of Land Management a statement showing as of specified date the serial number and the date of each lease in which he/she has any interest, in the particular State, setting forth the acreage covered thereby.
§ 3101.3 Leases within unit areas.
§ 3101.3-1 Joinder evidence required.
Before issuance of a lease for lands within an approved unit, the lease offeror shall file evidence with the proper BLM office of having joined in the unit agreement and unit operating agreement or a statement giving satisfactory reasons for the failure to enter into such agreement. If such statement is acceptable to the authorized officer the operator shall be permitted to operate independently but shall be required to conform to the terms and provisions of the unit agreement with respect to such operations.
§ 3101.3-2 Separate leases to issue.
A lease offer for lands partly within and partly outside the boundary of a unit shall result in separate leases, one for the lands within the unit, and one for the lands outside the unit.
§ 3101.4 Lands covered by application to close lands to mineral leasing.
Offers filed on lands within a pending application to close lands to mineral leasing shall be suspended until the segregative effect of the application is final.
§ 3101.5 National Wildlife Refuge System lands.
§ 3101.5-1 Wildlife refuge lands.
(a) Wildlife refuge lands are those lands embraced in a withdrawal of public domain and acquired lands of the United States for the protection of all species of wildlife within a particular area. Sole and complete jurisdiction over such lands for wildlife conservation purposes is vested in the Fish and Wildlife Service even though such lands may be subject to prior rights for other public purposes or, by the terms of the withdrawal order, may be subject to mineral leasing.
(b) No offers for oil and gas leases covering wildlife refuge lands shall be accepted and no leases covering such lands shall be issued except as provided in § 3100.2 of this title. There shall be no drilling or prospecting under any lease heretofore or hereafter issued on lands within a wildlife refuge except with the consent and approval of the Secretary with the concurrence of the Fish and Wildlife Service as to the time, place and nature of such operations in order to give complete protection to wildlife populations and wildlife habitat on the areas leased, and all such operations shall be conducted in accordance with the stipulations of the Bureau on a form approved by the Director.
§ 3101.5-2 Coordination lands.
(a) Coordination lands are those lands withdrawn or acquired by the United States and made available to the States by cooperative agreements entered into between the Fish and Wildlife Service and the game commissions of the various States, in accordance with the Act of March 10, 1934 (48 Stat. 401), as amended by the Act of August 14, 1946 (60 Stat. 1080), or by long-term leases or agreements between the Department of Agriculture and the game commissions of the various States pursuant to the Bankhead-Jones Farm Tenant Act (50 Stat. 525), as amended, where such lands were subsequently transferred to the Department of the Interior, with the Fish and Wildlife Service as the custodial agency of the United States.
(b) Representatives of the Bureau and the Fish and Wildlife Service shall, in cooperation with the authorized members of the various State game commissions, confer for the purpose of determining by agreement those coordination lands which shall not be subject to oil and gas leasing. Coordination lands not closed to oil and gas leasing shall be subject to leasing on the imposition of such stipulations as are agreed upon by the State Game Commission, the Fish and Wildlife Service and the Bureau.
§ 3101.5-3 Alaska wildlife areas.
No lands within a refuge in Alaska open to leasing shall be available until the Fish and Wildlife Service has first completed compatability determinations.
§ 3101.5-4 Stipulations.
Leases shall be issued subject to stipulations prescribed by the Fish and Wildlife Service as to the time, place, nature and condition of such operations in order to minimize impacts to fish and wildlife populations and habitat and other refuge resources on the areas leased. The specific conduct of lease activities on any refuge lands shall be subject to site-specific stipulations prescribed by the Fish and Wildlife Service.
§ 3101.6 Recreation and public purposes lands.
Under the Recreation and Public Purposes Act, as amended (43 U.S.C. 869 et seq.), all lands within Recreation and Public Purposes leases and patents are subject to lease under the provisions of this part, subject to such conditions as the Secretary deems appropriate.
§ 3101.7 Federal lands administered by an agency outside of the Department of the Interior.
§ 3101.7-1 General requirements.
(a) Acquired lands shall be leased only with the consent of the surface managing agency, which upon receipt of a description of the lands from the authorized officer, shall report to the authorized officer that it consents to leasing with stipulations, if any, or withholds consent or objects to leasing.
(b) Public domain lands shall be leased only after the Bureau has consulted with the surface managing agency and has provided it with a description of the lands, and the surface managing agency has reported its recommendation to lease with stipulations, if any, or not to lease to the authorized officer. If consent or lack of objection of the surface managing agency is required by statute to lease public domain lands, the procedure in paragraph (a) of this section shall apply.
(c) National Forest System lands whether acquired or reserved from the public domain shall not be leased over the objection of the Forest Service. The provisions of paragraph (a) of this section shall apply to such National Forest System lands.
§ 3101.7-2 Action by the Bureau of Land Management.
(a) Where the surface managing agency has consented to leasing with required stipulations, and the Secretary decides to issue a lease, the authorized officer shall incorporate the stipulations into any lease which it may issue. The authorized officer may add additional stipulations.
(b) The authorized officer shall not issue a lease and shall reject any lease offer on lands to which the surface managing agency objects or withholds consent required by statute. In all other instances, the Secretary has the final authority and discretion to decide to issue a lease.
(c) The authorized officer shall review all recommendations and shall accept all reasonable recommendations of the surface managing agency.
§ 3101.7-3 Appeals.
(a) The decision of the authorized officer to reject an offer to lease or to issue a lease with stipulations recommended by the surface managing agency may be appealed to the Interior Board of Land Appeals under part 4 of this title.
(b) Where, as provided by statute, the surface managing agency has required that certain stipulations be included in a lease or has consented, or objected or refused to consent to leasing, any appeal by an affected lease offeror shall be pursuant to the administrative remedies provided by the particular surface managing agency.
§ 3101.8 State’s or charitable organization’s ownership of surface overlying Federally-owned minerals.
Where the United States has conveyed title to, or otherwise transferred the control of the surface of lands to any State or political subdivision, agency, or instrumentality thereof, or a college or any other educational corporation or association, or a charitable or religious corporation or association, with reservation of the oil and gas rights to the United States, such party shall be given an opportunity to suggest any lease stipulations deemed necessary for the protection of existing surface improvements or uses, to set forth the facts supporting the necessity of the stipulations and also to file any objections it may have to the issuance of a lease. Where a party controlling the surface opposes the issuance of a lease or wishes to place such restrictive stipulations upon the lease that it could not be operated upon or become part of a drilling unit and hence is without mineral value, the facts submitted in support of the opposition or request for restrictive stipulations shall be given consideration and each case decided on its merits. The opposition to lease or necessity for restrictive stipulations expressed by the party controlling the surface affords no legal basis or authority to refuse to issue the lease or to issue the lease with the requested restrictive stipulations for the reserved minerals in the lands; in such case, the final determination whether to issue and with what stipulations, or not to issue the lease depends upon whether or not the interests of the United States would best be served by the issuance of the lease.
Subpart 3102 – Qualifications of Lessees
§ 3102.1 Who may hold leases.
Leases or interests therein may be acquired and held only by citizens of the United States; associations (including partnerships and trusts) of such citizens; corporations organized under the laws of the United States or of any State or Territory thereof; and municipalities.
§ 3102.2 Aliens.
Leases or interests therein may be acquired and held by aliens only through stock ownership, holding or control in a present or potential lessee that is incorporated under the laws of the United States or of any State or territory thereof, and only if the laws, customs or regulations of their country do not deny similar or like privileges to citizens or corporations of the United States. If it is determined that a country has denied similar or like privileges to citizens or corporations of the United States, it would be placed on a list available from any Bureau of Land Management State office.
§ 3102.3 Minors.
Leases shall not be acquired or held by one considered a minor under the laws of the State in which the lands are located, but leases may be acquired and held by legal guardians or trustees of minors in their behalf. Such legal guardians or trustees shall be citizens of the United States or otherwise meet the provisions of § 3102.1 of this title.
§ 3102.4 Signature.
(a) The original of an offer or bid shall be signed in ink and dated by the present or potential lessee or by anyone authorized to sign on behalf of the present or potential lessee.
(b) Three copies of a transfer of record title or of operating rights (sublease), as required by section 30a of the act, shall be originally signed and dated by the transferor or anyone authorized to sign on behalf of the transferor. However, a transferee, or anyone authorized to sign on his or her behalf, shall be required to sign and date only 1 original request for approval of a transfer.
(c) Documents signed by any party other than the present or potential lessee shall be rendered in a manner to reveal the name of the present or potential lessee, the name of the signatory and their relationship. A signatory who is a member of the organization that constitutes the present or potential lessee (e.g., officer of a corporation, partner of a partnership, etc.) may be requested by the authorized officer to clarify his/her relationship, when the relationship is not shown on the documents filed.
(d) Submission of a qualification number does not meet the requirements of paragraph (c) of this section.
§ 3102.5 Compliance, certification of compliance and evidence.
§ 3102.5-1 Compliance.
In order to actually or potentially own, hold, or control an interest in a lease or prospective lease, all parties, including corporations, and all members of associations, including partnerships of all types, shall, without exception, be qualified and in compliance with the act. Compliance means that the lessee, potential lessee, and all such parties (as defined in § 3000.0-5(k)) are:
(a) Citizens of the United States (see § 3102.1) or alien stockholders in a corporation organized under State or Federal law (see § 3102.2);
(b) In compliance with the Federal acreage limitations (see § 3101.2);
(c) Not minors (see § 3102.3);
(d) Except for an assignment or transfer under subpart 3106 of this title, in compliance with section 2(a)(2)(A) of the Act, in which case the signature on an offer or lease constitutes evidence of compliance. A lease issued to any entity in violation of this paragraph (d) shall be subject to the cancellation provisions of § 3108.3 of this title. The term entity is defined at § 3400.0-5(rr) of this title.
(e) Not in violation of the provisions of section 41 of the Act; and
(f) In compliance with section 17(g) of the Act, in which case the signature on an offer, lease, assignment, transfer, constitutes evidence of compliance that the signatory and any subsidiary, affiliate, or person, association, or corporation controlled by or under common control with the signatory, as defined in § 3400.0-5(rr) of this title, has not failed or refused to comply with reclamation requirements with respect to all leases and operations thereon in which such person or entity has an interest. Noncompliance with section 17(g) of the Act begins on the effective date of the imposition of a civil penalty by the authorized officer under § 3163.2 of this title, or when the bond is attached by the authorized officer for reclamation purposes, whichever comes first. A lease issued, or an assignment or transfer approved, to any such person or entity in violation of this paragraph (f) shall be subject to the cancellation provisions of § 3108.3 of this title, notwithstanding any administrative or judicial appeals that may be pending with respect to violations or penalties assessed for failure to comply with the prescribed reclamation standards on any lease holdings. Noncompliance shall end upon a determination by the authorized officer that all required reclamation has been completed and that the United States has been fully reimbursed for any costs incurred due to the required reclamation.
(g) In compliance with § 3106.1(b) of this title and section 30A of the Act. The authorized officer may accept the signature on a request for approval of an assignment of less than 640 acres outside of Alaska (2,560 acres within Alaska) as acceptable certification that the assignment would further the development of oil and gas, or the authorized officer may apply the provisions of § 3102.5-3 of this title.
§ 3102.5-2 Certification of compliance.
Any party(s) seeking to obtain an interest in a lease shall certify it is in compliance with the act as set forth in § 3102.5-1 of this title. A party(s) that is a corporation or publicly traded association, including a publicly traded partnership, shall certify that constituent members of the corporation, association or partnership holding or controlling more than 10 percent of the instruments of ownership of the corporation, association or partnership are in compliance with the act. Execution and submission of an offer, competitive bid form, or request for approval of a transfer of record title or of operating rights (sublease), constitutes certification of compliance.
§ 3102.5-3 Evidence of compliance.
The authorized officer may request at any time further evidence of compliance and qualification from any party holding or seeking to hold an interest in a lease. Failure to comply with the request of the authorized officer shall result in adjudication of the action based on the incomplete submission.
Subpart 3103 – Fees, Rentals and Royalty
§ 3103.1 Payments.
§ 3103.1-1 Form of remittance.
All remittances shall be by personal check, cashier’s check, certified check, or money order, and shall be made payable to the Department of the Interior – Bureau of Land Management or the Department of the Interior – Minerals Management Service, as appropriate. Payments made to the Bureau may be made by other arrangements such as by electronic funds transfer or credit card when specifically authorized by the Bureau. In the case of payments made to the Service, such payments may also be made by electronic funds transfer.
§ 3103.1-2 Where submitted.
(a)(1) All fees for lease applications or offers or for requests for approval of a transfer and all first-year rentals and bonuses for leases issued under Group 3100 of this title shall be paid to the proper BLM office.
(2) All second-year and subsequent rentals, except for leases specified in paragraph (b) of this section, shall be paid to the Service at the following address: Minerals Management Service, Royalty Management Program/BRASS, Box 5640 T.A., Denver, CO 80217.
(b) All rentals and royalties on producing leases, communitized leases in producing well units, unitized leases in producing unit areas, leases on which compensatory royalty is payable and all payments under subsurface storage agreements and easements for directional drilling shall be paid to the Service.
§ 3103.2 Rentals.
§ 3103.2-1 Rental requirements.
(a) Each competitive bid or competitive nomination submitted in response to a List of Lands Available for Competitive Nominations or Notice of Competitive Lease Sale, and each noncompetitive lease offer shall be accompanied by full payment of the first year’s rental based on the total acreage, if known, and, if not known, shall be based on 40 acres for each smallest legal subdivision. An offer deficient in the first year’s rental by not more than 10 percent or $200, whichever is less, shall be accepted by the authorized officer provided all other requirements are met. Rental submitted shall be determined based on the total amount remitted less all required fees. The additional rental shall be paid within 30 days from notice of the deficiency under penalty of cancellation of the lease.
(b) If the acreage is incorrectly indicated in a List of Lands Available for Competitive Nominations or a Notice of Competitive Lease Sale, payment of the rental based on the error is curable within 15 calendar days of receipt of notice from the authorized officer of the error.
(c) Rental shall not be prorated for any lands in which the United States owns an undivided fractional interest but shall be payable for the full acreage in such lands.
§ 3103.2-2 Annual rental payments.
Rentals shall be paid on or before the lease anniversary date. A full year’s rental shall be submitted even when less than a full year remains in the lease term, except as provided in § 3103.4-4(d) of this title. Failure to make timely payment shall cause a lease to terminate automatically by operation of law. If the designated Service office is not open on the anniversary date, payment received on the next day the designated Service office is open to the public shall be deemed to be timely made. Payments made to an improper BLM or Service office shall be returned and shall not be forwarded to the designated Service office. Rental shall be payable at the following rates:
(a) The annual rental for all leases issued subsequent to December 22, 1987, shall be $1.50 per acre or fraction thereof for the first 5 years of the lease term and $2 per acre or fraction for any subsequent year, except as provided in paragraph (b) of this section;
(b) The annual rental for all leases issued on or before December 22, 1987, or issued pursuant to an application or offer to lease filed prior to that date shall be as stated in the lease or in regulations in effect on December 22, 1987, except:
(1) Leases issued under former subpart 3112 of this title on or after February 19, 1982, shall be subject after February 1, 1989, to annual rental in the sixth and subsequent lease years of $2 per acre or fraction thereof;
(2) The rental rate of any lease determined after December 22, 1987, to be in a known geological structure outside of Alaska or in a favorable petroleum geological province within Alaska shall not be increased because of such determination;
(3) Exchange and renewal leases shall be subject to rental of $2 per acre or fraction thereof upon exchange or renewal;
(c) Rental shall not be due on acreage for which royalty or minimum royalty is being paid, except on nonproducing leases when compensatory royalty has been assessed in which case annual rental as established in the lease shall be due in addition to compensatory royalty;
(d) On terminated leases that were originally issued noncompetitively and are reinstated under § 3108.2-3 of this title, and on noncompetitive leases that were originally issued under § 3108.2-4 of this title, the annual rental shall be $5 per acre or fraction thereof beginning with the termination date upon the filing, on or after the effective date of this regulation, of a petition to reinstate a lease or convert an abandoned, unpatented oil placer mining claim;
(e) On terminated leases that were originally issued competitively, the annual rental shall be $10 per acre or fraction thereof beginning with the termination date upon the filing, on or after the effective date of this regulation, of a petition to reinstate a lease under § 3108.2-3 of this title; and
(f) Each succeeding time a specific lease is reinstated under § 3108.2-3 of this title, the annual rental on that lease shall increase by an additional $5 per acre or fraction thereof for leases that were originally issued noncompetitively and by an additional $10 per acre or fraction thereof for leases that were originally issued competitively.
§ 3103.3 Royalties.
§ 3103.3-1 Royalty on production.
(a) Royalty on production will be payable only on the mineral interest owned by the United States. Royalty must be paid in amount or value of the production removed or sold as follows:
(1) For leases issued on or before January 17, 2017, the rate prescribed in the lease or in applicable regulations at the time of lease issuance;
(2) For leases issued after January 17, 2017:
(i) 12
(ii) A rate of not less than 12
(3) 16
(4) The rate used for royalty determination that appears in a lease that is reinstated or that is in force for competitive leases at the time of issuance of the lease that is reinstated, plus 4 percentage points, plus an additional 2 percentage points for each succeeding reinstatement.
(b) Leases that qualify under specific provisions of the Act of August 8, 1946 (30 U.S.C. 226c) may apply for a limitation of a 12
(c) The average production per well per day for oil and gas will be determined pursuant to 43 CFR 3162.7-4.
(d) Payment of a royalty on the helium component of gas will not convey the right to extract the helium from the gas stream. Applications for the right to extract helium from the gas stream will be made under part 16 of this title.
§ 3103.3-2 Minimum royalties.
(a) A minimum royalty shall be payable at the expiration of each lease year beginning on or after a discovery of oil or gas in paying quantities on the lands leased, except that on unitized leases the minimum royalty shall be payable only on the participating acreage, at the following rates:
(1) On leases issued on or after August 8, 1946, and on those issued prior thereto if the lessee files an election under section 15 of the Act of August 8, 1946, a minimum royalty of $1 per acre or fraction thereof in lieu of rental, except as provided in paragraph (a)(2) of this section; and
(2) On leases issued from offers filed after December 22, 1987, and on competitive leases issued from successful bids placed at oral or internet-based auctions conducted after December 22, 1987, a minimum royalty in lieu of rental of not less than the amount of rental which otherwise would be required for that lease year.
(b) Minimum royalties shall not be prorated for any lands in which the United States owns a fractional interest but shall be payable on the full acreage of the lease.
(c) Minimum royalties and rentals on non-participating acreage shall be payable to the Service.
(d) The minimum royalty provisions of this section shall be applicable to leases reinstated under § 3108.2-3 of this title and leases issued under § 3108.2-4 of this title.
§ 3103.4 Production incentives.
§ 3103.4-1 Royalty reductions.
(a) In order to encourage the greatest ultimate recovery of oil or gas and in the interest of conservation, the Secretary, upon a determination that it is necessary to promote development or that the leases cannot be successfully operated under the terms provided therein, may waive, suspend or reduce the rental or minimum royalty or reduce the royalty on an entire leasehold, or any portion thereof.
(b)(1) An application for the benefits under paragraph (a) of this section must be filed by the operator/payor in the proper BLM office. The application must contain the serial number of the leases, the names of the record title holders, operating rights owners (sublessees), and operators for each lease, the description of lands by legal subdivision and a description of the relief requested.
(2) Each application shall show the number, location and status of each well drilled, a tabulated statement for each month covering a period of not less than 6 months prior to the date of filing the application of the aggregate amount of oil or gas subject to royalty, the number of wells counted as producing each month and the average production per well per day.
(3) Every application shall contain a detailed statement of expenses and costs of operating the entire lease, the income from the sale of any production and all facts tending to show whether the wells can be successfully operated upon the fixed royalty or rental. Where the application is for a reduction in royalty, full information shall be furnished as to whether overriding royalties, payments out of production, or similar interests are paid to others than the United States, the amounts so paid and efforts made to reduce them. The applicant shall also file agreements of the holders to a reduction of all other royalties or similar payments from the leasehold to an aggregate not in excess of one-half the royalties due the United States.
(c) Petition may be made for reduction of royalty under § 3108.2-3(f) for leases reinstated under § 3108.2-3 of this title and under § 3108.2-4(i) for noncompetitive leases issued under § 3108.2-4 of this title. Petitions to waive, suspend or reduce rental or minimum royalty for leases reinstated under § 3108.2-3 of this title or for leases issued under § 3108.2-4 of this title may be made under this section.
§ 3103.4-2 Stripper well royalty reductions.
(a) Certification. The applicable royalty rate shall be used by the operator/payor when submitting the required royalty reports/payments to ONRR. By submitting royalty reports/payments using the royalty rate reduction benefits of this program, the operator certifies that the production rate for the qualifying and subsequent 12-month period was not subject to manipulation for the purpose of obtaining the benefit of a royalty rate reduction, and the royalty rate was calculated in accordance with the instructions and procedures in these regulations.
(b) Record retention. For seven years after production on which the operator claims a royalty rate reduction for stripper well properties, the operator must retain and make available to BLM for inspection all documents on which the calculation of the applicable royalty rate under this section relies.
(c) Agency action. If a royalty rate is improperly calculated, the MMS will calculate the correct rate and inform the operator/payors. Any additional royalties due are payable immediately upon notification. Late payment or underpayment charges will be assessed in accordance with 30 CFR 218.102. The BLM may terminate a royalty rate reduction if it is determined that the production rate was manipulated by the operator for the purpose of receiving a royalty rate reduction. Terminations of royalty rate reductions will be effective on the effective date of the royalty rate reduction resulting from the manipulated production rate (i.e., the termination will be retroactive to the effective date of the improper reduction). The operator/payor shall pay the difference in royalty resulting from the retroactive application of the unmanipulated rate. Late payment or underpayment charges will be assessed in accordance with 30 CFR 218.102.
§ 3103.4-3 Heavy oil royalty reductions.
(a) Certification. The operator/payor must use the applicable royalty rate when submitting the required royalty reports/payments to the Minerals Management Service (MMS). In submitting royalty reports/payments using a royalty rate reduction the operator/payor must certify that the API oil gravity for the initial and subsequent 12-month periods was not subject to manipulation or adulteration and the royalty rate was determined in accordance with the requirements and procedures.
(b) Agency action. If an operator/payor incorrectly calculates the royalty rate, the BLM will determine the correct rate and notify the operator/payor in writing. Any additional royalties due are payable to MMS immediately upon receipt of this notice. Late payment or underpayment charges will be assessed in accordance with 30 CFR 218.102. The BLM will terminate a royalty rate reduction for a property if BLM determines that the API oil gravity was manipulated or adulterated by the operator/payor. Terminations of royalty rate reductions for individual properties will be effective on the effective date of the royalty rate reduction resulting from a manipulated or adulterated API oil gravity so that the termination will be retroactive to the effective date of the improper reduction. The operator/payor must pay the difference in royalty resulting from the retroactive application of the non-manipulated rate. The late payment or underpayment charges will assessed in accordance with 30 CFR 218.102.
§ 3103.4-4 Suspension of operations and/or production.
(a) A suspension of all operations and production may be directed or consented to by the authorized officer only in the interest of conservation of natural resources. A suspension of operations only or a suspension of production only may be directed or consented to by the authorized officer in cases where the lessee is prevented from operating on the lease or producing from the lease, despite the exercise of due care and diligence, by reason of force majeure, that is, by matters beyond the reasonable control of the lessee. Applications for any suspension shall be filed in the proper BLM office. Complete information showing the necessity of such relief shall be furnished.
(b) The term of any lease shall be extended by adding thereto the period of the suspension, and no lease shall be deemed to expire during any suspension.
(c) A suspension shall take effect as of the time specified in the direction or assent of the authorized officer, in accordance with the provisions of § 3165.1 of this title.
(d) Rental and minimum royalty payments shall be suspended during any period of suspension of all operations and production directed or assented to by the authorized officer beginning with the first day of the lease month in which the suspension of all operations and production becomes effective, or if the suspension of all operations and production becomes effective on any date other than the first day of a lease month, beginning with the first day of the lease month following such effective date. Rental and minimum royalty payments shall resume on the first day of the lease month in which the suspension of all operations and production is terminated. Where rentals are creditable against royalties and have been paid in advance, proper credit shall be allowed on the next rental or royalty due under the terms of the lease. Rental and minimum royalty payments shall not be suspended during any period of suspension of operations only or suspension of production only.
(e) Where all operations and production are suspended on a lease on which there is a well capable of producing in paying quantities and the authorized officer approves resumption of operations and production, such resumption shall be regarded as terminating the suspension, including the suspension of rental and minimum royalty payments, as provided in paragraph (d) of this section.
(f) The relief authorized under this section also may be obtained for any Federal lease included within an approved unit or cooperative plan of development and operation. Unit or cooperative plan obligations shall not be suspended by relief obtained under this section but shall be suspended only in accordance with the terms and conditions of the specific unit or cooperative plan.
Subpart 3104 – Bonds
§ 3104.1 Bond obligations.
(a) Prior to the commencement of surface disturbing activities related to drilling operations, the lessee, operating rights owner (sublessee), or operator shall submit a surety or a personal bond, conditioned upon compliance with all of the terms and conditions of the entire leasehold(s) covered by the bond, as described in this subpart. The bond amounts shall be not less than the minimum amounts described in this subpart in order to ensure compliance with the act, including complete and timely plugging of the well(s), reclamation of the lease area(s), and the restoration of any lands or surface waters adversely affected by lease operations after the abandonment or cessation of oil and gas operations on the lease(s) in accordance with, but not limited to, the standards and requirements set forth in §§ 3162.3 and 3162.5 of this title and orders issued by the authorized officer.
(b) Surety bonds shall be issued by qualified surety companies approved by the Department of the Treasury (see Department of the Treasury Circular No. 570).
(c) Personal bonds shall be accompanied by:
(1) Certificate of deposit issued by a financial institution, the deposits of which are Federally insured, explicitly granting the Secretary full authority to demand immediate payment in case of default in the performance of the terms and conditions of the lease. The certificate shall explicitly indicate on its face that Secretarial approval is required prior to redemption of the certificate of deposit by any party;
(2) Cashier’s check;
(3) Certified check;
(4) Negotiable Treasury securities of the United States of a value equal to the amount specified in the bond. Negotiable Treasury securities shall be accompanied by a proper conveyance to the Secretary of full authority to sell such securities in case of default in the performance of the terms and conditions of a lease; or
(5) Irrevocable letter of credit issued by a financial institution, the deposits of which are Federally insured, for a specific term, identifying the Secretary as sole payee with full authority to demand immediate payment in the case of default in the performance of the terms and conditions of a lease.
Letters of credit shall be subject to the following conditions:
(i) The letter of credit shall be issued only by a financial institution organized or authorized to do business in the United States;
(ii) The letter of credit shall be irrevocable during its term. A letter of credit used as security for any lease upon which drilling has taken place and final approval of all abandonment has not been given, or as security for a statewide or nationwide lease bond, shall be forfeited and shall be collected by the authorized officer if not replaced by other suitable bond or letter of credit at least 30 days before its expiration date;
(iii) The letter of credit shall be payable to the Bureau of Land Management upon demand, in part or in full, upon receipt from the authorized officer of a notice of attachment stating the basis therefor, e.g., default in compliance with the lease terms and conditions or failure to file a replacement in accordance with paragraph (c)(5)(ii) of this section;
(iv) The initial expiration date of the letter of credit shall be at least 1 year following the date it is filed in the proper BLM office; and
(v) The letter of credit shall contain a provision for automatic renewal for periods of not less than 1 year in the absence of notice to the proper BLM office at least 90 days prior to the originally stated or any extended expiration date.
§ 3104.2 Lease bond.
A lease bond may be posted by a lessee, owner of operating rights (sublessee), or operator in an amount of not less than $10,000 for each lease conditioned upon compliance with all of the terms of the lease. Where 2 or more principals have interests in different formations or portions of the lease, separate bonds may be posted. The operator on the ground shall be covered by a bond in his/her own name as principal, or a bond in the name of the lessee or sublessee, provided that a consent of the surety, or the obligor in the case of a personal bond, to include the operator under the coverage of the bond is furnished to the Bureau office maintaining the bond.
§ 3104.3 Statewide and nationwide bonds.
(a) In lieu of lease bonds, lessees, owners of operating rights (sublessees), or operators may furnish a bond in an amount of not less than $25,000 covering all leases and operations in any one State.
(b) In lieu of lease bonds or statewide bonds, lessees, owners of operating rights (sublessees), or operators may furnish a bond in an amount of not less than $150,000 covering all leases and operations nationwide.
§ 3104.4 Unit operator’s bond.
In lieu of individual lease, statewide, or nationwide bonds for operations conducted on leases committed to an approved unit agreement, the unit operator may furnish a unit operator bond in the manner set forth in § 3104.1 of this title. The amount of such a bond shall be determined by the authorized officer. The format for such a surety bond is set forth in § 3186.2 of this title. Where a unit operator is covered by a nationwide or statewide bond, coverage for such a unit may be provided by a rider to such bond specifically covering the unit and increasing the bond in such amount as may be determined appropriate by the authorized officer.
§ 3104.5 Increased amount of bonds.
(a) When an operator desiring approval of an Application for Permit to Drill has caused the Bureau to make a demand for payment under a bond or other financial guarantee within the 5-year period prior to submission of the Application for Permit to Drill, due to failure to plug a well or reclaim lands completely in a timely manner, the authorized officer shall require, prior to approval of the Application for Permit to Drill, a bond in an amount equal to the costs as estimated by the authorized officer of plugging the well and reclaiming the disturbed area involved in the proposed operation, or in the minimum amount as prescribed in this subpart, whichever is greater.
(b) The authorized officer may require an increase in the amount of any bond whenever it is determined that the operator poses a risk due to factors, including, but not limited to, a history of previous violations, a notice from the Service that there are uncollected royalties due, or the total cost of plugging existing wells and reclaiming lands exceeds the present bond amount based on the estimates determined by the authorized officer. The increase in bond amount may be to any level specified by the authorized officer, but in no circumstances shall it exceed the total of the estimated costs of plugging and reclamation, the amount of uncollected royalties due to the Service, plus the amount of monies owed to the lessor due to previous violations remaining outstanding.
§ 3104.6 Where filed and number of copies.
All bonds shall be filed in the proper BLM office on a current form approved by the Director. A single copy executed by the principal or, in the case of surety bonds, by both the principal and an acceptable surety is sufficient. A bond filed on a form not currently in use shall be acceptable, unless such form has been declared obsolete by the Director prior to the filing of such bond. For purposes of §§ 3104.2 and 3104.3(a) of this title, bonds or bond riders shall be filed in the Bureau State office having jurisdiction of the lease or operations covered by the bond or rider. Nationwide bonds may be filed in any Bureau State office (See § 1821.2-1).
§ 3104.7 Default.
(a) Where, upon a default, the surety makes a payment to the United States of an obligation incurred under a lease, the face amount of the surety bond or personal bonds and the surety’s liability thereunder shall be reduced by the amount of such payment.
(b) After default, where the obligation in default equals or is less than the face amount of the bond(s), the principal shall either post a new bond or restore the existing bond(s) to the amount previously held or a larger amount as determined by the authorized officer. In lieu thereof, the principal may file separate or substitute bonds for each lease covered by the deficient bond(s). Where the obligation incurred exceeds the face amount of the bond(s), the principal shall make full payment to the United States for all obligations incurred that are in excess of the face amount of the bond(s) and shall post a new bond in the amount previously held or such larger amount as determined by the authorized officer. The restoration of a bond or posting of a new bond shall be made within 6 months or less after receipt of notice from the authorized officer. Failure to comply with these requirements may subject all leases covered by such bond(s) to cancellation under the provisions of § 3108.3 of this title.
§ 3104.8 Termination of period of liability.
The authorized officer shall not give consent to termination of the period of liability of any bond unless an acceptable replacement bond has been filed or until all the terms and conditions of the lease have been met.
Subpart 3105 – Cooperative Conservation Provisions
§ 3105.1 Cooperative or unit agreement.
The suggested contents of such an agreement and the procedures for obtaining approval are contained in 43 CFR part 3180.
§ 3105.2 Communitization or drilling agreements.
§ 3105.2-1 Where filed.
(a) Requests to communitize separate tracts shall be filed, in triplicate, with the proper BLM office.
(b) Where a duly executed agreement is submitted for final Departmental approval, a minimum of 3 signed counterparts shall be submitted. If State lands are involved, 1 additional counterpart shall be submitted.
§ 3105.2-2 Purpose.
When a lease or a portion thereof cannot be independently developed and operated in conformity with an established well-spacing or well-development program, the authorized officer may approve communitization or drilling agreements for such lands with other lands, whether or not owned by the United States, upon a determination that it is in the public interest. Operations or production under such an agreement shall be deemed to be operations or production as to each lease committed thereto.
§ 3105.2-3 Requirements.
(a) The communitization or drilling agreement shall describe the separate tracts comprising the drilling or spacing unit, shall show the apportionment of the production or royalties to the several parties and the name of the operator, and shall contain adequate provisions for the protection of the interests of the United States. The agreement shall be signed by or on behalf of all necessary parties and shall be filed prior to the expiration of the Federal lease(s) involved in order to confer the benefits of the agreement upon such lease(s).
(b) The agreement shall be effective as to the Federal lease(s) involved only if approved by the authorized officer. Approved communitization agreements are considered effective from the date of the agreement or from the date of the onset of production from the communitized formation, whichever is earlier, except when the spacing unit is subject to a State pooling order after the date of first sale, then the effective date of the agreement may be the effective date of the order.
(c) The public interest requirement for an approved communitization agreement shall be satisfied only if the well dedicated thereto has been completed for production in the communitized formation at the time the agreement is approved or, if not, that the operator thereafter commences and/or diligently continues drilling operations to a depth sufficient to test the communitized formation or establish to the satisfaction of the authorized officer that further drilling of the well would be unwarranted or impracticable. If an application is received for voluntary termination of a communitization agreement during its fixed term or such an agreement automatically expires at the end of its fixed term without the public interest requirement having been satisfied, the approval of that agreement by the authorized officer shall be invalid and no Federal lease shall be eligible for extension under § 3107.4 of this title.
§ 3105.3 Operating, drilling or development contracts.
§ 3105.3-1 Where filed.
A contract submitted for approval under this section shall be filed with the proper BLM office, together with enough copies to permit retention of 5 copies by the Department after approval.
§ 3105.3-2 Purpose.
Approval of operating, drilling or development contracts ordinarily shall be granted only to permit operators or pipeline companies to enter into contracts with a number of lessees sufficient to justify operations on a scale large enough to justify the discovery, development, production or transportation of oil or gas and to finance the same.
§ 3105.3-3 Requirements.
The contract shall be accompanied by a statement showing all the interests held by the contractor in the area or field and the proposed or agreed plan for development and operation of the field. All the contracts held by the same contractor in the area or field shall be submitted for approval at the same time and full disclosure of the projects made.
§ 3105.4 Combination for joint operations or for transportation of oil.
§ 3105.4-1 Where filed.
An application under this section together with sufficient copies to permit retention of 5 copies by the Department after approval shall be filed with the proper BLM office.
§ 3105.4-2 Purpose.
Upon obtaining approval of the authorized officer, lessees may combine their interests in leases for the purpose of constructing and carrying on the business of a refinery or of establishing and constructing as a common carrier a pipeline or lines or railroads to be operated and used by them jointly in the transportation of oil or gas from their wells or from the wells of other lessees.
§ 3105.4-3 Requirements.
The application shall show a reasonable need for the combination and that it will not result in any concentration of control over the production or sale of oil and gas which would be inconsistent with the anti-monopoly provisions of law.
§ 3105.4-4 Rights-of-way.
Rights-of-way for pipelines may be granted as provided in part 2880 of this title.
§ 3105.5 Subsurface storage of oil and gas.
§ 3105.5-1 Where filed.
(a) Applications for subsurface storage shall be filed in the proper BLM office.
(b) Enough copies of the final agreement signed by all the parties in interest shall be submitted to permit the retention of 5 copies by the Department after approval.
§ 3105.5-2 Purpose.
In order to avoid waste and to promote conservation of natural resources, the Secretary, upon application by the interested parties, may authorize the subsurface storage of oil and gas, whether or not produced from lands owned by the United States. Such authorization shall provide for the payment of such storage fee or rental on the stored oil or gas as may be determined adequate in each case, or, in lieu thereof, for a royalty other than that prescribed in the lease when such stored oil or gas is produced in conjunction with oil or gas not previously produced.
§ 3105.5-3 Requirements.
The agreement shall disclose the ownership of the lands involved, the parties in interest, the storage fee, rental or royalty offered to be paid for such storage and all essential information showing the necessity for such project.
§ 3105.5-4 Extension of lease term.
Any lease used for the storage of oil or gas shall be extended for the period of storage under an approved agreement. The obligation to pay annual lease rent continues during the extended period.
§ 3105.6 Consolidation of leases.
BLM may approve consolidation of leases if we determine that there is sufficient justification and it is in the public interest. Each application for a consolidation of leases must include payment of the processing fee found in the fee schedule in § 3000.12 of this chapter. Each application for consolidation of leases shall be considered on its own merits. Leases to different lessees for different terms, rental and royalty rates, and those containing provisions required by law that cannot be reconciled, shall not be consolidated. The effective date of a consolidated lease shall be that of the oldest lease involved in the consolidation.
Subpart 3106 – Transfers by Assignment, Sublease or Otherwise
§ 3106.1 Transfers, general.
(a) Leases may be transferred by assignment or sublease as to all or part of the acreage in the lease or as to either a divided or undivided interest therein. An assignment of a separate zone or deposit, or of part of a legal subdivision, shall be disapproved.
(b) An assignment of less than 640 acres outside Alaska or of less than 2,560 acres within Alaska shall be disapproved unless the assignment constitutes the entire lease or is demonstrated to further the development of oil and gas to the satisfaction of the authorized officer. Execution and submission of a request for approval of such an assignment shall certify that the assignment would further the development of oil and gas, subject to the provisions of § 3102.5-3 of this title. The rights of the transferee to a lease or an interest therein shall not be recognized by the Department until the transfer has been approved by the authorized officer. A transfer may be withdrawn in writing, signed by the transferor and the transferee, if the transfer has not been approved by the authorized officer. A request for approval of a transfer of a lease or interest in a lease shall be filed within 90 days from the date of its execution. The 90-day filing period shall begin on the date the transferor signs and dates the transfer. If the transfer is filed after the 90th day, the authorized officer may require verification that the transfer is still in force and effect. A transfer of production payments or overriding royalty or other similar payments, arrangements, or interests shall be filed in the proper BLM office but shall not require approval.
(c) No transfer of an offer to lease or interest in a lease shall be approved prior to the issuance of the lease.
§ 3106.2 Qualifications of transferees.
Transferees shall comply with the provisions of subpart 3102 of this title and post any bond that may be required.
§ 3106.3 Fees.
Each transfer of record title or of operating rights (sublease) for each lease must include payment of the processing fee for assignments and transfers found in the fee schedule in § 3000.12 of this chapter. Each request for a transfer to an heir or devisee, request for a change of name, or notification of a corporate merger under § 3106.8, must include payment of the processing fee for name changes, corporate mergers or transfers to heir/devisee found in the fee schedule in § 3000.12 of this chapter. Each transfer of overriding royalty or payment out of production must include payment of the processing fee for overriding royalty transfers or payments out of productions found in the fee schedule in § 3000.12 of this chapter for each lease to which it applies.
§ 3106.4 Forms.
§ 3106.4-1 Transfers of record title and of operating rights (subleases).
Each transfer of record title or of an operating right (sublease) shall be filed with the proper BLM office on a current form approved by the Director or exact reproductions of the front and back of such form. A transfer filed on a form not currently in use shall be acceptable, unless such form has been declared obsolete by the Director prior to the filing of the transfer. A separate form for each transfer, in triplicate, originally executed shall be filed for each lease out of which a transfer is made. Only 1 originally executed copy of a transferee’s request for approval for each transfer shall be required, including in those instances where several transfers to a transferee have been submitted at the same time (See also § 3106.4-3). Copies of documents other than the current form approved by the Director shall not be submitted. However, reference(s) to other documents containing information affecting the terms of the transfer may be made on the submitted form.
§ 3106.4-2 Transfers of other interests, including royalty interests and production payments.
(a) Each transfer of overriding royalty interest, payment out of production or similar interests created or reserved in a lease in conjunction with a transfer of record title or of operating rights (sublease) shall be described for each lease on the current form when filed.
(b) Each transfer of overriding royalty interest, payment out of production or similar interests created or reserved in a lease independently of a transfer of record title or of operating rights (sublease), if not filed on the current form, shall be described and shall include the transferee’s executed statement as to his/her qualifications under subpart 3102 of this title. A single executed copy of each such transfer of other interests for each lease shall be filed with the proper BLM office.
§ 3106.4-3 Mass transfers.
(a) A mass transfer may be utilized in lieu of the provisions of §§ 3106.4-1 and 3106.4-2 of this title when a transferor transfers interests of any type in a large number of Federal leases to the same transferee.
(b) Three originally executed copies of the mass transfer shall be filed with each proper BLM office administering any lease affected by the mass transfer. The transfer shall be on a current form approved by the Director or an exact reproduction of both sides thereof, with an exhibit attached to each copy listing the following for each lease:
(1) The serial number;
(2) The type and percent of interest being conveyed; and
(3) A description of the lands affected by the transfer in accordance with § 3106.5 of this title.
(c) One reproduced copy of the form required by paragraph (b) of this section shall be filed with the proper BLM office for each lease involved in the mass transfer. A copy of the exhibit for each lease may be limited to line items pertaining to individual leases as long as that line item includes the information required by paragraph (b) of this section.
(d) Include with your mass transfer the processing fee for assignments and transfers found in the fee schedule in § 3000.12 of this chapter for each such interest transferred for each lease.
§ 3106.5 Description of lands.
Each transfer of record title shall describe the lands involved in the same manner as the lands are described in the lease or in the manner required by § 3110.5 of this title, except no land description is required when 100 percent of the entire area encompassed within a lease is conveyed.
§ 3106.6 Bonds.
§ 3106.6-1 Lease bond.
Where a lease bond is maintained by the lessee or operating rights owner (sublessee) in connection with a particular lease, the transferee of record title interest or operating rights in such lease shall furnish, if bond coverage continues to be required, either a proper bond or consent of the surety under the existing bond to become co-principal on such bond if the transferor’s bond does not expressly contain such consent. Where bond coverage is provided by an operator, the new operator shall furnish an appropriate replacement bond or provide evidence of consent of the surety under the existing bond to become co-principal on such bond.
§ 3106.6-2 Statewide/nationwide bond.
If the transferee is maintaining a statewide or nationwide bond, a lease bond shall not be required, but the amount of the bond may be increased to an amount determined by the authorized officer in accordance with the provisions of § 3104.5 of this title.
§ 3106.7 Approval of transfer.
§ 3106.7-1 Failure to qualify.
No transfer of record title or of operating rights (sublease) shall be approved if the transferee or any other parties in interest are not qualified to hold the transferred interest(s), or if the bond, should one be required, is insufficient. Transfers are approved for administrative purposes only. Approval does not warrant or certify that either party to a transfer holds legal or equitable title to a lease.
§ 3106.7-2 If I transfer my lease, what is my continuing obligation?
(a) You are responsible for performing all obligations under the lease until the date BLM approves an assignment of your record title interest or transfer of your operating rights.
(b) After BLM approves the assignment or transfer, you will continue to be responsible for lease obligations that accrued before the approval date, whether or not they were identified at the time of the assignment or transfer. This includes paying compensatory royalties for drainage. It also includes responsibility for plugging wells and abandoning facilities you drilled, installed, or used before the effective date of the assignment or transfer.
§ 3106.7-3 Lease account status.
A transfer of record title or of operating rights (sublease) in a producing lease shall not be approved unless the lease account is in good standing.
§ 3106.7-4 Effective date of transfer.
The signature of the authorized officer on the official form shall constitute approval of the transfer of record title or of operating rights (sublease) which shall take effect as of the first day of the lease month following the date of filing in the proper BLM office of all documents and statements required by this subpart and an appropriate bond, if one is required.
§ 3106.7-5 Effect of transfer.
A transfer of record title to 100 percent of a portion of the lease segregates the transferred portion and the retained portion into separate leases. Each resulting lease retains the anniversary date and the terms and conditions of the original lease. A transfer of an undivided record title interest or a transfer of operating rights (sublease) shall not segregate the transferred and retained portions into separate leases.
§ 3106.7-6 If I acquire a lease by an assignment or transfer, what obligations do I agree to assume?
(a) If you acquire record title interest in a Federal lease, you agree to comply with the terms of the original lease during your lease tenure. You assume the responsibility to plug and abandon all wells which are no longer capable of producing, reclaim the lease site, and remedy all environmental problems in existence and that a purchaser exercising reasonable diligence should have known at the time. You must also maintain an adequate bond to ensure performance of these responsibilities.
(b) If you acquire operating rights in a Federal lease, you agree to comply with the terms of the original lease as it applies to the area or horizons in which you acquired rights. You must plug and abandon all unplugged wells, reclaim the lease site, and remedy all environmental problems in existence and that a purchaser exercising reasonable diligence should have known at the time you receive the transfer. You must also maintain an adequate bond to ensure performance of these responsibilities.
§ 3106.8 Other types of transfers.
§ 3106.8-1 Heirs and devisees.
(a) If an offeror, applicant, lessee or transferee dies, his/her rights shall be transferred to the heirs, devisees, executor or administrator of the estate, as appropriate, upon the filing of a statement that all parties are qualified to hold a lease in accordance with subpart 3102 of this title. Include the processing fee for transfers to heir/devisee found in the fee schedule in § 3000.12 of this chapter with your request to transfer lease rights. A bond rider or replacement bond may be required for any bond(s) previously furnished by the decedent.
(b) Any ownership or interest otherwise forbidden by the regulations in this group which may be acquired by descent, will, judgement or decree may be held for a period not to exceed 2 years after its acquisition. Any such forbidden ownership or interest held for a period of more than 2 years after acquisition shall be subject to cancellation.
§ 3106.8-2 Change of name.
A change of name of a lessee shall be reported to the proper BLM office. Include the processing fee for name change found in the fee schedule in § 3000.12 of this chapter with your notice of name change. The notice of name change shall be submitted in writing and be accompanied by a list of the serial numbers of the leases affected by the name change. If a bond(s) has been furnished, change of name may be made by surety consent or a rider to the original bond or by a replacement bond.
§ 3106.8-3 Corporate merger.
Where a corporate merger affects leases situated in a State where the transfer of property of the dissolving corporation to the surviving corporation is accomplished by operation of law, no transfer of any affected lease interest is required. A notification of the merger shall be furnished with a list, by serial number, of all lease interests affected. Include the processing fee for corporate merger found in the fee schedule in § 3000.12 of this chapter with your notification of a corporate merger. A bond rider or replacement bond conditioned to cover the obligations of all affected corporations may be required by the authorized officer as a prerequisite to recognition of the merger.
Subpart 3107 – Continuation, Extension or Renewal
§ 3107.1 Extension by drilling.
Any lease on which actual drilling operations were commenced prior to the end of its primary term and are being diligently prosecuted at the end of the primary term or any lease which is part of an approved communitization agreement or cooperative or unit plan of development or operation upon which such drilling takes place, shall be extended for 2 years subject to the rental being timely paid as required by § 3103.2 of this title, and subject to the provisions of § 3105.2-3 and § 3186.1 of this title, if applicable. Actual drilling operations shall be conducted in a manner that anyone seriously looking for oil or gas could be expected to make in that particular area, given the existing knowledge of geologic and other pertinent facts. In drilling a new well on a lease or for the benefit of a lease under the terms of an approved agreement or plan, it shall be taken to a depth sufficient to penetrate at least 1 formation recognized in the area as potentially productive of oil or gas, or where an existing well is reentered, it shall be taken to a depth sufficient to penetrate at least 1 new and deeper formation recognized in the area as potentially productive of oil or gas. The authorized officer may determine that further drilling is unwarranted or impracticable.
§ 3107.2 Production.
§ 3107.2-1 Continuation by production.
A lease shall be extended so long as oil or gas is being produced in paying quantities.
§ 3107.2-2 Cessation of production.
A lease which is in its extended term because of production in paying quantities shall not terminate upon cessation of production if, within 60 days thereafter, reworking or drilling operations on the leasehold are commenced and are thereafter conducted with reasonable diligence during the period of nonproduction. The 60-day period commences upon receipt of notification from the authorized officer that the lease is not capable of production in paying quantities.
§ 3107.2-3 Leases capable of production.
No lease for lands on which there is a well capable of producing oil or gas in paying quantities shall expire because the lessee fails to produce the same, unless the lessee fails to place the lease in production within a period of not less than 60 days as specified by the authorized officer after receipt of notice by certified mail from the authorized officer to do so. Such production shall be continued unless and until suspension of production is granted by the authorized officer.
§ 3107.3 Extension for terms of cooperative or unit plan.
§ 3107.3-1 Leases committed to plan.
Any lease or portion of a lease, except as described in § 3107.3-3 of this title, committed to a cooperative or unit plan that contains a general provision for allocation of oil or gas shall continue in effect so long as the lease or portion thereof remains subject to the plan; Provided, That there is production of oil or gas in paying quantities under the plan prior to the expiration date of such lease.
§ 3107.3-2 Segregation of leases committed in part.
Any lease committed after July 29, 1954, to any cooperative or unit plan, which covers lands within and lands outside the area covered by the plan, shall be segregated, as of the effective date of unitization, into separate leases; one covering the lands committed to the plan, the other lands not committed to the plan. The segregated lease covering the nonunitized portion of the lands shall continue in force and effect for the term of the lease or for 2 years from the date of segregation, whichever is longer. However, for any lease segregated from a unit, if the public interest requirement for the unit is not satisfied, such segregation shall be declared invalid by the authorized officer. Further, the segregation shall be conditioned to state that no operations shall be approved on the segregated portion of the lease past the expiration date of the original lease until the public interest requirement of the unit has been satisfied.
§ 3107.3-3 20-year lease or any renewal thereof.
Any lease issued for a term of 20 years, or any renewal thereof, committed to a cooperative or unit plan approved by the Secretary, or any portion of such lease so committed, shall continue in force so long as committed to the plan, beyond the expiration date of its primary term. This provision does not apply to that portion of any such lease which is not included in the cooperative or unit plan unless the lease was so committed prior to August 8, 1946.
§ 3107.4 Extension by elimination.
Any lease eliminated from any approved or prescribed cooperative or unit plan or from any communitization or drilling agreement authorized by the Act and any lease in effect at the termination of such plan or agreement, unless relinquished, shall continue in effect for the original term of the lease or for 2 years after its elimination from the plan or agreement or after the termination of the plan or agreement, whichever is longer, and for so long thereafter as oil or gas is produced in paying quantities. No lease shall be extended if the public interest requirement for an approved cooperative or unit plan or a communitization agreement has not been satisifed as determined by the authorized officer.
§ 3107.5 Extension of leases segregated by assignment.
§ 3107.5-1 Extension after discovery on other segregated portions.
Any lease segregated by assignment, including the retained portion, shall continue in effect for the primary term of the original lease, or for 2 years after the date of first discovery of oil or gas in paying quantities upon any other segregated portion of the original lease, whichever is the longer period.
§ 3107.5-2 Undeveloped parts of leases in their extended term.
Undeveloped parts of leases retained or assigned out of leases which are in their extended term shall continue in effect for 2 years after the effective date of assignment, provided the parent lease was issued prior to September 2, 1960.
§ 3107.5-3 Undeveloped parts of producing leases.
Undeveloped parts of leases retained or assigned out of leases which are extended by production, actual or suspended, or the payment of compensatory royalty shall continue in effect for 2 years after the effective date of assignment and for so long thereafter as oil or gas is produced in paying quantities.
§ 3107.6 Extension of reinstated leases.
Where a reinstatement of a terminated lease is granted under § 3108.2 of this title and the authorized officer finds that the reinstatement will not afford the lessee a reasonable opportunity to continue operations under the lease, the authorized officer may extend the term of such lease for a period sufficient to give the lessee such an opportunity. Any extension shall be subject to the following conditions:
(a) No extension shall exceed a period equal to the unexpired portion of the lease or any extension thereof remaining at the date of termination.
(b) When the reinstatement occurs after the expiration of the term or extension thereof, the lease may be extended from the date the authorized officer grants the petition, but in no event for more than 2 years from the date the reinstatement is authorized and so long thereafter as oil or gas is produced in paying quantities.
§ 3107.7 Exchange leases: 20-year term.
Any lease which issued for a term of 20 years, or any renewal thereof, or which issued in exchange for a 20-year lease prior to August 8, 1946, may be exchanged for a new lease. Such new lease shall be issued for a primary term of 5 years. The lessee must file an application to exchange a lease for a new lease, in triplicate, at the proper BLM office. The application must show full compliance by the applicant with the terms of the lease and applicable regulations, and must include payment of the processing fee for lease renewal or exchange found in the fee schedule in § 3000.12 of this chapter. Execution of the exchange lease by the applicant is certification of compliance with § 3102.5 of this title.
§ 3107.8 Renewal leases.
§ 3107.8-1 Requirements.
(a) Twenty year leases and renewals thereof may be renewed for successive terms of 10 years. Any application for renewal of a lease shall be made by the lessee, and may be joined in or consented to by the operator. The application shall show whether all monies due the United States have been paid and whether operations under the lease have been conducted in compliance with the applicable regulations.
(b) The applicant or his/her operator shall furnish, in triplicate, with the application for renewal, copies of all agreements not theretofore filed providing for overriding royalties or other payments out of production from the lease which will be in existence as of the date of its expiration.
§ 3107.8-2 Application.
File your application to renew your lease in triplicate in the proper BLM office at least 90 days, but not more than 6 months, before your lease expires. Include the processing fee for lease renewal or exchange found in the fee schedule in § 3000.12 of this chapter.
§ 3107.8-3 Approval.
(a) Copies of the renewal lease, in triplicate, dated the first day of the month following the month in which the original lease terminated, shall be forwarded to the lessee for execution. Upon receipt of the executed lease forms, which constitutes certification of compliance with § 3102.5 of this title, and any required bond, the authorized officer shall execute the lease and deliver 1 copy to the lessee.
(b) If overriding royalties and payments out of production or similar interests in excess of 5 percent of gross production constitute a burden to lease operations that will retard, or impair, or cause premature abandonment, the lease application shall be suspended until overriding royalties and payments out of production or similar interests are reduced to not more then 5 percent of the value of the production. If the holders of outstanding overriding royalty or other interests payable out of production, the operator and the lessee are unable to enter into a mutually fair and equitable agreement, any of the parties may apply for a hearing at which all interested parties may be heard and written statements presented. Thereupon, a final decision will be rendered by the Department, outlining the conditions acceptable to it as a basis for a fair and reasonable adjustment of the excessive overriding royalties and other payments out of production and an opportunity shall be afforded within a fixed period of time to submit proof that such adjustment has been effected. Upon failure to submit such proof within the time so fixed, the application for renewal shall be denied.
§ 3107.9 Other types.
§ 3107.9-1 Payment of compensatory royalty.
The payment of compensatory royalty shall extend the term of any lease for the period during which such compensatory royalty is paid and for a period of 1 year from the discontinuance of such payments.
§ 3107.9-2 Subsurface storage of oil and gas.
See § 3105.5-4 of this title.
Subpart 3108 – Relinquishment, Termination, Cancellation
§ 3108.1 As a lessee, may I relinquish my lease?
You may relinquish your lease or any legal subdivision of your lease at any time. You must file a written relinquishment with the BLM State Office with jurisdiction over your lease. All lessees holding record title interests in the lease must sign the relinquishment. A relinquishment takes effect on the date you file it with BLM. However, you and the party that issued the bond will continue to be obligated to:
(a) Make payments of all accrued rentals and royalties, including payments of compensatory royalty due for all drainage that occurred before the relinquishments;
(b) Place all wells to be relinquished in condition for suspension or abandonment as BLM requires; and
(c) Complete reclamation of the leased sites after stopping or abandoning oil and gas operations on the lease, under a plan approved by the appropriate surface management agency.
§ 3108.2 Termination by operation of law and reinstatement.
§ 3108.2-1 Automatic termination.
(a) Except as provided in paragraph (b) of this section, any lease on which there is no well capable of producing oil or gas in paying quantities shall automatically terminate by operation of law (30 U.S.C. 188) if the lessee fails to pay the rental at the designated Service office on or before the anniversary date of such lease. However, if the designated Service office is closed on the anniversary date, a rental payment received on the next day the Service office is open to the public shall be considered as timely made.
(b) If the rental payment due under a lease is paid on or before its anniversary date but the amount of the payment is deficient and the deficiency is nominal as defined in this section, or the amount of payment made was determined in accordance with the rental or acreage figure stated in a bill rendered by the designated Service office, or decision rendered by the authorized officer, and such figure is found to be in error resulting in a deficiency, such lease shall not have automatically terminated unless the lessee fails to pay the deficiency within the period prescribed in the Notice of Deficiency provided for in this section. A deficiency shall be considered nominal if it is not more than $100 or more than 5 percent of the total payment due, whichever is less. The designated Service office shall send a Notice of Deficiency to the lessee. The Notice shall be sent by certified mail, return receipt requested, and shall allow the lessee 15 days from the date of receipt or until the due date, whichever is later, to submit the full balance due to the designated Service office. If the payment required by the Notice is not paid within the time allowed, the lease shall have terminated by operation of law as of its anniversary date.
§ 3108.2-2 Reinstatement at existing rental and royalty rates: Class I reinstatements.
(a) Except as hereinafter provided, the authorized officer may reinstate a lease which has terminated for failure to pay on or before the anniversary date the full amount of rental due, provided that:
(1) Such rental was paid or tendered within 20 days after the anniversary date; and
(2) It is shown to the satisfaction of the authorized officer that the failure to timely submit the full amount of the rental due was either justified or not due to a lack of reasonable diligence on the part of the lessee (reasonable diligence shall include a rental payment which is postmarked by the U.S. Postal Service, common carrier, or their equivalent (not including private postal meters) on or before the lease anniversary date or, if the designated Service office is closed on the anniversary date, postmarked on the next day the Service office is open to the public); and
(3) A petition for reinstatement, the processing fee for lease reinstatement, Class I, found in the fee schedule in § 3000.12 of this chapter, and the required rental, including any back rental that has accrued from the date of the termination of the lease, are filed with the proper BLM office within 60 days after receipt of Notice of Termination of Lease due to late payment of rental. If a terminated lease becomes productive prior to the time the lease is reinstated, all required royalty that has accrued shall be paid to the Service.
(b) The burden of showing that the failure to pay on or before the anniversary date was justified or not due to lack of reasonable diligence shall be on the lessee.
(c) Under no circumstances shall a terminated lease be reinstated if:
(1) A valid oil and gas lease has been issued prior to the filing of a petition for reinstatement affecting any of the lands covered by that terminated lease; or
(2) The oil and gas interests of the United States in the lands have been disposed of or otherwise have become unavailable for leasing.
(d) The authorized officer shall not issue a lease for lands which have been covered by a lease which terminated automatically until 90 days after the date of termination.
§ 3108.2-3 Reinstatement at higher rental and royalty rates: Class II reinstatements.
(a) The authorized officer may, if the requirements of this section are met, reinstate an oil and gas lease which was terminated by operation of law for failure to pay rental timely when the rental was not paid or tendered within 20 days of the termination date and it is shown to the satisfaction of the authorized officer that such failure was justified or not due to a lack of reasonable diligence, or no matter when the rental was paid, it is shown to the satisfaction of the authorized officer that such failure was inadvertent.
(b)(1) Leases that terminate on or before August 8, 2005, may be reinstated if the required back rental and royalty at the increased rates accruing from the date of termination, together with a petition for reinstatement, are filed on or before the earlier of:
(i) Sixty days after the receipt of the Notice of Termination sent to the lessee of record, whether by return of check or any form of actual notice; or
(ii) Fifteen months after termination of the lease.
(2) Leases that terminate after August 8, 2005 may be reinstated if the required back rental and royalty at the increased rates accruing from the date of termination, together with a petition for reinstatement, are filed on or before the earlier of:
(i) Sixty days after the last date that any lessee of record received Notice of Termination by certified mail; or
(ii) Twenty four months after termination of the lease.
(3) After determining that the requirements for filing of the petition for reinstatement have been timely met, the authorized officer may reinstate the lease if:
(i) No valid lease has been issued prior to the filing of the petition for reinstatement affecting any of the lands covered by the terminated lease, whether such lease is still in effect or not;
(ii) The oil and gas interests of the United States in the lands have not been disposed of or have not otherwise become unavailable for leasing;
(iii) Payment of all back rentals and royalties at the rates established for the reinstated lease, including the release to the United States of funds being held in escrow, as appropriate;
(iv) An agreement has been signed by the lessee and attached to and made a part of the lease specifying future rentals at the applicable rates specified for reinstated leases in § 3103.2-2 of this title and future royalties at the rates set in § 3103.3-1 of this title for all production removed or sold from such lease or shared by such lease from production allocated to the lease by virtue of its participation in a unit or communitization agreement or other form of approved joint development agreement or plan;
(v) A notice of the proposed reinstatement of the terminated lease and the terms and conditions of reinstatement has been published in the
(vi) The lessee has paid the Bureau a nonrefundable administrative fee of $500.
(c) The authorized officer shall not, after the receipt of a petition for reinstatement, issue a new lease affecting any of the lands covered by the terminated lease until all action on the petition is final.
(d) The authorized officer shall furnish to the Chairpersons of the Committee on Interior and Insular Affairs of the House of Representatives and of the Committee on Energy and Natural Resources of the Senate, at least 30 days prior to the date of reinstatement, a copy of the notice, together with information concerning rental, royalty, volume of production, if any, and any other matter which the authorized officer considers significant in making the determination to reinstate.
(e) If the authorized officer reinstates the lease, the reinstatement shall be as of the date of termination, for the unexpired portion of the original lease or any extension thereof remaining on the date of termination, and so long thereafter as oil or gas is produced in paying quantities. Where a lease is reinstated under this section and the authorized officer finds that the reinstatement of such lease either (1) occurs after the expiration of the primary term or any extension thereof, or (2) will not afford the lessee a reasonable opportunity to continue operations under the lease, the authorized officer may extend the term of the reinstated lease for such period as determined reasonable, but in no event for more than 2 years from the date of the reinstatement and so long thereafter as oil or gas is produced in paying quantities.
(f) The authorized officer may, either in acting on a petition for reinstatement or in response to a request filed after reinstatement, or both, reduce the royalty in that reinstated lease on the entire leasehold or any tract or portion thereof segregated for royalty purposes, if he/she determines there are either economic or other circumstances which could cause undue economic hardship or premature termination of production; or because of any written action of the United States, its agents or employees, which preceded, and was a major consideration in, the lessee’s expenditure of funds to develop the lands covered by the lease after the rental had become due and had not been paid; or if the authorized officer determines it is equitable to do so for any other reason.
§ 3108.2-4 Conversion of unpatented oil placer mining claims: Class III reinstatements.
(a) For any unpatented oil placer mining claim validly located prior to February 24, 1920, which has been or is currently producing or is capable of producing oil or gas, and has been or is deemed after January 12, 1983, conclusively abandoned for failure to file timely the required instruments or copies of instruments required by section 314 of the Federal Land Policy and Management Act (43 U.S.C. 1744), and it is shown to the satisfaction of the authorized officer that such failure was inadvertent, justifiable or not due to lack of reasonable diligence on the part of the owner, the authorized officer may issue, for the lands covered by the abandoned unpatented oil placer mining claim, a noncompetitive oil and gas lease consistent with the provisions of section 17(e) of the Act (30 U.S.C. 226(e)). The effective date of any lease issued under this section shall be from the statutory date that the claim was deemed conclusively abandoned.
(b) The authorized officer may issue a noncompetitive oil and gas lease if a petition has been filed in the proper BLM office for the issuance of a noncompetitive oil and gas lease accompanied by the required rental and royalty, including back rental and royalty accruing, at the rates specified in §§ 3103.2-2 and 3103.3-1 of this title, for any claim deemed conclusively abandoned after January 12, 1983. The petition shall have been filed on or before the 120th day after the final notification by the Secretary or a court of competent jurisdiction of the determination of the abandonment of the oil placer mining claim.
(c) The authorized officer shall not issue a noncompetitive oil and gas lease under this section if a valid oil and gas lease has been issued affecting any of the lands covered by the abandoned oil placer mining claim prior to the filing of the petition for issuance of a noncompetitive oil and gas lease.
(d) After the filing of a petition for issuance of a noncompetitive oil and gas lease covering an abandoned oil placer claim, the authorized officer shall not issue any new lease affecting any lands covered by such petition until all action on the petition is final.
(e) Any noncompetitive lease issued under this section shall include:
(1) Terms and conditions for the payment of rental in accordance with § 3103.2-2(j) of this title. Payment of back rentals accruing from the date of abandonment of the oil placer mining claim, at the rental set by the authorized officer, shall be made prior to the lease issuance.
(2) Royalty rates set in accordance with § 3103.3-1 of this title. Royalty shall be paid at the rate established by the authorized officer on all production removed or sold from the oil placer mining claim, including all royalty on production made subsequent to the date the claim was deemed conclusively abandoned prior to the lease issuance.
(f) Noncompetitive oil and gas leases issued under this section shall be subject to all regulations in part 3100 of this title except for those terms and conditions mandated by Title IV of the Federal Oil and Gas Royalty Management Act.
(g) A notice of the proposed conversion of the oil placer mining claim into a noncompetitive oil and gas lease, including the terms and conditions of conversion, shall be published in the
(h) The mining claim owner shall pay the Bureau a nonrefundable administrative fee of $500 prior to the issuance of the noncompetitive lease.
(i) The authorized officer may, either in acting on a petition to issue a noncompetitive oil and gas lease or in response to a request filed after issuance, or both, reduce the royalty in such lease, if he/she determines there are either economic or other circumstances which could cause undue economic hardship or premature termination of production.
§ 3108.3 Cancellation.
(a) Whenever the lessee fails to comply with any of the provisions of the law, the regulations issued thereunder, or the lease, the lease may be canceled by the Secretary, if the leasehold does not contain a well capable of production of oil or gas in paying quantities, or if the lease is not committed to an approved cooperative or unit plan or communitization agreement that contains a well capable of production of unitized substances in paying quantities. The lease may be canceled only after notice to the lessee in accordance with section 31(b) of the Act and only if default continues for the period prescribed in that section after service of 30 days notice of failure to comply.
(b) Whenever the lessee fails to comply with any of the provisions of the law, the regulations issued thereunder, or the lease, and if the leasehold contains a well capable of production of oil or gas in paying quantities, or if the lease is committed to an approved cooperative or unit plan or communitization agreement that contains a well capable of production of unitized substances in paying quantities, the lease may be canceled only by judicial proceedings in the manner provided by section 31(a) of the Act.
(c) If any interest in any lease is owned or controlled, directly or indirectly, by means of stock or otherwise, in violation of any of the provisions of the act, the lease may be canceled, or the interest so owned may be forfeited, or the person so owning or controlling the interest may be compelled to dispose of the interest, only by judicial proceedings in the manner provided by section 27(h)(1) of the Act.
(d) Leases shall be subject to cancellation if improperly issued.
§ 3108.4 Bona fide purchasers.
A lease or interest therein shall not be cancelled to the extent that such action adversely affects the title or interest of a bona fide purchaser even though such lease or interest, when held by a predecessor in title, may have been subject to cancellation. All purchasers shall be charged with constructive notice as to all pertinent regulations and all Bureau records pertaining to the lease and the lands covered by the lease. Prompt action shall be taken to dismiss as a party to any proceedings with respect to a violation by a predecessor of any provisions of the act, any person who shows the holding of an interest as a bona fide purchaser without having violated any provisions of the Act. No hearing shall be necessary upon such showing unless prima facie evidence is presented that the purchaser is not a bona fide purchaser.
§ 3108.5 Waiver or suspension of lease rights.
If, during any proceeding with respect to a violation of any provisions of the regulations in Groups 3000 and 3100 of this title or the act, a party thereto files a waiver of his/her rights under the lease to drill or to assign his/her lease interests, or if such rights are suspended by order of the Secretary pending a decision, payments of rentals and the running of time against the term of the lease involved shall be suspended as of the first day of the month following the filing of the waiver or the Secretary’s suspension until the first day of the month following the final decision in the proceeding or the revocation of the waiver or suspension.
Subpart 3109 – Leasing Under Special Acts
§ 3109.1 Rights-of-way.
§ 3109.1-1 Generally.
The Act of May 21, 1930 (30 U.S.C. 301-306), authorizes either the leasing of oil and gas deposits under railroad and other rights-of-way to the owner of the right-of-way or the entering of a compensatory royalty agreement with adjoining landowners. This authority shall be exercised only with respect to railroad rights-of-way and easements issued pursuant either to the Act of March 3, 1875 (43 U.S.C. 934 et seq.), or pursuant to earlier railroad right-of-way statutes, and with respect to rights-of-way and easements issued pursuant to the Act of March 3, 1891 (43 U.S.C. 946 et seq.). The oil and gas underlying any other right-of-way or easement is included within any oil and gas lease issued pursuant to the Act which covers the lands within the right-of-way, subject to the limitations on use of the surface, if any, set out in the statute under which, or permit by which, the right-of-way or easement was issued, and such oil and gas shall not be leased under the Act of May 21, 1930.
§ 3109.1-2 Application.
No approved form is required for an application to lease oil and gas deposits underlying a right-of-way. The right-of-way owner or his/her transferee must file the application in the proper BLM office. Include the processing fee for leasing under right-of-way found in the fee schedule in § 3000.12 of this chapter. If the transferee files an application, it must also include an executed transfer of the right to obtain a lease. The application shall detail the facts as to the ownership of the right-of-way, and of the transfer if the application is filed by a transferee; the development of oil or gas in adjacent or nearby lands, the location and depth of the wells, the production and the probability of drainage of the deposits in the right-of-way. A description by metes and bounds of the right-of-way is not required but each legal subdivision through which a portion of the right-of-way desired to be leased extends shall be described.
§ 3109.1-3 Notice.
After the Bureau of Land Management has determined that a lease of a right-of-way or any portion thereof is consistent with the public interest, either upon consideration of an application for lease or on its own motion, the authorized officer shall serve notice on the owner or lessee of the oil and gas rights of the adjoining lands. The adjoining land owner or lessee shall be allowed a reasonable time, as provided in the notice, within which to submit a bid for the amount or percent of compensatory royalty, the owner or lessee shall pay for the extraction of the oil and gas underlying the right-of-way through wells on such adjoining lands. The owner of the right-of-way shall be given the same time period to submit a bid for the lease.
§ 3109.1-4 Award of lease or compensatory royalty agreement.
Award of lease to the owner of the right-of-way, or a contract for the payment of compensatory royalty by the owner or lessee of the adjoining lands shall be made to the bidder whose offer is determined by the authorized officer to be to the best advantage of the United States, considering the amount of royalty to be received and the better development under the respective means of production and operation.
§ 3109.1-5 Compensatory royalty agreement or lease.
(a) The lease or compensatory royalty agreement shall be on a form approved by the Director.
(b) The royalty to be charged shall be fixed by the Bureau of Land Management in accordance with the provisions of § 3103.3 of this title, but shall not be less than 12
(c) The term of the lease shall be for a period of not more than 20 years.
§ 3109.2 Units of the National Park System.
(a) Oil and gas leasing in units of the National Park System shall be governed by 43 CFR Group 3100 and all operations conducted on a lease or permit in such units shall be governed by 43 CFR parts 3160 and 3180.
(b) Any lease or permit respecting minerals in units of the National Park System shall be issued or renewed only with the consent of the Regional Director, National Park Service. Such consent shall only be granted upon a determination by the Regional Director that the activity permitted under the lease or permit will not have significant adverse effect upon the resources or administration of the unit pursuant to the authorizing legislation of the unit. Any lease or permit issued shall be subject to such conditions as may be prescribed by the Regional Director to protect the surface and significant resources of the unit, to preserve their use for public recreation, and to the condition that site specific approval of any activity on the lease will only be given upon concurrence by the Regional Director. All lease applications received for reclamation withdrawn lands shall also be submitted to the Bureau of Reclamation for review.
(c) The units subject to the regulations in this part are those units of land and water which are shown on the following maps on file and available for public inspection in the office of the Director of the National Park Service and in the Superintendent’s Office of each unit. The boundaries of these units may be revised by the Secretary as authorized in the Acts.
(1) Lake Mead National Recreation Area – The map identified as “boundary map, 8360-80013B, revised February 1986.
(2) Whiskeytown Unit of the Whiskeytown-Shasta-Trinity National Recreation Area – The map identified as “Proposed Whiskeytown-Shasta-Trinity National Recreation Area,” numbered BOR-WST 1004, dated July 1963.
(3) Ross Lake and Lake Chelan National Recreation Areas – The map identified as “Proposed Management Units, North Cascades, Washington,” numbered NP-CAS-7002, dated October 1967.
(4) Glen Canyon National Recreation Area – the map identified as “boundary map, Glen Canyon National Recreation Area,” numbered GLC-91,006, dated August 1972.
(d) The following excepted units shall not be open to mineral leasing:
(1) Lake Mead National Recreation Area. (i) All waters of Lakes Mead and Mohave and all lands within 300 feet of those lakes measured horizontally from the shoreline at maximum surface elevation;
(ii) All lands within the unit of supervision of the Bureau of Reclamation around Hoover and Davis Dams and all lands outside of resource utilization zones as designated by the Superintendent on the map (602-2291B, dated October 1987) of Lake Mead National Recreation Area which is available for inspection in the Office of the Superintendent.
(2) Whiskeytown Unit of the Whiskeytown-Shasta-Trinity National Recreation Area. (i) All waters of Whiskeytown Lake and all lands within 1 mile of that lake measured from the shoreline at maximum surface elevation;
(ii) All lands classified as high density recreation, general outdoor recreation, outstanding natural and historic, as shown on the map numbered 611-20,004B, dated April 1979, entitled “Land Classification, Whiskeytown Unit, Whiskeytown-Shasta-Trinity National Recreation Area.” This map is available for public inspection in the Office of the Superintendent;
(iii) All lands within section 34 of Township 33 north, Range 7 west, Mt. Diablo Meridian.
(3) Ross Lake and Lake Chelan National Recreation Areas. (i) All of Lake Chelan National Recreation Area;
(ii) All lands within
(iii) All lands proposed for or designated as wilderness;
(iv) All lands within
(v) Pyramid Lake Research Natural Area and all lands within
(4) Glen Canyon National Recreation Area. Those units closed to mineral disposition within the natural zone, development zone, cultural zone and portions of the recreation and resource utilization zone as shown on the map numbered 80,022A, dated March 1980, entitled “Mineral Management Plan – Glen Canyon National Recreation Area.” This map is available for public inspection in the Office of the Superintendent and the office of the State Directors, Bureau of Land Management, Arizona and Utah.
§ 3109.2-1 Authority to lease. [Reserved]
§ 3109.2-2 Area subject to lease. [Reserved]
§ 3109.3 Shasta and Trinity Units of the Whiskeytown-Shasta-Trinity National Recreation Area.
Section 6 of the Act of November 8, 1965 (Pub. L. 89-336), authorizes the Secretary to permit the removal of oil and gas from lands within the Shasta and Trinity Units of the Whiskeytown-Shasta-Trinity National Recreation Area in accordance with the act or the Mineral Leasing Act for Acquired Lands. Subject to the determination by the Secretary of Agriculture that removal will not have significant adverse effects on the purposes of the Central Valley project or the administration of the recreation area.
PART 3110 – NONCOMPETITIVE LEASES
Subpart 3110 – Noncompetitive Leases
§ 3110.1 Lands available for noncompetitive offer and lease.
(a) Offer. (1) Effective June 12, 1988, through January 2, 1989, noncompetitive lease offers may be filed only for lands available under § 3110.1(b) of this title. Noncompetitive lease offers filed after December 22, 1987, and prior to June 12, 1988, for lands available for filing under § 3110.1(a) of this title shall receive priority. Such offers shall be exposed to competitive bidding under subpart 3120 of this title and if no bid is received, a noncompetitive lease shall be issued all else being regular. After January 2, 1989, noncompetitive lease offers may be filed on unleased lands, except for:
(i) Those lands which are in the one-year period commencing upon the expiration, termination, relinquishment, or cancellation of the leases containing the lands; and
(ii) Those lands included in a Notice of Competitive Lease Sale or a List of Lands Available for Competitive Nominations. Neither exception is applicable to lands available under § 3110.1(b) of this title.
(2) Noncompetitive lease offers may be made pursuant to an opening order or other notice and shall be subject to all provisions and procedures stated in such order or notice.
(3) No noncompetitive lease may issue for any lands unless and until they have satisfied the requirements of § 3110.1(b) of this title.
(b) Lease. Only lands that have been offered competitively under subpart 3120 of this title, and for which no bid has been received, shall be available for noncompetitive lease. Such lands shall become available for a period of 2 years beginning on the first business day following the last day of the competitive oral or internet-based auction, or when formal nominations have been requested as specified in § 3120.3-1 of this title, or the first business day following the posting of the Notice of Competitive Lease Sale, and ending on that same day 2 years later.
A lease may be issued from an offer properly filed any time within the 2-year noncompetitive leasing period.
§ 3110.2 Priority.
(a) Offers filed for lands available for noncompetitive offer or lease, as specified in §§ 3110.1(a)(1) and 3110.1(b) of this title, shall receive priority as of the date and time of filing as specified in § 1821.2-3(a) of this title, except that all noncompetitive offers shall be considered simultaneously filed if received in the proper BLM office any time during the first business day following the last day of the competitive oral or internet-based auction, or when formal nominations have been requested as specified in § 3120.3-1 of this title, on the first business day following the posting of the Notice of Competitive Lease Sale.
An offer shall not be available for public inspection the day it is filed.
(b) If more than 1 application was filed for the same parcel in accordance with the regulations contained in former subpart 3112 of this title, and if no lease has been issued by the authorized officer prior to the effective date of these regulations, only a single priority application shall be selected from the filings. If the selected application fails to mature into a lease, the lands shall be available for offer under § 3110.1(a) of this title.
§ 3110.3 Lease terms.
§ 3110.3-1 Duration of lease.
All noncompetitive leases shall be for a primary term of 10 years.
§ 3110.3-2 Dating of leases.
All noncompetitive leases shall be considered issued when signed by the authorized officer. Noncompetitive leases, except future interest leases issued under § 3110.9 of this title, shall be effective as of the first day of the month following the date the leases are issued. A lease may be made effective on the first day of the month within which it is issued if a written request is made prior to the date of signature of the authorized officer. Future interest leases issued under § 3110.9 of this title shall be effective as of the date the mineral interests vest in the United States.
§ 3110.3-3 Lease offer size.
(a) Lease offers for public domain minerals shall not be made for less than 640 acres or 1 full section, whichever is larger, where the lands have been surveyed under the rectangular survey system or are within an approved protracted survey, except where the offer includes all available lands within a section and there are no contiguous lands available for lease. Such public domain lease offers in Alaska shall not be made for less than 2,560 acres or 4 full contiguous sections, whichever is larger, where the lands have been surveyed under the rectangular survey system or are within an approved protracted survey, except where the offer includes all available lands within the subject section and there are no contiguous lands available for lease. Where an offer exceeds the minimum 640-acre provision of this paragraph, the offer may include less than all available lands in any given section. Cornering lands are not considered contiguous lands. This paragraph shall not apply to offers made under § 3108.2-4 of this title or where the offer is filed on an entire parcel as it was offered by the Bureau in a competitive sale during that period specified under § 3110.5-1 of this title.
(b) An offer to lease public domain or acquired lands may not include more than 10,240 acres. The lands in an offer shall be entirely within an area of 6 miles square or within an area not exceeding 6 surveyed sections in length or width measured in cardinal directions. An offer to lease acquired lands may exceed the 6 mile square limit if:
(1) The lands are not surveyed under the rectangular survey system of public land surveys and are not within the area of the public land surveys; and
(2) The tract desired is described by the acquisition or tract number assigned by the acquiring agency and less than 50 percent of the tract lies outside the 6 mile square area, and such acquisition or tract number is provided in accordance with § 3110.5-2(d) of this title in lieu of any other description.
(c) If an offer exceeds the 10,240 acre maximum by not more than 160 acres, the offeror shall be granted 30 days from notice of the excess to withdraw the excess acreage from the offer, failing which the offer shall be rejected and priority lost.
§ 3110.4 Requirements for offer.
(a) An offer to lease shall be made on a current form approved by the Director, or on unofficial copies of that form in current use. For noncompetitive leases processed under § 3108.2-4 of this title, the current lease form shall be used. Copies shall be exact reproductions on 1 page of both sides of the official approved form, without additions, omissions, or other changes, or advertising. The original copy of each offer must be typed or printed plainly in ink, signed in ink and dated by the offeror or an authorized agent, and must include payment of the first year’s rental and the processing fee for noncompetitive lease applications found in the fee schedule in § 3000.12 of this chapter. The original and 2 copies of each offer to lease, with each copy showing that the original has been signed, shall be filed in the proper BLM office. A noncompetitive offer to lease a future interest applied for under § 3110.9 must include the processing fee for noncompetitive lease applications found in the fee schedule in § 3000.12 of this chapter. Where remittances for offers are returned for insufficient funds, the offer shall not obtain priority of filing until the date the remittance is properly made.
(b) Where a correction to an offer is made, whether at the option of the offeror or at the request of the authorized officer, it shall gain priority as of the date the filing is correct and complete. The priority that existed before the date the corrected offer is filed, may be defeated by an intervening offer to the extent of any conflict in such offers, except as provided under §§ 3103.2-1(a) and 3110.3-3(c) of this title.
(c) An offer shall be limited to either public domain minerals or acquired lands minerals, subject to the provisions for corrections under paragraph (b) of this section.
(d) Compliance with subpart 3102 shall be required.
(e) All offers for leases should name the United States agency from which consent to the issuance of a lease shall be obtained, or the agency that may have title records covering the ownership for the mineral interest involved, and identify the project, if any, of which the lands covered by the offer are a part.
§ 3110.5 Description of lands in offer.
§ 3110.5-1 Parcel number description.
From the first day following the end of a competitive process until the end of that same month, the only acceptable description for a noncompetitive lease offer for the lands covered by that competitive process shall be the parcel number on the List of Lands Available for Competitive Nominations or the Notice of Competitive Lease Sale, whichever is appropriate. Each such offer shall contain only a single parcel. Thereafter, the description of the lands shall be made in accordance with the remainder of this section.
§ 3110.5-2 Public domain.
(a) If the lands have been surveyed under the public land rectangular survey system, each offer shall describe the lands by legal subdivision, section, township, range, and, if needed, meridian.
(b) If the lands have not been surveyed under the public land rectangular system, each offer shall describe the lands by metes and bounds, giving courses and distances between the successive angle points on the boundary of the tract, and connected by courses and distances to an official corner of the public land surveys.
(c) When protracted surveys have been approved and the effective date thereof published in the
(d)(1) Where offers are pending for unsurveyed lands that are subsequently surveyed or protracted before the lease issuance, the description in the lease shall be conformed to the subdivisions of the approved protracted survey or the public land survey, whichever is appropriate.
(2) The description of lands in an existing lease shall be conformed to a subsequent resurvey or amended protraction survey, whichever is appropriate.
(e) The requirements of this section shall apply to applications for conversion of abandoned unpatented oil placer mining claims made under § 3108.2-4 of this title, except that deficiencies shall be curable.
§ 3110.5-3 Acquired lands.
(a) If the lands applied for lie within and conform to the rectangular system of public land surveys and constitute either all or a portion of the tract acquired by the United States, such lands shall be described by legal subdivision, section, township, range, and, if needed, meridian.
(b) If the lands applied for do not conform to the rectangular system of public land surveys, but lie within an area of the public land surveys and constitute the entire tract acquired by the United States, such lands shall be described by metes and bounds, giving courses and distances between the successive angle points with appropriate ties to the nearest official survey corner, or a copy of the deed or other conveyance document by which the United States acquired title to the lands may be attached to the offer and referred to therein in lieu of redescribing the lands on the offer form. If the desired lands constitute less than the entire tract acquired by the United States, such lands shall be described by metes and bounds, giving courses and distances between the successive angle points with appropriate ties to the nearest official survey corner. If a portion of the boundary of the desired lands coincides with the boundary in the deed or other conveyance document, that boundary need not be redescribed on the offer form, provided that a copy of the deed or other conveyance document upon which the coinciding description is clearly identified is attached to the offer. That portion of the description not coinciding shall be tied by description on the offer by courses and distances between successive angle points into the description in the deed or other conveyance document.
(c) If the lands applied for lie outside an area of the public land surveys and constitute the entire tract acquired by the United States, such lands shall be described as in the deed or other conveyance document by which the United States acquired title to the lands, or a copy of that document may be attached to the offer and referred to therein in lieu of redescribing the lands on the offer form. If the desired lands constitute less than the entire tract acquired by the United States, such lands shall be described by courses and distances between successive angle points tying by courses and distances into the description in the deed or other conveyance document. If a portion of the boundary of the desired lands coincides with the boundary in the deed or other conveyance document, that boundary need not be redescribed on the offer form, provided that a copy of the deed or other conveyance document upon which the coinciding description is clearly identified is attached to the offer. That portion of the description not coinciding shall be tied by description in the offer by courses and distances between successive angle points into the description in the deed or other conveyance document.
(d) Where the acquiring agency has assigned an acquisition or tract number covering the lands applied for, without loss of priority to the offeror, the authorized officer may require that number in addition to any description otherwise required by this section. If the authorized officer determines that the acquisition or tract number, together with identification of the State and county, constitutes an adequate description, the authorized officer may allow the description in this manner in lieu of other descriptions required by this section.
(e) Where the lands applied for do not conform to the rectangular system of public land surveys, without loss of priority to the offeror, the authorized officer may require 3 copies of a map upon which the location of the desired lands are clearly marked with respect to the administrative unit or project of which they are a part.
§ 3110.5-4 Accreted lands.
Where an offer includes any accreted lands, the accreted lands shall be described by metes and bounds, giving courses and distances between the successive angle points on the boundary of the tract, and connected by courses and distances to an angle point on the perimeter of the tract to which the accretions appertain.
§ 3110.5-5 Conflicting descriptions.
If there is any variation in the land description among the required copies of the official forms, the copy showing the date and time of receipt in the proper BLM office shall control.
§ 3110.6 Withdrawal of offer.
An offer for noncompetitive lease under this subpart may be withdrawn in whole or in part by the offeror. However, a withdrawal of an offer made in accordance with § 3110.1(b) of this title may be made only if the withdrawal is received by the proper BLM office after 60 days from the date of filing of such offer. No withdrawal may be made once the lease, an amendment of the lease, or a separate lease, whichever covers the lands so described in the withdrawal, has been signed on behalf of the United States. If a public domain offer is partially withdrawn, the lands retained in the offer shall comply with § 3110.3-3(a) of this title.
§ 3110.7 Action on offer.
(a) No lease shall be issued before final action has been taken on any prior offer to lease the lands or any extension of, or petition for reinstatement of, an existing or former lease on the lands. If a lease is issued before final action, it shall be canceled, if the prior offeror is qualified to receive a lease or the petitioner is entitled to reinstatement of a former lease.
(b) The authorized officer shall not issue a lease for lands covered by a lease which terminated automatically, until 90 days after the date of termination.
(c) The United States shall indicate its acceptance of the lease offer, in whole or in part, and the issuance of the lease, by signature of the authorized officer on the current lease form. A signed copy of the lease shall be delivered to the offeror.
(d) Except as otherwise specifically provided in the regulations of this group, an offer that is not filed in accordance with the regulations in this part shall be rejected.
(e) Filing an offer on a lease form not currently in use, unless such lease form has been declared obsolete by the Director prior to the filing shall be allowed, on the condition that the offeror is bound by the terms and conditions of the lease form currently in use.
§ 3110.8 Amendment to lease.
After the competitive process has concluded in accordance with subpart 3120 of this title, if any of the lands described in a lease offer for lands available during the 2-year period are open to oil and gas filing when the offer is filed but are omitted from the lease for any reason the original lease shall be amended to include the omitted lands unless, before the issuance of the amendment, the proper BLM office receives a withdrawal of the offer with respect to such lands or the offeror elects to receive a separate lease in lieu of an amendment. Such election shall be made by submission of a signed statement of the offeror requesting a separate lease, and a new offer on the required form executed pursuant to this part describing the remaining lands in the original offer. The new offer shall have the same priority as the old offer. No new application fee is required with the new offer. The rental payment held in connection with the original offer shall be applied to the new offer. The rental and the term of the lease for the lands added by an amendment shall be the same as if the lands had been included in the original lease when it was issued. If a separate lease is issued, it shall be dated in accordance with § 3110.3-2 of this title.
§ 3110.9 Future interest offers.
§ 3110.9-1 Availability.
A noncompetitive future interest lease shall not be issued until the lands covered by the offer have been made available for competitive lease under subpart 3120 of this title. An offer made for lands that are leased competitively shall be rejected.
§ 3110.9-2 Form of offer.
An offer to lease a future interest shall be filed in accordance with this subpart, and may include tracts in which the United States owns a fractional present interest as well as the future interest for which a lease is sought.
§ 3110.9-3 Fractional present and future interest.
Where the United States owns both a present fractional interest and a future fractional interest in the minerals in the same tract, the lease, when issued, shall cover both the present and future interests in the lands. The effective date and primary term of the present interest lease is unaffected by the vesting of a future fractional interest. The lease for the future fractional interest, when such interest vests in the United States, shall have the same primary term and anniversary date as the present fractional interest lease.
§ 3110.9-4 Future interest terms and conditions.
(a) No rental or royalty shall be due to the United States prior to the vesting of the oil and gas rights in the United States. However, the future interest lessee shall agree that if he/she is or becomes the holder of any present interest operating rights in the lands:
(1) The future interest lessee transfers all or a part of the lessee’s present oil and gas interests, such lessee shall file in the proper BLM office an assignment or transfer, in accordance with subpart 3106 of this title, of the future interest lease of the same type and proportion as the transfer of the present interest, and
(2) The future interest lessee’s present lease interests are relinquished, cancelled, terminated, or expired, the future interest lease rights with the United States also shall cease and terminate to the same extent.
(b) Upon vesting of the oil and gas rights in the United States, the future interest lease rental and royalty shall be as for any noncompetitive lease issued under this subpart, as provided in subpart 3103 of this title, and the acreage shall be chargeable in accordance with § 3101.2 of this title.
PART 3120 – COMPETITIVE LEASES
Subpart 3120 – Competitive Leases
§ 3120.1 General.
§ 3120.1-1 Lands available for competitive leasing.
All lands available for leasing shall be offered for competitive bidding under this subpart, including but not limited to:
(a) Lands in oil and gas leases that have terminated, expired, been cancelled or relinquished.
(b) Lands for which authority to lease has been delegated from the General Services Administration.
(c) If, in proceeding to cancel a lease, interest in a lease, option to acquire a lease or an interest therein, acquired in violation of any of the provisions of the act, an underlying lease, interest or option in the lease is cancelled or forfeited to the United States and there are valid interests therein that are not subject to cancellation, forfeiture, or compulsory disposition, such underlying lease, interest, or option shall be sold to the highest responsible qualified bidder by competitive bidding under this subpart, subject to all outstanding valid interests therein and valid options pertaining thereto. If less than the whole interest in the lease, interest, or option is cancelled or forfeited, such partial interest shall likewise be sold by competitive bidding. If no satisfactory bid is obtained as a result of the competitive offering of such whole or partial interests, such interests may be sold in accordance with section 27 of the Act by such other methods as the authorized officer deems appropriate, but on terms no less favorable to the United States than those of the best competitive bid received. Interest in outstanding leases(s) so sold shall be subject to the terms and conditions of the existing lease(s).
(d) Lands which are otherwise unavailable for leasing but which are subject to drainage (protective leasing).
(e) Lands included in any expression of interest or noncompetitive offer, except offers properly filed within the 2-year period provided under § 3110.1(b) of this title, submitted to the authorized officer.
(f) Lands selected by the authorized officer.
§ 3120.1-2 Requirements.
(a) Each proper BLM Sate office shall hold sales at least quarterly if lands are available for competitive leasing.
(b) Lease sales shall be conducted by a competitive oral or internet-based bidding process.
(c) The national minimum acceptable bid shall be $2 per acre or fraction thereof payable on the gross acreage, and shall not be prorated for any lands in which the United States owns a fractional interest.
§ 3120.1-3 Protests and appeals.
No action pursuant to the regulations in this subpart shall be suspended under § 4.21(a) of this title due to an appeal from a decision by the authorized officer to hold a lease sale. The authorized officer may suspend the offering of a specific parcel while considering a protest or appeal against its inclusion in a Notice of Competitive Lease Sale.
Only the Assistant Secretary for Land and Minerals Management may suspend a lease sale for good and just cause after reviewing the reason(s) for an appeal.
§ 3120.2 Lease terms.
§ 3120.2-1 Duration of lease.
Competitive leases shall be issued for a primary term of 10 years.
§ 3120.2-2 Dating of leases.
All competitive leases shall be considered issued when signed by the authorized officer. Competitive leases, except future interest leases issued under § 3120.7 of this title, shall be effective as of the first day of the month following the date the leases are signed on behalf of the United States. A lease may be made effective on the first day of the month within which it is issued if a written request is made prior to the date of signature of the authorized officer. Leases for future interest shall be effective as of the date the mineral interests vest in the United States.
§ 3120.2-3 Lease size.
Lands shall be offered in leasing units of not more than 2,560 acres outside Alaska, or 5,760 acres within Alaska, which shall be as nearly compact in form as possible.
§ 3120.3 Nomination process.
The Director may elect to implement the provisions contained in §§ 3120.3-1 through 3120.3-7 of this title after review of any comments received during a period of not less than 30 days following publication in the
§ 3120.3-1 General.
The Director may elect to accept nominations requiring submission of the national minimum acceptable bid, as set forth in this section, as part of the competitive process required by the act, or elect to accept informal expressions of interest. A List of Lands Available for Competitive Nominations may be posted in accordance with § 3120.4 of this title, and nominations in response to this list shall be made in accordance with instructions contained therein and on a form approved by the Director. Those parcels receiving nominations shall be included in a Notice of Competitive Lease Sale, unless the parcel is withdrawn by the Bureau.
§ 3120.3-2 Filing of a nomination for competitive leasing.
Nominations filed in response to a List of Lands Available for Competitive Nominations and on a form approved by the Director shall:
(a) Include the nominator’s name and personal or business address. The name of only one citizen, association or partnership, corporation or municipality shall appear as the nominator. All communications relating to leasing shall be sent to that name and address, which shall constitute the nominator’s name and address of record:
(b) Be completed, signed in ink and filed in accordance with the instructions printed on the form and the regulations in this subpart. Execution of the nomination form shall constitute a legally binding offer to lease by the nominator, including all terms and conditions;
(c) Be filed within the filing period and in the BLM office specified in the List of Lands Available for Competitive Nominations. A nomination shall be unacceptable and shall be returned with all moneys refunded if it has not been completed and timely filed in accordance with the instructions on the form or with the other requirements in this subpart; and
(d) Be accompanied by a remittance sufficient to cover the national minimum acceptable bid, the first year’s rental per acre or fraction thereof, and the administrative fee as set forth in § 3120.5-2(b) of this title for each parcel nominated on the form.
§ 3120.3-3 Minimum bid and rental remittance.
Nominations filed in response to a List of Lands Available for Competitive Nominations shall be accompanied by a single remittance. Failure to submit either a separate remittance with each form or an amount sufficient to cover all the parcels nominated on each form shall cause the entire filing to be deemed unacceptable with all moneys refunded.
§ 3120.3-4 Withdrawal of a nomination.
A nomination shall not be withdrawn, except by the Bureau for cause, in which case all moneys shall be refunded.
§ 3120.3-5 Parcels receiving nominations.
Parcels which receive nominations shall be included in a Notice of Competitive Lease Sale. The Notice shall indicate which parcels received multiple nominations in response to a List of Lands Available for Competitive Nominations, or parcels which have been withdrawn by the Bureau.
§ 3120.3-6 Parcels not receiving nominations.
Lands included in the List of Lands Available for Competitive Nominations which are not included in the Notice of Competitive Lease Sale because they were not nominated, unless they were withdrawn by the Bureau, shall be available for a 2-year period, for noncompetitive leasing as specified in the List.
§ 3120.3-7 Refund.
The minimum bid, first year’s rental and administrative fee shall be refunded to all nominators who are unsuccessful at the oral or internet-based auction.
§ 3120.4 Notice of competitive lease sale.
§ 3120.4-1 General.
(a) The lands available for competitive lease sale under this subpart shall be described in a Notice of Competitive Lease Sale.
(b) The time, date, and place of the competitive lease sale shall be stated in the Notice.
(c) The notice shall include an identification of, and a copy of, stipulations applicable to each parcel.
§ 3120.4-2 Posting of notice.
At least 45 days prior to conducting a competitive auction, lands to be offered for competitive lease sale, as included in a List of Lands Available for Competitive Nominations or in a Notice of Competitive Lease Sale, shall be posted in the proper BLM office having jurisdiction over the lands as specified in § 1821.2-1(d) of this title, and shall be made available for posting to surface managing agencies having jurisdiction over any of the included lands.
§ 3120.5 Competitive sale.
§ 3120.5-1 Oral or Internet-based auction.
(a) Parcels shall be offered by oral or internet-based bidding.
The existence of a nomination accompanied by the national minimum acceptable bid shall be announced at the auction for the parcel.
(b) A winning bid shall be the highest oral or internet-based bid by a qualified bidder, equal to or exceeding the national minimum acceptable bid.
The decision of the auctioneer shall be final.
(c) Two or more nominations on the same parcel when the bids are equal to the national minimum acceptable bid, with no higher oral or internet-based bid being made, shall be returned with all moneys refunded. If the Bureau reoffers the parcel, it shall be reoffered only competitively under this subpart with any noncompetitive offer filed under § 3110.1(a) of this title retaining priority, provided no bid is received at an oral or internet-based auction.
§ 3120.5-2 Payments required.
(a) Payments shall be made in accordance with § 3103.1-1 of this title.
(b) Each winning bidder shall submit, by the close of official business hours, or such other time as may be specified by the authorized officer, on the day of the sale for the parcel:
(1) The minimum bonus bid of $2 per acre or fraction thereof;
(2) The total amount of the first year’s rental; and
(3) The processing fee for competitive lease applications found in the fee schedule in § 3000.12 of this chapter for each parcel.
(c) The winning bidder shall submit the balance of the bonus bid to the proper BLM office within 10 working days after the last day of the oral or internet-based auction.
§ 3120.5-3 Award of lease.
(a) A bid shall not be withdrawn and shall constitute a legally binding commitment to execute the lease bid form and accept a lease, including the obligation to pay the bonus bid, first year’s rental, and administrative fee. Execution by the high bidder of a competitive lease bid form approved by the Director constitutes certification of compliance with subpart 3102 of this title, shall constitute a binding lease offer, including all terms and conditions applicable thereto, and shall be required when payment is made in accordance with § 3120.5-2(b) of this title. Failure to comply with § 3120.5-2(c) of this title shall result in rejection of the bid and forfeiture of the monies submitted under § 3120.5-2(b) of this title.
(b) A lease shall be awarded to the highest responsible qualified bidder. A copy of the lease shall be provided to the lessee after signature by the authorized officer.
(c) If a bid is rejected, the land shall be reoffered competitively under this subpart with any noncompetitive offer filed under § 3110.1(a) of this title retaining priority, provided no bid is received in an oral or internet-based auction.
(d) Issuance of the lease shall be consistent with § 3110.7 (a) and (b) of this title.
§ 3120.6 Parcels not bid on at auction.
Lands offered at the oral or internet-based auction that received no bids shall be available for filing for noncompetitive lease for a 2-year period beginning the first business day following the auction at a time specified in the Notice of Competitive Lease Sale.
§ 3120.7 Future interest.
§ 3120.7-1 Nomination to make lands available for competitive lease.
A nomination for a future interest lease shall be filed in accordance with this subpart.
§ 3120.7-2 Future interest terms and conditions.
(a) No rental or royalty shall be due to the United States prior to the vesting of the oil and gas rights in the United States. However, the future interest lessee shall agree that if, he/she is or becomes the holder of any present interest operating rights in the lands:
(1) The future interest lessee transfers all or a part of the lessee’s present oil and gas interests, such lessee shall file in the proper BLM office an assignment or transfer, in accordance with subpart 3106 of this title, of the future interest lease of the same type and proportion as the transfer of the present interest, and
(2) The future interest lessee’s present lease interests are relinquished, cancelled, terminated, or expired, the future interest lease rights with the United States also shall cease and terminate to the same extent.
(b) Upon vesting of the oil and gas rights in the United States, the future interest lease rental and royalty shall be as for any competitive lease issued under this subpart, as provided in subpart 3103 of this title, and the acreage shall be chargeable in accordance with § 3101.2 of this title.
§ 3120.7-3 Compensatory royalty agreements.
The terms and conditions of compensatory royalty agreements involving acquired lands in which the United States owns a future or fractional interest shall be established on an individual case basis. Such agreements shall be required when leasing is not possible in situations where the interest of the United States in the oil and gas deposit includes both a present and a future fractional interest in the same tract containing a producing well.
PART 3130 – OIL AND GAS LEASING: NATIONAL PETROLEUM RESERVE, ALASKA
The information collection requirements contained in part 3130 have been approved by the Office of Management and Budget under 44 U.S.C. 3507 and assigned clearance number 1004-0067. The information is being collected to allow the authorized officer to determine if the bidder is qualified to hold a lease. The information will be used in making that determination. The obligation to respond is required to obtain a benefit.
Subpart 3130 – Oil and Gas Leasing, National Petroleum Reserve, Alaska: General
§ 3130.0-1 Purpose.
These regulations establish the procedures under which the Secretary of the Interior will exercise the authority granted to administer a competitive leasing program for oil and gas within the National Petroleum Reserve – Alaska.
§ 3130.0-2 Policy.
The oil and gas leasing program within the National Petroleum Reserve – Alaska shall be conducted in accordance with the purposes and policy directions provided by the Department of the Interior Appropriations Act, Fiscal Year 1981 (Pub. L. 96-514), and other executive, legislative, judicial and Department of the Interior guidance.
§ 3130.0-3 Authority.
(a) The Department of the Interior Appropriations Act, Fiscal year 1981 (Pub. L. 96-514);
(b) The Naval Petroleum Reserves Production Act of 1976 (42 U.S.C. 6504, et seq.); and
(c) The Federal Lands Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), except that sections 202 and 603 are not applicable.
(d) The Energy Policy Act of 2005 (42 U.S.C. 6506a(o)).
§ 3130.0-5 Definitions.
As used in this part, the term:
(a) Act means the Department of the Interior Appropriations Act, Fiscal Year 1981 (Pub. L. 96-514).
(b) Bureau means the Bureau of Land Management.
(c) Constructive operations means the exploring, testing, surveying or otherwise investigating the potential of a lease for oil and gas or the actual drilling or preparation for drilling of wells therefor.
(d) NPR-A means the area formerly within Naval Petroleum Reserve Numbered 4 Alaska which was redesignated as the National Petroleum Reserve – Alaska by the Naval Petroleum Reserves Production Act of 1976 (42 U.S.C. 6501).
(e) Reworking operations means all operations designed to secure, restore or improve production through some use of a hole previously drilled, including, but not limited to, mechanical or chemical treatment of any horizon, deepening to test deeper strata and plugging back to test higher strata.
(f) Special Areas means the Utokok River, the Teshekpuk Lake areas and other areas within NPR – A identified by the Secretary as having significant subsistence, recreational, fish and wildlife or historical or scenic value.
(g) Production allocation methodology means a way of attributing the production of oil and gas produced from a unit well or wells to individual tracts committed to the unit and forming a participating area.
(h) Reservoir heterogeneity means spatial differences in the oil and gas reservoir properties. This can include, but is not limited to, the thickness of the reservoir, the amount of pore space in the reservoir rock that contains oil, gas, or water, and the amount of water contained in the reservoir rock. This information may be used to allocate production.
(i) Variation in reservoir producibility means differences in the rates oil and gas wells produce from the reservoir. These differences can result from variations in the thickness of the reservoir, porosity, and the amount of connected pore space.
§ 3130.0-7 Cross references. [Reserved]
§ 3130.1 Attorney General review.
(a) Prior to the issuance of any lease, contract or operating agreement under this subpart, the Secretary shall notify the Attorney General of the proposed issuance, the name of the successful bidder, the terms of the proposed lease, contract or operating agreement and any other information the Attorney General may require to conduct an antitrust review of the proposed action. Such other information shall include, but is not limited to, information to be provided the Secretary by the successful bidder or its owners.
(b) In advance of the publication of any notice of sale, the Attorney General shall notify the Secretary of his/her preliminary determination of the information each successful bidder shall be required to submit for antitrust review purposes. The Secretary shall require this information to be promptly submitted by successful bidders, and may provide prospective bidders the opportunity to submit such information in advance of or accompanying their bids. For subsequent notices of sale, the Attorney General’s preliminary information requirements shall be as specified for the prior notice unless a change in the requirements is communicated to the Secretary in advance of publication of the new notice of sale. Where a bidder in a prior sale has previously submitted any of the currently required information, a reference to the date of submission and to the serial number of the record in which it is filed, together with a statement of any and all changes in the information since the date of the previous submission, shall be sufficient.
(c) The Secretary shall not issue any lease, contract or operating agreement until:
(1) Thirty days after the Attorney General receives notice from the Secretary of the proposed lease contract or operating agreement, together with any other information required under this section; or
(2) The Attorney General notifies the Secretary that issuance of the proposed lease, contract or operating agreement does not create or maintain a situation inconsistent with the antitrust laws, whichever comes first. The Attorney General shall inform the successful bidder, and simultaneously the Secretary, if the information supplied is insufficient, and shall specify what information is required for the Attorney General to complete his/her review. The 30-day period shall stop running on the date of such notification and not resume running until the Attorney General receives the required information.
(d) The Secretary shall not issue the lease, contract for operating agreement to the successful bidder, if, during the 30-day period, the Attorney General notifies the Secretary that such issuance would create or maintain a situation inconsistent with the antitrust laws.
(e) If the Attorney General does not reply in writing to the notification provided under paragraph (a) of this section within the 30-day review period, the Secretary may issue the lease, contract or operating agreement without waiting for the advice of the Attorney General.
(f) Information submitted to the Secretary to comply with this section shall be treated by the Secretary and by the Attorney General as confidential and proprietary data if marked confidential by the submitting bidder or other person. Such information shall be submitted to the Secretary in sealed envelopes and shall be transmitted in that form to the Attorney General.
(g) The procedures outlined in paragraphs (a) through (f) of this section apply to the proposed assignment or transfer of any lease, contract or operating agreement.
§ 3130.2 Limitation on time to institute suit to contest a Secretary’s decision.
Any action seeking judicial review of the adequacy of any programmatic or site-specific environmental impact statement under section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332) concerning oil and gas leasing in NPR-A shall be barred unless brought in the appropriate District Court within 60 days after notice of availability of such statement is published in the
§ 3130.3 Drainage.
Upon a determination by the authorized officer, that lands owned by the United States within NPR-A are being drained, the regulations under § 3162.2 of this title, including the provisions relating to compensatory agreements or royalties, shall apply.
§ 3130.4 Leasing: General.
§ 3130.4-1 Tract size.
A tract selected for leasing shall consist of a compact area of not more than 60,000 acres.
§ 3130.4-2 Lease term.
The primary term of an NPR-A lease is 10 years.
§ 3130.5 Bona fide purchasers.
The provisions of § 3108.4 of this title shall apply to bona fide purchasers of leases within NPR-A.
§ 3130.6 Leasing maps and land descriptions.
§ 3130.6-1 Leasing maps.
The Bureau shall prepare leasing maps showing the tracts to be offered for lease sale.
§ 3130.6-2 Land descriptions.
(a) All tracts shall be composed of entire sections either surveyed or protracted, whichever is applicable, except that if the tracts are adjacent to upland navigable water areas, they may be adjusted on the basis of subdivisional parts of the sections.
(b) Leased lands shall be described according to section, township and range in accordance with the official survey or protraction diagrams.
Subpart 3131 – Leasing Program
§ 3131.1 Receipt and consideration of nominations; public notice and participation.
During preparation of a proposed leasing schedule, the Secretary shall invite and consider suggestions and relevant information for such program from the Governor of Alaska, local governments, Native corporations, industry, other Federal agencies, including the Attorney General and all interested parties, including the general public. This request for information shall be issued as a notice in the
§ 3131.2 Tentative tract selection.
(a) The State Director Alaska, Bureau of Land Management, shall issue calls for Nominations and Comments on tracts for leasing for oil and gas in specified areas. The call for Nominations and Comments shall be published in the
(b) The State Director, after completion of the required environmental analysis (see 40 CFR 1500-1508), shall select tracts to be offered for sale. In making the selection, the State Director shall consider available environmental information, multiple-use conflicts, resource potential, industry interest, information from appropriate Federal agencies and other available information. The State Director shall develop measures to mitigate adverse impacts, including lease stipulations and information to lessees. These mitigating measures shall be made public in the notice of sale.
§ 3131.3 Special stipulations.
Special stipulations shall be developed to the extent the authorized officer deems necessary and appropriate for mitigating reasonably foreseeable and significant adverse impacts on the surface resources. Special Areas stipulations for exploration or production shall be developed in accordance with section 104 of the Naval Petroleum Reserves Production Act of 1976. Any special stipulations and conditions shall be set forth in the notice of sale and shall be attached to and made a part of the lease, if issued. Additional stipulations needed to protect surface resources and special areas may be imposed at the time the surface use plan and permit to drill are approved.
§ 3131.4 Lease sales.
§ 3131.4-1 Notice of sale.
(a) The State Director Alaska, Bureau of Land Management, shall publish the notice of sale in the
(b) Tracts shall be offered for lease by competitive sealed bidding under conditions specified in the notice of lease sale and in accordance with all applicable laws and regulations. Bidding systems used in sales shall be based on bidding systems included in section (205)(a)(1)(A) through (H) of the Outer Continental Shelf Lands Act Amendments of 1978 (43 U.S.C. 1801 et seq.).
(c) A detailed statement of the sale, including a description of the areas to be offered for lease, the lease terms, conditions and special stipulations and how and where to submit bids shall be made available to the public immediately after publication of the notice of sale.
Subpart 3132 – Issuance of Leases
§ 3132.1 Who may hold a lease.
Leases issued pursuant to this subpart may be held only by:
(a) Citizens and nationals of the United States;
(b) Aliens lawfully admitted for permanent residence in the United States as defined in 8 U.S.C. 1101(a)(20);
(c) Private, public or municipal corporations organized under the laws of the United States or of any State or of the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa or any of its territories; or
(d) Associations of such citizens, nationals, resident aliens or private, public or municipal corporations.
§ 3132.2 Submission of bids.
(a) A separate sealed bid shall be submitted for each tract in the manner prescribed. A bid shall not be submitted for less than an entire tract.
(b) Each bidder shall submit with the bid a certified or cashier’s check, bank draft, U.S. currency or any other form of payment approved by the Secretary for one-fifth of the amount of the cash bonus, unless stated otherwise in the notice of sale.
(c) Each bid shall be accompanied by statements of qualifications prepared in accordance with § 3132.4 of this title.
(d) Bidders are bound by the provisions of 18 U.S.C. 1860 prohibiting unlawful combination or intimidation of bidders.
§ 3132.3 Payments.
(a) Make payments of bonuses, including deferred bonuses, first year’s rental, other payments due upon lease issuance, and fees, to BLM’s Alaska State Office. Before we issue a lease, the highest bidder must pay the processing fee for competitive lease applications found in the fee schedule in § 3000.12 of this chapter in addition to other remaining bonus and rental payments. All payments shall be made by certified or cashier’s check, bank draft, U.S. currency or any other form of payment approved by the Secretary. Payments shall be made payable to the Department of the Interior, Bureau of Land Management, unless otherwise directed.
(b) All other payments required by a lease or the regulations in this part shall be payable to the Department of the Interior, Minerals Management Service.
§ 3132.4 Qualifications.
Submission of a lease bid constitutes certification of compliance with the regulations of this part. Anyone seeking to acquire, or anyone holding, a Federal oil and gas lease or interest therein may be required to submit additional information to show compliance with the regulations of this part.
§ 3132.5 Award of leases.
(a) Sealed bids received in response to the notice of lease sale shall be opened at the place, date and hour specified in the notice of sale. The opening of bids is for the sole purpose of publicly announcing and recording the bids received. No bids shall be accepted or rejected at that time.
(b) The United States reserves the right to reject any and all bids received for any tract, regardless of the amount offered.
(c) In the event the highest bids are tie bids, the tying bidders shall be allowed to submit within 15 days of the public announcement of a tie bid additional sealed bids to break the tie. The additional bids shall include any additional amount necessary to bring the amount tendered with his/her bid to one-fifth of the additional bid. Additional bids to break tie bids shall be processed in accordance with paragraph (a) of this section.
(d) If the authorized officer fails to accept the highest bid for a lease within 90 days or a lesser period of time as specified in the notice of sale, the highest bid for that lease shall be considered rejected. This 90-day period or lesser period as specified in the notice of sale shall not include any period of time during which acceptance, rejection or other processing of bids and lease issuance by the Department of the Interior are enjoined or prohibited by court order.
(e) Written notice of the final decision on the bids shall be transmitted to those bidders whose deposits have been held in accordance with instructions set forth in the notice of sale. If a bid is accepted, 2 copies of the lease shall be transmitted with the notice of acceptance to the successful bidder. The bidder shall, not later than the 15th day after receipt of the lease, sign both copies of the lease and return them, together with the first year’s rental and the balance of the bonus bid, unless deferred, and shall file a bond, if required to do so. Deposits shall be refunded on rejected bids.
(f) If the successful bidder fails to execute the lease within the prescribed time or otherwise to comply with the applicable regulations, the deposit shall be forfeited and disposed of as other receipts under the Act.
(g) If the awarded lease is executed by an attorney-in-fact acting on behalf of the bidder, the lease shall be accompanied by evidence that the bidder authorized the attorney-in-fact to execute the lease on his/her behalf. Reference may be made to the serial number of the record and the office of the Bureau of Land Management in which such evidence has already been filed.
(h) When the executed lease is returned to the authorized officer, he/she shall within 15 days of receipt of the material required by paragraph (e) of this section, execute the lease on behalf of the United States. A copy of the fully executed lease shall be transmitted to the lessee.
§ 3132.5-1 Forms.
Leases shall be issued on forms approved by the Director.
§ 3132.5-2 Dating of leases.
All leases issued under the regulations in this part shall become effective as of the first day of the month following the date they are signed on behalf of the United States. When prior written request is made, a lease may become effective as of the first day of the month within which it is signed on behalf of the United States.
Subpart 3133 – Rentals and Royalties
§ 3133.1 Rentals.
(a) An annual rental shall be due and payable at the rate prescribed in the notice of sale and the lease, but in no event shall such rental be less than $3 per acre, or fraction thereof. Payment shall be made on or before the first day of each lease year prior to discovery of oil or gas on the lease.
(b) If there is no actual or allocated production on the portion of a lease that has been segregated from a producing lease, the owner of such segregated lease shall pay an annual rental for such segregated portion at the rate per acre specified in the original lease. This rental shall be payable each lease year following the year in which the segregation became effective and prior to discovery of oil or gas on such segregated portion.
(c) Annual rental paid in any year prior to discovery of oil or gas on the lease shall be in addition to, and shall not be credited against, any royalties due from production.
§ 3133.2 Royalties.
Royalties on oil and gas shall be at the rate specified in the notice of sale as to the tracts, if appropriate, and in the lease, unless the Secretary, in order to promote increased production on the leased area through direct, secondary or tertiary recovery means, reduces or eliminates any royalty set out in the lease.
§ 3133.2-1 Minimum royalties.
For leases which provide for minimum royalty payments, each lessee shall pay the minimum royalty specified in the lease at the end of each lease year beginning with the first lease year following a discovery on the lease.
§ 3133.3 Under what circumstances will BLM waive, suspend, or reduce the rental, royalty, or minimum royalty on my NPR-A lease?
(a) BLM will waive, suspend, or reduce the rental or minimum royalty or reduce the royalty rate on your lease if BLM finds that –
(1) It encourages the greatest ultimate recovery of oil or gas or it is in the interest of conservation; and
(2) It is necessary to promote development or the BLM determines the lease cannot be successfully operated under the terms of the lease.
(b) The BLM will consult with the State of Alaska and the North Slope Borough within 10 days of receiving an application for waiver, suspension, or reduction of rental or minimum royalty, or reduction of the royalty rate and will not approve an application under § 3133.4 of this subpart until at least 30 days after the consultation.
(c) If your lease includes land that was made available for acquisition by a regional corporation (as defined in 43 U.S.C. 1602) under the provision of Section 1431(o) of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3101 et seq.), the BLM will only approve a waiver, suspension, or reduction of rental or minimum royalty, or reduction of the royalty rate if the regional corporation concurs.
§ 3133.4 How do I apply for a waiver, suspension or reduction of rental, royalty or minimum royalty for my NPR-A lease?
(a) Submit to BLM your application and in it describe the relief you are requesting and include –
(1) The lease serial number;
(2) The number, location and status of each well drilled;
(3) A statement that shows the aggregate amount of oil or gas subject to royalty for each month covering a period of at least six months immediately before the date you filed the application;
(4) The number of wells counted as producing each month and the average production per well per day;
(5) A detailed statement of expenses and costs of operating the entire lease, including the amount of any overriding royalty and payments out of production or similar interests applicable to your lease;
(6) All facts that demonstrate the waiver, suspension, or reduction of the rental or minimum royalty, or the reduction of the royalty rate encourages the greatest ultimate recovery of oil or gas or it is in the interest of conservation; and
(7) All facts that demonstrate you cannot successfully operate the lease under the terms of the lease;
(8) Any other information BLM requires.
(b) Your application must be signed by –
(1) All record title holders of the lease; or
(2) By the operator on behalf of all record title holders.
Subpart 3134 – Bonding: General
§ 3134.1 Bonding.
(a) Prior to issuance of an oil and gas lease, the successful bidder shall furnish the authorized officer a surety or personal bond in accordance with the provisions of § 3104.1 of this title in the sum of $100,000 conditioned on compliance with all the lease terms, including rentals and royalties, conditions and any stipulations. The bond shall not be required if the bidder already maintains or furnishes a bond in the sum of $300,000 conditioned on compliance with the terms, conditions and stipulations of all oil and gas leases held by the bidder within NPR-A, or maintains or furnishes a nationwide bond as set forth in § 3104.3(b) of this title and furnishes a rider thereto sufficient to bring total coverage to $300,000 to cover all oil and gas leases held within NPR-A.
(b) A bond in the sum of $100,000 or $300,000, or a nationwide bond as provided in § 3104.3(b) of this title with a rider thereto sufficient to bring total coverage to $300,000 to cover all oil and gas leases within NPR-A, may be provided by an operating rights owner (sublessee) or operator in lieu of a bond furnished by the lessee, and shall assume the responsibilities and obligations of the lessee for the entire leasehold in the same manner and to the extent as though he/she were the lessee.
(c) If as a result of a default, the surety on a bond makes payment to the United States of any indebtedness under a lease secured by the bond, the face amount of such bond and the surety’s liability shall be reduced by the amount of such payment.
(d) A new bond in the amount previously held or a larger amount as determined by the authorized officer shall be posted within 6 months or such shorter period as the authorized officer may direct after a default. In lieu thereof, separate or substitute bonds for each lease covered by the prior bond may be filed. The authorized officer may cancel a lease(s) covered by a deficient bond(s), in accordance with § 3136.3 of this title. Where a bond is furnished by an operator, suit may be brought thereon without joining the lessee when such lessee is not a party to the bond.
(e) Except as provided in this subpart, the bonds required for NPR-A leases are in addition to any other bonds the successful bidder may have filed or be required to file under §§ 3104.2, 3104.3(a) and 3154.1 and subparts 3206 and 3209 of this title.
§ 3134.1-1 Form of bond.
All bonds furnished by a lessee, operating rights owner (sublessee), or operator shall be on a form approved by the Director.
§ 3134.1-2 Additional bonds.
(a) The authorized officer may require the bonded party to supply additional bonding in accordance with § 3104.5(b) of this chapter.
(b) The holders of any oil and gas lease bond for a lease on the NPR-A shall be permitted to obtain a rider to include the coverage of oil and gas geophysical operations within the boundaries of NPR-A.
Subpart 3135 – Transfers, Extensions, Consolidations, and Suspensions
§ 3135.1 Transfers and extensions, general.
§ 3135.1-1 Transfers.
(a) Subject to approval of the authorized officer, a lessee may transfer his/her lease(s), or any undivided interest therein, or any legal subdivision, to anyone qualified under §§ 3130.1 and 3132.4 of this title to hold a lease.
(b) Any approved transfer shall be deemed to be effective on the first day of the lease month following its filing in the proper BLM office, unless, at the request of the parties, an earlier date is specified in the approval.
(c) The transferor shall continue to be responsible for all obligations under the lease accruing prior to the approval of the transfer.
(d) The transferee shall be responsible for all obligations under the lease subsequent to the effective date of a transfer, and shall comply with all regulations issued under the Act.
(e) When a transfer of operating rights (sublease) is approved, the sublessee is responsible for all obligations under the rights transferred to the sublessee.
(f) Transfers are approved for administrative purposes only. Approval does not warrant or certify that either party to a transfer holds legal or equitable title to a lease.
§ 3135.1-2 Requirements for filing of transfers.
(a)(1) All instruments of transfer of lease or of an interest therein, including operating rights, subleases and assignments of record-title shall be filed in triplicate for approval. Such instruments shall be filed within 90 days from the date of final execution. The instruments of transfer shall include a statement, over the transferee’s own signature, with respect to citizenship and qualifications as required of a bidder under § 3132.4 of this title and shall contain all of the terms and conditions agreed upon by the parties thereto. Carried working interests, overriding royalty interests or payments out of production or other interest may be created or transferred without approval.
(2) An application for approval of any instrument that the regulations require you to file must include the processing fee for assignments and transfers found in the fee schedule in § 3000.12 of this chapter. Any document that the regulations in this part do not require you to file, but that you submit for record purposes, must also include the processing fee for assignments and transfers found in the fee schedule in § 3000.12 of this chapter for each lease affected. Such documents may be rejected by the authorized officer.
(b) An attorney-in-fact, on behalf of the holder of a lease, operating rights or sublease, shall furnish evidence of authority to execute the transfer or application for approval and the statement required by § 3132.5(g) of this title.
(c) Where a transfer of record title creates separate leases, a bond shall be furnished covering the transferred lands in the amount prescribed in § 3134.1 of this title. Where a transfer does not create separate leases, the transferee, if the transfer so provides and the surety consents, may become co-principal on the bond with the transferor.
§ 3135.1-3 Separate filing for transfers.
A separate instrument of transfer shall be filed for each lease on a form approved by the Director or an exact reproduction of the front and back of such form. Any earlier editions of the current form are deemed obsolete and are unacceptable for filing. When transfers to the same person, association or corporation, involving more than 1 lease are filed at the same time for approval, 1 request for approval and 1 showing as to the qualifications of the transferee shall be sufficient.
§ 3135.1-4 Effect of transfer of a tract.
(a) When a transfer is made of all the record title to a portion of the acreage in a lease, the transferred and retained portions are divided into separate and distinct leases. The BLM will not approve transfers of a tract of land:
(1) Of less than 640 acres that is not compact; or
(2) That would leave a retained tract of less than 640 acres.
(b) Each segregated lease shall continue in full force and effect for the primary term of the original lease and so long thereafter as the activities on the segregated lease support extension in accordance with § 3135.1-5.
§ 3135.1-5 Extension of lease.
(a) The term of a lease shall be extended beyond its primary term:
(1) So long as oil or gas is produced from the lease in paying quantities;
(2) If the BLM has determined in writing that oil or gas is capable of being produced in paying quantities from the lease; or
(3) So long as drilling or reworking operations, actual or constructive, as approved by the BLM, are conducted thereon.
(b) Your lease will expire on the 30th anniversary of the original issuance date of the lease unless oil or gas is being produced in paying quantities. If your lease contains a well that is capable of production, but you fail to produce the oil or gas due to circumstances beyond your control, you may apply for a suspension under § 3135.2. If the BLM approves the suspension, the lease will not expire on the 30th anniversary of the original issuance date of the lease.
(c) A lease may be maintained in force by the BLM-approved directional wells drilled under the leased area from surface locations on adjacent or adjoining lands not covered by the lease. In such circumstances, drilling shall be considered to have commenced on the lease area when drilling is commenced on the adjacent or adjoining lands for the purpose of directional drilling under the leased area through any directional well surfaced on adjacent or adjoining lands. Production, drilling or reworking of any such directional well shall be considered production or drilling or reworking operations on the lease area for all purposes of the lease.
§ 3135.1-6 Lease renewal.
(a) With a discovery – (1) At any time after the fifth year of the primary term of a lease, the BLM may approve a 10-year lease renewal for a lease on which there has been a well drilled and a discovery of hydrocarbons even if the BLM has determined that the well is not capable of producing oil or gas in paying quantities. The BLM must receive the lessee’s application for lease renewal no later than 60 days prior to the expiration of the primary term of the lease.
(2) The renewal application must provide evidence, and a certification by the lessee, that the lessee or its operator has drilled one or more wells and discovered producible hydrocarbons on the leased lands in such quantities that a prudent operator would hold the lease for potential future development.
(3) The BLM will approve the renewal application if it determines that a discovery was made and that a prudent operator would hold the lease for future development.
(4) The lease renewal will be effective on the day following the end of the primary term of the lease.
(5) The lease renewal may be approved on the condition that the lessee drills one or more additional wells or acquires and analyzes more well data, seismic data, or geochemical survey data prior to the end of the primary term.
(b) Without a discovery – (1) At any time after the fifth year of the primary term of a lease, the BLM may approve an application for a 10-year lease renewal for a lease on which there has not been a discovery of oil or gas. The BLM must receive the lessee’s application no later than 60 days prior to the expiration of the primary term of the lease.
(2) The renewal application must:
(i) Provide sufficient evidence that the lessee has diligently pursued exploration that warrants continuation of the lease with the intent of continued exploration or future potential development of the leased land. The application must show the:
(A) Lessee or its operator has drilled one or more wells or has acquired and analyzed seismic data, or geochemical survey data on a significant portion of the leased land since the lease was issued;
(B) Data collected indicates a reasonable probability of future success; and
(C) Lessee’s plans for future exploration; or
(ii) Show that all or part of the lease is part of a unit agreement covering a lease that qualifies for renewal without a discovery and that the lease has not been previously contracted out of the unit.
(3) The BLM will approve the renewal application if it determines that the application satisfies the requirements of paragraph (b)(2)(i) or (ii) of this section. If the BLM approves the application for lease renewal, the applicant must submit to the BLM a fee of $100 per acre within 5 business days of receiving notification of approval.
(4) The lease renewal will be effective on the day following the end of the primary term of the lease.
(5) The lease renewal may be approved on the condition that the lessee drills one or more additional wells or acquires and analyzes more well data, seismic data or geochemical survey data prior to the end of the primary term.
(c) Renewed lease. The renewed lease will be subject to the terms and conditions applicable to new oil and gas leases issued under the Integrated Activity Plan in effect on the date that the BLM issues the decision to renew the lease.
§ 3135.1-7 Consolidation of leases.
(a) Leases may be consolidated upon written request of the lessee filed with the State Director Alaska, Bureau of Land Management. The request shall identify each lease involved by serial number and shall explain the factors which justify the consolidation. Include with each request for a consolidation of leases the processing fee found in the fee schedule in § 3000.12 of this chapter.
(b) All parties holding any undivided interest in any lease involved in the consolidation shall agree to enter into the same lease consolidation.
(c) Consolidation of leases not to exceed 60,000 acres may be approved by the State Director, Alaska if it is determined that the consolidation is justified.
(d) The effective date, the anniversary date, and the primary term of the consolidated lease will be those of the oldest original lease involved in the consolidation. The term of a consolidated lease may be extended, or renewed, as appropriate, beyond the primary lease term under § 3135.1-5 or § 3135.1-6.
(e) Royalty, rental, special lease stipulations and other terms and conditions of each original lease except the effective date, anniversary date and the primary term shall continue to apply to that lease or any portion thereof regardless of the lease becoming a part of a consolidated lease. The highest royalty and rental rates of the original leases shall apply to the consolidated lease.
§ 3135.1-8 Termination of administration for conveyed lands and segregation.
(a) If all of the mineral estate is conveyed to a regional corporation, the regional corporation will assume the lessor’s obligation to administer any oil and gas lease.
(b) If a conveyance of the mineral estate does not include all of the land covered by an oil and gas lease, the lease will be segregated into two leases, one of which will cover only the mineral estate conveyed. The regional corporation will assume administration of the lease covering the conveyed mineral estate.
(c) If the regional corporation assumes administration of a lease under paragraph (a) or (b) of this section, all lease terms, BLM regulations, and BLM orders in effect on the date of assumption continue to apply to the lessee under the lease. All such obligations will be enforceable by the regional corporation as the lessor until the lease terminates.
(d) In a case in which a conveyance of a mineral estate described in paragraph (b) of this section does not include all of the land covered by the oil and gas lease, the owner of the mineral estate in any particular portion of the land covered by the lease is entitled to all of the revenues reserved under the lease as to that portion including all of the royalty payable with respect to oil or gas produced from or allocated to that portion.
§ 3135.2 Under what circumstances will BLM require a suspension of operations and production or approve my request for a suspension of operations and production for my lease?
(a) BLM will require a suspension of operations and production or approve your request for a suspension of operations and production for your lease(s) if BLM determines that –
(1) It is in the interest of conservation of natural resources;
(2) It encourages the greatest ultimate recovery of oil and gas, such as by encouraging the planning and construction of a transportation system to a new area of discovery; or
(3) It mitigates reasonably foreseeable and significantly adverse effects on surface resources.
(b) BLM will suspend operations and production for your lease if it determines that, despite the exercise of due care and diligence, you can’t comply with your lease requirements for reasons beyond your control.
(c) If BLM requires a suspension of operations and production or approves your request for a suspension of operations and production, the suspension –
(1) Stops the running of your lease term and prevents it from expiring for as long as the suspension is in effect;
(2) Relieves you of your obligation to pay rent, royalty, or minimum royalty during the suspension; and
(3) Prohibits you from operating on, producing from, or having any other beneficial use of your lease during the suspension. However, you must continue to perform necessary maintenance and safety activities.
§ 3135.3 How do I apply for a suspension of operations and production?
(a) You must submit to BLM an application stating the circumstances that are beyond your reasonable control that prevent you from operating or producing your lease(s).
(b) Your suspension application must be signed by –
(1) All record title holders of the lease; or
(2) The operator on behalf of the record title holders of the leases committed to an approved agreement.
(c) You must submit your application to BLM before your lease expires.
(d) Your application must be for your entire lease.
§ 3135.4 When is a suspension of operations and production effective?
A suspension of operations and production is effective –
(a) The first day of the month in which you file the application for suspension or BLM requires the suspension; or
(b) Any other date BLM specifies in the decision document.
§ 3135.5 When should I stop paying rental or royalty after BLM requires or approves a suspension of operations and production ?
You should stop paying rental or royalty on the first day of the month that the suspension is effective. However, if there is any production sold or removed during that month, you must pay royalty on that production.
§ 3135.6 When will my suspension terminate?
(a) Your suspension terminates –
(1) On the first day of the month in which you begin to operate or produce on your lease with BLM approval; or
(2) The date BLM specifies in a written notice to you.
(b) You must notify BLM at least 24 hours before you begin operations or production under paragraph (a)(1) of this section.
§ 3135.7 What effect does a suspension of operations and production have on the term of my lease?
(a) Primary term. If BLM grants a suspension of operations and production for your lease, the suspension stops the running of the primary term of your lease for the period of the suspension.
(b) Extended term. If your lease is in its extended term, a suspension holds your lease in its extended term for the period of the suspension as if it were in production.
§ 3135.8 If BLM requires a suspension or grants my request for a suspension of operations and production for my lease, when must I next pay advance annual rental, royalty, or minimum royalty?
(a) You are not required to submit your next rental or minimum royalty payment until the date the suspension terminates. Therefore, if your suspension begins in month 3 of lease year A and ends in month 2 of lease year B, you must submit your rental payment for lease year B when your suspension ends. BLM will send a written notice to the lessee and operator stating that the suspension is terminated and the date your rental payment for lease year B is due to MMS. BLM’s notice also will state when you must pay any minimum royalty due for lease year A. Your minimum royalty for lease year B will be due at the end of that year.
(b) If you remove or sell any production from the lease during the term of the suspension, you must pay royalty on that production.
Subpart 3136 – Relinquishments, Terminations and Cancellations of Leases
§ 3136.1 Relinquishment of leases or parts of leases.
A lease may be surrendered in whole or in part by the lessee by filing a written relinquishment, in triplicate, with the Alaska State Office of the Bureau. No filing fee is required. In the case of partial relinquishments, neither the relinquished lands nor the retained lands shall be less than a compact tract of not less than 640 acres. A relinquishment shall take effect on the date it is filed subject to the continued obligation of lessee and the surety to make all payments due, including any accrued rental, royalties and deferred bonuses and to abandon all wells, and condition or remove other facilities on the lands to be relinquished to the satisfaction of the authorized officer.
§ 3136.2 Terminations.
Any lease on which there is no well capable of producing oil or gas in paying quantities shall terminate if the lessee fails to pay the annual rental in full on or before the anniversary date of such lease and such failure continues for more than 30 days after the notice of delinquent rental has been delivered by registered or certified mail to the lease owner’s record post office address.
§ 3136.3 Cancellation of leases.
(a) Any nonproducing lease may be canceled by the authorized officer whenever the lessee fails to comply with any provisions of the Acts cited in § 3130.0-3 of this title, of the regulations issued thereunder or of the lease, if such failure to comply continues for 30-days after a notice thereof has been delivered by registered or certified mail to the lease owner’s record post office address.
(b) Producing leases or leases known to contain valuable deposits of oil or gas may be canceled only by court order.
Subpart 3137 – Unitization Agreements – National Petroleum Reserve-Alaska
§ 3137.5 What terms do I need to know to understand this subpart?
As used in this subpart –
Actual drilling means operations you conduct that are similar to those that a person seriously looking for oil or gas could be expected to conduct in that particular area, given the existing knowledge of geologic and other pertinent facts about the area to be drilled. The term includes the testing, completing, or equipping of the drill hole (casing, tubing, packers, pumps, etc.) so that it is capable of producing oil or gas. Actual drilling operations do not include preparatory or preliminary work such as grading roads and well sites, or moving equipment onto the lease.
Actual production means oil or gas flowing from the wellbore into treatment or sales facilities.
Actual reworking operations means reasonably continuous well-bore operations such as fracturing, acidizing, and tubing repair.
Committed tract means –
(1) A Federal lease where all record title holders and all operating rights owners have agreed to the terms and conditions of a unit agreement, committed their interest to the unit; or
(2) A State lease or private parcel of land where all oil and gas lessees and all operating rights owners or the owners of unleased minerals have agreed to the terms and conditions of a unit agreement.
Constructive drilling means those activities that are necessary to prepare for actual drilling that occur after BLM approves an application to drill, but before you actually drill the well. These include, but are not limited to, activities such as road and well pad construction, and drilling rig and equipment set-up.
Constructive reworking operations means activities that are necessary to prepare for well-bore operations. These may include rig and equipment set-up and pit construction.
Continuing development obligations means a program of development or operations you conduct that, after you complete initial obligations defined in a unit agreement –
(1) Meets or exceeds the rate of non-unit operations in the vicinity of the unit; and
(2) Represents an investment proportionate to the size of the area covered by the unit agreement.
Drainage means the migration of hydrocarbons, inert gases (other than helium), or associated resources caused by production from other wells.
NPR-A lease means any oil and gas lease within the boundaries of the NPR-A, issued and administered by the United States under the Naval Petroleum Reserves Production Act of 1976, as amended (42 U.S.C. 6501-6508), that authorizes exploration for and removal of oil and gas.
Operating rights (working interest) means any interest you hold that allows you to explore for, develop, and produce oil and gas.
Participating area means those committed tracts or portions of those committed tracts within the unit area that are proven to be productive by a well meeting the productivity criteria specified in the unit agreement.
Primary target means the principal geologic formation that you intend to develop and produce.
Producible interval means any pool, deposit, zone, or portion thereof capable of producing oil or gas.
Record title means legal ownership of an oil and gas lease recorded in BLM’s records.
Tract means land that may be included in an NPR-A oil and gas unit agreement and that may or may not be in a Federal lease.
Unit agreement means a BLM-approved agreement to cooperate in exploring, developing, operating and sharing in production of all or part of an oil or gas pool, field or like area, including at least one NPR-A lease, without regard to lease boundaries and ownership.
Unit area means all tracts committed to a BLM-approved unit. Tracts not committed to the unit, even though they may be within the external unit boundary, are not part of the unit area.
Unit operations are all activities associated with exploration, development drilling, and production operations the unit operator(s) conducts on committed tracts.
General
§ 3137.10 What benefits do I receive for entering into a unit agreement?
(a) Each individual tract committed to the unit agreement meets its full performance obligation if one or more tracts in the unit meets the development or production requirements;
(b) Production from a well that meets the productivity criteria (see § 3137.82 of this subpart) under the unit agreement extends the term of all NPR-A leases committed to the unit agreement as provided in § 3137.111 of this subpart;
(c) You may drill within the unit without regard to certain lease restrictions, such as lease boundaries within the unit and spacing offsets; and
(d) You may consolidate operations and permitting and reporting requirements.
§ 3137.11 What consultation must the BLM perform if lands in the unit area are owned by a regional corporation or the State of Alaska?
If the BLM administers a unit containing tracts where the mineral estate is owned by a regional corporation or the State of Alaska, or if a proposed unit contains tracts where the mineral estate is owned by a regional corporation or the State of Alaska, the BLM will consult with and provide opportunities for participation in negotiations with respect to the creation or expansion of the unit by –
(a) The regional corporation, if the unit acreage contains the regional corporation’s mineral estate; or
(b) The State of Alaska, if the unit acreage contains the state’s mineral estate.
Application
§ 3137.15 If the Federal lands constitute less than 10 percent of the lands in the proposed unit area, is the unit agreement subject to Federal regulations or approval?
If the Federal lands constitute less than 10 percent of the lands in the proposed unit area –
(a) You may use a unit agreement approved by the State and/or a native corporation;
(b) BLM will authorize commitment of the Federal lands to the unit if it determines that the unit agreement protects the public interest; or
(c) As unit operator you may ask BLM to approve and administer the unit. If BLM agrees to approve and administer the unit, you must follow, and BLM will administer, the regulations in this subpart and 43 CFR part 3160.
§ 3137.20 Is there a standard unit agreement form?
There is no standard unit agreement form. BLM will accept any unit agreement format if it protects the public interest and includes the mandatory terms required in § 3137.21 of this subpart.
§ 3137.21 What must I include in an NPR-A unit agreement?
(a) Your NPR-A unit agreement must include –
(1) A description of the unit area and any geologic and engineering factors upon which you are basing the area;
(2) Initial and continuing development obligations (see §§ 3137.40 and 3137.41 of this subpart);
(3) The anticipated participating area size and well locations (see § 3137.80(b) of this subpart);
(4) A provision that acknowledges BLM’s authority to set or modify the quantity, rate, and location of development and production; and
(5) A provision that acknowledges the BLM consulted with and provided opportunities for participation in the creation of the unit and a provision that acknowledges that the BLM will consult with and provide opportunities for participation in the expansion of the unit by –
(A) The regional corporation, if the unit acreage contains the regional corporation’s mineral estate; or
(B) The State of Alaska, if the unit acreage contains the state’s mineral estate.
(6) Any optional terms which are authorized in § 3137.50 of this subpart that you choose to include in the unit agreement.
(b) You must include in the unit agreement any additional terms and conditions that result from consultation with BLM. After your initial application, BLM may request additional supporting documentation.
§ 3137.22 What are the size and shape requirements for a unit area?
(a) The unit area must –
(1) Consist of tracts, each of which must be contiguous to at least one other tract in the unit, that are located so that you can perform operations and production in an efficient and logical manner; and
(2) Include at least one NPR-A lease.
(b) BLM may limit the size and shape of the unit considering the type, amount and rate of the proposed development and production and the location of the oil or gas.
§ 3137.23 What must I include in my NPR-A unitization application?
Your unitization application to BLM must include –
(a) The proposed unit agreement;
(b) A map showing the proposed unit area;
(c) A list of committed tracts including, for each tract, the –
(1) Legal land description and acreage;
(2) Names of persons holding record title interest;
(3) Names of persons owning operating rights; and
(4) Name of the unit operator.
(d) A statement certifying –
(1) That you invited all owners of oil and gas rights (leased or unleased) and lease interests (record title and operating rights) within the external boundary of the unit area described in the application to join the unit;
(2) That there are sufficient tracts committed to the unit agreement to reasonably operate and develop the unit area;
(3) The commitment status of all tracts within the area proposed for unitization; and
(4) That you accept unit obligations under § 3137.60 of this subpart.
(e) Evidence of acceptable bonding;
(f) A discussion of reasonably foreseeable and significantly adverse effects on the surface resources of NPR-A and how unit operations may reduce impacts compared to individual lease operations;
(g) A discussion of the proposed methodology for allocating production among the committed tracts. If the unit includes non-Federal oil and gas mineral estate, you must explain how the methodology takes into account reservoir heterogeneity and area variation in reservoir producibility; and
(h) Other documentation BLM may request. BLM may require additional copies of maps, plats, and other similar exhibits.
§ 3137.24 Why would BLM reject a unit agreement application?
BLM will reject a unit agreement application –
(a) That does not address all mandatory terms, including those required under § 3137.21(b) of this subpart;
(b) If the unit operator –
(1) Has an unsatisfactory record of complying with applicable laws, regulations, the terms of any lease or permit, or the requirements of any notice or order; or
(2) Is not qualified to operate within NPR-A under applicable laws and regulations;
(c) That does not conserve natural resources;
(d) That is not in the public interest;
(e) That does not comply with any special conditions in effect for any part of the NPR-A that the unit or any lease subject to the unit would affect; or
(f) That does not comply with the requirements of this subpart.
§ 3137.25 How will the parties to the unit know if BLM approves the unit agreement?
BLM will notify the unit operator in writing when it approves or disapproves the proposed unit agreement. The unit operator must notify, in writing, all parties to the unit agreement within 30 calendar days after receiving BLM’s notice of approval or disapproval.
§ 3137.26 When is a unit agreement effective?
The unit agreement is effective on the date BLM approves it.
§ 3137.27 What effect do subsequent contracts or obligations have on the unit agreement?
No subsequent contract or obligation –
(a) Modifies the terms or conditions of the unit agreement; or
(b) Relieves the unit operator of any right or obligation under the unit agreement.
§ 3137.28 What oil and gas resources of committed tracts does the unit agreement include?
A unit agreement includes all oil and gas resources of committed tracts unless BLM approves unit agreement terms to the contrary pursuant to § 3137.50 of this subpart.
Development
§ 3137.40 What initial development obligations must I define in a unit agreement?
Your unit agreement must define –
(a) The number of wells you anticipate will be necessary to assess the reservoir adequately;
(b) A primary target for each well;
(c) A schedule for starting and completing drilling operations for each well; and
(d) The time between starting operations on a well to the start of operations on the next well.
§ 3137.41 What continuing development obligations must I define in a unit agreement?
A unit agreement must provide for submission of supplemental or additional plans of development which obligate the operator to a program of exploration and development (see § 3137.71 of this subpart) that, after completion of the initial obligations –
(a) Meets or exceeds the rate of non-unit operations in the vicinity of the unit; and
(b) Represents an investment proportionate to the size of the area covered by the unit agreement.
Optional Terms
§ 3137.50 What optional terms may I include in a unit agreement?
BLM may approve the following optional terms for a unit agreement if they promote additional development or enhanced production potential –
(a) Limiting the unit agreement to certain formations and their intervals;
(b) Multiple unit operators (see § 3137.51 of this subpart);
(c) Allowing modification of the unit agreement terms if less than 100 percent of the parties to the unit agreement (see § 3137.52 of this subpart) agree to the modification; or
(d) Other terms that BLM determines will promote the greatest economic recovery of oil and gas consistent with applicable law.
§ 3137.51 Under what conditions does BLM permit multiple unit operators?
BLM permits multiple unit operators only if the unit agreement defines –
(a) The conditions under which additional unit operators are acceptable;
(b) The responsibilities of the different operators, including obtaining BLM approvals, reporting, paying Federal royalties and conducting operations;
(c) Which unit operators are obligated to ensure bond coverage for each NPR-A lease in the unit;
(d) The consequences if one or more unit operators defaults. For example, if an operator defaults, the unit agreement would list which unit operators would conduct that operator’s operations and ensure bonding of those operations; and
(e) Which unit operator is responsible for unit obligations not specifically assigned in the unit agreement.
§ 3137.52 How may I modify the unit agreement?
(a) You may modify a unit agreement if –
(1) All current parties to the unit agreement agree to the modification; or
(2) You meet the requirements of the modification provision in the unit agreement. The modification provision must identify which parties, and what percentage of those parties, must consent to each type of modification.
(b) You must submit to BLM an application for modification. The application must include the following –
(1) The operator must certify that the necessary parties have agreed to the modification; and
(2) If the unit agreement modification alters the current allocation schedule, you must submit to BLM both a –
(i) Description of the new allocation methodology; and
(ii) New allocation schedule.
(c) A modification is not effective unless BLM approves it. After BLM approves the modification, it is effective retroactively to the date you filed a complete application for modification. However, BLM may approve a different effective date if you request it and provide acceptable justification.
(d) BLM will reject modifications that do not comply with BLM regulations or applicable law.
Unit Agreement Operating Requirements
§ 3137.60 As the unit operator, what are my obligations?
As the unit operator –
(a) You must comply with the terms and conditions of the unit agreement, Federal laws and regulations, lease terms and stipulations, and BLM notices and orders;
(b) You must provide to BLM evidence of acceptable bonding. Acceptable bonding means a bond in an amount which is no less than the sum of the individual Federal bonding requirements for each of the NPR-A leases committed to the unit. You may also meet this requirement if you add the unit operator as a principal to lease bonds to reach the required amount; and
(c) The bond must be payable to the Secretary of the Interior.
§ 3137.61 How do I change unit operators?
(a) To change unit operators, the new unit operator must submit to BLM –
(1) Statements that –
(i) It accepts unit obligations; and
(ii) The percentage of required interest owners consented to a change of unit operator; and
(2) Evidence of acceptable bonding (see § 3137.60(b) of this subpart).
(b) The effective date of the change in unit operator is the date BLM approves the new unit operator.
§ 3137.62 What are my liabilities as a former unit operator?
You are responsible for all duties and obligations of the unit agreement that accrued while you were unit operator up to the date BLM approves a new unit operator.
§ 3137.63 What are my liabilities after BLM approves me as the new unit operator?
(a) After BLM approves the change in unit operator, you, as the new unit operator, assume full liability, jointly and severally with the record title and operating rights owners, except as otherwise provided in paragraph (c) of this section and to the extent permitted by law, for –
(1) Compliance with the terms and conditions of the unit agreement, Federal laws and regulations, lease terms and stipulations, and BLM notices and orders;
(2) Plugging unplugged wells and reclaiming unreclaimed facilities that were installed or used before the effective date of the change in unit operator (this liability is joint and several with the former unit operator); and
(3) Those liabilities accruing during the time you are unit operator.
(b) Your liability includes, but is not limited to –
(1) Rental and royalty payments;
(2) Protecting the unit from loss due to drainage as provided in § 3137.64 of this subpart;
(3) Well plugging and abandonment;
(4) Surface reclamation;
(5) All environmental remediation or restoration required by law, regulations, lease terms, or conditions of approval; and
(6) Other requirements related to unit operations.
(c) Your liability for royalty and other payments on the unit is limited by section 102(a) of the Federal Oil and Gas Royalty Management Act of 1982, as amended (30 U.S.C. 1712(a)).
§ 3137.64 As a unit operator, what must I do to prevent or compensate for drainage?
You must prevent uncompensated drainage of oil and gas from unit land by wells on land not subject to the unit agreement. Permissible means of satisfying the obligation include –
(a) Drilling a protective well if it is economically feasible. For this subpart, economically feasible means producing a sufficient quantity of oil or gas from a protective well in the unit for a reasonable profit above the cost of drilling, completing and operating the protective well;
(b) Paying compensatory royalty;
(c) Forming other agreements, or modifying existing agreements, that allow the tracts committed to the unit agreement to share in production after the effective date of the new or modified agreement; or
(d) BLM may require additional measures to prevent uncompensated drainage.
Development Requirements
§ 3137.70 What must I do to meet initial development obligations?
(a) To meet initial development obligations by the time specified in your unit agreement you must –
(1) Drill the required test well(s) to the primary target;
(2) Drill at least one well that meets the productivity criteria (see § 3137.82 of this subpart); or
(3) Establish, to BLM’s satisfaction, that further drilling to meet the productivity criteria is unwarranted or impracticable.
(b) You must certify to BLM that you met initial development obligations no later than 60 calendar days after meeting the obligations. BLM may require you to supply documentation that supports your certification.
§ 3137.71 What must I do to meet continuing development obligations?
(a) Once you meet initial development obligations, you must perform additional development. Work you did before meeting initial development obligations is not continuing development. Continuing development includes the following operations –
(1) Drilling, testing, or completing additional wells to the primary target or other unit formations;
(2) Drilling or completing additional wells that establish production of oil and gas;
(3) Recompleting wells or other operations that establish new unit production; or
(4) Drilling existing wells to a deeper target.
(b) No later than 90 calendar days after meeting initial development obligations, submit to BLM a plan that describes how you will meet continuing development obligations. You must submit to BLM updated continuing obligation plans as soon as you determine that, for whatever reason, the plan needs amending.
(1) If you have drilled a well that meets the productivity criteria, your plan must describe the activities to fully develop the oil and gas field.
(2) If you fulfilled your initial development obligations, but did not establish a well that meets the productivity criteria, your plan must describe the further actual or constructive drilling operations you will conduct.
§ 3137.72 What if reasons beyond my control prevent me from meeting the initial or a continuing development obligation by the time the unit agreement specifies?
(a) If reasons beyond your control prevent you from meeting the initial or a continuing development obligation by the time specified in the unit agreement, you may apply to BLM for an extension of time for meeting those obligations. You must submit the request for an extension of time before the date the obligation is due to be met. In the application-
(1) State the obligation for which you are requesting an extension;
(2) List the reasons beyond your control that prevent you from performing the obligation; and
(3) State when you expect the reasons beyond your control to terminate.
(b) BLM will grant an extension of time to meet initial or continuing development obligations if we determine that-
(1) The extension encourages the greatest ultimate recovery of oil or gas or it is in the interest of conservation; and
(2) The reasons beyond your control prevent you from performing the initial or a continuing development obligation.
(c) The extension of time for performing the initial or a continuing development obligation will continue for so long as the conditions giving rise to the extension continue to exist.
§ 3137.73 What will BLM do after I submit a plan to meet continuing development obligations?
Within 30 calendar days after receiving your proposed plan, BLM will notify you in writing that we –
(a) Approved your plan;
(b) Rejected your plan and explain why. This will include an explanation of how you should correct the plan to come into compliance; or
(c) Have not acted on the plan, explaining the reasons and when you can expect a final response.
§ 3137.74 What must I do after BLM approves my continuing development obligations plan?
No later than 90 calendar days after BLM’s approval of your plan submitted under 3137.71(b), you must certify to BLM that you started operations to fulfill your continuing development obligations. BLM may require you to –
(a) Supply documentation to support your certification; and
(b) Submit periodic reports that demonstrate continuing development.
§ 3137.75 May I perform additional development outside established participating areas to fulfill continuing development obligations?
You may perform additional development either within or outside a participating area, depending on the terms of the unit agreement.
§ 3137.76 What happens if I do not meet a continuing development obligation?
(a) After you establish a participating area, if you do not meet a continuing development obligation and BLM has not granted you an extension of time to meet the obligation, the unit contracts. This means that –
(1) All areas within the unit that do not have participating areas established are eliminated from the unit. Any eliminated areas are subject to their original lease terms; and
(2) Only established participating areas, whether they are actually producing or not, remain in the unit.
(b) Units contract effective the first day of the month after the date on which the unit agreement required the continuing development obligations to begin.
(c) If you do not meet a continuing development obligation before you establish a participating area, the unit terminates (see § 3137.132 of this subpart).
Participating Areas
§ 3137.80 What are participating areas and how do they relate to the unit agreement?
(a) Participating areas are those committed tracts or portions of those committed tracts within the unit area that are proven to be productive by a well meeting the productivity criteria specified in the unit agreement.
(b) You must include a description of the anticipated participating area(s) size in the unit agreement for planning purposes to aid in the mitigation of reasonably foreseeable and significantly adverse effects on NPR-A surface resources. The unit agreement must define the proposed participating areas. Your proposed participating area may be limited to separate producible intervals or areas.
(c) At the time you meet the productivity criteria discussed in § 3137.82 of this subpart, you must delineate those participating areas.
§ 3137.81 What is the function of a participating area?
(a) The function of a participating area is to allocate production to each committed tract within a participating area. The BLM will allocate production for royalty purposes to each committed tract within the participating area using the allocation methodology agreed to in the unit agreement (see § 3137.23(g) of this subpart).
(b) For exploratory and primary recovery operations, BLM will consider gas cycling and pressure maintenance wells when establishing participating area boundaries.
(c) For secondary and tertiary recovery operations, BLM will consider all wells that contribute to production when establishing participating area boundaries.
§ 3137.82 What are productivity criteria?
(a) Productivity criteria are characteristics of a unit well that warrant including a defined area surrounding the well in a participating area. The unit agreement must define these criteria for each separate producible interval. You must be able to determine whether you meet the criteria when the well is drilled and you complete well testing, after a reasonable period of time to analyze new data.
(b) To meet the productivity criteria, the well must indicate future production potential sufficient to pay for the costs of drilling, completing, and operating the well on a unit basis.
(c) BLM will consider wells that contribute to unit production (e.g., pressure maintenance, gas cycling) when setting the participating area boundaries as provided in § 3137.81(b) and (c) of this subpart.
§ 3137.83 What establishes a participating area?
The first well you drill meeting the productivity criteria after the unit agreement is formed establishes an initial participating area. When you establish an initial participating area, lands that contain previously existing wells in the unit meeting the productivity criteria (see § 3137.82 of this subpart), will –
(a) Be added to that initial participating area as a revision, if the well is completed in the same producible interval; or
(b) Become a separate participating area, if the well is completed in a different producible interval (see also § 3137.88 of this subpart for wells that do not meet the productivity criteria).
§ 3137.84 What must I submit to BLM to establish a new participating area, or modify an existing participating area?
To establish a new participating area or modify an existing participating area, you must submit to BLM a –
(a) Statement that –
(1) The well meets the productivity criteria (see § 3137.82 of this subpart), necessary to establish a new participating area. You must submit information supporting your statement; or
(2) Explains the reasons for modifying an existing participating area. You must submit information supporting your explanation;
(b) Map showing the new or revised participating area and acreage; and
(c) Schedule that establishes the production allocation for each NPR-A lease or tract, and each record title holder and operating rights owner in the participating area. You must submit a separate allocation schedule for each participating area.
§ 3137.85 What is the effective date of a participating area?
(a) The effective date of an initial participating area is the first day of the month in which you complete a well meeting the productivity criteria, but no earlier than the effective date of the unit.
(b) The effective date of a modified participating area or modified allocation schedule is the earlier of the first day of the month in which you file the proposal for a modification or such other effective date as may be provided for in the unit agreement and approved by the BLM, but no earlier than the effective date of the unit.
§ 3137.86 What happens to a participating area when I obtain new information demonstrating that the participating area should be larger or smaller than previously determined?
(a) If you obtain new information demonstrating that the participating area should be larger than BLM previously determined, within 60 calendar days of obtaining the information, you must –
(1) File a statement, map and revised production allocation schedule under § 3137.84 of this subpart requesting addition to the participating area of all committed tracts or portions of committed tracts in the unit area that meet the productivity criteria;
(2) If the proposed expanded participating area is outside the existing unit boundaries, invite all owners of oil and gas rights (leased or unleased) and lease interests (record title and operating rights) in such additional land to join the unit. If the owners of oil and gas rights in any tract of such land join the unit, you must submit to BLM –
(i) An application to enlarge the unit to include the expanded area;
(ii) A map showing the expanded area of the unit and the information with respect to each additional committed tract you proposed to add to the unit specified in § 3137.23(c) of this subpart; and
(iii) A revised allocation schedule; and
(3) If any additional committed tract or tracts are added to the unit under paragraph (a)(2) of this section, you must file a statement, map and revised production allocation schedule under § 3137.84 of this subpart requesting addition to the participating area of all such committed tracts or portions of such committed tracts in the unit area meeting the productivity criteria.
(b) If you obtain information demonstrating that the participating area should be smaller than previously determined, within 60 calendar days of obtaining the information, you must file a statement, map and revised production allocation schedule under § 3137.84 of this subpart requesting removal from the participating area of all land that does not meet the productivity criteria.
§ 3137.87 What must I do if there are unleased Federal tracts in a participating area?
If there are unleased Federal tracts in a participating area, you must –
(a) Include the unleased Federal tracts in the participating area, even though BLM will not share in unit costs;
(b) Allocate production for royalty purposes as if the unleased Federal tracts were leased and committed to the unit agreement under § 3137.100 of this subpart;
(c) Admit Federal tracts leased after the effective date of the unit agreement into the unit agreement on the date the lease is effective; and
(d) Submit to BLM revised maps, a list of committed leases, and allocation schedules that reflect the commitment of the newly leased Federal tracts to the unit.
§ 3137.88 What happens when a well outside a participating area does not meet the productivity criteria?
If a well outside any of the established participating area(s) does not meet the productivity criteria, all operations on that well are non-unit operations and we will not revise the participating area. You must notify BLM within 60 calendar days after you determine a well does not meet the productivity criteria. You must conduct non-unit operations under the terms of the underlying lease or other federally-approved cooperative oil and gas agreements.
§ 3137.89 How does production allocation occur from wells that do not meet the productivity criteria?
(a) If a well that does not meet the productivity criteria was drilled before the unit was formed, the production is allocated on a lease or other federally-approved oil and gas agreement basis. You must pay and report the royalties from any such well either as specified in the underlying lease or other federally-approved oil and gas agreements.
(b) If you drilled a well after the unit was formed and the well is completed within an existing participating area, the production becomes a part of that participating area production even if it does not meet the productivity criteria. BLM may require the participating area to be revised under § 3137.84 of this subpart.
(c) If a well not meeting the productivity criteria is outside a participating area, the production is allocated as provided in paragraph (a) of this section.
§ 3137.90 Who must operate wells that do not meet the productivity criteria?
(a) If a well not meeting the productivity criteria was drilled before the unit was formed and is not included in the participating area, the operator of the well at the time the unit was formed may continue as operator.
(b) As unit operator, you must continue to operate wells drilled after unit formation not meeting the productivity criteria unless BLM approves a change in the designation of operator for those wells.
§ 3137.91 When will BLM allow a well previously determined to be a non-unit well to be used in establishing or modifying a PA?
If you, as the unit operator, complete sufficient work so that a well BLM previously determined to be a non-unit well now meets the productivity criteria, you must demonstrate this to BLM within 60 calendar days after you determine that the well meets the productivity criteria. You must then modify an existing participating area or establish a new participating area (see § 3137.84 of this subpart).
§ 3137.92 When does a participating area terminate?
(a) After contraction under § 3137.76 of this subpart, a participating area terminates 60 calendar days after BLM notifies you that there is insufficient production to meet the operating costs of that production, unless you show that within 60 calendar days after BLM’s notification –
(1) Your operations to restore or establish new production are in progress; and
(2) You are diligently pursuing oil or gas production.
(b) If you demonstrate to BLM that reasons beyond your control prevent you, despite reasonable diligence, from meeting the requirements in paragraphs (a)(1) and (a)(2) of this section within 60 calendar days after BLM notifies you that there is insufficient production to meet the operating costs of that production, BLM will extend the period of time to start those operations.
Production Allocation
§ 3137.100 How must I allocate production to the United States when a participating area includes unleased Federal lands?
(a) When a participating area includes unleased Federal lands, you must allocate production as if the unleased Federal lands were leased and committed to the unit agreement (see §§ 3137.80 and 3137.81 of this subpart). The obligation to pay royalty for production attributable to unleased Federal lands accrues from the later of the date the –
(1) Committed leases in the participating area that includes unleased Federal lands receive a production allocation; or
(2) Previously leased tracts within the participating area become unleased.
(b) The royalty rate applicable to production allocated to unleased Federal lands is the greater of 12
(c) The value of the production must be determined under the Minerals Management Service’s oil and gas product value regulations at 30 CFR part 206.
Obligations and Extensions
§ 3137.110 Do the terms and conditions of a unit agreement modify Federal lease stipulations?
A unit agreement does not modify Federal lease stipulations.
§ 3137.111 When will BLM extend the primary term of all leases committed to a unit agreement or renew all leases committed to a unit agreement?
If the unit operator requests it, the BLM will extend the primary term of all NPR-A leases committed to a unit agreement or renew the leases committed to a unit agreement if any committed lease within the unit is extended or renewed under § 3135.1-5 or § 3135.1-6. If the BLM approves a lease renewal under § 3135.1-6(b), the BLM will require a renewal fee of $100 per acre for each lease in the unit that is renewed.
§ 3137.112 What happens if I am prevented from performing actual or constructive drilling or reworking operations?
(a) If you demonstrate to BLM that reasons beyond your control prevent you, despite reasonable diligence, from starting actual or constructive drilling, reworking, or completing operations, BLM will extend all committed NPR-A leases as if you were performing constructive or actual drilling or reworking operations. You are limited to two extensions under this section.
(b) You must resume actual or constructive drilling or reworking operations when conditions permit. If you do not resume operations –
(1) BLM will cancel the extension; and
(2) The unit terminates (see § 3137.131 of this subpart).
Change in Ownership
§ 3137.120 As a transferee of an interest in a unitized NPR-A lease, am I subject to the terms and conditions of the unit agreement?
As a transferee of an interest in an NPR-A lease that is included in a unit agreement, you are subject to the terms and conditions of the unit agreement.
Unit Termination
§ 3137.130 Under what circumstances will BLM approve a voluntary termination of the unit?
BLM will approve the voluntary termination of the unit at any time –
(a) Before the unit operator discovers production sufficient to establish a participating area; and
(b) The unit operator submits to BLM certification that at least 75 percent of the operating rights owners in the unit agreement, on a surface acreage basis, agree to the termination.
§ 3137.131 What happens if the unit terminated before the unit operator met the initial development obligations?
If the unit terminated before the unit operator met the initial development obligations, BLM’s approval of the unit agreement is revoked. You, as lessee, forfeit all further benefits, including extensions and suspensions, granted any NPR-A lease because of having been committed to the unit. Any lease that the BLM extended because of being committed to the unit would expire unless it had been granted an extension or renewal under § 3135.1-5 or § 3135.1-6.
§ 3137.132 What if I do not meet a continuing development obligation before I establish any participating area in the unit?
If you do not meet a continuing development obligation before you establish any participating area, the unit terminates automatically. Termination is effective the day after you did not meet a continuing development obligation.
§ 3137.133 After participating areas are established, when does the unit terminate?
After participating areas are established, the unit terminates when the last participating area of the unit terminates (see § 3137.92 of this subpart).
§ 3137.134 What happens to committed leases if the unit terminates?
(a) If the unit terminates, all committed NPR-A leases return to individual lease status and are subject to their original provisions.
(b) An NPR-A lease that has completed its primary term on or before the date the unit terminates will expire unless it is granted an extension or renewal under § 3135.1-5 or § 3135.1-6.
§ 3137.135 What are the unit operator’s obligations after unit termination?
Within three months after unit termination, the unit operator must submit to BLM for approval a plan and schedule for mitigating the impacts resulting from unit operations. The plan must describe in detail planned plugging and abandonment and surface restoration operations. The unit operator must then comply with the BLM-approved plan and schedule.
Appeals
§ 3137.150 How do I appeal a decision that BLM issues under this subpart?
(a) You may file for a State Director Review (SDR) of a decision BLM issues under this subpart. Part 3160, subpart 3165 of this title contains regulations on SDR; or
(b) If you are adversely affected by a BLM decision under this subpart you may directly appeal the decision under parts 4 and 1840 of this title.
Subpart 3138 – Subsurface Storage Agreements in the National Petroleum Reserve-Alaska (NPR-A)
§ 3138.10 When will BLM enter into a subsurface storage agreement in NPR-A covering federally-owned lands?
BLM will enter into a subsurface storage agreement in NPR-A covering federally-owned lands to allow you to use either leased or unleased federally-owned lands for the subsurface storage of oil and gas, whether or not the oil or gas you intend to store is produced from federally-owned lands, if you demonstrate that storage is necessary to –
(a) Avoid waste; or
(b) Promote conservation of natural resources.
§ 3138.11 How do I apply for a subsurface storage agreement?
(a) You must submit an application to BLM for a subsurface storage agreement that includes –
(1) The reason for forming a subsurface storage agreement;
(2) A description of the area you plan to include in the subsurface storage agreement;
(3) A description of the formation you plan to use for storage;
(4) The proposed storage fees or rentals. The fees or rentals must be based on the value of the subsurface storage, injection, and withdrawal volumes, and rental income or other income generated by the operator for letting or subletting the storage facilities;
(5) The payment of royalty for native oil or gas (oil or gas that exists in the formation before injection and that is produced when the stored oil or gas is withdrawn);
(6) A description of how often and under what circumstances you and BLM intend to renegotiate fees and payments;
(7) The proposed effective date and term of the subsurface storage agreement;
(8) Certification that all owners of mineral rights (leased or unleased) and lease interests have consented to the gas storage agreement in writing;
(9) An ownership schedule showing lease or land status;
(10) A schedule showing the participation factor for all parties to the subsurface storage agreement; and
(11) Supporting data (geologic maps showing the storage formation, reservoir data, etc.) demonstrating the capability of the reservoir for storage.
(b) BLM will negotiate the terms of a subsurface storage agreement with you, including bonding, and reservoir management.
(c) BLM may request documentation in addition to that which you provide under paragraph (a) of this section.
§ 3138.12 What must I pay for storage?
You must pay any combination of storage fees, rentals, or royalties to which you and BLM agree. The royalty you pay on production of native oil and gas from leased lands will be the royalty required by the underlying lease(s).
PART 3140 – LEASING IN SPECIAL TAR SAND AREAS
Subpart 3140 – Conversion of Existing Oil and Gas Leases and Valid Claims Based on Mineral Locations
§ 3140.0-1 Purpose.
The purpose of this subpart is to provide for the conversion of existing oil and gas leases and valid claims based on mineral locations within Special Tar Sand Areas to combined hydrocarbon leases.
§ 3140.0-3 Authority.
These regulations are issued under the authority of the Mineral Lands Leasing Act of February 25, 1920 (30 U.S.C. 181 et seq.), the Mineral Leasing Act for Acquired Lands (30 U.S.C. 351 et seq.), and the Combined Hydrocarbon Leasing Act of 1981 (Pub. L. 97-78).
§ 3140.0-5 Definitions.
As used in this subpart, the term:
(a) Combined hydrocarbon lease means a lease issued in a Special Tar Sand Area for the removal of gas and nongaseous hydrocarbon substances other than coal, oil shale or gilsonite.
(b) A complete plan of operations means a plan of operations that is in substantial compliance with the information requirements of 43 CFR 3592 for both exploration plans and mining plans, as well as any additional information required in this part and under 43 CFR 3593, as may be appropriate.
(c) Special Tar Sand Area means an area designated by the Department of the Interior’s orders of November 20, 1980 (45 FR 76800), and January 21, 1981 (46 FR 6077) referred to in those orders as Designated Tar Sand Areas, as containing substantial deposits of tar sand.
(d) Owner of an oil and gas lease means all of the record title holders of an oil gas lease.
(e) Owner of a valid claim based on a mineral location means all parties appearing on the title records recognized as official under State law as having the right to sell or transfer any part of the mining claim, which was located within a Special Tar Sand Area prior to January 21, 1926, for any hydrocarbon resource, except coal, oil shale or gilsonite, leasable under the Combined Hydrocarbon Leasing Act.
(f) Unitization means unitization as that term is defined in 43 CFR part 3180.
§ 3140.1 General provisions.
§ 3140.1-1 Existing rights.
(a) The owner of an oil and gas lease issued prior to November 16, 1981, or the owner of a valid claim based on a mineral location situated within a Special Tar Sand Area may convert that portion of the lease or claim so situated to a combined hydrocarbon lease, provided that such conversion is consistent with the provisions of this subpart.
(b) Owners of oil and gas leases in Special Tar Sand Areas who elect not to convert their leases to a combined hydrocarbon lease do not acquire the rights to any hydrocarbon resource except oil and gas as those terms were defined prior to the enactment of the Combined Hydrocarbon Leasing Act of 1981. The failure to file an application to convert a valid claim based on a mineral location within the time herein provided shall have no effect on the validity of the mining claim nor the right to maintain that claim.
§ 3140.1-2 Notice of intent to convert.
(a) Owners of oil and gas leases in Special Tar Sand Areas which are scheduled to expire prior to the effective date of these regulations or within 6 months thereafter, may preserve the right to convert their leases to combined hydrocarbon leases by filing a Notice of Intent to Convert with the State Director, Utah State Office, Bureau of Land Management, 136 E. South Temple, Salt Lake City, Utah 84111.
(b) A letter, submitted by the lessee, notifying the Bureau of Land Management of the lessee’s intention to submit a plan of operations shall constitute a notice of intent to convert a lease. The Notice of Intent shall contain the lease number.
(c) The Notice of Intent shall be filed prior to the expiration date of the lease. The notice shall preserve the lessee’s conversion rights only for a period ending 6 months after the effective date of this subpart.
§ 3140.1-3 Exploration plans.
(a) The authorized officer may grant permission to holders of existing oil and gas leases to gather information to develop, perfect, complete or amend a plan of operations required for conversion upon the approval of the authorized officer of an exploration plan developed in accordance with 43 CFR 3592.1.
(b) The approval of an exploration plan in units of the National Park System requires the consent of the Regional Director of the National Park Service in accordance with § 3140.7 of this title.
(c) The filing of an exploration plan alone shall be insufficient to meet the requirements of a complete plan of operations as set forth in § 3140.2-3 of this title.
§ 3140.1-4 Other provisions.
(a) A combined hydrocarbon lease shall be for no more than 5,760 acres. Acreage held under a combined hydrocarbon lease in a Special Tar Sand Area is not chargeable to State oil and gas limitations allowable in § 3101.2 of this title.
(b) The rental rate for a combined hydrocarbon lease shall be $2 per acre per year and shall be payable annually in advance.
(c)(1) The royalty rate for a combined hydrocarbon lease converted from an oil and gas lease shall be that provided for in the original oil and gas lease.
(2) The royalty rate for a combined hydrocarbon lease converted from a valid claim based on a mineral location shall be 12
(3) A reduction of royalties may be granted either as provided in § 3103.4 of this title or, at the request of the lessee and upon a review of information provided by the lessee, prior to commencement of commercial operations if the purpose of the request is to promote development and the maximum production of tar sand.
(d)(1) Existing oil and gas leases and valid claims based on mineral locations may be unitized prior to or after the lease or claim has been converted to a combined hydrocarbon lease. The requirements of 43 CFR part 3180 shall provide the procedures and general guidelines for unitization of combined hydrocarbon leases. For leases within units of the National Park System, unitization requires the consent of the Regional Director of the National Park Service in accordance with § 3140.4-1(b) of this title.
(2) If the plan of operations submitted for conversion is designed to cover a unit, a fully executed unit agreement shall be approved before the plan of operations applicable to the unit may be approved under § 3140.2 of this title. The proposed plan of operations and the proposed unit agreement may be reviewed concurrently. The approved unit agreement shall be effective after the leases or claims subject to it are converted to combined hydrocarbon leases. The plan of operations shall explain how and when each lease included in the unit operation will be developed.
(e) Except as provided for in this subpart, the regulations set out in part 3100 of this title are applicable, as appropriate, to all combined hydrocarbon leases issued under this subpart.
§ 3140.2 Applications.
§ 3140.2-1 Forms.
No special form is required for a conversion application.
§ 3140.2-2 Who may apply.
Only owners of oil and gas leases issued within Special Tar Sands Areas, on or before November 16, 1981, and owners of valid claims based on mineral locations within Special Tar Sands Areas, are eligible to convert leases or claims to combined hydrocarbon leases in Special Tar Sands Areas.
§ 3140.2-3 Application requirements.
(a) The applicant shall submit to the State Director, Utah State Office of the Bureau of Land Management, a written request for a combined hydrocarbon lease signed by the owner of the lease or valid claim which shall be accompanied by 3 copies of a plan of operations which shall meet the requirements of 43 CFR 3592.1 and which shall provide for reasonable protection of the environment and diligent development of the resources requiring enhanced recovery methods of development or mining.
(b) A plan of operations may be modified or amended before or after conversion of a lease or valid claim to reflect changes in technology, slippages in schedule beyond the control of the lessee, new information about the resource or the economic or environmental aspects of its development, changes to or initiation of applicable unit agreements or for other purposes. To obtain approval of a modification or amended plan, the applicant shall submit a written statement of the proposed changes or supplements and the justification for the changes proposed. Any modifications shall be in accordance with 43 CFR 3592.1(c). The approval of the modification or amendment is the responsibility of the authorized officer. Changes or modification to the plan of operations shall have no effect on the primary term of the lease. The authorized officer shall, prior to approving any amendment or modification, review the modification or amendment with the appropriate surface management agency. For leases within units of the National Park System, no amendment or modification shall be approved without the consent of the Regional Director of the National Park Service in accordance with § 3140.7 of this title.
(c) The plan of operations may be for a single existing oil and gas lease or valid claim or for an area of proposed unit operation.
(d) The plan of operations shall identify by lease number all Federal oil and gas leases proposed for conversion and identify valid claims proposed for conversion by the recordation number of the mining claim.
(e) The plan of operations shall include any proposed designation of operator or proposed operating agreement.
(f) The plan of operations may include an exploration phase, if necessary, but it shall include a development phase. Such a plan can be approved even though it may indicate work under the exploration phase is necessary to perfect the proposed plan for the development phase as long as the overall plan demonstrates reasonable protection of the environment and diligent development of the resources requiring enhanced recovery methods of mining.
(g)(1) Upon determination that the plan of operations is complete, the authorized officer shall suspend the term of the Federal oil and gas lease(s) as of the date that the complete plan was filed until the plan is finally approved or rejected. Only the term of the oil and gas lease shall be suspended, not any operation and production requirements thereunder.
(2) If the authorized officer determines that the plan of operations is not complete, the applicant shall be notified that the plan is subject to rejection if not completed within the period specified in the notice.
(3) The authorized officer may request additional data after the plan of operations has been determined to be complete. This request for additional information shall have no effect on the suspension of the running of the oil and gas lease.
§ 3140.3 Time limitations.
§ 3140.3-1 Conversion applications.
A plan of operations to convert an existing oil and gas lease or valid claim based on a mineral location to a combined hydrocarbon lease shall be filed on or before November 15, 1983, or prior to the expiration of the oil and gas lease, whichever is earlier, except as provided in § 3140.1-2 of this title.
§ 3140.3-2 Action on an application.
The authorized officer shall take action on an application for conversion within 15 months of receipt of a proposed plan of operations.
§ 3140.4 Conversion.
§ 3140.4-1 Approval of plan of operations (and unit and operating agreements).
(a) The owner of an oil and gas lease, or the owner of a valid claim based on a mineral location shall have such lease or claim converted to a combined hydrocarbon lease when the plan of operations, filed under § 3140.2 of this title, is deemed acceptable and is approved by the authorized officer.
(b) The conversion of a lease within a unit of the National Park System shall be approved only with the consent of the Regional Director of the National Park Service in accordance with § 3140.7 of this title.
(c) A plan of operations may not be approved in part but may be approved where it contains an appropriately staged plan of exploration and development operations.
§ 3140.4-2 Issuance of the combined hydrocarbon lease.
(a) After a plan of operations is found acceptable, and is approved, the authorized officer shall prepare and submit to the owner, for execution, a combined hydrocarbon lease containing all appropriate terms and conditions, including any necessary stipulations that were part of the oil and gas lease being converted, as well as any additional stipulations, such as those required to ensure compliance with the plan of operations.
(b) The authorized officer shall not sign the combined hydrocarbon lease until it has been executed by the conversion applicant and the lease or claim to be converted has been formally relinquished to the United States.
(c) The effective date of the combined hydrocarbon lease shall be the first day of the month following the date that the authorized officer signs the lease.
(d)(1) Except to the extent that any such lease would exceed 5,210 acres, the authorized officer may issue, upon the request of the applicant, 1 combined hydrocarbon lease to cover contiguous oil and gas leases or valid claims based on mineral locations which have been approved for conversion.
(2) To the extent necessary to promote the development of the resource, the authorized officer may issue, upon the request of the applicant, one combined hydrocarbon lease that does not exceed 5,760 acres, which shall be as nearly compact as possible, to cover non-contiguous oil and gas leases or valid claims which have been approved for conversion.
§ 3140.5 Duration of the lease.
A combined hydrocarbon lease shall be for a primary term of 10 years and for so long thereafter as oil or gas is produced in paying quantities.
§ 3140.6 Use of additional lands.
(a) The authorized officer may noncompetitively lease additional lands for ancillary facilities in a Special Tar Sand Area that are needed to support any operations necessary for the recovery of tar sand. Such uses include, but are not limited to, mill site or waste disposal. Application for a lease or permit to use additional lands shall be filed under the provisions of part 2920 of this title with the proper BLM office having jurisdiction of the lands. The application for additional lands may be filed at the time a plan of operations is filed.
(b) A lease for the use of additional lands shall not be issued when the use can be authorized under parts 2800 and 2880 of this title. Such uses include, but are not limited to, reservoirs, pipelines, electrical generation systems, transmission lines, roads, and railroads.
(c) Within units of the National Park System, permits or leases for additional lands shall only be issued by the National Park Service. Applications for such permits or leases shall be filed with the Regional Director of the National Park Service.
§ 3140.7 Lands within the National Park System.
Conversions of existing oil and gas leases and valid claims based on mineral locations to combined hydrocarbon leases within units of the National Park System shall be allowed only where mineral leasing is permitted by law and where the lands covered by the lease or claim proposed for conversion are open to mineral resource disposition in accordance with any applicable minerals management plan. (See 43 CFR 3100.0-3 (g)(4)). In order to consent to any conversion or any subsequent development under a combined hydrocarbon lease requiring further approval, the Regional Director of the National Park Service shall find that there will be no resulting significant adverse impacts on the resources and administration of such areas or on other contiguous units of the National Park System in accordance with § 3109.2(b) of this title.
Subpart 3141 – Leasing in Special Tar Sand Areas
The information collection requirements contained in 43 CFR subpart 3141 do not require approval by the Office of Management and Budget under 44 U.S.C. 3501 et seq. because there are fewer than 10 respondents annually.
§ 3141.0-1 Purpose.
The purpose of this subpart is to provide for the competitive leasing of lands and issuance of Combined Hydrocarbon Leases, Oil and Gas Leases, or Tar Sand Leases within special tar sand areas.
§ 3141.0-3 Authority.
The regulations in this subpart are issued under the authority of the Mineral Leasing Act of February 25, 1920 (30 U.S.C. 181 et seq.), the Mineral Leasing Act for Acquired Lands (30 U.S.C. 351 et seq.), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), the Combined Hydrocarbon Leasing Act of 1981 (95 Stat. 1070), and the Energy Policy Act of 2005 (Pub. L. 109-58).
§ 3141.0-5 Definitions.
As used in this subpart, the term:
(a) Combined hydrocarbon lease means a lease issued in a Special Tar Sand Area for the removal of any gas and nongaseous hydrocarbon substance other than coal, oil shale or gilsonite.
(b) For purposes of this subpart, “oil and gas lease” means a lease issued in a Special Tar Sand Area for the exploration and development of oil and gas resources other than tar sand.
(c) Tar sand lease means a lease issued in a Special Tar Sand area exclusively for the exploration for and extraction of tar sand.
(d) Special Tar Sand Area means an area designated by the Department of the Interior’s Orders of November 20, 1980 (45 FR 76800), and January 21, 1981 (46 FR 6077), and referred to in those orders as Designated Tar Sand Areas, as containing substantial deposits of tar and sand.
(e) Tar sand means any consolidated or unconsolidated rock (other than coal, oil shale or gilsonite) that either: (1) Contains a hydrocarbonaceous material with a gas-free viscosity, at original reservoir temperature greater than 10,000 centipoise, or (2) contains a hydrocarbonaceous material and is produced by mining or quarrying.
§ 3141.0-8 Other Applicable Regulations.
(a) Combined hydrocarbon leases. (1) The following provisions of part 3100 of this title, as they relate to competitive leasing, apply to the issuance and administration of combined hydrocarbon leases issued under this part.
(i) All of subpart 3100, with the exception of § 3100.3-2;
(ii) The following sections of subpart 3101: §§ 3101.1-1, 3101.2-1, 3101.2-2, 3101.2-4, 3101.2-5, 3101.7-1, 3101.7-2, and 3101.7-3;
(iii) All of subpart 3102;
(iv) All of subpart 3103, with the exception of §§ 3103.2-1, those portions of 3103.2-2 dealing with noncompetitive leases, and 3103.3-1 (a), (b), and (c);
(v) All of subpart 3104;
(vi) All of subpart 3105;
(vii) All of subpart 3106, with the exception of § 3106.1 (c);
(viii) All of subpart 3107, with the exception of § 3107.7;
(ix) All of subpart 3108; and
(x) All of subpart 3109, with special emphasis on § 3109.2 (b).
(2) Prior to commencement of operations, the lessee shall develop either a plan of operations as described in 43 CFR 3592.1 which ensures reasonable protection of the environment or file an application for a permit to drill as described in 43 CFR part 3160, whichever is appropriate.
(3) The provisions of 43 CFR part 3180 shall serve as general guidance to the administration of combined hydrocarbon leases issued under this part to the extent they may be included in unit or cooperative agreements.
(b) Oil and gas leases. (1) All of the provisions of parts 3100, 3110, and 3120 of this title apply to the issuance and administration of oil and gas leases issued under this part.
(2) All of the provisions of part 3160 apply to operations on an oil and gas lease issued under this part.
(3) The provisions of 43 CFR part 3180 apply to the administration of oil and gas leases issued under this part.
(c) Tar sand leases. (1) The following provisions of part 3100 of this title, as they relate to competitive leasing, apply to the issuance of tar sand leases issued under this part.
(i) All of subpart 3102;
(ii) All of subpart 3103 with the exception of sections 3103.2-1, 3103.2-2(d), and 3103.3;
(iii) All of section 3120.4; and
(iv) All of section 3120.5.
(2) Prior to commencement of operations, the lessee shall develop a plan of operations as described in 43 CFR 3592.1 which ensures reasonable protection of the environment.
§ 3141.1 General.
(a) Combined hydrocarbons or tar sands within a Special Tar Sand Area shall be leased only by competitive bonus bidding.
(b) Oil and gas within a Special Tar Sand Area shall be leased by competitive bonus bidding as described in 43 CFR part 3120 or if no qualifying bid is received during the competitive bidding process, the area offered for competitive lease may be leased noncompetitively as described in 43 CFR part 3110.
(c) The authorized officer may issue either combined hydrocarbon leases, or oil and gas leases for oil and gas within such areas.
(d) The rights to explore for or develop tar sand deposits in a Special Tar Sand Area may be acquired through either a combined hydrocarbon lease or a tar sand lease.
(e) An oil and gas lease in a Special Tar Sand Area does not include the rights to explore for or develop tar sand.
(f) A tar sand lease in a Special Tar Sand Area does not include the rights to explore for or develop oil and gas.
(g) The minimum acceptable bid for a lease issued for tar sand shall be $2 per acre.
(h) The acreage of combined hydrocarbon leases or tar sand leases held within a Special Tar Sand Area shall not be charged against acreage limitations for the holding of oil and gas leases as provided in section 3101.2-1 of this title.
(i)(1) The authorized officer may noncompetitively lease additional lands for ancillary facilities in a Special Tar Sand Area that are shown by an applicant to be needed to support any operations necessary for the recovery of tar sand. Such uses include, but are not limited to, mill siting or waste disposal. An application for a lease or permit to use additional lands shall be filed under the provisions of part 2920 of this title with the proper BLM office having jurisdiction of the lands. The application for additional lands may be filed at the time a plan of operations is filed.
(2) A lease for the use of additional lands shall not be issued under this part when the use can be authorized under part 2800 of this title. Such uses include, but are not limited to, reservoirs, pipelines, electrical generation systems, transmission lines, roads and railroads.
(3) Within units of the National Park System, permits or leases for additional lands for any purpose shall be issued only by the National Park Service. Applications for such permits or leases shall be filed with the Regional Director of the National Park Service.
§ 3141.2 Prelease exploration within Special Tar Sand Areas.
§ 3141.2-1 Geophysical exploration.
Geophysical exploration in Special Tar Sand Areas shall be governed by part 3150 of this title. Information obtained under a permit shall be made available to the Bureau of Land Management upon request.
§ 3141.2-2 Exploration licenses.
(a) Any person(s) qualified to hold a lease under the provisions of subpart 3102 of this title and this subpart may obtain an exploration license to conduct core drilling and other exploration activities to collect geologic, environmental and other data concerning tar sand resources only on lands, the surface of which are under the jurisdiction of the Bureau of Land Management, within or adjacent to a Special Tar Sand Area. The application for such a license shall be submitted to the proper BLM office having jurisdiction of the lands. No drilling for oil or gas will be allowed under an exploration license issued under this subpart. No specific form is required for an application for an exploration license.
(b) The application for an exploration license shall be subject to the following requirements:
(1) Each application shall contain the name and address of the applicant(s);
(2) Each application shall be accompanied by a nonrefundable filing fee of $250.00;
(3) Each application shall contain a description of the lands covered by the application according to section, township and range in accordance with the official survey;
(4) Each application shall include 3 copies of an exploration plan which complies with the requirements of 43 CFR 4392.1 (a); and
(5) An application shall cover no more than 5,760 acres, which shall be as compact as possible. The authorized officer may grant an exploration license covering more than 5,760 acres only if the application contains a justification for an exception to the normal limitation.
(c) The authorized officer may, if he/she determines it necessary to avoid impacts resulting from duplication of exploration activities, require applicants for exploration licenses to provide an opportunity for other parties to participate in exploration under the license on a pro rata cost sharing basis. If joint participation is determined necessary, it shall be conducted according to the following:
(1) Immediately upon the notification of a determination that parties shall be given an opportunity to participate in the exploration license, the applicant shall publish a “Notice of Invitation,” approved by the authorized officer, once every week for 2 consecutive weeks in at least 1 newspaper of general circulation in the area where the lands covered by the exploration license are situated. This notice shall contain an invitation to the public to participate in the exploration license on a pro rata cost sharing basis. Copies of the “Notice of Invitation” shall be filed with the authorized officer at the time of publication by the applicant for posting in the proper BLM office having jurisdiction over the lands covered by the application for at least 30 days prior to the issuance of the exploration license.
(2) Any person seeking to participate in the exploration program described in the Notice of Invitation shall notify the authorized officer and the applicant in writing of such intention within 30 days after posting in the proper BLM office having jurisdiction over the lands covered by the Notice of Invitation. The authorized officer may require modification of the original exploration plan to accommodate the legitimate exploration needs of the person(s) seeking to participate and to avoid the duplication of exploration activities in the same area, or that the person(s) should file a separate application for an exploration license.
(3) An application to conduct exploration which could have been conducted under an existing or recent exploration license issued under this paragraph may be rejected.
(d) The authorized officer may accept or reject an exploration license application. An exploration license shall become effective on the date specifed by the authorized officer as the date when exploration activities may begin. The exploration plan approved by the Bureau of Land Management shall be attached and made a part of each exploration license.
(e) An exploration license shall be subject to these terms and conditions:
(1) The license shall be for a term of not more than 2 years;
(2) The rental shall be $2 per acre per year payable in advance;
(3) The licensee shall provide a bond in an amount determined by the authorized officer, but not less than $5,000. The authorized officer may accept bonds furnished under subpart 3104 of this title, if adequate. The period of liability under the bond shall be terminated only after the authorized officer determines that the terms and conditions of the license, the exploration plan and the regulations have been met;
(4) The licensee shall provide to the Bureau of Land Management upon request all required information obtained under the license. Any information provided shall be treated as confidential and proprietary, if appropriate, at the request of the licensee, and shall not be made public until the areas involved have been leased or only if the Bureau of Land Management determines that public access to the data will not damage the competitive position of the licensee.
(5) Operations conducted under a license shall not unreasonably interfere with or endanger any other lawful activity on the same lands, shall not damage any improvements on the lands, and shall not result in any substantial disturbance to the surface of the lands and their resources;
(6) The authorized officer shall include in each license requirements and stipulations to protect the environment and associated natural resources, and to ensure reclamation of the land disturbed by exploration operations;
(7) When unforeseen conditions are encountered that could result in an action prohibited by paragraph (e)(5) of this section, or when warranted by geologic or other physical conditions, the authorized officer may adjust the terms and conditions of the exploration license, may direct adjustment in the exploration plan;
(8) The licensee may submit a request for modification of the exploration plan to the authorized officer. Any modification shall be subject to the regulations in this section and the terms and conditions of the license. The authorized officer may approve the modification after any necessary adjustments to the terms and conditions of the license that are accepted in writing by the licensee; and
(9) The license shall be subject to termination or suspension as provided in § 2920.9-3 of this title.
§ 3141.3 Land use plans.
No lease shall be issued under this subpart unless the lands have been included in a land use plan which meets the requirements under part 1600 of this title or an approved Minerals Management Plan of the National Park Service. The decision to hold a lease sale and issue leases shall be in conformance with the appropriate plan.
§ 3141.4 Consultation.
§ 3141.4-1 Consultation with the Governor.
The Secretary shall consult with the Governor of the State in which any tract proposed for sale is located. The Secretary shall give the Governor 30 days to comment before determining whether to conduct a lease sale. The Secretary shall seek the recommendations of the Governor of the State in which the lands proposed for lease are located as to whether or not to lease such lands and what alternative actions are available and what special conditions could be added to the proposed lease(s) to mitigate impacts. The Secretary shall accept the recommendations of the Governor if he/she determines that they provide for a reasonable balance between the national interest and the State’s interest. The Secretary shall communicate to the Governor in writing and publish in the
§ 3141.4-2 Consultation with others.
(a) Where the surface is administered by an agency other than the Bureau of Land Management, including lands patented or leased under the provisions of the Recreation and Public Purposes Act, as amended (43 U.S.C. 869 et seq.), all leasing under this subpart shall be in accordance with the consultation requirements of subpart 3100 of this title.
(b) The issuance of combined hydrocarbon leases, oil and gas leases, and tar sand leases within special tar sand areas in units of the National Park System shall be allowed only where mineral leasing is permitted by law and where the lands are open to mineral resource disposition in accordance with any applicable Minerals Management Plan. In order to consent to any issuance of a combined hydrocarbon lease, oil and gas lease, tar sand lease, or subsequent development of hydrocarbon resources within a unit of National Park System, the Regional Director of the National Park Service shall find that there will be no resulting significant adverse impacts to the resources and administration of the unit or other contiguous units of the National Park System in accordance with § 3109.2 (b) of this title.
§ 3141.5 Leasing procedures.
§ 3141.5-1 Economic evaluation.
Prior to any lease sale for a combined hydrocarbon lease, the authorized officer shall request an economic evaluation of the total hydrocarbon resource on each proposed lease tract exclusive of coal, oil shale, or gilsonite.
§ 3141.5-2 Term of lease.
(a) Combined hydrocarbon leases or oil and gas leases shall have a primary term of 10 years and shall remain in effect so long thereafter as oil or gas is produced in paying quantities.
(b) Tar Sand leases shall have a primary term of 10 years and shall remain in effect so long thereafter as tar sand is produced in paying quantities.
§ 3141.5-3 Royalties and rentals.
(a) The royalty rate on all combined hydrocarbon leases or tar sand leases is 12
(b) The lessee may request the Secretary to reduce the royalty rate applicable to tar sand prior to commencement of commercial operations in order to promote development and maximum production of the tar sand resource in accordance with procedures established by the Bureau of Land Management and may request a reduction in the royalty after commencement of commercial operations in accordance with § 3103.4-1 of this title.
(c) The rental rate for a combined hydrocarbon lease shall be $2 per acre per year, and shall be payable annually in advance.
(d) The rental rate for a tar sand lease shall be $1.50 per acre for the first 5 years and $2.00 per acre for each year thereafter.
(e) Except as explained in paragraphs (a), (b), and (c) of this section, all other provisions of §§ 3103.2 and 3103.3 of this title apply to combined hydrocarbon leasing.
§ 3141.5-4 Lease size.
Combined hydrocarbon leases or tar sand leases in Special Tar Sand Areas shall not exceed 5,760 acres.
§ 3141.5-5 Dating of lease.
A combined hydrocarbon lease shall be effective as of the first day of the month following the date the lease is signed on behalf of the United States, except that where prior written request is made, a lease may be made effective on the first of the month in which the lease is signed.
§ 3141.6 Sale procedures.
§ 3141.6-1 Initiation of competitive lease offering.
The Bureau of Land Management may, on its own motion, offer lands through competitive bidding. A request or expression(s) of interest in tract(s) for competitive lease offerings shall be submitted in writing to the proper BLM office.
§ 3141.6-2 Publication of a notice of competitive lease offering.
(a) Combined Hydrocarbon Leases. Where a determination to offer lands for competitive leasing is made, a notice shall be published of the lease sale in the
(b) Tar Sand Leases or Oil and Gas Leases. At least 45 days prior to conducting a competitive auction, lands to be offered for a competitive lease sale shall be posted in the proper BLM office having jurisdiction over the lands as specified in § 1821.10 of this chapter, and shall be made available for posting to surface managing agencies having jurisdiction over any of the included lands.
§ 3141.6-3 Conduct of sales.
(a) Combined Hydrocarbon Leases. (1) Competitive sales shall be conducted by the submission of written sealed bids.
(2) Minimum bids shall be not less than $25 per acre.
(3) In the event that only 1 sealed bid is received and it is equal to or greater than the minimum bid, that bid shall be considered the highest bid.
(4) The authorized officer may reject any or all bids.
(5) The authorized officer may waive minor deficiencies in the bids or the lease sale advertisement.
(6) A bid deposit of one-fifth of the amount of the sealed bid shall be required and shall accompany the sealed bid. All bid deposits shall be in the form of either a certified check, money order, bank cashier’s check or cash.
(b) Oil and Gas Leases. Lease sales for oil and gas leases will be conducted using the procedures for oil and gas leases in § 3120.5 of this title.
(c) Tar Sand Leases. (1) Parcels shall be offered by oral bidding.
(2) The winning bid shall be the highest oral bid by a qualified bidder, equal to or exceeding $2.00 per acre.
(3) Payments shall be made as provided in § 3120.5-2 of this title.
§ 3141.6-4 Qualifications.
Each bidder shall submit with the bid a statement over the bidder’s signature with respect to compliance with subpart 3102 of this title.
§ 3141.6-5 Fair market value for combined hydrocarbon leases.
Only those bids which reflect the fair market value of the tract(s) as determined by the authorized officer shall be accepted; all other bids shall be rejected.
§ 3141.6-6 Rejection of bid.
If the high bid is rejected for failure by the successful bidder to execute the lease forms and pay the balance of the bonus bid, or otherwise to comply with the regulations of this subpart, the one-fifth bonus accompanying the bid shall be forfeited.
§ 3141.6-7 Consideration of next highest bid.
The Department reserves the right to accept the next highest bid if the highest bid is rejected. In no event shall an offer be made to the next highest bidder if the difference beween his/her bid and that of the rejected successful bidder is greater than the one-fifth bonus forfeited by the rejected successful bidder.
§ 3141.7 Award of lease.
After determining the highest responsible qualified bidder, the authorized officer shall send 3 copies of the lease on a form approved by the Director, and any necessary stipulations, to the successful bidder. The successful bidder shall, not later than the 30th day after receipt of the lease, execute the lease, pay the balance of the bid and the first year’s rental, and file a bond as required in subpart 3104 of this title. Failure to comply with this section shall result in rejection of the lease.
Subpart 3142 – Paying Quantities/Diligent Development for Combined Hydrocarbon Leases
§ 3142.0-1 Purpose.
This subpart provides definitions and procedures for meeting the production in paying quantities and the diligent development requirements for tar sand in all combined hydrocarbon leases.
§ 3142.0-3 Authority.
These regulations are issued under the authority of the Mineral Leasing Act of 1920, as amended and supplemented (30 U.S.C. 181 et seq.), the Mineral Leasing Act for Acquired Lands (30 U.S.C. 351-359), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.) and the Combined Hydrocarbon Leasing Act of 1981 (95 Stat. 1070).
§ 3142.0-5 Definitions.
As used in part 3140 of this title, the term production in paying quantities means:
(a) Production, in compliance with an approved plan of operations and by nonconventional methods, of oil and gas which can be marketed; or
(b) Production of oil or gas by conventional methods as the term is currently used in part 3160 of this title.
§ 3142.1 Diligent development.
A lessee shall have met his/her diligent development obligation if:
(a) The lessee is conducting activity on the lease in accordance with an approved plan of operations; and
(b) The lessee files with the authorized officer, not later than the end of the eighth lease year, a supplement to the approved plan of operations which shall include the estimated recoverable tar sand reserves and a detailed development plan for the next stage of operations;
(c) The lessee has achieved production in paying quantities, as that term is defined in § 3142.0-5(a) of this title, by the end of the primary term; and
(d) The lessee annually produces the minimum amount of tar sand established by the authorized officer under the lease in the minimum production schedule which shall be made part of the plan of operations or pays annually advance royalty in lieu of this minimum production.
§ 3142.2 Minimum production levels.
§ 3142.2-1 Minimum production schedule.
Upon receipt of the supplement to the plan of operations described in § 3142.1(b) of this title, the authorized officer shall examine the information furnished by the lessee and determine if the estimate of the recoverable tar sand reserves is adequate and reasonable. In making this determination, the authorized officer may request, and the lessee shall furnish, any information that is the basis of the lessee’s estimate of the recoverable tar sand reserves. As part of the authorized officer’s determination that the estimate of the recoverable tar sand reserves is adequate and reasonable, he/she may consider, but is not limited to, the following: or grade, strip ratio, vertical and horizal continuity, extract process recoverability, and proven or unproven status of extraction technology, terrain, environmental mitigation factors, marketability of products and capital operations costs. The authorized officer shall then establish as soon as possible, but prior to the beginning of the eleventh year, based upon the estimate of the recoverable tar sand reserves, a minimum annual tar sand production schedule for the lease or unit operations which shall start in the eleventh year of the lease. This minimum production level shall escalate in equal annual increments to a maximum of 1 percent of the estimated recoverable tar sand reserves in the twentieth year of the lease and remain at 1 percent each year thereafter.
§ 3142.2-2 Advance royalties in lieu of production.
(a) Failure to meet the minimum annual tar sand production schedule level in any year shall result in the assessment of an advance royalty in lieu of production which shall be credited to future production royalty assessments applicable to the lease or unit.
(b) If there is no production during the lease year, and the lessee has reason to believe that there shall be no production during the remainder of the lease year, the lessee shall submit to the authorized officer a request for suspension of production at least 90 days prior to the end of that lease year and a payment sufficient to cover any advance royalty due and owing as a result of the failure to produce. Upon receipt of the request for suspension of production and the accompanying payment, the authorized officer shall approve a suspension of production for that lease year and the lease shall not expire during that year for lack of production.
(c) If there is production on the lease or unit during the lease year, but such production fails to meet the minimum production schedule required by the plan of operations for that lease or unit, the lessee shall pay an advance royalty within 60 days of the end of the lease year in an amount sufficient to cover the difference between such actual production and the production schedule required by the plan of operations for that lease or unit and the authorized officer shall direct a suspension of production for those periods during which no production occurred.
§ 3142.3 Expiration.
Failure of the lessee to pay advance royalty within the time prescribed by the authorized officer, or failure of the lessee to comply with any other provisions of this subpart following the end of the primary term of the lease, shall result in the automatic expiration of the lease as of the first of the month following notice to the lessee of its failure to comply. The lessee shall remain subject to the requirement of applicable laws, regulations and lease terms which have not been met at the expiration of the lease.
PART 3150 – ONSHORE OIL AND GAS GEOPHYSICAL EXPLORATION
Subpart 3150 – Onshore Oil and Gas Geophysical Exploration; General
§ 3150.0-1 Purpose.
The purpose of this part is to establish procedures for conducting oil and gas geophysical exploration operations when authorization for such operations is required from the Bureau of Land Management. Geophysical exploration on public lands, the surface of which is administered by the Bureau, requires Bureau approval. The procedures in this part also apply to geophysical exploration conducted under the rights granted by any Federal oil and gas lease unless the surface is administered by the U.S. Forest Service. However, a lessee may elect to conduct exploration operations outside of the rights granted by the lease, in which case authorization from the surface managing agency or surface owner may be required. At the request of any other surface managing agency, the procedures in this part may be applied on a case-by-case basis to unleased public lands administered by such agency. The procedures of this part do not apply to:
(a) Casual use activities;
(b) Operations conducted on private surface overlying public lands unless such operations are conducted by a lessee under the rights granted by the Federal oil and gas lease; and
(c) Exploration operations conducted in the Arctic National Wildlife Refuge in accordance with section 1002 of the Alaska National Interest Lands Conservation Act (See 50 CFR part 37).
§ 3150.0-3 Authority.
The Mineral Leasing Act of 1920, as amended and supplemented, (30 U.S.C. 181 et seq.), the Mineral Leasing Act for Acquired Lands of 1947, as amended (30 U.S.C. 351-359), the Alaska National Interest Lands Conservation Act (16 U.S.C. 3101 et seq.), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.), the Independent Offices Appropriations Act of 1952 (31 U.S.C. 483a), the Naval Petroleum Reserves Production Act of 1976 (42 U.S.C. 6504) and the Department of the Interior Appropriations Act, Fiscal Year 1981 (42 U.S.C. 6508).
§ 3150.0-5 Definitions.
As used in this part, the term:
(a) Oil and gas geophysical exploration means activity relating to the search for evidence of oil and gas which requires the physical presence upon the lands and which may result in damage to the lands or the resources located thereon. It includes, but is not limited to, geophysical operations, construction of roads and trails and cross-country transit of vehicles over such lands. It does not include core drilling for subsurface geologic information or drilling for oil and gas; these activities shall be authorized only by the issuance of an oil and gas lease and the approval of an Application for a Permit to Drill. The regulations in this part, however, are not intended to prevent drilling operations necessary for placing explosive charges, where permissible, for seismic exploration.
(b) Casual use means activities that involve practices which do not ordinarily lead to any appreciable disturbance or damage to lands, resources and improvements. For example, activities which do not involve use of heavy equipment or explosives and which do not involve vehicular movement except over established roads and trails are casual use.
§ 3150.1 Suspension, revocation or cancellation.
The right to conduct exploration under notices of intent and oil and gas geophysical exploration permits may be revoked or suspended, after notice, by the authorized officer and upon a final administrative finding of a violation of any term or condition of the instrument, including, but not limited to, terms and conditions requiring compliance with regulations issued under Acts applicable to the public lands and applicable State air and water quality standards or implementation plans. The Secretary may order an immediate temporary suspension of activities authorized under a permit or other use authorization prior to a hearing or final administrative finding if he/she determines that such a suspension is necessary to protect health or safety or the environment. Further, where other applicable law contains specific provisions for suspension, revocation, or cancellation of a permit or other authorization to use, occupy, or develop the public lands, the specific provisions of such law shall prevail.
§ 3150.2 Appeals.
(a) A party adversely affected by a decision or approval of the authorized officer may appeal that decision to the Interior Board of Land Appeals as set forth in part 4 of this title.
(b) All decisions and approvals of the authorized officer under this part shall remain effective pending appeal unless the Interior Board of Land Appeals determines otherwise upon consideration of the standards stated in this paragraph. The provisions of 43 CFR 4.21(a) shall not apply to any decision or approval of the authorized officer under this part. A petition for a stay of a decision or approval of the authorized officer shall be filed with the Interior Board of Land Appeals, Office of Hearings and Appeals, Department of the Interior, and shall show sufficient justification based on the following standards:
(1) The relative harm to the parties if the stay is granted or denied,
(2) The likelihood of the appellant’s success on the merits,
(3) The likelihood of irreparable harm to the appellant or resources if the stay is not granted, and
(4) Whether the public interest favors granting the stay.
Subpart 3151 – Exploration Outside of Alaska
§ 3151.1 Notice of intent to conduct oil and gas geophysical exploration operations.
Parties wishing to conduct oil and gas geophysical exploration outside of the State of Alaska shall file a Notice of Intent to Conduct Oil and Gas Exploration Operations, referred to herein as a notice of intent. The notice of intent shall be filed with the District Manager of the proper BLM office on the form approved by the Director. Within 5 working days of the filing date, the authorized officer shall process the notice of intent and notify the operator of practices and procedures to be followed. If the notice of intent cannot be processed within 5 working days of the filing date, the authorized officer shall promptly notify the operator as to when processing will be completed, giving the reason for the delay. The operator shall, within 5 working days of the filing date, or such other time as may be convenient for the operator, participate in a field inspection if requested by the authorized officer. Signing of the notice of intent by the operator shall signify agreement to comply with the terms and conditions contained therein and in this part, and with all practices and procedures specified at any time by the authorized officer.
§ 3151.2 Notice of completion of operations.
Upon completion of exploration, there shall be filed with the District Manager a Notice of Completion of Oil and Gas Exploration Operations. Within 30 days after this filing, the authorized officer shall notify the party whether rehabilitation of the lands is satisfactory or whether additional rehabilitation is necessary, specifying the nature and extent of actions to be taken by the operator.
Subpart 3152 – Exploration in Alaska
§ 3152.1 Application for oil and gas geophysical exploration permit.
Parties wishing to conduct oil and gas geophysical exploration operations in Alaska shall complete an application for an oil and gas geophysical exploration permit. The application shall contain the following information:
(a) The applicant’s name and address;
(b) The operator’s name and address;
(c) The contractor’s name and address;
(d) A description of lands involved by township and range, including a map or overlays showing the lands to be entered and affected;
(e) The period of time when operations will be conducted; and
(f) A plan for conducting the exploration operations.
Submit your application along with the filing fee for geophysical exploration permit – Alaska, found in the fee schedule in § 3000.12 of this chapter (except where the exploration operations are to be conducted on a leasehold by or on behalf of the lessee), to the District Manager of the proper BLM office.
§ 3152.2 Action on application.
(a) The authorized officer shall review each application and approve or disapprove it within 90 calendar days, unless compliance with statutory requirements such as the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) delays this action. The applicant shall be notified promptly in writing of any such delay.
(b) The authorized officer shall include in each geophysical exploration permit terms and conditions deemed necessary to protect values, mineral resources, and nonmineral resources. Geophysical permits within National Petroleum Reserve – Alaska shall contain such reasonable conditions, restrictions and prohibitions as the authorized officer deems appropriate to mitigate adverse effects upon the surface resources of the Reserve and to satisfy the requirement of section 104(b) of the Naval Petroleum Reserves Production Act of 1976 (42 U.S.C. 6504) (See part 3130 for stipulations relating to the National Petroleum Reserve – Alaska).
(c) An exploration permit shall become effective on the date specified by the authorized officer and shall expire 1 year thereafter.
(d) For lands subject to section 1008 of the Alaska National Interest Lands Conservation Act, exploration shall be authorized only upon a determination that such activities can be conducted in a manner which is consistent with the purposes for which the affected area is managed under applicable law.
§ 3152.3 Renewal of exploration permit.
Upon application by the permittee and payment of the filing fee for renewal of exploration permit – Alaska, found in the fee schedule in section 3000.12 of this chapter (except where the exploration operations are to be conducted on a leasehold by or on behalf of the lessee), an exploration permit may be renewed for a period not to exceed one year.
§ 3152.4 Relinquishment of exploration permit.
Subject to the continued obligations of the permittee and the surety to comply with the terms and conditions of the exploration permit and the regulations, the permittee may relinquish an exploration permit for all or any portion of the lands covered by it. Such relinquishment shall be filed with the District Manager of the proper BLM office.
§ 3152.5 Modification of exploration permit.
(a) A permittee may request, and the authorized officer may approve a modification of an exploration permit.
(b) The authorized officer may, after consultation with the permittee, require modifications determined necessary.
§ 3152.6 Collection and submission of data.
(a) The permittee shall submit to the authorized officer all data and information obtained in carrying out the exploration plan.
(b) All information submitted under this section is subject to part 2 of this title, which sets forth the rules of the Department of the Interior relating to public availability of information contained in Departmental records, as provided at § 3100.4 of this chapter.
§ 3152.7 Completion of operations.
(a) The permittee shall submit to the authorized officer a completion report within 30 days of completion of all operations under the permit. The completion report shall contain the following:
(1) A description of all work performed;
(2) Charts, maps or plats depicting the areas and blocks in which the exploration was conducted and specifically identifying the lines of geophysical traverses and any roads constructed;
(3) The dates on which the actual exploration was conducted;
(4) Such other information about the exploration operations as may be specified by the authorized officer in the permit; and
(5) A statement that all terms and conditions have been complied with or that corrective measures shall be taken to rehabilitate the lands or other resources.
(b) Within 90 days after the authorized officer receives a completion report from the permittee that exploration has been completed or after the expiration of the permit, whichever occurs first, the authorized officer shall notify the permittee of the specific nature and extent of any additional measures required to rectify any damage to the lands and resources.
Subpart 3153 – Exploration of Lands Under the Jurisdiction of the Department of Defense
§ 3153.1 Geophysical permit requirements.
Except in unusual circumstances, permits for geophysical exploration on unleased lands under the jurisdiction of the Department of Defense shall be issued by the appropriate agency of that Department. In the event an agency of the Department of Defense refers an application for exploration to the Bureau for issuance, the provisions of subpart 3152 of this title shall apply. Geophysical exploration on lands under the jurisdiction of the Department of Defense shall be authorized only with the consent of, and subject to such terms and conditions as may be required by, the Department of Defense.
Subpart 3154 – Bond Requirements
§ 3154.1 Types of bonds.
Prior to each planned exploration, the party(s) filing the notice of intent or application for a permit shall file with the authorized officer a bond as described in § 3104.1 of this title in the amount of at least $5,000, conditioned upon full and faithful compliance with the terms and conditions of this subpart and the notice of intent or permit. In lieu thereof, the party(s) may file a statewide bond in the amount of $25,000 covering all oil and gas exploration operations in the same State or a nationwide bond in the amount of $50,000 covering all oil and gas exploration operations in the nation. Holders of individual, statewide or nationwide oil and gas lease bonds shall be allowed to conduct exploration on their leaseholds without further bonding, and holders of statewide or nationwide lease bonds wishing to conduct exploration on lands they do not have under lease may obtain a rider to include oil and gas exploration operations under this part. Holders of nationwide or any National Petroleum Reserve-Alaska oil and gas lease bonds shall be permitted to obtain a rider to include the coverage of oil and gas exploration within the National Petroleum Reserve – Alaska under subpart 3152 of this title.
§ 3154.2 Additional bonding.
The authorized officer may increase the amount of any bond that is required under this subpart after determining that additional coverage is needed to ensure protection of the lands or resources.
§ 3154.3 Bond cancellation or termination of liability.
The authorized officer shall not consent to the cancellation of the bond or the termination of liability unless and until the terms and conditions of the notice of intent or permit have been met. Should the authorized officer fail to notify the party within 90 days of the filing of a notice of completion of the need for additional action by the operator to rehabilitate the lands, liability for that particular exploration operation shall automatically terminate.
PART 3160 – ONSHORE OIL AND GAS OPERATIONS
Subpart 3160 – Onshore Oil and Gas Operations: General
§ 3160.0-1 Purpose.
The regulations in this part govern operations associated with the exploration, development and production of oil and gas deposits from –
(a) Leases issued or approved by the United States;
(b) Restricted Indian land leases; and
(c) Those leases under the jurisdiction of the Secretary of the Interior by law or administrative arrangement including the National Petroleum Reserve-Alaska (NPR-A). However, provisions relating to suspension and royalty reductions contained in subpart 3165 of this part do not apply to the NPR-A.
§ 3160.0-2 Policy.
The regulations in this part are administered under the direction of the Director of the Bureau of Land Management; except that as to lands within naval petroleum reserves, they shall be administered under such official as the Secretary of Energy shall designate.
§ 3160.0-3 Authority.
The Mineral Leasing Act, as amended and supplemented (30 U.S.C. 181 et seq.), the Act of May 21, 1930 (30 U.S.C. 301-306), the Mineral Leasing Act for Acquired Lands, as amended (30 U.S.C. 351-359), the Act of March 3, 1909, as amended (25 U.S.C 396), the Act of May 11, 1938, as amended (25 U.S.C. 396a-396q), the Act of February 28, 1891, as amended (25 U.S.C. 397), the Act of May 29, 1924 (25 U.S.C. 398), the Act of March 3, 1927 (25 U.S.C. 398a-398e), the Act of June 30, 1919, as amended (25 U.S.C. 399), R.S. § 441 (43 U.S.C. 1457), the Attorney General’s Opinion of April 2, 1941 (40 Op. Atty. Gen. 41), the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C 471 et seq.), the National Environmental Policy Act of 1969, as amended (40 U.S.C. 4321 et seq.), the Act of December 12, 1980 (94 Stat. 2964), the Combined Hydrocarbon Leasing Act of 1981 (95 Stat. 1070), the Federal Oil and Gas Royalty Management Act of 1982 (30 U.S.C. 1701), the Indian Mineral Development Act of 1982 (25 U.S.C. 2102), and Order Number 3087, dated December 3, 1982, as amended on February 7, 1983 (48 FR 8983) under which the Secretary consolidated and transferred the onshore minerals management functions of the Department, except mineral revenue functions and the responsibility for leasing of restricted Indian lands, to the Bureau of Land Management.
§ 3160.0-4 Objectives.
The objective of these regulations is to promote the orderly and efficient exploration, development and production of oil and gas.
§ 3160.0-5 Definitions.
As used in this part, the term:
Authorized representative means any entity or individual authorized by the Secretary to perform duties by cooperative agreement, delegation or contract.
Drainage means the migration of hydrocarbons, inert gases (other than helium), or associated resources caused by production from other wells.
Federal lands means all lands and interests in lands owned by the United States which are subject to the mineral leasing laws, including mineral resources or mineral estates reserved to the United States in the conveyance of a surface or nonmineral estate.
Fresh water means water containing not more than 1,000 ppm of total dissolved solids, provided that such water does not contain objectionable levels of any constituent that is toxic to animal, plant or aquatic life, unless otherwise specified in applicable notices or orders.
Knowingly or willfully means a violation that constitutes the voluntary or conscious performance of an act that is prohibited or the voluntary or conscious failure to perform an act or duty that is required. It does not include performances or failures to perform that are honest mistakes or merely inadvertent. It includes, but does not require, performances or failures to perform that result from a criminal or evil intent or from a specific intent to violate the law. The knowing or willful nature of conduct may be established by plain indifference to or reckless disregard of the requirements of the law, regulations, orders, or terms of the lease. A consistent pattern of performance or failure to perform also may be sufficient to establish the knowing or willful nature of the conduct, where such consistent pattern is neither the result of honest mistakes or mere inadvertency. Conduct that is otherwise regarded as being knowing or willful is rendered neither accidental nor mitigated in character by the belief that the conduct is reasonable or legal.
Lease means any contract, profit-share arrangement, joint venture 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.
Lease site means any lands, including the surface of a severed mineral estate, on which exploration for, or extraction and removal of, oil or gas is authorized under a lease.
Lessee means any person holding record title or owning operating rights in a lease issued or approved by the United States.
Lessor means the party to a lease who holds legal or beneficial title to the mineral estate in the leased lands.
Major violation means noncompliance that causes or threatens immediate, substantial, and adverse impacts on public health and safety, the environment, production accountability, or royalty income.
Maximum ultimate economic recovery means the recovery of oil and gas from leased lands which a prudent operator could be expected to make from that field or reservoir given existing knowledge of reservoir and other pertinent facts and utilizing common industry practices for primary, secondary or tertiary recovery operations.
Minor violation means noncompliance that does not rise to the level of a major violation.
New or resumed production under section 102(b)(3) of the Federal Oil and Gas Royalty Management Act means the date on which a well commences production, or resumes production after having been off production for more than 90 days, and is to be construed as follows:
(1) For an oil well, the date on which liquid hydrocarbons are first sold or shipped from a temporary storage facility, such as a test tank, or the date on which liquid hydrocarbons are first produced into a permanent storage facility, whichever first occurs; and
(2) For a gas well, the date on which gas is first measured through sales metering facilities or the date on which associated liquid hydrocarbons are first sold or shipped from a temporary storage facility, whichever first occurs. For purposes of this provision, a gas well shall not be considered to have been off of production unless it is incapable of production.
Notice to lessees and operators (NTL) means a written notice issued by the authorized officer. NTL’s implement the regulations in this part and operating orders, and serve as instructions on specific item(s) of importance within a State, District, or Area.
Onshore oil and gas order means a formal numbered order issued by the Director that implements and supplements the regulations in this part.
Operating rights owner means a person who owns operating rights in a lease. A record title holder may also be an operating rights owner in a lease if it did not transfer all of its operating rights.
Operator means any person or entity including but not limited to the lessee or operating rights owner, who has stated in writing to the authorized officer that it is responsible under the terms and conditions of the lease for the operations conducted on the leased lands or a portion thereof.
Paying well means a well that is capable of producing oil or gas of sufficient value to exceed direct operating costs and the costs of lease rentals or minimum royalty.
Person means any individual, firm, corporation, association, partnership, consortium or joint venture.
Production in paying quantities means production from a lease of oil and/or gas of sufficient value to exceed direct operating costs and the cost of lease rentals or minimum royalties.
Protective well means a well drilled or modified to prevent or offset drainage of oil and gas resources from its Federal or Indian lease.
Record title holder means the person(s) to whom BLM or an Indian lessor issued a lease or approved the assignment of record title in a lease.
Superintendent means the superintendent of an Indian Agency, or other officer authorized to act in matters of record and law with respect to oil and gas leases on restricted Indian lands.
Surface use plan of operations means a plan for surface use, disturbance, and reclamation.
Waste of oil or gas means any act or failure to act by the operator that is not sanctioned by the authorized officer as necessary for proper development and production and which results in: (1) A reduction in the quantity or quality of oil and gas ultimately producible from a reservoir under prudent and proper operations; or (2) avoidable surface loss of oil or gas.
§ 3160.0-7 Cross references.
§ 3160.0-9 Information collection.
(a) The information collection requirements contained in §§ 3162.3, 3162.3-1, 3162.3-2, 3162.3-3, 3162.3-4, 3162.4-1, 3162.4-2, 3162.5-1, 3162.5-2, 3162.5-3, 3162.6, 3162.7-1, 3162.7-2, 3162.7-3, 3162.7-5, 3164.3, 3165.1, and 3165.3 have been approved by the Office of Management and Budget under 44 U.S.C. 3507 and assigned clearance Number 1004-0134. The information may be collected from some operators either to provide data so that proposed operations may be approved or to enable the monitoring of compliance with granted approvals. The information will be used to grant approval to begin or alter operations or to allow operations to continue. The obligation to respond is required to obtain benefits under the lease.
(b) Public reporting burden for this information is estimated to average 0.4962 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Information Collection Clearance Officer (783), Bureau of Land Management, Washington, DC 20240, and the Office of Management and Budget, Paperwork Reduction Project, 1004-0134, Washington, DC 20503.
(c)(1) The information collection requirements contained in part 3160 have been approved by the Office of Management and Budget under 44 U.S.C. 3507 and assigned the following Clearance Numbers:
Operating Forms
| Form No. | Name and filing date | OMB No. |
|---|---|---|
| 3160-3 | Application for Permit to Drill, Deepen, or Plug Back – Filed 30 days prior to planned action | 1004-0136 |
| 3160-4 | With Completion of Recompletion Report and Log – Due 30 days after well completion | 1004-0137 |
| 3160-5 | Sundry Notice and Reports on Wells – Subsequent report due 30 days after operations completed | 1004-0135 |
(2) Public reporting burden for this information is estimated to average 25 minutes per response for clearance number 1004-0135, 30 minutes per response for clearance number 1004-0136, and 1 hour per response for clearance number 1004-0137, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Information Collection Clearance Officer (783), Bureau of Land Management, Washington, DC 20240, and the Office of Management and Budget, Paperwork Reduction Project, 1004-0135, 1004-0136, or 1004-0137, as appropriate, Washington, DC 20503.
(d) There are many leases and agreements currently in effect, and which will remain in effect, involving both Federal and Indian oil and gas leases which specifically refer to the United States Geological Survey, USGS, Minerals Management Service, MMS, or Conservation Division. These leases and agreements also often specifically refer to various officers such as Supervisor, Conservation Manager, Deputy Conservation Manager, Minerals Manager, and Deputy Minerals Manager. In addition, many leases and agreements specifically refer to 30 CFR part 221 or specific sections thereof, which has been redesignated as 43 CFR part 3160. Those references shall now be read in the context of Secretarial Order 3087 and now mean either the Bureau of Land Management or Minerals Management Service, as appropriate.
Subpart 3161 – Jurisdiction and Responsibility
§ 3161.1 Jurisdiction.
(a) The regulations in this part apply to all operations conducted on:
(1) All Federal and Indian (except those of the Osage Tribe) onshore oil and gas leases;
(2) All onshore facility measurement points where Federal or Indian (except those of the Osage Tribe) oil or gas is measured;
(3) Indian Mineral Development Act agreements for oil and gas, unless specifically excluded in the agreement; and
(4) Leases and other business agreements for the development of tribal energy resources under a Tribal Energy Resource Agreement entered into with the Secretary, unless specifically excluded in the lease, other business agreement, or Tribal Energy Resource Agreement.
(b) The regulations in this part and 43 CFR part 3170, including subparts 3173, 3174, and 3175, relating to site security, measurement of oil and gas, reporting of production and operations, and assessments or penalties for non-compliance with such requirements, are applicable to all wells and facilities on State or privately owned lands committed to a unit or communitization agreement, which include Federal or Indian lease interests, notwithstanding any provision of a unit or communitization agreement to the contrary.
The authorized officer is authorized and directed to approve unitization, communitization, gas storage and other contractual agreements for Federal lands; to assess compensatory royalty; to approve suspensions of operations or production, or both; to issue NTL’s: to approve and monitor other operator proposals for drilling, development or production of oil and gas; to perform administrative reviews; to impose monetary assessments or penalties; to provide technical information and advice relative to oil and gas development and operations on Federal and Indian lands; to enter into cooperative agreements with States, Federal agencies and Indian tribes relative to oil and gas development and operations; to approve, inspect and regulate the operations that are subject to the regulations in this part; to require compliance with lease terms, with the regulations in this title and all other applicable regulations promulgated under the cited laws; and to require that all operations be conducted in a manner which protects other natural resources and the environmental quality, protects life and property and results in the maximum ultimate recovery of oil and gas with minimum waste and with minimum adverse effect on the ultimate recovery of other mineral resources. The authorized officer may issue written or oral orders to govern specific lease operations. Any such oral orders shall be confirmed in writing by the authorized officer within 10 working days from issuance thereof. Before approving operations on leasehold, the authorized officer shall determine that the lease is in effect, that acceptable bond coverage has been provided and that the proposed plan of operations is sound both from a technical and environmental standpoint.
§ 3161.3 Inspections.
(a) The authorized officer shall establish procedures to ensure that each Federal and Indian lease site which is producing or is expected to produce significant quantities of oil or gas in any year or which has a history of noncompliance with applicable provisions of law or regulations, lease terms, orders or directives shall be inspected at least once annually. Similarly, each lease site on non-Federal or non-Indian lands subject to a formal agreement such as a unit or communitization agreement which has been approved by the Department of the Interior and in which the United States or the Indian lessors share in production shall be inspected annually whenever any of the foregoing criteria are applicable.
(b) In accomplishing the inspections, the authorized officer may utilize Bureau personnel, may enter into cooperative agreements with States or Indian Tribes, may delegate the inspection authority to any State, or may contract with any non-Federal Government entities. Any cooperative agreement, delegation or contractual arrangement shall not be effective without concurrence of the Secretary and shall include applicable provisions of the Federal Oil and Gas Royalty Management Act.
Subpart 3162 – Requirements for Operating Rights Owners and Operators
§ 3162.1 General requirements.
(a) The operating rights owner or operator, as appropriate, shall comply with applicable laws and regulations; with the lease terms, Onshore Oil and Gas Orders, NTL’s; and with other orders and instructions of the authorized officer. These include, but are not limited to, conducting all operations in a manner which ensures the proper handling, measurement, disposition, and site security of leasehold production; which protects other natural resources and environmental quality; which protects life and property; and which results in maximum ultimate economic recovery of oil and gas with minimum waste and with minimum adverse effect on ultimate recovery of other mineral resources.
(b) The operator shall permit properly identified authorized representatives to enter upon, travel across and inspect lease sites and records normally kept on the lease pertinent thereto without advance notice. Inspections normally will be conducted during those hours when responsible persons are expected to be present at the operation being inspected. Such permission shall include access to secured facilities on such lease sites for the purpose of making any inspection or investigation for determining whether there is compliance with the mineral leasing laws, the regulations in this part, and any applicable orders, notices or directives.
(c) For the purpose of making any inspection or investigation, the Secretary or his authorized representative shall have the same right to enter upon or travel across any lease site as the operator has acquired by purchase, condemnation or otherwise.
§ 3162.2 Drilling, producing, and drainage obligations.
§ 3162.2-1 Drilling and producing obligations.
(a) The operator, at its election, may drill and produce other wells in conformity with any system of well spacing or production allotments affecting the field or area in which the leased lands are situated, and which is authorized and sanctioned by applicable law or by the authorized officer.
(b) After notice in writing, the lessee(s) and operating rights owner(s) shall promptly drill and produce such other wells as the authorized officer may reasonably require in order that the lease may be properly and timely developed and produced in accordance with good economic operating practices.
§ 3162.2-2 What steps may BLM take to avoid uncompensated drainage of Federal or Indian mineral resources?
If we determine that a well is draining Federal or Indian mineral resources, we may take any of the following actions:
(a) If the mineral resources being drained are in Federal or Indian leases, we may require the lessee to drill and produce all wells that are necessary to protect the lease from drainage, unless the conditions of this part are met. BLM will consider applicable Federal, State, or Tribal rules, regulations, and spacing orders when determining which action to take. Alternatively, we may accept other equivalent protective measures;
(b) If the mineral resources being drained are either unleased (including those which may not be subject to leasing) or in Federal or Indian leases, we may execute agreements with the owners of interests in the producing well under which the United States or the Indian lessor may be compensated for the drainage (with the consent of the Federal or (in consultation with the Indian mineral owner and BIA) Indian lessees, if any);
(c) We may offer for lease any qualifying unleased mineral resources under part 3120 of this chapter or enter into a communitization agreement; or
(d) We may approve a unit or communitization agreement that provides for payment of a royalty on production attributable to unleased mineral resources as provided in § 3181.5.
§ 3162.2-3 When am I responsible for protecting my Federal or Indian lease from drainage?
You must protect your Federal or Indian lease from drainage if your lease is being drained of mineral resources by a well:
(a) Producing for the benefit of another mineral owner;
(b) Producing for the benefit of the same mineral owner but with a lower royalty rate; or
(c) Located in a unit or communitization agreement, which due to its Federal or Indian mineral owner’s allocation or participation factor, generates less revenue for the United States or the Indian mineral owner for the mineral resources produced from your lease.
§ 3162.2-4 What protective action may BLM require the lessee to take to protect the leases from drainage?
We may require you to:
(a) Drill or modify and produce all wells that are necessary to protect the leased mineral resources from drainage;
(b) Enter into a unitization or communitization agreement with the lease containing the draining well; or
(c) Pay compensatory royalties for drainage that has occurred or is occurring.
§ 3162.2-5 Must I take protective action when a protective well would be uneconomic?
You are not required to take any of the actions listed in § 3162.2-4 if you can prove to BLM that when you first knew or had constructive notice of drainage you could not produce a sufficient quantity of oil or gas from a protective well on your lease for a reasonable profit above the cost of drilling, completing, and operating the protective well.
§ 3162.2-6 When will I have constructive notice that drainage may be occurring?
(a) You have constructive notice that drainage may be occurring when well completion or first production reports for the draining well are filed with either BLM, State oil and gas commissions, or regulatory agencies and are publicly available.
(b) If you operate or own any interest in the draining well or lease, you have constructive notice that drainage may be occurring when you complete drill stem, production, pressure analysis, or flow tests of the well.
§ 3162.2-7 Who is liable for drainage if more than one person holds undivided interests in the record title or operating rights for the same lease?
(a) If more than one person holds record title interests in a portion of a lease that is subject to drainage, each person is jointly and severally liable for taking any action we may require under this part to protect the lease from drainage, including paying compensatory royalty accruing during the period and for the area in which it holds its record title interest.
(b) Operating rights owners are jointly and severally liable with each other and with all record title holders for drainage affecting the area and horizons in which they hold operating rights during the period they hold operating rights.
§ 3162.2-8 Does my responsibility for drainage protection end when I assign or transfer my lease interest?
If you assign your record title interest in a lease or transfer your operating rights, you are not liable for drainage that occurs after the date we approve the assignment or transfer. However, you remain responsible for the payment of compensatory royalties for any drainage that occurred when you held the lease interest.
§ 3162.2-9 What is my duty to inquire about the potential for drainage and inform BLM of my findings?
(a) When you first acquire a lease interest, and at all times while you hold the lease interest, you must monitor the drilling of wells in the same or adjacent spacing units and gather sufficient information to determine whether drainage is occurring. This information can be in various forms, including but not limited to, well completion reports, sundry notices, or available production information. As a prudent lessee, it is your responsibility to analyze and evaluate this information and make the necessary calculations to determine:
(1) The amount of drainage from production of the draining well;
(2) The amount of mineral resources which will be drained from your Federal or Indian lease during the life of the draining well; and
(3) Whether a protective well would be economic to drill.
(b) You must notify BLM within 60 days from the date of actual or constructive notice of:
(1) Which of the actions in § 3162.2-4 you will take; or
(2) The reasons a protective well would be uneconomic.
(c) If you do not have sufficient information to comply with § 3162.2-9(b)(1), indicate when you will provide the information.
(d) You must provide BLM with the analysis under paragraph (a) of this section within 60 days after we request it.
§ 3162.2-10 Will BLM notify me when it determines that drainage is occurring?
We will send you a demand letter by certified mail, return receipt requested, or personally serve you with notice, if we believe that drainage is occurring. However, your responsibility to take protective action arises when you first knew or had constructive notice of the drainage, even when that date precedes the BLM demand letter.
§ 3162.2-11 How soon after I know of the likelihood of drainage must I take protective action?
(a) You must take protective action within a reasonable time after the earlier of:
(1) The date you knew or had constructive notice that the potentially draining well had begun to produce oil or gas; or
(2) The date we issued a demand letter for protective action.
(b) Since the time required to drill and produce a protective well varies according to the location and conditions of the oil and gas reservoir, BLM will determine this on a case-by-case basis. When we determine whether you took protective action within a reasonable time, we will consider several factors including, but not limited to:
(1) Time required to evaluate the characteristics and performance of the draining well;
(2) Rig availability;
(3) Well depth;
(4) Required environmental analysis;
(5) Special lease stipulations which provide limited time frames in which to drill; and
(6) Weather conditions.
(c) If BLM determines that you did not take protection action timely, you will owe compensatory royalty for the period of the delay under § 3162.2-12.
§ 3162.2-12 If I hold an interest in a lease, for what period will the Department assess compensatory royalty against me?
The Department will assess compensatory royalty beginning on the first day of the month following the earliest reasonable time we determine you should have taken protective action. You must continue to pay compensatory royalty until:
(a) You drill sufficient economic protective wells and remain in continuous production;
(b) We approve a unitization or communitization agreement that includes the mineral resources being drained;
(c) The draining well stops producing; or
(d) You relinquish your interest in the Federal or Indian lease.
§ 3162.2-13 If I acquire an interest in a lease that is being drained, will the Department assess me for compensatory royalty?
If you acquire an interest in a Federal or Indian lease through an assignment of record title or transfer of operating rights under this part, you are liable for all drainage obligations accruing on and after the date we approve the assignment or transfer.
§ 3162.2-14 May I appeal BLM’s decision to require drainage protective measures?
You may appeal any BLM decision requiring you take drainage protective measures. You may request BLM State Director review under 43 CFR 3165.3 and/or appeal to the Interior Board of Land Appeals under 43 CFR part 4 and subpart 1840.
§ 3162.2-15 Who has the burden of proof if I appeal BLM’s drainage determination?
BLM has the burden of establishing a prima facie case that drainage is occurring and that you knew of such drainage. Then the burden of proof shifts to you to refute the existence of drainage or to prove there was not sufficient information to put you on notice of the need for drainage protection. You also have the burden of proving that drilling and producing from a protective well would not be economically feasible.
§ 3162.3 Conduct of operations.
(a) Whenever a change in operator occurs, the authorized officer shall be notified promptly in writing, and the new operator shall furnish evidence of sufficient bond coverage in accordance with § 3106.6 and subpart 3104 of this title.
(b) A contractor on a leasehold shall be considered the agent of the operator for such operations with full responsibility for acting on behalf of the operator for purposes of complying with applicable laws, regulations, the lease terms, NTL’s, Onshore Oil and Gas Orders, and other orders and instructions of the authorized officer.
§ 3162.3-1 Drilling applications and plans.
(a) Each well shall be drilled in conformity with an acceptable well-spacing program at a surveyed well location approved or prescribed by the authorized officer after appropriate environmental and technical reviews (see § 3162.5-1 of this title). An acceptable well-spacing program may be either (1) one which conforms with a spacing order or field rule issued by a State Commission or Board and accepted by the authorized officer, or (2) one which is located on a lease committed to a communitized or unitized tract at a location approved by the authorized officer, or (3) any other program established by the authorized officer.
(b) Any well drilled on restricted Indian land shall be subject to the location restrictions specified in the lease and/or Title 25 of the CFR.
(c) The operator shall submit to the authorized officer for approval an Application for Permit to Drill for each well. No drilling operations, nor surface disturbance preliminary thereto, may be commenced prior to the authorized officer’s approval of the permit.
(d) The Application for Permit to Drill process shall be initiated at least 30 days before commencement of operations is desired. Prior to approval, the application shall be administratively and technically complete. A complete application consists of Form 3160-3 and the following attachments:
(1) A drilling plan, which may already be on file, containing information required by paragraph (e) of this section and appropriate orders and notices.
(2) A surface use plan of operations containing information required by paragraph (f) of this section and appropriate orders and notices.
(3) Evidence of bond coverage as required by the Department of the Interior regulations, and
(4) Such other information as may be required by applicable orders and notices.
(e) Each drilling plan shall contain the information specified in applicable notices or orders, including a description of the drilling program, the surface and projected completion zone location, pertinent geologic data, expected hazards, and proposed mitigation measures to address such hazards. A drilling plan may be submitted for a single well or for several wells proposed to be drilled to the same zone within a field or area of geological and environmental similarity. A drilling plan may be modified from time to time as circumstances may warrant, with the approval of the authorized officer.
(f) The surface use plan of operations shall contain information specified in applicable orders or notices, including the road and drillpad location, details of pad construction, methods for containment and disposal of waste material, plans for reclamation of the surface, and other pertinent data as the authorized officer may require. A surface use plan of operations may be submitted for a single well or for several wells proposed to be drilled in an area of environmental similarity.
(g) For Federal lands, upon receipt of the Application for Permit to Drill or Notice of Staking, the authorized officer shall post the following information for public inspection at least 30 days before action to approve the Application for Permit to Drill: the company/operator name; the well name/number; the well location described to the nearest quarter-quarter section (40 acres), or similar land description in the case of lands described by metes and bounds, or maps showing the affected lands and the location of all tracts to be leased and of all leases already issued in the general area; and any substantial modifications to the lease terms. Where the inclusion of maps in such posting is not practicable, maps of the affected lands shall be made available to the public for review. This information also shall be provided promptly by the authorized officer to the appropriate office of the Federal surface management agency, for lands the surface of which is not under Bureau jurisdiction, requesting such agency to post the proposed action for public inspection for at least 30 days. The posting shall be in the office of the authorized officer and in the appropriate surface managing agency if other than the Bureau. The posting of an Application for Permit to Drill is for information purposes only and is not an appealable decision.
(h) Upon initiation of the Application for Permit to Drill process, the authorized officer shall consult with the appropriate Federal surface management agency and with other interested parties as appropriate and shall take one of the following actions as soon as practical, but in no event later than 5 working days after the conclusion of the 30-day notice period for Federal lands, or within 30 days from receipt of the application for Indian lands:
(1) Approve the application as submitted or with appropriate modifications or conditions;
(2) Return the application and advise the applicant of the reasons for disapproval; or
(3) Advise the applicant, either in writing or orally with subsequent written confirmation, of the reasons why final action will be delayed along with the date such final action can be expected.
(i) Approval of the Application for Permit to Drill does not warrant or certify that the applicant holds legal or equitable title to the subject lease(s) which would entitle the applicant to conduct drilling operations.
§ 3162.3-2 Subsequent well operations.
(a) A proposal for further well operations shall be submitted by the operator on Form 3160-5 for approval by the authorized officer prior to commencing operations to redrill, deepen, perform casing repairs, plug-back, alter casing, recomplete in a different interval, perform water shut off, commingling production between intervals and/or conversion to injection.
If there is additional surface disturbance, the proposal shall include a surface use plan of operations. A subsequent report on these operations also will be filed on Form 3160-5. The authorized officer may prescribe that each proposal contain all or a portion of the information set forth in § 3162.3-1 of this title.
(b) Unless additional surface disturbance is involved and if the operations conform to the standard of prudent operating practice, prior approval is not required for routine fracturing or acidizing jobs, or recompletion in the same interval; however, a subsequent report on these operations must be filed on Form 3160-5.
(c) No prior approval or a subsequent report is required for well cleanout work, routine well maintenance, or bottom hole pressure surveys.
(d) For details on how to apply for approval of a facility measurement point; approval for surface or subsurface commingling from different leases, unit participating areas and communitized areas; or approval for off-lease measurement, see 43 CFR 3173.12, 3173.15, and 3173.23, respectively.
§ 3162.3-3 Other lease operations.
Prior to commencing any operation on the leasehold which will result in additional surface disturbance, other than those authorized under § 3162.3-1 or § 3162.3-2, the operator shall submit a proposal on Form 3160-5 to the authorized officer for approval. The proposal shall include a surface use plan of operations.
§ 3162.3-4 Well abandonment.
(a) The operator shall promptly plug and abandon, in accordance with a plan first approved in writing or prescribed by the authorized officer, each newly completed or recompleted well in which oil or gas is not encountered in paying quantities or which, after being completed as a producing well, is demonstrated to the satisfaction of the authorized officer to be no longer capable of producing oil or gas in paying quantities, unless the authorized officer shall approve the use of the well as a service well for injection to recover additional oil or gas or for subsurface disposal of produced water. In the case of a newly drilled or recompleted well, the approval to abandon may be written or oral with written confirmation.
(b) Completion of a well as plugged and abandoned may also include conditioning the well as water supply source for lease operations or for use by the surface owner or appropriate Government Agency, when authorized by the authorized officer. All costs over and above the normal plugging and abandonment expense will be paid by the party accepting the water well.
(c) No well may be temporarily abandoned for more than 30 days without the prior approval of the authorized officer. The authorized officer may authorize a delay in the permanent abandonment of a well for a period of 12 months. When justified by the operator, the authorized officer may authorize additional delays, no one of which may exceed an additional 12 months. Upon the removal of drilling or producing equipment from the site of a well which is to be permanently abandoned, the surface of the lands disturbed in connection with the conduct of operations shall be reclaimed in accordance with a plan first approved or prescribed by the authorized officer.
§ 3162.4 Records and reports.
§ 3162.4-1 Well records and reports.
(a) The operator must keep accurate and complete records with respect to:
(1) All lease operations, including, but not limited to, drilling, producing, redrilling, repairing, plugging back, and abandonment operations;
(2) Production facilities and equipment (including schematic diagrams as required by applicable orders and notices); and
(3) Determining and verifying the quantity, quality, and disposition of production from or allocable to Federal or Indian leases (including source records).
(b) Standard forms for providing basic data are listed in
(c) Not later than the 5th business day after any well begins production on which royalty is due anywhere on a lease site or allocated to a lease site, or resumes production in the case of a well which has been off production for more than 90 days, the operator shall notify the authorized officer by letter or sundry notice, Form 3160-5, or orally to be followed by a letter or sundry notice, of the date on which such production has begun or resumed.
(d) All records and reports required by this section must be maintained for the following time periods:
(1) For Federal leases and units or communitized areas that include Federal leases, but do not include Indian leases:
(i) Seven years after the records are generated; unless,
(ii) A judicial proceeding or demand involving such records is timely commenced, in which case the record holder must maintain such records until the final nonappealable decision in such judicial proceeding is made, or with respect to that demand is rendered, unless the Secretary or the applicable delegated State authorizes in writing an earlier release of the requirement to maintain such records.
(2) For Indian leases, and units or communitized areas that include Indian leases, but do not include Federal leases:
(i) Six years after the records are generated; unless,
(ii) The Secretary or his/her designee notifies the record holder that the Department has initiated or is participating in an audit or investigation involving such records, in which case the record holder must maintain such records until the Secretary or his/her designee releases the record holder from the obligation to maintain the records.
(3) For units and communitized areas that include both Federal and Indian leases, 6 years after the records are generated, unless the Secretary or his/her designee has notified the record holder within those 6 years that an audit or investigation involving such records has been initiated, then:
(i) If a judicial proceeding or demand is commenced within 7 years after the records are generated, the record holder must retain all records regarding production from the lease, unit or communitization agreement until the final nonappealable decision in such judicial proceeding is made, or with respect to that demand is rendered, unless the Secretary or his/her designee authorizes in writing a release of the requirement to maintain such records before a final nonappealable decision is made or rendered;
(ii) If a judicial proceeding or demand is not commenced within 7 years after the records are generated, the record holder must retain all records regarding production from the unit or communitized area until the Secretary or his/her designee releases the record holder from the obligation to maintain the records.
(e) Record holders include lessees, operators, purchasers, transporters, and any other person directly involved in producing, transporting, purchasing, or selling, including measuring, oil or gas through the point of royalty measurement or the point of first sale, whichever is later. Record holders must maintain records generated during or for the period for which the lessee or operator has an interest in or conducted operations on the lease, or in which a person is involved in transporting, purchasing, or selling production from the lease, for the period of time required in paragraph (d) of this section.
§ 3162.4-2 Samples, tests, and surveys.
(a) During the drilling and completion of a well, the operator shall, when required by the authorized officer, conduct tests, run logs, and make other surveys reasonably necessary to determine the presence, quantity, and quality of oil, gas, other minerals, or the presence or quality of water; to determine the amount and/or direction of deviation of any well from the verticial; and to determine the relevant characteristics of the oil and gas reservoirs penetrated.
(b) After the well has been completed, the operator shall conduct periodic well tests which will demonstrate the quantity and quality of oil and gas and water. The method and frequency of such well tests will be specified in appropriate notices and orders. When needed, the operator shall conduct reasonable tests which will demonstrate the mechanical integrity of the downhole equipment.
(c) Results of samples, tests, and surveys approved or prescribed under this section shall be provided to the authorized officer without cost to the lessor.
§ 3162.5 Environment and safety.
§ 3162.5-1 Environmental obligations.
(a) The operator shall conduct operations in a manner which protects the mineral resources, other natural resources, and environmental quality. In that respect, the operator shall comply with the pertinent orders of the authorized officer and other standards and procedures as set forth in the applicable laws, regulations, lease terms and conditions, and the approved drilling plan or subsequent operations plan. Before approving any Application for Permit to Drill submitted pursuant to § 3162.3-1 of this title, or other plan requiring environmental review, the authorized officer shall prepare an environmental record of review or an environmental assessment, as appropriate. These environmental documents will be used in determining whether or not an environmental impact statement is required and in determining any appropriate terms and conditions of approval of the submitted plan.
(b) The operator shall exercise due care and diligence to assure that leasehold operations do not result in undue damage to surface or subsurface resources or surface improvements. All produced water must be disposed of by injection into the subsurface, by approved pits, or by other methods which have been approved by the authorized officer. Upon the conclusion of operations, the operator shall reclaim the disturbed surface in a manner approved or reasonably prescribed by the authorized officer.
(c) All spills or leakages of oil, gas, produced water, toxic liquids, or waste materials, blowouts, fires, personal injuries, and fatalities shall be reported by the operator in accordance with these regulations and as prescribed in applicable order or notices. The operator shall exercise due diligence in taking necessary measures, subject to approval by the authorized officer, to control and remove pollutants and to extinguish fires. An operator’s compliance with the requirements of the regulations in this part shall not relieve the operator of the obligation to comply with other applicable laws and regulations.
(d) When reasonably required by the authorized officer, a contingency plan shall be submitted describing procedures to be implemented to protect life, property, and the environment.
(e) The operator’s liability for damages to third parties shall be governed by applicable law.
§ 3162.5-2 Control of wells.
(a) Drilling wells. The operator shall take all necessary precautions to keep each well under control at all times, and shall utiliz and maintain materials and equipment necessary to insure the safety of operating conditions and procedures.
(b) Vertical drilling. The operator shall conduct drilling operations in a manner so that the completed well does not deviate significantly from the vertical without the prior written approval of the authorized officer. Significant deviation means a projected deviation of the well bore from the vertical of 10° or more, or a projected bottom hole location which could be less than 200 feet from the spacing unit or lease boundary. Any well which deviates more than 10° from the vertical or could result in a bottom hole location less than 200 feet from the spacing unit or lease boundary without prior written approval must be promptly reported to the authorized officer. In these cases, a directional survey is required.
(c) High pressure or loss of circulation. The operator shall take immediate steps and utilize necessary resources to maintain or restore control of any well in which the pressure equilibrium has become unbalanced.
(d) Protection of fresh water and other minerals. The operator shall isolate freshwater-bearing and other usable water containing 5,000 ppm or less of dissolved solids and other mineral-bearing formations and protect them from contamination.
Tests and surveys of the effectiveness of such measures shall be conducted by the operator using procedures and practices approved or prescribed by the authorized officer.
§ 3162.5-3 Safety precautions.
The operator shall perform operations and maintain equipment in a safe and workmanlike manner. The operator shall take all precautions necessary to provide adequate protection for the health and safety of life and the protection of property. Compliance with health and safety requirements prescribed by the authorized officer shall not relieve the operator of the responsibility for compliance with other pertinent health and safety requirements under applicable laws or regulations.
§ 3162.6 Well and facility identification.
(a) Every well within a Federal or Indian lease or supervised agreement shall have a well identification sign. All signs shall be maintained in a legible condition.
(b) For wells located on Federal and Indian lands, the operator must properly identify, by a sign in a conspicuous place, each well, other than those permanently abandoned. The well sign must include the well number, the name of the operator, the lease serial number, and the surveyed location (the quarter-quarter section, section, township and range or other authorized survey designation acceptable to the authorized officer, such as metes and bounds or longitude and latitude). When specifically requested by the authorized officer, the sign must include the unit or communitization agreement name or number. The authorized officer may also require the sign to include the name of the Indian allottee lessor(s) preceding the lease serial number.
(c) All facilities at which oil or gas produced from a Federal or Indian lease is stored, measured, or processed must be clearly identified with a sign that contains the name of the operator, the lease serial number or communitization or unit agreement identification number, as appropriate, and the surveyed location (the quarter-quarter section, section, township and range or other authorized survey designation acceptable to the authorized officer, such as metes and bounds or longitude and latitude). On Indian leases, the sign also must include the name of the appropriate tribe and whether the lease is tribal or allotted. For situations of one tank battery servicing one well in the same location, the requirements of this paragraph and paragraph (b) of this section may be met by one sign as long as it includes the information required by both paragraphs. In addition, each storage tank must be clearly identified by a unique number. With regard to the quarter-quarter designation and the unique tank number, any such designation established by State law or regulation satisfies this requirement.
(d) All signs must be maintained in legible condition and must be clearly apparent to any person at or approaching the storage, measurement, or transportation point.
(e) All abandoned wells shall be marked with a permanent monument containing the information in paragraph (b) of this section. The requirement for a permanent monument may be waived in writing by the authorized officer.
§ 3162.7 Measurement, disposition, and protection of production.
§ 3162.7-1 Disposition of production.
(a) The operator shall put into marketable condition, if economically feasible, all oil, other hydrocarbons, gas, and sulphur produced from the leased land.
(b) Where oil accumulates in a pit, such oil must either be (1) recirculated through the regular treating system and returned to the stock tanks for sale, or (2) pumped into a stock tank without treatment and measured for sale in the same manner as from any sales tank in accordance with applicable orders and notices. In the absence of prior approval from the authorized officer, no oil should go to a pit except in an emergency. Each such occurrence must be reported to the authorized officer and the oil promptly recovered in accordance with applicable orders and notices.
(c)(1) Any person engaged in transporting by motor vehicle any oil from any lease site, or allocated to any such lease site, shall carry on his/her person, in his/her vehicle, or in his/her immediate control, documentation showing at a minimum; the amount, origin, and intended first purchaser of the oil.
(2) Any person engaged in transporting any oil or gas by pipeline from any lease site, or allocated to any lease site, shall maintain documentation showing, at a minimum, the amount, origin, and intended first purchaser of such oil or gas.
(3) On any lease site, any authorized representative who is properly identified may stop and inspect any motor vehicle that he/she has probable cause to believe is carrying oil from any such lease site, or allocated to such lease site, to determine whether the driver possesses proper documentation for the load of oil.
(4) Any authorized representative who is properly identified and who is accompanied by an appropriate law enforcement officer, or an appropriate law enforcement officer alone, may stop and inspect any motor vehicle which is not on a lease site if he/she has probable cause to believe the vehicle is carrying oil from a lease site, or allocated to a lease site, to determine whether the driver possesses proper documentation for the load of oil.
(d) The operator shall conduct operations in such a manner as to prevent avoidable loss of oil and gas. A operator shall be liable for royalty payments on oil or gas lost or wasted from a lease site, or allocated to a lease site, when such loss or waste is due to negligence on the part of the operator of such lease, or due to the failure of the operator to comply with any regulation, order or citation issued pursuant to this part.
(e) When requested by the authorized officer, the operator shall furnish storage for royalty oil, on the leasehold or at a mutually agreed upon delivery point off the leased land without cost to the lessor, for 30 days following the end of the calendar month in which the royalty accrued.
§ 3162.7-2 Measurement of oil.
All oil removed or sold from a lease, communitized area, or unit participating area must be measured under subpart 3174 of this title. All measurement must be on the lease, communitized area, or unit from which the oil originated and must not be commingled with oil originating from other sources, unless approved by the authorized officer under the provisions of subpart 3173 of this title.
§ 3162.7-3 Measurement of gas.
All gas removed or sold from a lease, communitized area, or unit participating area must be measured under subpart 3175 of this chapter. All measurement must be on the lease, communitized area, or unit from which the gas originated and must not be commingled with gas originating from other sources unless approved by the authorized officer under subpart 3173 of this chapter.
§ 3162.7-4 Royalty rates on oil; sliding and step-scale leases (public land only).
Sliding- and step-scale royalties are based on the average daily production per well. The authorized officer shall specify which wells on a leasehold are commercially productive, including in that category all wells, whether produced or not, for which the annual value of permissible production would be greater than the estimated reasonable annual lifting cost, but only wells that yield a commercial volume of production during at least part of the month shall be considered in ascertaining the average daily production per well. The average daily production per well for a lease is computed on the basis of a 28-, 29-, 30-, or 31-day month (as the case may be), the number of wells on the leasehold counted as producing, and the gross production from the leasehold. The authorized officer will determine which commercially productive wells shall be considered each month as producing wells for the purpose of computing royalty in accordance with the following rules, and in the authorized officer’s discretion may count as producing any commercially productive well shut in for conservation purposes.
(a) For a previously producing leasehold, count as producing for every day of the month each previously producing well that produced 15 days or more during the month, and disregard wells that produced less than 15 days during the month.
(b) Wells approved by the authorized officer as input wells shall be counted as producing wells for the entire month if so used 15 days or more during the month and shall be disregarded if so used less than 15 days during the month.
(c) When the initial production of a leasehold is made during the calendar month, compute royalty on the basis of producing well days.
(d) When a new well is completed for production on a previously producing leasehold and produces for 10 days or more during the calendar month in which it is brought in, count such new wells as producing every day of the month in arriving at the number of producing well days. Do not count any new well that produces for less than 10 days during the calendar month.
(e) Consider “head wells” that make their best production by intermittent pumping or flowing as producing every day of the month, provided they are regularly operated in this manner with approval of the authorized officer.
(f) For previously producing leaseholds on which no wells produced for 15 days or more, compute royalty on the basis of actual producing well days.
(g) For previously producing leaseholds on which no wells were productive during the calendar month but from which oil was shipped, compute royalty at the same royalty percentage as that of the last preceding calendar month in which production and shipments were normal.
(h) Rules for special cases not subject to definition, such as those arising from averaging the production from two distinct sands or horizons when the production of one sand or horizon is relatively insignificant compared to that of the other, shall be made by the authorized officer as need arises.
(i)(1) In the following summary of operations on a typical leasehold for the month of June, the wells considered for the purpose of computing royalty on the entire production of the property for the months are indicated.
| Well No. and record | Count (marked X) |
|---|---|
| 1. Produced full time for 30 days | X |
| 2. Produced for 26 days; down 4 days for repairs | X |
| 3. Produced for 28 days; down June 5, 12 hours, rods; June 14, 6 hours, engine down; June 26, 24 hours, pulling rods and tubing | X |
| 4. Produced for 12 days; down June 13 to 30 | |
| 5. Produced for 8 hours every day (head well) | X |
| 6. Idle producer (not operated) | |
| 7. New well, completed June 17; produced for 14 days | X |
| 8. New well, completed June 22; produced for 9 days |
(2) In this example, there are eight wells on the leasehold, but wells No. 4, 6, and 8 are not counted in computing royalties. Wells No. 1, 2, 3, 5, and 7 are counted as producing for 30 days. The average production per well per day is determined by dividing the total production of the leasehold for the month (including the oil produced by wells 4 and 8) by 5 (the number of wells counted as producing), and dividing the quotient thus obtained by the number of days in the month.
Subpart 3163 – Noncompliance, Assessments, and Penalties
§ 3163.1 Remedies for acts of noncompliance.
(a) Whenever any person fails or refuses to comply with the regulations in this part, the terms of any lease or permit, or the requirements of any notice or order, the authorized officer shall notify that person in writing of the violation or default.
(1) For major violations, the authorized officer may also subject the person to an assessment of $1,000 per violation, per inspection.
(2) For minor violations, the authorized officer may also subject the person to an assessment of $250 per violation, per inspection.
(3) When necessary for compliance, or where operations have been commenced without approval, or where continued operations could result in immediate, substantial, and adverse impacts on public health and safety, the environment, production accountability, or royalty income, the authorized officer may shut down operations. Immediate shut-in action may be taken where operations are initiated and conducted without prior approval, or where continued operations could result in immediate, substantial, and adverse impacts on public health and safety, the environment, production accountability, or royalty income. Shut-in actions for other situations may be taken only after due notice, in writing, has been given;
(4) When necessary for compliance, the authorized officer may enter upon a lease and perform, or have performed, at the sole risk and expense of the operator, operations that the operator fails to perform when directed in writing by the authorized officer. Appropriate charges shall include the actual cost of performance, plus an additional 25 percent of such amount to compensate the United States for administrative costs. The operator shall be provided with a reasonable period of time either to take corrective action or to show why the lease should not be entered;
(5) Continued noncompliance may subject the lease to cancellation and forfeiture under the bond. The operator shall be provided with a reasonable period of time either to take corrective action or to show why the lease should not be recommended for cancellation;
(6) Where actual loss or damage has occurred as a result of the operator’s noncompliance, the actual amount of such loss or damage shall be charged to the operator.
(b) Certain instances of noncompliance are violations of such a nature as to warrant the imposition of immediate major assessments upon discovery, as compared to those established by paragraph (a) of this section. Upon discovery the following violations, as well as the violations identified in subparts 3173, 3174, and 3175 of this chapter, will result in assessments in the specified amounts per violation, per inspection, without exception:
(1) For failure to install blowout preventer or other equivalent well control equipment, as required by the approved drilling plan, $1,000;
(2) For drilling without approval or for causing surface disturbance on Federal or Indian surface preliminary to drilling without approval, $1,000;
(3) For failure to obtain approval of a plan for well abandonment prior to commencement of such operations, $500.
(c) On a case-by-case basis, the State Director may compromise or reduce assessments under this section. In compromising or reducing the amount of the assessment, the State Director will state in the record the reasons for such determination.
§ 3163.2 Civil penalties.
(a)(1) Whenever any person fails or refuses to comply with any applicable requirements of the Federal Oil and Gas Royalty Management Act, any mineral leasing law, any regulation thereunder, or the terms of any lease or permit issued thereunder, the authorized officer will notify the person in writing of the violation, unless the violation was discovered and reported to the authorized officer by the liable person or the notice was previously issued under § 3163.1.
(2) Whenever a purchaser or transporter who is not an operating rights owner or operator fails or refuses to comply with 30 U.S.C. 1713 or applicable rules or regulations regarding records relevant to determining the quality, quantity, and disposition of oil or gas produced from or allocable to a Federal or Indian oil and gas lease, the authorized officer will notify the purchaser or transporter, as appropriate, in writing of the violation.
(b)(1) If the violation specified in paragraph (a) of this section is not corrected within 20 days of such notice or report, or such longer time as the authorized officer may agree to in writing, the person will be liable for a civil penalty of up to $1,291 per violation for each day such violation continues, dating from the date of such notice or report. Any amount imposed and paid as assessments under § 3163.1(a)(1) will be deducted from penalties under this section.
(2) If the violation specified in paragraph (a) of this section is not corrected within 40 days of such notice or report, or a longer period as the authorized officer may agree to in writing, the person will be liable for a civil penalty of up to $12,924 per violation for each day the violation continues, dating from the date of such notice or report. Any amount imposed and paid as assessments under § 3163.1(a)(1) will be deducted from penalties under this section.
(c) In the event the authorized officer agrees to an abatement period of more than 20 days, the date of notice shall be deemed to be 20 days prior to the end of such longer abatement period for the purpose of civil penalty calculation.
(d) Whenever a transporter fails to permit inspection for proper documentation by any authorized representative, as provided in § 3162.7-1(c) of this chapter, the transporter is liable for a civil penalty of up to $1,291 per day for the violation, dating from the date of notice of the failure to permit inspection and continuing until the proper documentation is provided. If the violation continues beyond 20 days, the authorized officer will revoke the transporter’s authority to remove crude oil produced from, or allocated to, any Federal or Indian lease under the authority of that authorized officer. This revocation of the transporter’s authority will continue until the transporter provides proper documentation and pays any related penalty.
(e) Any person is liable for a civil penalty of up to $25,847 per violation for each day such violation continues, if the person:
(1) Fails or refuses to permit lawful entry or inspection authorized by § 3162.1(b) of this title; or
(2) Knowingly or willfully fails to notify the authorized officer by letter or Sundry Notice, Form 3160-5 or orally to be followed by a letter or Sundry Notice, not later than the 5th business day after any well begins production on which royalty is due, or resumes production in the case of a well which has been off of production for more than 90 days, from a well located on a lease site, or allocated to a lease site, of the date on which such production began or resumed.
(f) Any person is liable for a civil penalty of up to $64,618 per violation for each day such violation continues, if the person:
(1) Knowingly or willfully prepares, maintains or submits false, inaccurate or misleading reports, notices, affidavits, records, data or other written information required by this part; or
(2) Knowingly or willfully takes or removes, transports, uses or diverts any oil or gas from any Federal or Indian lease site without having valid legal authority to do so; or
(3) Purchases, accepts, sells, transports or conveys to another any oil or gas knowing or having reason to know that such oil or gas was stolen or unlawfully removed or diverted from a Federal or Indian lease site.
(g) On a case-by-case basis, the Secretary may compromise or reduce civil penalties under this section. In compromising or reducing the amount of a civil penalty, the Secretary will state on the record the reasons for such determination.
(h) Civil penalties provided by this section are supplemental to, and not in derogation of, any other penalties or assessments for noncompliance in any other provision of law, except as provided in paragraphs (a) and (b) of this section.
§ 3163.3 Criminal penalties.
Any person who commits an act for which a civil penalty is provided in § 3163.2(f) shall, upon conviction, be punished by a fine of not more than $50,000, or by imprisonment for not more than 2 years, or both.
§ 3163.4 Failure to pay.
If any person fails to pay an assessment or a civil penalty under § 3163.1 or § 3163.2 of this title after the order making the assessment or penalty becomes a final order, and if such person does not file a petition for judicial review in accordance with this subpart, or, after a court in an action brought under this subpart has entered a final judgment in favor of the Secretary, the court shall have jurisdiction to award the amount assessed plus interest from the date of the expiration of the 90-day period provided by § 3165.4(e) of this title. The Federal Oil and Gas Royalty Management Act requires that any judgment by the court shall include an order to pay.
§ 3163.5 Assessments and civil penalties.
(a) Assessments made under § 3163.1 of this title are due upon issuance and shall be paid within 30 days of receipt of certified mail written notice or personal service, as directed by the authorized officer in the notice. Failure to pay assessed damages timely will be subject to late payment charges as prescribed under Title 30 CFR Group 202.
(b) Civil penalties under § 3163.2 of this title shall be paid within 30 days of completion of any final order of the Secretary or the final order of the Court.
(c) Payments made pursuant to this section shall not relieve the responsible party of compliance with the regulations in this part or from liability for waste or any other damage. A waiver of any particular assessment shall not be construed as precluding an assessment pursuant to § 3163.1 of this title for any other act of noncompliance occurring at the same time or at any other time. The amount of any civil penalty under § 3163.2 of this title, as finally determined, may be deducted from any sums owing by the United States to the person charged.
§ 3163.6 Injunction and specific performance.
(a) In addition to any other remedy under this part or any mineral leasing law, the Attorney General of the United States or his designee may bring a civil action in a district court of the United States to:
(1) Restrain any violation of the Federal Oil and Gas Royalty and Management Act or any mineral leasing law of the United States; or
(2) Compel the taking of any action required by or under the Act or any mineral leasing law of the United States.
(b) A civil action described in paragraph (a) may be brought only in the United States district court of the judicial district wherein the act, omission or transaction constituting a violation under the Act or any other mineral leasing law occurred, or wherein the defendant is found or transacts business.
Subpart 3164 – Special Provisions
§ 3164.1 Onshore Oil and Gas Orders.
(a) The Director is authorized to issue Onshore Oil and Gas Orders when necessary to implement and supplement the regulations in this part. All orders will be published in the
(b) These Orders are binding on operating rights owners and operators, as appropriate, of Federal and restricted Indian oil and gas leases which have been, or may hereafter be, issued. The Onshore Oil and Gas Orders listed below are currently in effect:
| Order No. | Subject | Effective date | Supersedes | |
|---|---|---|---|---|
| 1. | Approval of operations | May 7, 2007 | 71 FR | NTL-6. |
| 2. | Drilling | Dec. 19, 1988 | 53 FR 46798 | None. |
| 6. | Hydrogen sulfide operations | Jan. 22, 1991 | 55 FR 48958 | None. |
| 7. | Disposal of produced water | October 8, 1993 | 58 FR 47354 | NTL-2B |
Note: Numbers to be assigned sequentially by the Washington Office as proposed Orders are prepared for publication.
§ 3164.2 NTL’s and other implementing procedures.
(a) The authorized officer is authorized to issue NTL’s when necessary to implement the onshore oil and gas orders and the regulations in this part. All NTL’s will be issued after notice and opportunity for comment.
(b) All NTL’s issued prior to the promulgation of these regulations shall remain in effect until modified, superseded by an Onshore Oil and Gas Order, or otherwise terminated.
(c) A manual and other written instructions will be used to provide policy and procedures for internal guidance of the Bureau of Land Management.
§ 3164.3 Surface rights.
(a) Operators shall have the right of surface use only to the extent specifically granted by the lease. With respect to restricted Indian lands, additional surface rights may be exercised when granted by a written agreement with the Indian surface owner and approved by the Superintendent of the Indian agency having jurisdiction.
(b) Except for the National Forest System lands, the authorized officer is responsible for approving and supervising the surface use of all drilling, development, and production activities on the leasehold. This includes storage tanks and processing facilities, sales facilities, all pipelines upstream from such facilities, and other facilities to aid production such as water disposal pits and lines, and gas or water injection lines.
(c) On National Forest System lands, the Forest Service shall regulate all surface disturbing activities in accordance with Forest Service regulations, including providing to the authorized officer appropriate approvals of such activities.
§ 3164.4 Damages on restricted Indian lands.
Assessments for damages to lands, crops, buildings, and to other improvements on restricted Indian lands shall be made by the Superintendent and be payable in the manner prescribed by said official.
Subpart 3165 – Relief, Conflicts, and Appeals
§ 3165.1 Relief from operating and producing requirements.
(a) Applications for relief from either the operating or the producing requirements of a lease, or both, shall be filed with the authorized officer, and shall include a full statement of the circumstances that render such relief necessary.
(b) The authorized officer shall act on applications submitted for a suspension of operations or production, or both, filed pursuant to § 3103.4-4 of this title. The application for suspension shall be filed with the authorized officer prior to the expiration date of the lease; shall be executed by all operating rights owners or, in the case of a Federal unit approved under part 3180 of this title, by the unit operator on behalf of the committed tracts or by all operating rights owners of such tracts; and shall include a full statement of the circumstances that makes such relief necessary.
(c) If approved, a suspension of operations and production will be effective on the first of the month in which the completed application was filed or the date specified by the authorized officer. Suspensions will terminate when they are no longer justified in the interest of conservation, when such action is in the interest of the lessor, or as otherwise stated by the authorized officer in the approval letter.
§ 3165.1-1 Relief from royalty and rental requirements.
Applications for any modification authorized by law of the royalty or rental requirements of a lease for lands of the United States shall be filed in the office of the authorized officer having jurisdiction of the lands. (For other regulations relating to royalty and rental relief, and suspension of operations and production, see part 3103 of this title.)
§ 3165.2 Conflicts between regulations.
In the event of any conflict between the regulations in this part and the regulations in title 25 CFR concerning oil and gas operations on Federal and Indian leaseholds, the regulations in this part shall govern with respect to the obligations in the conduct of oil and gas operations, acts of noncompliance, and the jurisdiction and authority of the authorized officer.
§ 3165.3 Notice, State Director review and hearing on the record.
(a) Notice. (1) Whenever any person fails to comply with any provisions of the lease, the regulations in this part, applicable orders or notices, or any other appropriate order of the authorized officer, the authorized officer will issue a written notice or order to the appropriate party and the lessee(s) to remedy any defaults or violations.
(2) Whenever any purchaser or transporter, who is not an operating rights owner or operator, fails or refuses to comply with 30 U.S.C. 1713 or applicable rules or regulations regarding records relevant to determining the quality, quantity, and disposition of oil or gas produced from or allocable to a Federal or Indian oil and gas lease, applicable orders or notices, or any other appropriate orders of the authorized officer, the authorized officer will give written notice or order to the purchaser or transporter to remedy any violations.
(3) Written orders or a notice of violation, assessment, or proposed penalty will be issued and served by personal service by the authorized officer, or by certified mail, return receipt requested. Service will be deemed to occur when the document is received or 7 business days after the date it is mailed, whichever is earlier.
(4) Any person may designate a representative to receive any notice of violation, order, assessment, or proposed penalty on that person’s behalf.
(5) In the case of a major violation, the authorized officer will make a good faith effort to contact such designated representative by telephone, to be followed by a written notice or order. Receipt of a notice or order will be deemed to occur at the time of such verbal communication, and the time of notice and the name of the receiving party will be documented in the file. If the good faith effort to contact the designated representative is unsuccessful, notice of the major violation or order may be given to any person conducting or supervising operations subject to the regulations in this part.
(6) In the case of a minor violation, the authorized officer will only provide a written notice or order to the designated representative.
(7) A copy of all orders, notices, or instructions served on any contractor or field employee or designated representative will also be mailed to the operator. Any notice involving a civil penalty against an operator will be mailed to the operator, with a copy to the operating rights owner.
(b) State Director review. Any adversely affected party that contests a notice of violation or assessment or an instruction, order, or decision of the authorized officer issued under the regulations in this part, may request an administrative review, before the State Director, either with or without oral presentation. Such request, including all supporting documentation, shall be filed in writing with the appropriate State Director within 20 business days of the date such notice of violation or assessment or instruction, order, or decision was received or considered to have been received and shall be filed with the appropriate State Director. Upon request and showing of good cause, an extension for submitting supporting data may be granted by the State Director. Such review shall include all factors or circumstances relevant to the particular case. Any party who is adversely affected by the State Director’s decision may appeal that decision to the Interior Board of Land Appeals as provided in § 3165.4 of this part.
(c) Review of proposed penalties. Any adversely affected party wishing to contest a notice of proposed penalty shall request an administrative review before the State Director under the procedures set out in paragraph (b) of this section. However, no civil penalty shall be assessed under this part until the party charged with the violation has been given the opportunity for a hearing on the record in accordance with section 109(e) of the Federal Oil and Gas Royalty Management Act. Therefore, any party adversely affected by the State Director’s decision on the proposed penalty, may request a hearing on the record before an Administrative Law Judge or, in lieu of a hearing, may appeal that decision directly to the Interior Board of Land Appeals as provided in § 3165.4(b)(2) of this part. If such party elects to request a hearing on the record, such request shall be filed in the office of the State Director having jurisdiction over the lands covered by the lease within 30 days of receipt of the State Director’s decision on the notice of proposed penalty. Where a hearing on the record is requested, the State Director shall refer the complete case file to the Office of Hearings and Appeals for a hearing before an Administrative Law Judge in accordance with part 4 of this title. A decision shall be issued following completion of the hearing and shall be served on the parties. Any party, including the United States, adversely affected by the decision of the Administrative Law Judge may appeal to the Interior Board of Land Appeals as provided in § 3163.4 of this title.
(d) Action on request for State Director review. The State Director will issue a final decision within 10 business days after the receipt of a complete request for administrative review or, where oral presentation has been made, within 10 business days after the oral presentation. The State Director’s decision represents the final Bureau decision from which further review may be obtained as provided in paragraph (c) of this section for proposed penalties, and in § 3165.4 for all other decisions.
(e) Effect of request for State Director review or for hearing on the record. (1) Any request for review by the State Director under this section shall not result in a suspension of the requirement for compliance with the notice of violation or proposed penalty, or stop the daily accumulation of assessments or penalties, unless the State Director to whom the request is made so determines.
(2) Any request for a hearing on the record before an administrative law judge under this section shall not result in a suspension of the requirement for compliance with the decision, unless the administrative law judge so determines. Any request for hearing on the record shall stop the accumulation of additional daily penalties until such time as a final decision is rendered, except that within 10 days of receipt of a request for a hearing on the record, the State Director may, after review of such request, recommend that the Director reinstate the accumulation of daily civil penalties until the violation is abated. Within 45 days of the filing of the request for a hearing on the record, the Director may reinstate the accumulation of civil penalties if he/she determines that the public interest requires a reinstatement of the accumulation and that the violation is causing or threatening immediate, substantial and adverse impacts on public health and safety, the environment, production accountability, or royalty income. If the Director does not reinstate the daily accumulation within 45 days of the filing of the request for a hearing on the record, the suspension shall continue.
§ 3165.4 Appeals.
(a) Appeal of decision of State Director. Any party adversely affected by the decision of the State Director after State Director review, under § 3165.3(b) of this title, of a notice of violation or assessment or of an instruction, order, or decision may appeal that decision to the Interior Board of Land Appeals pursuant to the regulations set out in part 4 of this title.
(b) Appeal from decision on a proposed penalty after a hearing on the record. (1) Any party adversely affected by the decision of an Administrative Law Judge on a proposed penalty after a hearing on the record under § 3165.3(c) of this title may appeal that decision to the Interior Board of Land Appeals pursuant to the regulations in part 4 of this title.
(2) In lieu of a hearing on the record under § 3165.3(c) of this title, any party adversely affected by the decision of the State Director on a proposed penalty may waive the opportunity for such a hearing on the record by appealing directly to the Interior Board of Land Appeals under part 4 of this title. However, if the right to a hearing on the record is waived, further appeal to the District Court under section 109(j) of the Federal Oil and Gas Royalty Management Act is precluded.
(c) Effect of an appeal on an approval/decision by a State Director or Administrative Law Judge. All decisions and approvals of a State Director or Administrator Law Judge under this part shall remain effective pending appeal unless the Interior Board of Land Appeals determines otherwise upon consideration of the standards stated in this paragraph. The provisions of 43 CFR 4.21(a) shall not apply to any decision or approval of a State Director or Administrative Law Judge under this part. A petition for a stay of a decision or approval of a State Director or Administrative Law Judge shall be filed with the Interior Board of Land Appeals, Office of Hearings and Appeals, Department of the Interior, and shall show sufficient justification based on the following standards:
(1) The relative harm to the parties if the stay is granted or denied,
(2) The likelihood of the appellant’s success on the merits,
(3) The likelihood of irreparable harm to the appellant or resources if the stay is not granted, and
(4) Whether the public interest favors granting the stay.
(d) Effect of appeal on compliance requirements. Except as provided in paragraph (d) of this section, any appeal filed pursuant to paragraphs (a) and (b) of this section shall not result in a suspension of the requirement for compliance with the order or decision from which the appeal is taken unless the Interior Board of Land Appeals determines that suspension of the requirements of the order or decision will not be detrimental to the interests of the lessor or upon submission and acceptance of a bond deemed adequate to indemnify the lessor from loss or damage.
(e) Effect of appeal on assessments and penalties. (1) Except as provided in paragraph (d)(3) of this section, an appeal filed pursuant to paragraph (a) of this section shall suspend the accumulation of additional daily assessments. However, the pendency of an appeal shall not bar the authorized officer from assessing civil penalties under § 3163.2 of this title in the event the operator has failed to abate the violation which resulted in the assessment. The Board of Land Appeals may issue appropriate orders to coordinate the pending appeal and the pending civil penalty proceeding.
(2) Except as provided in paragraph (d)(3) of this section, an appeal filed pursuant to paragraph (b) of this section shall suspend the accumulation of additional daily civil penalties.
(3) When an appeal is filed under paragraph (a) or (b) of this section, the State Director may, within 10 days of receipt of the notice of appeal, recommend that the Director reinstate the accumulation of assessments and daily civil penalties until such time as a final decision is rendered or until the violation is abated. The Director may, if he/she determines that the public interest requires it, reinstate such accumulation(s) upon a finding that the violation is causing or threatening immediate substantial and adverse impacts on public health and safety, the environment, production accountability, or royalty income. If the Director does not act on the recommendation to reinstate the accumulation(s) within 45 days of the filing of the notice of appeal, the suspension shall continue.
(4) When an appeal is filed under paragraph (a) of this section from a decision to require drainage protection, BLM’s drainage determination will remain in effect during the appeal, notwithstanding the provisions of 43 CFR 4.21. Compensatory royalty and interest determined under 30 CFR Part 218 will continue to accrue throughout the appeal.
(f) Judicial review. Any person who is aggrieved by a final order of the Secretary under this section may seek review of such order in the United States District Court for the judicial district in which the alleged violation occurred. Because section 109 of the Federal Oil and Gas Royalty Management Act provides for judicial review of civil penalty determinations only where a person has requested a hearing on the record, a waiver of such hearing precludes further review by the district court. Review by the district court shall be on the administrative record only and not de novo. Such an action shall be barred unless filed within 90 days after issuance of final decision as provided in § 4.21 of this title.
PART 3170 – ONSHORE OIL AND GAS PRODUCTION
Subpart 3170 – Onshore Oil and Gas Production: General
§ 3170.1 Authority.
The authorities for promulgating the regulations in this part are the Mineral Leasing Act, 30 U.S.C. 181 et seq.; the Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et seq.; the Federal Oil and Gas Royalty Management Act, 30 U.S.C. 1701 et seq.; the Indian Mineral Leasing Act, 25 U.S.C. 396a et seq.; the Act of March 3, 1909, 25 U.S.C. 396; the Indian Mineral Development Act, 25 U.S.C. 2101 et seq.; and the Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq. Each of these statutes gives the Secretary the authority to promulgate necessary and appropriate rules and regulations governing Federal and Indian (except Osage Tribe) oil and gas leases. See 30 U.S.C. 189; 30 U.S.C. 359; 25 U.S.C. 396d; 25 U.S.C. 396; 25 U.S.C. 2107; and 43 U.S.C. 1740. Under Secretarial Order Number 3087, dated December 3, 1982, as amended on February 7, 1983 (48 FR 8983), and the Departmental Manual (235 DM 1.1), the Secretary has delegated regulatory authority over onshore oil and gas development on Federal and Indian (except Osage Tribe) lands to the BLM. For Indian leases, the delegation of authority to the BLM is reflected in 25 CFR parts 211, 212, 213, 225, and 227. In addition, as authorized by 43 U.S.C. 1731(a), the Secretary has delegated to the BLM regulatory responsibility for oil and gas operations on Indian lands. 235 DM 1.1.K.
§ 3170.2 Scope.
The regulations in this part apply to:
(a) All Federal onshore and Indian oil and gas leases (other than those of the Osage Tribe);
(b) Indian Mineral Development Act (IMDA) agreements for oil and gas, unless specifically excluded in the agreement or unless the relevant provisions of the rule are inconsistent with the agreement;
(c) Leases and other business agreements for the development of tribal energy resources under a Tribal Energy Resource Agreement entered into with the Secretary, unless specifically excluded in the lease, other business agreement, or Tribal Energy Resource Agreement;
(d) State or private tracts committed to a federally approved unit or communitization agreement (CA) as defined by or established under 43 CFR subpart 3105 or 43 CFR part 3180; and
(e) All onshore facility measurement points where oil or gas produced from the leases or agreements identified earlier in this section is measured.
§ 3170.3 Definitions and acronyms.
(a) As used in this part, the term:
Allocated or allocation means a method or process by which production is measured at a central point and apportioned to the individual lease, or unit Participating Area (PA), or CA from which the production originated.
API (followed by a number) means the American Petroleum Institute Manual of Petroleum Measurement Standards, with the number referring to the Chapter and Section in that manual.
Audit trail means all source records necessary to verify and recalculate the volume and quality of oil or gas production measured at a facility measurement point (FMP) and reported to the Office of Natural Resources Revenue (ONRR).
Authorized officer (AO) has the same meaning as defined in 43 CFR 3000.0-5.
Averaging period means the previous 12 months or the life of the meter, whichever is shorter. For FMPs that measure production from a newly drilled well, the averaging period excludes production from that well that occurred in or before the first full month of production. (For example, if an oil FMP and a gas FMP were installed to measure only the production from a new well that first produced on April 10, the averaging period for this FMP would not include the production that occurred in April (partial month) and May (full month) of that year.)
Bias means a shift in the mean value of a set of measurements away from the true value of what is being measured.
By-pass means any piping or other arrangement around or avoiding a meter or other measuring device or method (or component thereof) at an FMP that allows oil or gas to flow without measurement. Equipment that permits the changing of the orifice plate of a gas meter without bleeding the pressure off the gas meter run (e.g., senior fitting) is not considered to be a by-pass.
Commingling, for production accounting and reporting purposes, means combining, before the point of royalty measurement, production from more than one lease, unit PA, or CA, or production from one or more leases, unit PAs, or CAs with production from State, local governmental, or private properties that are outside the boundaries of those leases, unit PAs, or CAs. Combining production from multiple wells within a single lease, unit PA, or CA, or combining production downhole from different geologic formations within the same lease, unit PA, or CA, is not considered commingling for production accounting purposes.
Communitized area means the area committed to a BLM approved communitization agreement.
Communitization agreement (CA) means an agreement to combine a lease or a portion of a lease that cannot otherwise be independently developed and operated in conformity with an established well spacing or well development program, with other tracts for purposes of cooperative development and operations.
Condition of Approval (COA) means a site-specific requirement included in the approval of an application that may limit or modify the specific actions covered by the application. Conditions of approval may minimize, mitigate, or prevent impacts to public lands or resources.
Days means consecutive calendar days, unless otherwise indicated.
Facility means:
(i) A site and associated equipment used to process, treat, store, or measure production from or allocated to a Federal or Indian lease, unit PA, or CA that is located upstream of or at (and including) the approved point of royalty measurement; and
(ii) A site and associated equipment used to store, measure, or dispose of produced water that is located on a lease, unit, or communitized area.
Facility measurement point (FMP) means a BLM-approved point where oil or gas produced from a Federal or Indian lease, unit PA, or CA is measured and the measurement affects the calculation of the volume or quality of production on which royalty is owed. FMP includes, but is not limited to, the approved point of royalty measurement and measurement points relevant to determining the allocation of production to Federal or Indian leases, unit PAs, or CAs. However, allocation facilities that are part of a commingling and allocation approval under § 3173.15 or that are part of a commingling and allocation approval approved after July 9, 2013, are not FMPs. An FMP also includes a meter or measurement facility used in the determination of the volume or quality of royalty-bearing oil or gas produced before BLM approval of an FMP under § 3173.12. An FMP must be located on the lease, unit, or communitized area unless the BLM approves measurement off the lease, unit, or CA. The BLM will not approve a gas processing plant tailgate meter located off the lease, unit, or CA, as an FMP.
Gas means any fluid, either combustible or noncombustible, hydrocarbon or non-hydrocarbon, that has neither independent shape nor volume, but tends to expand indefinitely and exists in a gaseous state under metered temperature and pressure conditions.
Incident of Noncompliance (INC) means documentation that the BLM issues that identifies violations and notifies the recipient of the notice of required corrective actions.
Lease has the same meaning as defined in 43 CFR 3160.0-5.
Lessee has the same meaning as defined in 43 CFR 3160.0-5.
NIST traceable means an unbroken and documented chain of comparisons relating measurements from field or laboratory instruments to a known standard maintained by the National Institute of Standards and Technology (NIST).
Notice to lessees and operators (NTL) has the same meaning as defined in 43 CFR 3160.0-5.
Off-lease measurement means measurement at an FMP that is not located on the lease, unit, or communitized area from which the production came.
Oil means a mixture of hydrocarbons that exists in the liquid phase at the temperature and pressure at which it is measured. Condensate is considered to be oil for purposes of this part. Gas liquids extracted from a gas stream upstream of the approved point of royalty measurement are considered to be oil for purposes of this part.
(i) Clean oil or Pipeline oil means oil that is of such quality that it is acceptable to normal purchasers.
(ii) Slop oil means oil that is of such quality that it is not acceptable to normal purchasers and is usually sold to oil reclaimers. Oil that can be made acceptable to normal purchasers through special treatment that can be economically provided at existing or modified facilities or using portable equipment at or upstream of the FMP is not slop oil.
(iii) Waste oil means oil that has been determined by the AO or authorized representative to be of such quality that it cannot be treated economically and put in a marketable condition with existing or modified lease facilities or portable equipment, cannot be sold to reclaimers, and has been determined by the AO to have no economic value.
Operator has the same meaning as defined in 43 CFR 3160.0-5.
Participating area (PA) has the same meaning as defined in 43 CFR 3180.0-5.
Point of royalty measurement means a BLM-approved FMP at which the volume and quality of oil or gas which is subject to royalty is measured. The point of royalty measurement is to be distinguished from meters that determine only the allocation of production to particular leases, unit PAs, CAs, or non-Federal and non-Indian properties. The point of royalty measurement is also known as the point of royalty settlement.
Production means oil or gas removed from a well bore and any products derived therefrom.
Production Measurement Team (PMT) means a panel of members from the BLM (which may include BLM-contracted experts) that reviews changes in industry measurement technology, methods, and standards to determine whether regulations should be updated, and provides guidance on measurement technologies and methods not addressed in current regulation. The purpose of the PMT is to act as a central advisory body to ensure that oil and gas produced from Federal and Indian leases is accurately measured and properly reported.
Purchaser means any person or entity who legally takes ownership of oil or gas in exchange for financial or other consideration.
Source record means any unedited and original record, document, or data that is used to determine volume and quality of production, regardless of format or how it was created or stored (e.g., paper or electronic). It includes, but is not limited to, raw and unprocessed data (e.g., instantaneous and continuous information used by flow computers to calculate volumes); gas charts; measurement tickets; calibration, verification, prover, and configuration reports; pumper and gauger field logs; volume statements; event logs; seal records; and gas analyses.
Statistically significant describes a difference between two data sets that exceeds the threshold of significance.
Tampering means any deliberate adjustment or alteration to a meter or measurement device, appropriate valve, or measurement process that could introduce bias into the measurement or affect the BLM’s ability to independently verify volumes or qualities reported.
Threshold of significance means the maximum difference between two data sets (a and b) that can be attributed to uncertainty effects. The threshold of significance is determined as follows:
Total observed volume (TOV) means the total measured volume of all oil, sludges, sediment and water, and free water at the measured or observed temperature and pressure.
Transporter means any person or entity who legally moves or transports oil or gas from an FMP.
Uncertainty means the statistical range of error that can be expected between a measured value and the true value of what is being measured. Uncertainty is determined at a 95 percent confidence level for the purposes of this part.
Unit means the land within a unit area as defined in 43 CFR 3180.0-5.
Unit PA means the unit participating area, if one is in effect, the exploratory unit if there is no associated participating area, or an enhanced recovery unit.
Variance means an approved alternative to a provision or standard of a regulation, Onshore Oil and Gas Order, or NTL.
(b) As used in this part, the following additional acronyms apply:
API means American Petroleum Institute.
BLM means the Bureau of Land Management.
Btu means British thermal unit.
CMS means Coriolis Measurement System.
LACT means lease automatic custody transfer.
OGOR means Oil and Gas Operations Report (Form ONRR-4054 or any successor report).
ONRR means the Office of Natural Resources Revenue, U.S. Department of the Interior, and includes any successor agency.
S&W means sediment and water.
WIS means Well Information System or any successor electronic filing system.
§ 3170.4 Prohibitions against by-pass and tampering.
(a) All by-passes are prohibited.
(b) Tampering with any measurement device, component of a measurement device, or measurement process is prohibited.
(c) Any by-pass or tampering with a measurement device, component of a measurement device, or measurement process may, together with any other remedies provided by law, result in an assessment of civil penalties for knowingly or willfully:
(1) Taking, removing, transporting, using, or diverting oil or gas from a lease site without valid legal authority under 30 U.S.C. 1719(d)(2) and 43 CFR 3163.2(f)(2); or
(2) Preparing, maintaining, or submitting false, inaccurate, or misleading reports, records, or information under 30 U.S.C. 1719(d)(1) and 43 CFR 3163.2(f)(1).
§ 3170.5 [Reserved]
§ 3170.6 Variances.
(a) Any party subject to a requirement of a regulation in this part may request a variance from that requirement.
(1) A request for a variance must include the following:
(i) Identification of the specific requirement from which the variance is requested;
(ii) Identification of the length of time for which the variance is requested, if applicable;
(iii) An explanation of the need for the variance;
(iv) A detailed description of the proposed alternative means of compliance;
(v) A showing that the proposed alternative means of compliance will produce a result that meets or exceeds the objectives of the applicable requirement for which the variance is requested; and
(vi) The FMP number(s) for which the variance is requested, if applicable.
(2) A request for a variance must be submitted as a separate document from any plans or applications. A request for a variance that is submitted as part of a master development plan, application for permit to drill, right-of-way application, or application for approval of other types of operations, rather than submitted separately, will not be considered. Approval of a plan or application that contains a request for a variance does not constitute approval of the variance. A separate request for a variance may be submitted simultaneously with a plan or application. For plans or applications that are contingent upon the approval of the variance request, the BLM encourages the simultaneous submission of the variance request and the plan or application.
(3) The party requesting the variance must file the request and any supporting documents using WIS. If electronic filing is not possible or practical, the operator may submit a request for variance on the Form 3160-5, Sundry Notices and Reports on Wells (Sundry Notice) to the BLM Field Office having jurisdiction over the lands described in the application.
(4) The AO, after considering all relevant factors, may approve the variance, or approve it with COAs, only if the AO determines that:
(i) The proposed alternative means of compliance meets or exceeds the objectives of the applicable requirement(s) of the regulation;
(ii) Approving the variance will not adversely affect royalty income and production accountability; and
(iii) Issuing the variance is consistent with maximum ultimate economic recovery, as defined in 43 CFR 3160.0-5.
(5) The decision whether to grant or deny the variance request is entirely within the BLM’s discretion.
(6) A variance from the requirements of a regulation in this part does not constitute a variance from provisions of other regulations, including Onshore Oil and Gas Orders.
(b) The BLM reserves the right to rescind a variance or modify any COA of a variance due to changes in Federal law, technology, regulation, BLM policy, field operations, noncompliance, or other reasons. The BLM will provide a written justification if it rescinds a variance or modifies a COA.
§ 3170.7 Required recordkeeping, records retention, and records submission.
(a) Lessees, operators, purchasers, transporters, and any other person directly involved in producing, transporting, purchasing, selling, or measuring oil or gas through the point of royalty measurement or the point of first sale, whichever is later, must retain all records, including source records, that are relevant to determining the quality, quantity, disposition, and verification of production attributable to Federal or Indian leases for the periods prescribed in paragraphs (c) through (e) of this section.
(b) This retention requirement applies to records generated during or for the period for which the lessee or operator has an interest in or conducted operations on the lease, or in which a person is involved in transporting, purchasing, or selling production from the lease.
(c) For Federal leases, and units or CAs that include Federal leases, but do not include Indian leases, the record holder must maintain records for:
(1) Seven years after the records are generated; unless,
(2) A judicial proceeding or demand involving such records is timely commenced, in which case the record holder must maintain such records until the final nonappealable decision in such judicial proceeding is made, or with respect to that demand is rendered, unless the Secretary or his/her designee or the applicable delegated State authorizes in writing an earlier release of the requirement to maintain such records.
(d) For Indian leases, and units or CAs that include Indian leases, but do not include Federal leases, the record holder must maintain records for:
(1) Six years after the records are generated; unless,
(2) The Secretary or his/her designee notifies the record holder that the Department of the Interior has initiated or is participating in an audit or investigation involving such records, in which case the record holder must maintain such records until the Secretary or his/her designee releases the record holder from the obligation to maintain the records.
(e) For units and communitized areas that include both Federal and Indian leases, 6 years after the records are generated. If the Secretary or his/her designee has notified the record holder within those 6 years that an audit or investigation involving such records has been initiated, then:
(1) If a judicial proceeding or demand is commenced within 7 years after the records are generated, the record holder must retain all records regarding production from the lease, unit PA, or CA until the final nonappealable decision in such judicial proceeding is made, or with respect to that demand is rendered, unless the Secretary or his/her designee authorizes in writing a release of the requirement to maintain such records before a final nonappealable decision is made or rendered.
(2) If a judicial proceeding or demand is not commenced within 7 years after the records are generated, the record holder must retain all records regarding production from the unit or communitized area until the Secretary or his/her designee releases the record holder from the obligation to maintain the records;
(f) The lessee, operator, purchaser, or transporter must maintain an audit trail.
(g) All records, including source records, that are used to determine quality, quantity, disposition, and verification of production attributable to a Federal or Indian lease, unit PA, or CA, must include the FMP number or the lease, unit PA, or CA number, along with a unique equipment identifier (e.g., a unique tank identification number and meter station number), and the name of the company that created the record. For all facilities existing prior to the assignment of an FMP number, all records must include the following information:
(1) The name of the operator;
(2) The lease, unit PA, or CA number; and
(3) The well or facility name and number.
(h) Upon request of the AO, the operator, purchaser, or transporter must provide such records to the AO as may be required by regulation, written order, Onshore Order, NTL, or COA.
(i) All records must be legible.
(j) All records requiring a signature must also have the signer’s printed name.
§ 3170.8 Appeal procedures.
(a) BLM decisions, orders, assessments, or other actions under the regulations in this part are administratively appealable under the procedures prescribed in 43 CFR 3165.3(b), 3165.4, and part 4.
(b) For any recommendation made by the PMT, and approved by the BLM, a party affected by such recommendation may file a request for discretionary review by the Assistant Secretary for Land and Minerals Management. The Assistant Secretary may delegate this review function as he or she deems appropriate, in which case the affected party’s application for discretionary review must be made to the person or persons to whom the Assistant Secretary’s review function has been delegated.
§ 3170.9 Enforcement.
Noncompliance with any of the requirements of this part or any order issued under this part may result in enforcement actions under 43 CFR subpart 3163 or any other remedy available under applicable law or regulation.
Subparts 3171-3172 [Reserved]
Subpart 3173 – Requirements for Site Security and Production Handling
§ 3173.1 Definitions and acronyms.
(a) As used in this subpart, the term:
Access means the ability to:
(i) Add liquids to or remove liquids from any tank or piping system, through a valve or combination of valves or by moving liquids from one tank to another tank; or
(ii) Enter any component in a measuring system affecting the accuracy of the measurement of the quality or quantity of the liquid being measured.
Appropriate valves means those valves that must be sealed during the production or sales phase (e.g., fill lines, equalizer, overflow lines, sales lines, circulating lines, or drain lines).
Authorized representative (AR) has the same meaning as defined in 43 CFR 3160.0-5.
Business day means any day Monday through Friday, excluding Federal holidays.
Commingling and allocation approval (CAA) means a formal allocation agreement to combine production from two or more sources (leases, unit PAs, CAs, or non-Federal or non-Indian properties) before that product reaches an FMP.
Economically marginal property means a lease, unit PA, or CA that does not generate sufficient revenue above operating costs, such that a prudent operator would opt to plug a well or shut-in the lease, unit PA, or CA instead of making the investments needed to achieve non-commingled measurement of production from that lease, unit PA, or CA. A lease, unit PA, or CA may be regarded as economically marginal if the operator demonstrates that the expected revenue (net any associated operating costs) generated from crude oil or natural gas production volumes on that property is not sufficient to cover the nominal cost of the capital expenditures required to achieve measurement of non-commingled production of oil or gas from that property over a payout period of 18 months. A lease, unit PA, or CA can also be considered economically marginal if the operator demonstrates that its royalty net present value (RNPV), or the discounted value of the Federal or Indian royalties collected on revenue earned from crude oil or natural gas production on the lease, unit PA, or CA, over the expected life of the equipment that would need to be installed to achieve non-commingled measurement volumes, is less than the capital cost of purchasing and installing this equipment. Both the payout period and the RNPV are determined separately for each lease, unit PA, or CA oil or gas FMP. Additionally, oil FMPs are evaluated using estimated revenue (net of taxes and operating costs) from crude oil production, as defined in this section, while gas FMPs are evaluated using estimated revenue (net of taxes and operating costs) from natural gas production, as defined in this section.
Effectively sealed means the placement of a seal in such a manner that the sealed component cannot be accessed, moved, or altered without breaking the seal.
Free water means the measured volume of water that is present in a container and that is not in suspension in the contained liquid at observed temperature.
Land description means a location surveyed in accordance with the U.S. Department of the Interior’s Manual of Surveying Instructions (2009), that includes the quarter-quarter section, section, township, range, and principal meridian, or other authorized survey designation acceptable to the AO, such as metes-and-bounds, or latitude and longitude.
Maximum ultimate economic recovery has the same meaning as defined in 43 CFR 3160.0-5.
Mishandling means failing to measure or account for removal of production from a facility.
Payout period means the time required, in months, for the cost of an investment in an oil or gas FMP for a specific lease, unit PA, or CA to be covered by the nominal revenue earned from crude oil production, for an oil FMP, or natural gas production, for a gas FMP, minus taxes, royalties, and any operating and variable costs. The payout period is determined separately for each oil or gas FMP for a given lease, unit PA, or CA.
Permanent measurement facility means all equipment constructed or installed and used on-site for 6 months or longer, for the purpose of determining the quantity, quality, or storage of production, and which meets the definition of FMP under § 3170.3.
Piping means a tubular system (e.g., metallic, plastic, fiberglass, or rubber) used to move fluids (liquids and gases).
Production phase means that event during which oil is delivered directly to or through production equipment to the storage facilities and includes all operations at the facility other than those defined by the sales phase.
Royalty Net Present Value (RNPV) means the net present value of all Federal or Indian royalties paid on revenue earned from crude oil production or natural gas production from an oil or gas FMP for a given lease, unit PA, or CA over the expected life of metering equipment that must be installed for that lease, unit PA, or CA to achieve non-commingled measurement.
Sales phase means that event during which oil is removed from storage facilities for sale at an FMP.
Seal means a uniquely numbered device that completely secures either a valve or those components of a measuring system that affect the quality or quantity of the oil being measured.
(b) As used in this subpart, the following additional acronyms apply:
BIA means the Bureau of Indian Affairs.
BMP means Best Management Practice.
§ 3173.2 Storage and sales facilities – seals.
(a) All lines entering or leaving any oil storage tank must have valves capable of being effectively sealed during the production and sales phases unless otherwise provided under this subpart. During the production phase, all appropriate valves that allow unmeasured production to be removed from storage must be effectively sealed in the closed position. During any other phase (sales, water drain, or hot oiling), and prior to taking the top tank gauge measurement, all appropriate valves that allow unmeasured production to enter or leave the sales tank must be effectively sealed in the closed position (see Appendix A to subpart 3173). Each unsealed or ineffectively sealed appropriate valve is a separate violation.
(b) Valves or combinations of valves and tanks that provide access to the production before it is measured for sales are considered appropriate valves and are subject to the seal requirements of this subpart (see Appendix A to subpart 3173). If there is more than one valve on a line from a tank, the valve closest to the tank must be sealed. All appropriate valves must be in an operable condition and accurately reflect whether the valve is open or closed.
(c) The following are not considered appropriate valves and are not subject to the sealing requirements of this subpart:
(1) Valves on production equipment (e.g., separator, dehydrator, gun barrel, or wash tank);
(2) Valves on water tanks, provided that the possibility of access to production in the sales and storage tanks does not exist through a common circulating, drain, overflow, or equalizer system;
(3) Valves on tanks that contain oil that has been determined by the AO or AR to be waste or slop oil;
(4) Sample cock valves used on piping or tanks with a Nominal Pipe Size of 1 inch or less in diameter;
(5) Fill-line valves during shipment when a single tank with a nominal capacity of 500 barrels (bbl) or less is used for collecting marginal production of oil produced from a single well (i.e., production that is less than 3 bbl per day). All other seal requirements of this subpart apply;
(6) Gas line valves used on piping with a Nominal Pipe Size of 1 inch or less used as tank bottom “roll” lines, provided there is no access to the contents of the storage tank and the roll lines cannot be used as equalizer lines;
(7) Valves on tank heating systems that use a fluid other than the contents of the storage tank (i.e., steam, water, or glycol);
(8) Valves used on piping with a Nominal Pipe Size of 1 inch or less connected directly to the pump body or used on pump bleed off lines;
(9) Tank vent-line valves; and
(10) Sales, equalizer, or fill-line valves on systems where production may be removed only through approved oil metering systems (e.g., LACT or CMS). However, any valve that allows access for removing oil before it is measured through the metering system must be effectively sealed (see Appendix A to subpart 3173).
(d) Tampering with any appropriate valve is prohibited. Tampering with an appropriate valve may result in an assessment of civil penalties for knowingly or willfully preparing, maintaining, or submitting false, inaccurate, or misleading reports, records, or written information under 30 U.S.C. 1719(d)(1) and 43 CFR 3163.2(f)(1), or knowingly or willfully taking, removing, transporting, using, or diverting oil or gas from a lease site without valid legal authority under 30 U.S.C. 1719(d)(2) and 43 CFR 3163.2(f)(2), together with any other remedies provided by law.
§ 3173.3 Oil measurement system components – seals.
(a) Components used for quantity or quality determination of oil must be effectively sealed to indicate tampering, including, but not limited to, the following components of LACT meters (see § 3174.8(a)) and CMSs (see § 3174.9(e)):
(1) Sample probe;
(2) Sampler volume control;
(3) All valves on lines entering or leaving the sample container, excluding the safety pop-off valve (if so equipped). Each valve must be sealed in the open or closed position, as appropriate;
(4) Meter assembly, including the counter head and meter head;
(5) Temperature averager;
(6) LACT meters or CMS;
(7) Back pressure valve pressure adjustment downstream of the meter;
(8) Any drain valves in the system;
(9) Manual-sampling valves (if so equipped);
(10) Valves on diverter lines larger than 1 inch in nominal diameter;
(11) Right-angle drive;
(12) Totalizer; and
(13) Prover connections.
(b) Each missing or ineffectively sealed component is a separate violation.
§ 3173.4 Federal seals.
(a) In addition to any INC issued for a seal violation, the AO or AR may place one or more Federal seals on any appropriate valve, sealing device, or oil-metering-system component that does not comply with the requirements in §§ 3173.2 and 3173.3 if the operator is not present, refuses to cooperate with the AO or AR, or is unable to correct the noncompliance.
(b) The placement of a Federal seal does not constitute compliance with the requirements of §§ 3173.2 and 3173.3.
(c) A Federal seal may not be removed without the approval of the AO or AR.
§ 3173.5 Removing production from tanks for sale and transportation by truck.
(a) When a single truck load constitutes a completed sale, the driver must possess documentation containing the information required in § 3174.12.
(b) When multiple truckloads are involved in a sale and the oil measurement method is based on the difference between the opening and closing gauges, the driver of the last truck must possess the documentation containing the information required in § 3174.12. All other drivers involved in the sale must possess a trip log or manifest.
(c) After the seals have been broken, the purchaser or transporter is responsible for the entire contents of the tank until it is resealed.
§ 3173.6 Water-draining operations.
When water is drained from a production storage tank, the operator, purchaser, or transporter, as appropriate, must document the following information:
(a) Federal or Indian lease, unit PA, or CA number(s);
(b) The tank location by land description;
(c) The unique tank number and nominal capacity;
(d) Date of the opening gauge;
(e) Opening gauge (gauged manually or automatically), TOV, and free-water measurements, all to the nearest
(f) Unique identifying number of each seal removed;
(g) Closing gauge (gauged manually or automatically) and TOV measurement to the nearest
(h) Unique identifying number of each seal installed.
§ 3173.7 Hot oiling, clean-up, and completion operations.
(a) During hot oil, clean-up, or completion operations, or any other situation where the operator removes oil from storage, temporarily uses it for operational purposes, and then returns it to storage on the same lease, unit PA, or communitized area, the operator must document the following information:
(1) Federal or Indian lease, unit PA, or CA number(s);
(2) Tank location by land description;
(3) Unique tank number and nominal capacity;
(4) Date of the opening gauge;
(5) Opening gauge measurement (gauged manually or automatically) to the nearest
(6) Unique identifying number of each seal removed;
(7) Closing gauge measurement (gauged manually or automatically) to the nearest
(8) Unique identifying number of each seal installed;
(9) How the oil was used; and
(10) Where the oil was used (i.e., well or facility name and number).
(b) During hot oiling, line flushing, or completion operations or any other situation where the operator removes production from storage for use on a different lease, unit PA, or communtized area, the production is considered sold and must be measured in accordance with the applicable requirements of this subpart and reported as sold to ONRR on the OGOR under 30 CFR part 1210 subpart C for the period covering the production in question.
§ 3173.8 Report of theft or mishandling of production.
(a) No later than the next business day after discovery of an incident of apparent theft or mishandling of production, the operator, purchaser, or transporter must report the incident to the AO. All oral reports must be followed up with a written incident report within 10 business days of the oral report.
(b) The incident report must include the following information:
(1) Company name and name of the person reporting the incident;
(2) Lease, unit PA, or CA number, well or facility name and number, and FMP number, as appropriate;
(3) Land description of the facility location where the incident occurred;
(4) The estimated volume of production removed;
(5) The manner in which access was obtained to the production or how the mishandling occurred;
(6) The name of the person who discovered the incident;
(7) The date and time of the discovery of the incident; and
(8) Whether the incident was reported to local law enforcement agencies and/or company security.
§ 3173.9 Required recordkeeping for inventory and seal records.
(a) The operator must perform an end-of-month inventory (gauged manually or automatically) that records: TOV in storage (measured to the nearest
(1) The end-of-month inventory must be completed within ± 3 days of the last day of the calendar month; or
(2) The end of month inventory must be a calculated “end of month” inventory based on daily production that takes place between two measured inventories that are not more than 31, nor fewer than 20, days apart. The calculated monthly inventory is determined based on the following equation:
For example: If the first inventory measurement performed on January 12 is 125 bbl, the second inventory measurement performed on February 10 is 150 bbl, the gross sales volume between the first and second inventory is 198 bbl, and February is the calendar month for which the report is due. For purposes of this example, we assume February had 28 days and that the well was non-producing for two of those days.
(b) For each seal, the operator must maintain a record that includes:
(1) The unique identifying number of each seal and the valve or meter component on which the seal is or was used;
(2) The date of installation or removal of each seal;
(3) For valves, the position (open or closed) in which it was sealed; and
(4) The reason the seal was removed.
§ 3173.10 Form 3160-5, Sundry Notices and Reports on Wells.
(a) The operator must submit a Form 3160-5, Sundry Notices and Reports on Wells (Sundry Notice) for the following:
(1) Site facility diagrams (see § 3173.11);
(2) Request for an FMP number (see § 3173.12);
(3) Request for FMP amendments (see § 3173.13(b));
(4) Requests for approval of off-lease measurement (see § 3173.23);
(5) Request to amend an approval of off-lease measurement (see § 3173.23(k));
(6) Requests for approval of CAAs (see § 3173.15); and
(7) Request to modify a CAA (see § 3173.18).
(b) The operator must submit all Sundry Notices electronically to the BLM office having jurisdiction over the lease, unit, or CA using WIS, unless the submitter:
(1) Is a small business, as defined by the U.S. Small Business Administration; and
(2) Does not have access to the Internet.
§ 3173.11 Site facility diagram.
(a) A site facility diagram is required for all facilities.
(b) Except for the requirement to submit a Form 3160-5, Sundry Notice, with the site facility diagram, no format is prescribed for site facility diagrams. The diagram should be formatted to fit on an 8
(c) The diagram must:
(1) Reflect the position of the production and water recovery equipment, piping for oil, gas, and water, and metering or other measuring systems in relation to each other, but need not be to scale;
(2) Commencing with the header, identify all of the equipment, including, but not limited to, the header, wellhead, piping, tanks, and metering systems located on the site, and include the appropriate valves and any other equipment used in the handling, conditioning, or disposal of production and water, and indicate the direction of flow;
(3) Identify by API number the wells flowing into headers;
(4) If another operator operates a co-located facility, depict the co-located facility(ies) on the diagram or list them as an attachment and identify them by company name, facility name(s), lease, unit PA, or CA number(s), and FMP number(s);
(5) Indicate which valve(s) must be sealed and in what position during the production and sales phases and during the conduct of other production activities (e.g., circulating tanks or drawing off water), which may be shown by an attachment, if necessary;
(6) When describing co-located facilities operated by one operator, include a skeleton diagram of the co-located facility(ies), showing equipment only. For storage facilities common to co-located facilities operated by one operator, one diagram is sufficient;
(7) Clearly identify the lease, unit PA, or CA to which the diagram applies, the land description of the facility, and the name of the company submitting the diagram, with co-located facilities being identified for each lease, unit PA, or CA;
(8) Clearly identify, on the diagram or as an attachment, all meters and measurement equipment. Specifically identify all approved and assigned FMPs; and
(9) If the operator claims royalty-free use, clearly identify the equipment for which the operator claims royalty-free use. The operator must either:
(i) For each engine, motor, or major component (e.g., compressor, separator, dehydrator, heater-treater, or tank heater) powered by production from the lease, unit PA, or CA, state the volume (oil or gas) consumed (per day or per month) and how the volume is determined; or
(ii) Measure the volume used, by meter or tank gauge.
(d) At facilities for which the BLM will assign an FMP number under § 3173.12, the operator must submit a new site facility diagram as follows:
(1) For facilities that become operational after January 17, 2017, within 30 days after the BLM assigns an FMP; or
(2) For a facility that is in service on or before January 17, 2017, and that has a site facility diagram on file with the BLM that meets the minimum requirements of Onshore Oil and Gas Order 3, Site Security, an amended site facility diagram meeting the requirements of this section is not due until 30 days after the existing facility is modified, a non-Federal facility located on a Federal lease or federally approved unit or communitized area is constructed or modified, or there is a change in operator.
(e) At facilities for which an FMP number is not required under § 3173.12 (e.g., facilities that dispose of produced water), the operator must submit a new site facility diagram as follows:
(1) For new facilities in service after January 17, 2017, the new site facility diagram must be submitted within 30 days after the facility becomes operational; or
(2) For a facility that is in service on or before January 17, 2017, and that has a site facility diagram on file with the BLM that meets the minimum requirements of Onshore Oil and Gas Order 3, Site Security, an amended site facility diagram meeting the requirements of this section is not due until 30 days after the existing facility is modified, a non-Federal facility located on a Federal lease or federally approved unit or communitized area is constructed or modified, or there is a change in operator.
(f) After a site facility diagram has been submitted that complies with the requirements of this part, the operator has an ongoing obligation to update and amend the diagram within 30 days after such facility is modified, a non-Federal facility located on a Federal lease or federally approved unit or communitized area is constructed or modified, or there is a change in operator.
§ 3173.12 Applying for a facility measurement point.
(a)(1) Unless otherwise approved, the FMP(s) for all Federal and Indian leases, unit PAs, or CAs must be located within the boundaries of the lease, unit, or communitized area from which the production originated and must measure only production from that lease, unit PA, or CA.
(2) Off-lease measurement or commingling and allocation of Federal or Indian production requires prior approval (see 43 CFR 3162.7-2, 3162.7-3, 3173.15, 3173.16, 3173.24, and 3173.25).
(b) The BLM will not approve as an FMP a gas processing plant tailgate meter located off the lease, unit, or communitized area.
(c) The operator must submit separate applications for approval of an FMP that measures oil produced from a lease, unit PA, or CA, or under a CAA that complies with the requirements of this subpart, and an FMP that measures gas produced from the same lease, unit PA, or CA, or under a CAA that complies with the requirements of this subpart. This requirement applies even if the measurement equipment or facilities are at the same location.
(d) For a permanent measurement facility that comes into service after January 17, 2017, the operator must apply for approval of the FMP before any production leaves the permanent measurement facility. This requirement does not apply to temporary measurement equipment used during well testing operations. After timely submission and prior to approval of an FMP request, an operator must use the lease, unit PA, or CA number for reporting production to ONRR, until the BLM assigns an FMP number, at which point the operator must use the FMP number for all reporting to ONRR as set forth in § 3173.13.
(e) For a permanent measurement facility in service on or before January 17, 2017, the operator must apply for BLM approval of an FMP within the time prescribed in this paragraph, based on the production level of any one of the leases, unit PAs, or CAs, whether or not they are part of a CAA. The deadline to apply for an FMP approval applies to both oil and gas measurement facilities measuring production from that lease, unit PA, or CA.
(1) For a stand-alone lease, unit PA, or CA that produced 10,000 Mcf or more of gas per month or 100 bbl or more of oil per month, by January 17, 2018.
(2) For a stand-alone lease, unit PA, or CA that produced 1,500 Mcf or more, but less than 10,000 Mcf of gas per month, or 10 bbl or more, but less than 100 bbl of oil per month, by January 17, 2019.
(3) For a stand-alone lease, unit PA, or CA that produced less than 1,500 Mcf of gas per month or less than 10 bbl of oil per month, January 17, 2020.
(4) For a stand-alone lease, unit PA, or CA that has not produced for a year or more before January 17, 2017, the operator must apply for an FMP prior to the resumption of production.
(5) The production levels identified in paragraphs (e)(1) through (3) of this section should be calculated using the average production of oil or gas over the 12 months preceding the effective date of this section or over the period the lease, unit PA, or CA has been in production, whichever is shorter.
(6) If the operator of any facility covered by this section applies for an FMP approval by the deadline in this paragraph, the operator may continue using the lease, unit PA, or CA number for reporting production to ONRR, until the BLM’s assigns an FMP number, at which point the operator must use the FMP number for all reporting to ONRR as set forth in § 3173.13.
(7) If the operator fails to apply for an FMP approval by the deadline in this paragraph, the operator will be subject to an INC and may also be subject to an assessment of a civil penalty under 43 CFR part 3160, subpart 3163, together with any other remedy available under applicable law or regulation.
(f) All requests for FMP approval must include the following:
(1) A complete Sundry Notice requesting approval of each FMP;
(2) The applicable Measurement Type Code specified in WIS;
(3) Information about the equipment used for oil and gas measurement, including, for:
(i) “Gas measurement,” specify operator/purchaser/transporter unique station number, primary element (meter tube) size or serial number, and type of secondary device (mechanical or electronic);
(ii) “Oil measurement by tank gauge,” specify oil tank number or tank serial number and size in barrels or gallons for all tanks associated with measurement at an FMP; and
(iii) “Oil measurement by LACT or CMS,” specify whether the equipment is LACT or CMS and the associated oil tank number or tank serial number and size in barrels or gallons (there may be more than one tank associated with an FMP);
(4) Where production from more than one well will flow to the requested FMP, list the API well numbers associated with the FMP; and
(5) FMP location by land description.
(g) Request for approval of an FMP may be submitted concurrently with separate requests for off-lease measurement and/or CAA.
§ 3173.13 Requirements for approved facility measurement points.
(a) For an existing facility in service on or before January 17, 2017, an operator must start using an FMP number for reporting production to ONRR on its OGOR for the fourth production month after the BLM assigns the FMP number(s), and every month thereafter. (For example, for a facility that is assigned an FMP number on January 15, 2016, the effective date of the FMP is the May production report.) For a new facility in service after January 17, 2017, an operator must start using an FMP number for reporting production to ONRR on its OGOR for the first production month after the BLM assigns the FMP number(s), and every month thereafter. (For example, for a facility that is assigned an FMP number on January 15, 2016, the effective date of the FMP is the February production report.)
(b)(1) The operator must file a Sundry Notice that describes any changes or modifications made to the FMP within 30 days after the change. This requirement does not apply to temporary modifications (e.g., for maintenance purposes). These include any changes and modifications to the information listed on an application submitted under § 3173.12.
(2) The description must include details such as the primary element, secondary element, LACT/CMS meter, tank number(s), and wells or facilities using the FMP.
(3) The Sundry Notice must specify what was changed and the effective date, and include, if appropriate, an amended site facility diagram (see § 3173.11).
§ 3173.14 Conditions for commingling and allocation approval (surface and downhole).
(a) Subject to the exceptions provided in paragraph (b) of this section, the BLM may grant a CAA only if the proposed allocation method used for any such commingled measurement does not have the potential to affect the determination of the total volume or quality of production on which royalty owed is determined for all the Federal or Indian leases, unit PAs, or CAs which are proposed for commingling, and only if the following criteria are met:
(1) The proposed commingling includes production from more than one:
(i) Federal lease, unit PA, or CA, where each lease, unit PA, or CA proposed for commingling has 100 percent Federal mineral interest, the same fixed royalty rate and, and the same revenue distribution;
(ii) Indian tribal lease, unit PA, or CA, where each lease, unit PA, or CA proposed for commingling is wholly owned by the same tribe and has the same fixed royalty rate;
(iii) Federal unit PA or CA where each unit PA or CA proposed for commingling has the same proportion of Federal interest, and which interest is subject to the same fixed royalty rate and revenue distribution. (For example, the BLM could approve a commingling request under this paragraph where an operator proposes to commingle two Federal CAs of mixed ownership and both CAs are 50 percent Federal/50 percent private, so long as the Federal interests have the same royalty rates and royalty distributions.); or
(iv) Indian unit PA or CA where each unit PA or CA proposed for commingling has the same proportion of Indian interests, and which interest is held by the same tribe and has the same fixed royalty rate; and
(2) The operator or operators provide a methodology acceptable to BLM for allocation among the properties from which production is to be commingled (including a method for allocating produced water), with a signed agreement if there is more than one operator;
(3) For each of the leases, unit PAs, or CAs proposed for inclusion in the CAA, the applicant demonstrates to the AO that a lease, unit PA, or CA proposed for inclusion is producing in paying quantities (or, in the case of Federal leases, capable of production in paying quantities) pending approval of the CAA; and
(4) The FMP(s) for the proposed CAA measure production originating only from the leases, unit PAs, or CAs in the CAA.
(b) The BLM may also approve a CAA in instances where the proposed commingling of production involves production from Federal or Indian leases, unit PAs, or CAs that do not meet the criteria of paragraph (a)(1) of this section (e.g., the commingling of leases, unit PAs, or CAs with different royalty rates or different distributions of revenue, or where the commingling involves multiple mineral ownerships). In order to be approved, a CAA under this subparagraph must meet the requirements of paragraphs (a)(2) through (4) of this section and at least one of the following conditions:
(1) The Federal or Indian lease, unit PA, or CA meets the definition of an economically marginal property. However, if the BLM determines that a Federal or Indian lease, unit PA, or CA included in a CAA ceases to be an economically marginal property, then this condition is no longer met;
(2) The average monthly production over the preceding 12 months for each Federal or Indian lease, unit PA, or CA proposed for the CAA on an individual basis is less than 1,000 Mcf of gas per month, or 100 bbl of oil per month;
(3) A CAA that includes Indian leases, unit PAs, or CAs has been authorized under tribal law or otherwise approved by a tribe;
(4) The CAA covers the downhole commingling of production from multiple formations that are covered by separate leases, unit PAs, or CAs, where the BLM has determined that the proposed commingling from those formations is an acceptable practice for the purpose of achieving maximum ultimate economic recovery and resource conservation; or
(5) There are overriding considerations that indicate the BLM should approve a commingling application in the public interest notwithstanding potential negative royalty impacts from the allocation method. Such considerations could include topographic or other environmental considerations that make non-commingled measurement physically impractical or undesirable, in view of where additional measurement and related equipment necessary to achieve non-commingled measurement would have to be located.
§ 3173.15 Applying for a commingling and allocation approval.
To apply for a CAA, the operator(s) must submit the following, if applicable, to the BLM office having jurisdiction over the leases, unit PAs, or CAs from which production is proposed to be commingled:
(a) A completed Sundry Notice for approval of commingling and allocation (if off-lease measurement is a feature of the commingling and allocation proposal, then a separate Sundry Notice under § 3173.23 is not necessary as long as the information required under § 3173.23(b) through (e) and, where applicable, § 3173.23(f) through (i) is included as part of the request for approval of commingling and allocation);
(b) A completed Sundry Notice for approval of off-lease measurement under § 3173.23, if any of the proposed FMPs are outside the boundaries of any of the leases, units, or CAs from which production would be commingled (which may be included in the same Sundry Notice as the request for approval of commingling and allocation), except as provided in paragraph (a) of this section;
(c) A proposed allocation agreement, including an allocation methodology (including allocation of produced water), with an example of how the methodology is applied, signed by each operator of each of the leases, unit PAs, or CAs from which production would be included in the CAA;
(d) A list of all Federal or Indian lease, unit PA, or CA numbers in the proposed CAA, specifying the type of production (i.e., oil, gas, or both) for which commingling is requested;
(e) A topographic map or maps of appropriate scale showing the following:
(1) The boundaries of all the leases, units, unit PAs, or communitized areas whose production is proposed to be commingled; and
(2) The location of existing or planned facilities and the relative location of all wellheads (including the API number) and piping included in the CAA, and existing FMPs or FMPs proposed to be installed to the extent known or anticipated;
(f) A surface use plan of operations (which may be included in the same Sundry Notice as the request for approval of commingling and allocation) if new surface disturbance is proposed for the FMP and its associated facilities are located on BLM-managed land within the boundaries of the lease, units, and communitized areas from which production would be commingled;
(g) A right-of-way grant application (Standard Form 299), filed under 43 CFR part 2880, if the proposed FMP is on a pipeline, or under 43 CFR part 2800, if the proposed FMP is a meter or storage tank. This requirement applies only when new surface disturbance is proposed for the FMP, and its associated facilities are located on BLM-managed land outside any of the leases, units, or communitized areas whose production would be commingled;
(h) Written approval from the appropriate surface-management agency, if new surface disturbance is proposed for the FMP and its associated facilities are located on Federal land managed by an agency other than the BLM;
(i) A right-of-way grant application for the proposed FMP, filed under 25 CFR part 169, with the appropriate BIA office, if any of the proposed surface facilities are on Indian land outside the lease, unit, or communitized area from which the production would be commingled;
(j) Documentation demonstrating that each of the leases, unit PAs, or CAs proposed for inclusion in the CAA is producing in paying quantities (or, in the case of Federal leases, is capable of production in paying quantities) pending approval of the CAA; and
(k) All gas analyses, including Btu content (if the CAA request includes gas) and all oil gravities (if the CAA request includes oil) for previous periods of production from the leases, units, unit PAs, or communitized areas proposed for inclusion in the CAA, up to 6 years before the date of the application for approval of the CAA. Gas analysis and oil gravity data is not needed if the CAA falls under § 3173.14(a)(1).
§ 3173.16 Existing commingling and allocation approvals.
Upon receipt of an operator’s request for assignment of an FMP number to a facility associated with a CAA existing on January 17, 2017, the AO will review the existing CAA and take the following action:
(a) The AO will grandfather the existing CAA and associated off-lease measurement, where applicable, if the existing CAA meets one of the following conditions:
(1) The existing CAA involves downhole commingling that includes Federal or Indian leases, unit PAs, or CAs; or
(2) The existing CAA is for surface commingling and the average production rate over the previous 12 months for each Federal or Indian lease, unit PA, and CA included in the CAA is:
(i) Less than 1,000 Mcf per month for gas; or
(ii) Less than 100 bbl per month for oil.
(b) If the existing CAA does not meet the conditions of paragraphs (a)(1) or (a)(2) of this section, the AO will review the CAA for consistency with the minimum standards and requirements for a CAA under § 3173.14.
(1) The AO will notify the operator in writing of any inconsistencies or deficiencies with an existing CAA. The operator must correct any inconsistencies or deficiencies that the AO identifies, provide the additional information that the AO has requested, or request an extension of time from the AO, within 20 business days after receipt of the AO’s notice. When the AO is satisfied that the operator has corrected any inconsistencies or deficiencies, the AO will terminate the existing CAA and grant a new CAA based on the operator’s corrections.
(2) The AO may terminate the existing CAA and grant a new CAA with new or amended COAs to make the approval consistent with the requirements under § 3173.14 in connection with approving the requested FMP. If the operator appeals any COAs of the new CAA, the existing CAA approval will continue in effect during the pendency of the appeal.
(3) If the existing CAA does not meet the standards and requirements of § 3173.14 and the operator does not correct the deficiencies, the AO may terminate the existing CAA under § 3173.20 and deny the request for an FMP number for the facility associated with the existing CAA.
(c) If the AO grants a new CAA to replace an existing CAA under paragraph (b) of this section, the new CAA is effective on the first day of the month following its approval. Any new allocation percentages resulting from the new CAA will apply from the effective date of the CAA forward.
§ 3173.17 Relationship of a commingling and allocation approval to royalty-free use of production.
A CAA does not constitute approval of off-lease royalty-free use of production as fuel in facilities located at an FMP approved under the CAA.
§ 3173.18 Modification of a commingling and allocation approval.
(a) A CAA must be modified when there is:
(1) A modification to the allocation agreement;
(2) Inclusion of additional leases, unit PAs, or CAs are proposed in the CAA; or
(3) Termination of or permanent production cessation from any of the leases, unit PAs, or CAs within the CAA.
(b) To request a modification of a CAA, all operators must submit to the AO:
(1) A completed Sundry Notice describing the modification requested;
(2) A new allocation methodology, including an allocation methodology which includes allocation of produced water and an example of how the methodology is applied, if appropriate; and
(3) Certification by each operator in the CAA that it agrees to the CAA modification.
(c) A change in operator does not trigger the need to modify a CAA.
§ 3173.19 Effective date of a commingling and allocation approval.
(a) If the BLM approves a CAA, the effective date of the CAA is the first day of the month following first production through the FMPs for the CAA.
(b) If the BLM approves a modification, the effective date is the first day of the month following approval of the modification.
(c) A CAA does not modify any of the terms of the leases, units, or CAs covered by the CAA.
§ 3173.20 Terminating a commingling and allocation approval.
(a) The AO may terminate a CAA for any reason, including, but not limited to, the following:
(1) Changes in technology, regulation, or BLM policy;
(2) Operator non-compliance with the terms or COAs of the CAA or this subpart; or
(3) The AO determines that a lease, unit, or CA subject to the CAA has terminated, or a unit PA subject to the CAA has ceased production.
(b) If only one lease, unit PA, or CA remains subject to the CAA, the CAA terminates automatically.
(c) An operator may terminate its participation in a CAA by submitting a Sundry Notice to the BLM. The Sundry Notice must identify the FMP(s) for the lease(s), unit PA(s), or CA(s) previously subject to the CAA. Termination by one operator does not mean the CAA terminates as to all other participating operators, so long as one of the other provisions of this subpart is met and the remaining operators submit a Sundry Notice requesting a new CAA as outlined in paragraph (e) of this section.
(d) The AO will notify in writing all operators who are a party to the CAA of the effective date of the termination and any inconsistencies or deficiencies with their CAA approval that serve as the reason(s) for termination. The operator must correct any inconsistencies or deficiencies that the AO identifies, provide the additional information that the AO has requested, or request an extension of time from the AO, within 20 business days after receipt of the BLM’s notice, or the CAA is terminated.
(e) If a CAA is terminated, each lease, unit PA, or CA that was included in the CAA may require a new FMP number(s) or a new CAA. Operators will have 30 days to apply for a new FMP number (§ 3173.12) or CAA (§ 3173.15), if applicable. The existing FMP number may be used for production reporting until a new FMP number is assigned or CAA is approved.
§ 3173.21 Combining production downhole in certain circumstances.
(a)(1) Combining production from a single well drilled into different hydrocarbon pools or geologic formations (e.g., a directional well) underlying separate adjacent properties (whether Federal, Indian, State, or private), where none of the hydrocarbon pools or geologic formations underlie or are common to more than one of the respective properties, constitutes commingling for purposes of §§ 3173.14 through 3173.20.
(2) If any of the hydrocarbon pools or geologic formations underlie or are common to more than one of the properties, the operator must establish a unit PA (see 43 CFR part 3180) or CA (see 43 CFR 3105.2-1-3105.2-3), as applicable, rather than applying for a CAA.
(b) Combining production downhole from different geologic formations on the same lease, unit PA, or CA in a single well requires approval of the AO (see 43 CFR 3162.3-2), but it is not considered commingling for production accounting purposes.
§ 3173.22 Requirements for off-lease measurement.
The BLM will consider granting a request for off-lease measurement if the request:
(a) Involves only production from a single lease, unit PA, CA, or CAA;
(b) Provides for accurate production accountability;
(c) Is in the public interest (considering factors such as BMPs, topographic and environmental conditions that make on-lease measurement physically impractical, and maximum ultimate economic recovery); and
(d) Occurs at an approved FMP. A request for approval of an FMP (see § 3173.12) may be filed concurrently with the request for off-lease measurement.
§ 3173.23 Applying for off-lease measurement.
To apply for approval of off-lease measurement, the operator must submit the following to the BLM office having jurisdiction over the leases, units, or communitized areas:
(a) A completed Sundry Notice;
(b) Justification for off-lease measurement (considering factors such as BMPs, topographic and environmental issues, and maximum ultimate economic recovery);
(c) A topographic map or maps of appropriate scale showing the following:
(1) The boundary of the lease, unit, unit PA, or communitized area from which the production originates; and
(2) The location of existing or planned facilities and the relative location of all wellheads (including the API number for each well) and piping included in the off-lease measurement proposal, and existing FMPs or FMPs proposed to be installed to the extent known or anticipated;
(d) The surface ownership of all land on which equipment is, or is proposed to be, located;
(e) If any of the proposed off-lease measurement facilities are located on non-federally owned surface, a written concurrence signed by the owner(s) of the surface and the owner(s) of the measurement facilities, including each owner’s name, address, and telephone number, granting the BLM unrestricted access to the off-lease measurement facility and the surface on which it is located, for the purpose of inspecting any production, measurement, water handling, or transportation equipment located on the non-Federal surface up to and including the FMP, and for otherwise verifying production accountability. If the ownership of the non-Federal surface or of the measurement facility changes, the operator must obtain and provide to the AO the written concurrence required under this paragraph from the new owner(s) within 30 days of the change in ownership;
(f) A right-of-way grant application (Standard Form 299), filed under 43 CFR part 2880, if the proposed off-lease FMP is on a pipeline, or under 43 CFR part 2800, if the proposed off-lease FMP is a meter or storage tank. This requirement applies only when new surface disturbance is proposed for the FMP and its associated facilities are located on BLM-managed land;
(g) A right-of-way grant application, filed under 25 CFR part 169 with the appropriate BIA office, if any of the proposed surface facilities are on Indian land outside the lease, unit, or communitized area from which the production originated;
(h) Written approval from the appropriate surface-management agency, if new surface disturbance is proposed for the FMP and its associated facilities are located on Federal land managed by an agency other than the BLM;
(i) An application for approval of off-lease royalty-free use (if required under applicable rules), if the operator proposes to use production from the lease, unit, or CA as fuel at the off-lease measurement facility without payment of royalty;
(j) A statement that indicates whether the proposal includes all, or only a portion of, the production from the lease, unit, or CA. (For example, gas, but not oil, could be proposed for off-lease measurement.) If the proposal includes only a portion of the production, identify the FMP(s) where the remainder of the production from the lease, unit, or CA is measured or is proposed to be measured; and
(k) If the operator is applying for an amendment of an existing approval of off-lease measurement, the operator must submit a completed Sundry Notice required under paragraph (a) of this section, and information required under paragraphs (b) through (j) of this section to the extent the information previously submitted has changed.
§ 3173.24 Effective date of an off-lease measurement approval.
If the BLM approves off-lease measurement, the approval is effective on the date that the approval is issued, unless the approval specifies a different effective date.
§ 3173.25 Existing approved off-lease measurement.
(a) Upon receipt of an operator’s request for assignment of an FMP number to a facility associated with an off-lease measurement approval existing on January 17, 2017, the AO will review the existing approved off-lease measurement for consistency with the minimum standards and requirements for an off-lease measurement approval under § 3173.22. The AO will notify the operator in writing of any inconsistencies or deficiencies.
(b) The operator must correct any inconsistencies or deficiencies that the AO identifies, provide any additional information the AO requests, or request an extension of time from the AO, within 20 business days after receipt of the AO’s notice. The extension request must explain the factors that will prevent the operator from complying within 20 days and provide a timeframe under which the operator can comply.
(c) The AO may terminate the existing off-lease measurement approval and grant a new off-lease measurement approval with new or amended COAs to make the approval consistent with the requirements for off-lease measurement under § 3173.22 in connection with approving the requested FMP. If the operator appeals the new off-lease measurement approval, the existing off-lease measurement approval will continue in effect during the pendency of the appeal.
(d) If the existing off-lease measurement approval does not meet the standards and requirements of § 3173.22 and the operator does not correct the deficiencies, the AO may terminate the existing off-lease measurement approval under § 3173.27 and deny the request for an FMP number for the facility associated with the existing off-lease measurement approval.
(e) If the existing off-lease measurement approval under this section is consistent with the requirements under § 3173.22, then that existing off-lease measurement is grandfathered and will be part of its FMP approval.
(f) If the BLM grants a new off-lease measurement approval to replace an existing off-lease measurement approval, the new approval is effective on the first day of the month following its approval.
§ 3173.26 Relationship of off-lease measurement approval to royalty-free use of production.
Approval of off-lease measurement does not constitute approval of off-lease royalty-free use of production as fuel in facilities located at an FMP approved under the off-lease measurement approval.
§ 3173.27 Termination of off-lease measurement approval.
(a) The BLM may terminate off-lease measurement approval for any reason, including, but not limited to, the following:
(1) Changes in technology, regulation, or BLM policy; or
(2) Operator non-compliance with the terms or conditions of approval of the off-lease measurement approval or §§ 3173.22 through 3173.26.
(b) The BLM will notify the operator in writing of the effective date of the termination and any inconsistencies or deficiencies with its off-lease measurement approval that serve as the reason(s) for termination. The operator must correct any inconsistencies or deficiencies that the BLM identifies, provide any additional information the AO requests, or request an extension of time from the AO within 20 business days after receipt of the BLM’s notice, or the off lease measurement approval terminates on the effective date.
(c) The operator may terminate the off-lease measurement by submitting a Sundry Notice to the BLM. The Sundry Notice must identify the new FMP(s) for the lease(s), unit(s), or CA(s) previously subject to the off-lease measurement approval.
(d) If off-lease measurement is terminated, each lease, unit PA, or CA that was subject to the off-lease measurement approval may require a new FMP number(s) or a new off-lease measurement approval. Operators will have 30 days to apply for a new FMP number or off-lease measurement approval, whichever is applicable. The existing FMP number may be used for production reporting until a new FMP number is assigned or off-lease measurement is approved.
§ 3173.28 Instances not constituting off-lease measurement, for which no approval is required.
(a) If the approved FMP is located on the well pad of a directionally or horizontally drilled well that produces oil and gas from a lease, unit, or communitized area on which the well pad is not located, measurement at the FMP does not constitute off-lease measurement. However, if the FMP is located off of the well pad, regardless of distance, measurement at the FMP constitutes off-lease measurement, and BLM approval is required under §§ 3173.22 through 3173.26.
(b) If a lease, unit, or CA consists of more than one separate tract whose boundaries are not contiguous (e.g., a single lease comprises two or more separate tracts), measurement of production at an FMP located on one of the tracts is not considered to be off-lease measurement if:
(1) The production is moved from one tract within the same lease, unit, or communitized area to another area of the lease, unit, or communitized area on which the FMP is located; and
(2) Production is not diverted during the movement between the tracts before the FMP, except for production used royalty free.
§ 3173.29 Immediate assessments for certain violations.
Certain instances of noncompliance warrant the imposition of immediate assessments upon discovery, as prescribed in the following table. Imposition of these assessments does not preclude other appropriate enforcement actions:
Table 1 to § 3173.29 – Violations Subject to an Immediate Assessment
| Violation | Assessment amount per violation ($) |
|---|---|
| 1. An appropriate valve on an oil storage tank was not sealed, as required by § 3173.2 | 1,000 |
| 2. An appropriate valve or component on an oil metering system was not sealed, as required by § 3173.3 | 1,000 |
| 3. A Federal seal is removed without prior approval of the AO or AR, as required by § 3173.4 | 1,000 |
| 4. Oil was not properly measured before removal from storage for use on a different lease, unit, or CA, as required by § 3173.7(b) | 1,000 |
| 5. An FMP was bypassed, in violation of § 3170.4 | 1,000 |
| 6. Theft or mishandling of production was not reported to the BLM, as required by § 3173.8 | 1,000 |
| 7. Records necessary to determine quantity and quality of production were not retained, as required by § 3170.7 | 1,000 |
| 8. FMP application was not submitted, as required by § 3173.12 | 1,000 |
| 9. (i) For facilities that begin operation after January 17, 2017, BLM approval for off-lease measurement was not obtained before removing production, as required by § 3173.23 | 1,000 |
| (ii) Facilities that were in operation on or before January 17, 2017, are subject to an assessment if they do not have an existing BLM approval for off-lease measurement. | |
| 10. (i) For facilities that begin operation after January 17, 2017, BLM approval for surface commingling was not obtained before removing production, as required by § 3173.15 | 1,000 |
| (ii) Facilities that were in operation on or before January 17, 2017, are subject to an assessment if they do not have an existing BLM approval for surface commingling. | |
| 11. (i) For facilities that begin operation after January 17, 2017, BLM approval for downhole commingling was not obtained before removing production, as required by § 3173.15 | 1,000 |
| (ii) Facilities that were in operation on or before January 17, 2017, are subject to an assessment if they do not have an existing BLM approval for downhole commingling. |
Appendix A to Subpart 3173 of Part 3170 – Examples of Site Facility Diagrams
| Diagrams | Description |
|---|---|
| I-A | Gas well without separation equipment. |
| I-B | Gas well with separation equipment. |
| I-C | Single operator with co-located facilities single oil tank, gas, and water storage. |
| I-D | Oil sales with multiple oil tanks, gas, and water storage. |
| I-E | Co-located facilities with multiple operators, oil sales by liquid meter (Lease Automatic Custody Transfer or Coriolis Measurement System), gas, and water storage. |
| I-F | On-lease gas plant, with oil sales by liquid meter, Liquefied Petroleum Gas (LPG)/Natural Gas Liquids (NGL) sales by liquid meter, inlet gas, tailgate gas, flared or vented and plant process gas used. |
| I-G | Enhanced recovery water injection or other water disposal facility. |
| I-H | Pod Facility. |
| I-I | On-lease with gas measurement after the Joule-Thomson Plant (JT-Skid), oil sales by liquid meter, Liquefied Petroleum Gas (LPG)/Natural Gas Liquids (NGL) sales by liquid meter. |
| I-J | On-lease with gas measurement before the Joule-Thomson Plant (JT-Skid) and oil sales by liquid meter. |
Note: No FMP number required for Liquefied Petroleum Gas (LPG)/Natural Gas Liquids (NGL) liquid meter.
Appendix A is provided not as a requirement but solely as an example to aid operators, purchasers and transporters in determining what valves are considered “appropriate valves” subject to the seal requirements of this rule, and to aid in the preparation of facility diagrams. It is impossible to include every type of equipment that could be used or situation that could occur in production activities. In making the determination of what is an “appropriate valve,” the entire facility must be considered as a whole, including the facility size, the equipment type, and the on-going activities at the facility.
Subpart 3174 – Measurement of Oil
§ 3174.1 Definitions and acronyms.
(a) As used in this subpart, the term:
Barrel (bbl) means 42 standard United States gallons.
Base pressure means 14.696 pounds per square inch, absolute (psia).
Base temperature means 60 °F.
Certificate of calibration means a document stating the base prover volume and other physical data required for the calibration of flow meters.
Composite meter factor means a meter factor corrected from normal operating pressure to base pressure. The composite meter factor is determined by proving operations where the pressure is considered constant during the measurement period between provings.
Configuration log means the list of constant flow parameters, calculation methods, alarm set points, and other values that are programmed into the flow computer in a CMS.
Coriolis meter means a device which by means of the interaction between a flowing fluid and oscillation of tube(s) infers a mass flow rate. The meter also infers the density by measuring the natural frequency of the oscillating tubes. The Coriolis meter consists of sensors and a transmitter, which convert the output from the sensors to signals representing volume and density.
Coriolis measurement system (CMS) means a metering system using a Coriolis meter in conjunction with a tertiary device, pressure transducer, and temperature transducer in order to derive and report gross standard oil volume. A CMS system provides real-time, on-line measurement of oil.
Displacement prover means a prover consisting of a pipe or pipes with known capacities, a displacement device, and detector switches, which sense when the displacement device has reached the beginning and ending points of the calibrated section of pipe. Displacement provers can be portable or fixed.
Dynamic meter factor means a kinetic meter factor derived by linear interpolation or polynomial fit, used for conditions where a series of meter factors have been determined over a range of normal operating conditions.
Event log means an electronic record of all exceptions and changes to the flow parameters contained within the configuration log that occur and have an impact on a quantity transaction record.
Gross standard volume means a volume of oil corrected to base pressure and temperature.
Indicated volume means the uncorrected volume indicated by the meter in a lease automatic custody transfer system or the Coriolis meter in a CMS. For a positive displacement meter, the indicated volume is represented by the non-resettable totalizer on the meter head. For Coriolis meters, the indicated volume is the uncorrected (without the meter factor) mass of liquid divided by the density.
Innage gauging means the level of a liquid in a tank measured from the datum plate or tank bottom to the surface of the liquid.
Lease automatic custody transfer (LACT) system means a system of components designed to provide for the unattended custody transfer of oil produced from a lease(s), unit PA(s), or CA(s) to the transporting carrier while providing a proper and accurate means for determining the net standard volume and quality, and fail-safe and tamper-proof operations.
Master meter prover means a positive displacement meter or Coriolis meter that is selected, maintained, and operated to serve as the reference device for the proving of another meter. A comparison of the master meter to the Facility Measurement Point (FMP) line meter output is the basis of the master-meter method.
Meter factor means a ratio obtained by dividing the measured volume of liquid that passed through a prover or master meter during the proving by the measured volume of liquid that passed through the line meter during the proving, corrected to base pressure and temperature.
Net standard volume means the gross standard volume corrected for quantities of non-merchantable substances such as sediment and water.
Outage gauging means the distance from the surface of the liquid in a tank to the reference gauge point of the tank.
Positive displacement meter means a meter that registers the volume passing through the meter using a system which constantly and mechanically isolates the flowing liquid into segments of known volume.
Quantity transaction record (QTR) means a report generated by CMS equipment that summarizes the daily and hourly gross standard volume calculated by the flow computer and the average or totals of the dynamic data that is used in the calculation of gross standard volume.
Tertiary device means, for a CMS, the flow computer and associated memory, calculation, and display functions.
Transducer means an electronic device that converts a physical property, such as pressure, temperature, or electrical resistance, into an electrical output signal that varies proportionally with the magnitude of the physical property. Typical output signals are in the form of electrical potential (volts), current (milliamps), or digital pressure or temperature readings. The term transducer includes devices commonly referred to as transmitters.
Vapor tight means capable of holding pressure differential only slightly higher than that of installed pressure-relieving or vapor recovery devices.
(b) As used in this subpart, the following acronyms carry the meaning prescribed:
API means American Petroleum Institute.
CA has the meaning set forth in § 3170.3 of this part.
COA has the meaning set forth in § 3170.3 of this part.
CPL means correction for the effect of pressure on a liquid.
CTL means correction for the effect of temperature on a liquid.
NIST means National Institute of Standards and Technology.
PA has the meaning set forth in § 3170.3 of this part.
PMT means Production Measurement Team.
PSIA means pounds per square inch, absolute.
S&W means sediment and water.
§ 3174.2 General requirements.
(a) Oil may be stored only in tanks that meet the requirements of § 3174.5(b) of this subpart.
(b) Oil must be measured on the lease, unit PA, or CA, unless approval for off-lease measurement is obtained under §§ 3173.22 and 3173.23 of this part.
(c) Oil produced from a lease, unit PA, or CA may not be commingled with production from other leases, unit PAs, or CAs or non-Federal properties before the point of royalty measurement, unless prior approval is obtained under §§ 3173.14 and 3173.15 of this part.
(d) An operator must obtain a BLM-approved FMP number under §§ 3173.12 and 3173.13 of this part for each oil measurement facility where the measurement affects the calculation of the volume or quality of production on which royalty is owed (i.e., oil tank used for tank gauging, LACT system, CMS, or other approved metering device), except as provided in paragraph (h) of this section.
(e) Except as provided in paragraph (h) of this section, all equipment used to measure the volume of oil for royalty purposes installed after January 17, 2017 must comply with the requirements of this subpart.
(f) Except as provided in paragraph (h) of this section, measuring procedures and equipment used to measure oil for royalty purposes, that is in use on January 17, 2017, must comply with the requirements of this subpart on or before the date the operator is required to apply for an FMP number under 3173.12(e) of this part. Prior to that date, measuring procedures and equipment used to measure oil for royalty purposes, that is in use on January 17, 2017 must continue to comply with the requirements of Onshore Oil and Gas Order No. 4, Measurement of oil, § 3164.1(b) as contained in 43 CFR part 3160, (revised October 1, 2016), and any COAs and written orders applicable to that equipment.
(g) The requirement to follow the approved equipment lists identified in §§ 3174.6(b)(5)(ii)(A), 3174.6(b)(5)(iii), 3174.8(a)(1), and 3174.9(a) does not apply until January 17, 2019. The operator or manufacturer must obtain approval of a particular make, model, and size by submitting the test data used to develop performance specifications to the PMT to review.
(h) Meters used for allocation under a commingling and allocation approval under § 3173.14 are not required to meet the requirements of this subpart.
§ 3174.3 Incorporation by reference (IBR).
(a) Certain material specified in this section is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. Operators must comply with all incorporated standards and material, as they are listed in this section. To enforce any edition other than that specified in this section, the BLM must publish a rule in the
(b) American Petroleum Institute (API), 1220 L Street NW., Washington, DC 20005; telephone 202-682-8000; API also offers free, read-only access to some of the material at http://publications.api.org.
(1) API Manual of Petroleum Measurement Standards (MPMS) Chapter 2 – Tank Calibration, Section 2A, Measurement and Calibration of Upright Cylindrical Tanks by the Manual Tank Strapping Method; First Edition, February 1995; Reaffirmed February 2012 (“API 2.2A”), IBR approved for § 3174.5(c).
(2) API MPMS Chapter 2 – Tank Calibration, Section 2.2B, Calibration of Upright Cylindrical Tanks Using the Optical Reference Line Method; First Edition, March 1989, Reaffirmed January 2013 (“API 2.2B”), IBR approved for § 3174.5(c).
(3) API MPMS Chapter 2 – Tank Calibration, Section 2C, Calibration of Upright Cylindrical Tanks Using the Optical-triangulation Method; First Edition, January 2002; Reaffirmed May 2008 (“API 2.2C”), IBR approved for § 3174.5(c).
(4) API MPMS Chapter 3, Section 1A, Standard Practice for the Manual Gauging of Petroleum and Petroleum Products; Third Edition, August 2013 (“API 3.1A”), IBR approved for §§ 3174.5(b), 3174.6(b).
(5) API MPMS Chapter 3 – Tank Gauging, Section 1B, Standard Practice for Level Measurement of Liquid Hydrocarbons in Stationary Tanks by Automatic Tank Gauging; Second Edition, June 2001; Reaffirmed August 2011 (“API 3.1B”), IBR approved for § 3174.6(b).
(6) API MPMS Chapter 3 – Tank Gauging, Section 6, Measurement of Liquid Hydrocarbons by Hybrid Tank Measurement Systems; First Edition, February 2001; Errata September 2005; Reaffirmed October 2011 (“API 3.6”), IBR approved for § 3174.6(b).
(7) API MPMS Chapter 4 – Proving Systems, Section 1, Introduction; Third Edition, February 2005; Reaffirmed June 2014 (“API 4.1”), IBR approved for § 3174.11(c).
(8) API MPMS Chapter 4 – Proving Systems, Section 2, Displacement Provers; Third Edition, September 2003; Reaffirmed March 2011, Addendum February 2015 (“API 4.2”), IBR approved for §§ 3174.11(b) and (c).
(9) API MPMS Chapter 4, Section 5, Master-Meter Provers; Fourth Edition, June 2016, (“API 4.5”), IBR approved for § 3174.11(b).
(10) API MPMS Chapter 4 – Proving Systems, Section 6, Pulse Interpolation; Second Edition, May 1999; Errata April 2007; Reaffirmed October 2013 (“API 4.6”), IBR approved for § 3174.11(c).
(11) API MPMS Chapter 4, Section 8, Operation of Proving Systems; Second Edition, September 2013 (“API 4.8”), IBR approved for § 3174.11(b).
(12) API MPMS Chapter 4 – Proving Systems, Section 9, Methods of Calibration for Displacement and Volumetric Tank Provers, Part 2, Determination of the Volume of Displacement and Tank Provers by the Waterdraw Method of Calibration; First Edition, December 2005; Reaffirmed July 2015 (“API 4.9.2”), IBR approved for § 3174.11(b).
(13) API MPMS Chapter 5 – Metering, Section 6, Measurement of Liquid Hydrocarbons by Coriolis Meters; First Edition, October 2002; Reaffirmed November 2013 (“API 5.6”), IBR approved for §§ 3174.9(e), 3174.11(h) and (i).
(14) API MPMS Chapter 6 – Metering Assemblies, Section 1, Lease Automatic Custody Transfer (LACT) Systems; Second Edition, May 1991; Reaffirmed May 2012 (“API 6.1”), IBR approved for § 3174.8(a) and (b).
(15) API MPMS Chapter 7, Temperature Determination; First Edition, June 2001, Reaffirmed February 2012 (“API 7”), IBR approved for §§ 3174.6(b), 3174.8(b).
(16) API MPMS Chapter 7.3, Temperature Determination – Fixed Automatic Tank Temperature Systems; Second Edition, October 2011 (“API 7.3”), IBR approved for § 3174.6(b).
(17) API MPMS Chapter 8, Section 1, Standard Practice for Manual Sampling of Petroleum and Petroleum Products; Fourth Edition, October 2013 (“API 8.1”), IBR approved for §§ 3174.6(b), 3174.11(h).
(18) API MPMS Chapter 8, Section 2, Standard Practice for Automatic Sampling of Petroleum and Petroleum Products; Third Edition, October 2015 (“API 8.2”), IBR approved for §§ 3174.6(b), 3174.8(b), 3174.11(h).
(19) API MPMS Chapter 8 – Sampling, Section 3, Standard Practice for Mixing and Handling of Liquid Samples of Petroleum and Petroleum Products; First Edition, October 1995; Errata March 1996; Reaffirmed, March 2010 (“API 8.3”), IBR approved for §§ 3174.8(b), 3174.11(h).
(20) API MPMS Chapter 9, Section 1, Standard Test Method for Density, Relative Density, or API Gravity of Crude Petroleum and Liquid Petroleum Products by Hydrometer Method; Third Edition, December 2012 (“API 9.1”), IBR approved for §§ 3174.6(b), 3174.8(b).
(21) API MPMS Chapter 9, Section 2, Standard Test Method for Density or Relative Density of Light Hydrocarbons by Pressure Hydrometer; Third Edition, December 2012 (“API 9.2”), IBR approved for §§ 3174.6(b), 3174.8(b).
(22) API MPMS Chapter 9, Section 3, Standard Test Method for Density, Relative Density, and API Gravity of Crude Petroleum and Liquid Petroleum Products by Thermohydrometer Method; Third Edition, December 2012 (“API 9.3”), IBR approved for §§ 3174.6(b), 3174.8(b).
(23) API MPMS Chapter 10, Section 4, Determination of Water and/or Sediment in Crude Oil by the Centrifuge Method (Field Procedure); Fourth Edition, October 2013; Errata March 2015 (“API 10.4”), IBR approved for §§ 3174.6(b), 3174.8(b).
(24) API MPMS Chapter 11 – Physical Properties Data, Section 1, Temperature and Pressure Volume Correction Factors for Generalized Crude Oils, Refined Products and Lubricating Oils; May 2004, Addendum 1 September 2007; Reaffirmed August 2012 (“API 11.1”), IBR approved for §§ 3174.9(f), 3174.12(a).
(25) API MPMS Chapter 12 – Calculation of Petroleum Quantities, Section 2, Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, Part 1, Introduction; Second Edition, May 1995; Reaffirmed March 2014 (“API 12.2.1”), IBR approved for §§ 3174.8(b), 3174.9(g).
(26) API MPMS Chapter 12 – Calculation of Petroleum Quantities, Section 2, Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, Part 2, Measurement Tickets; Third Edition, June 2003; Reaffirmed September 2010 (“API 12.2.2”), IBR approved for §§ 3174.8(b), 3174.9(g).
(27) API MPMS Chapter 12 – Calculation of Petroleum Quantities, Section 2, Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, Part 3, Proving Report; First Edition, October 1998; Reaffirmed March 2009 (“API 12.2.3”), IBR approved for § 3174.11(c) and (i).
(28) API MPMS Chapter 12 – Calculation of Petroleum Quantities, Section 2, Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, Part 4, Calculation of Base Prover Volumes by the Waterdraw Method; First Edition, December 1997; Reaffirmed March 2009; Errata July 2009 (“API 12.2.4”), IBR approved for § 3174.11(b).
(29) API MPMS Chapter 13 – Statistical Aspects of Measuring and Sampling, Section 1, Statistical Concepts and Procedures in Measurements; First Edition, June 1985 Reaffirmed February 2011; Errata July 2013 (“API 13.1”), IBR approved for § 3174.4(a).
(30) API MPMS Chapter 13, Section 3, Measurement Uncertainty; First Edition, May, 2016 (“API 13.3”), IBR approved for § 3174.4(a).
(31) API MPMS Chapter 14, Section 3, Orifice Metering of Natural Gas and Other Related Hydrocarbon Fluids – Concentric, Square-edged Orifice Meters, Part 1, General Equations and Uncertainty Guidelines; Fourth Edition, September 2012; Errata July 2013 (“API 14.3.1”), IBR approved for § 3174.4(a).
(32) API MPMS Chapter 18 – Custody Transfer, Section 1, Measurement Procedures for Crude Oil Gathered From Small Tanks by Truck; Second Edition, April 1997; Reaffirmed February 2012 (“API 18.1”), IBR approved for § 3174.6(b).
(33) API MPMS Chapter 18, Section 2, Custody Transfer of Crude Oil from Lease Tanks Using Alternative Measurement Methods, First Edition, July 2016 (“API 18.2”), IBR approved for § 3174.6(b).
(34) API MPMS Chapter 21 – Flow Measurement Using Electronic Metering Systems, Section 2, Electronic Liquid Volume Measurement Using Positive Displacement and Turbine Meters; First Edition, June 1998; Reaffirmed August 2011 (“API 21.2”), IBR approved for §§ 3174.8(b), 3174.9(f), 3174.10(f).
(35) API Recommended Practice (RP) 12R1, Setting, Maintenance, Inspection, Operation and Repair of Tanks in Production Service; Fifth Edition, August 1997; Reaffirmed April 2008 (“API RP 12R1”), IBR approved for § 3174.5(b).
(36) API RP 2556, Correction Gauge Tables For Incrustation; Second Edition, August 1993; Reaffirmed November 2013 (“API RP 2556”), IBR approved for § 3174.5(c).
You may also be able to purchase these standards from the following resellers: Techstreet, 3916 Ranchero Drive, Ann Arbor, MI 48108; telephone 734-780-8000; www.techstreet.com/api/apigate.html; IHS Inc., 321 Inverness Drive South, Englewood, CO 80112; 303-790-0600; www.ihs.com; SAI Global, 610 Winters Avenue, Paramus, NJ 07652; telephone 201-986-1131; http://infostore.saiglobal.com/store/.
§ 3174.4 Specific measurement performance requirements.
(a) Volume measurement uncertainty levels. (1) The FMP must achieve the following overall uncertainty levels as calculated in accordance with statistical concepts described in API 13.1, the methodologies in API 13.3, and the quadrature sum (square root of the sum of the squares) method described in API 14.3.1, Subsection 12.3 (all incorporated by reference, see § 3174.3) or other methods approved under paragraph (d):
Table 1 to § 3174.4 – Volume Measurement Uncertainty Levels
| If the averaging period volume (see definition 43 CFR 3170.3) is: | The overall volume measurement uncertainty must be within: |
|---|---|
| 1. Greater than or equal to 30,000 bbl/month | ±0.50 percent. |
| 2. Less than 30,000 bbl/month | ±1.50 percent. |
(2) Only a BLM State Director may grant an exception to the uncertainty levels prescribed in paragraph (a)(1) of this section, and only upon:
(i) A showing that meeting the required uncertainly level would involve extraordinary cost or unacceptable adverse environmental effects; and
(ii) Written concurrence of the PMT, prepared in coordination with the Deputy Director.
(b) Bias. The measuring equipment used for volume determinations must achieve measurement without statistically significant bias.
(c) Verifiability. All FMP equipment must be susceptible to independent verification by the BLM of the accuracy and validity of all inputs, factors, and equations that are used to determine quantity or quality. Verifiability includes the ability to independently recalculate volume and quality based on source records.
(d) Alternative equipment. The PMT will make a determination under § 3174.13 of this subpart regarding whether proposed alternative equipment or measurement procedures meet or exceed the objectives and intent of this section.
§ 3174.5 Oil measurement by tank gauging – general requirements.
(a) Measurement objective. Oil measurement by tank gauging must accurately compute the total net standard volume of oil withdrawn from a properly calibrated sales tank by following the activities prescribed in § 3174.6 and the requirements of § 3174.4 of this subpart to determine the quantity and quality of oil being removed.
(b) Oil tank equipment. (1) Each tank used for oil storage must comply with the recommended practices listed in API RP 12R1 (incorporated by reference, see § 3174.3).
(2) Each oil storage tank must be connected, maintained, and operated in compliance with §§ 3173.2, 3173.6, and 3173.7 of this part.
(3) All oil storage tanks, hatches, connections, and other access points must be vapor tight. Unless connected to a vapor recovery or flare system, all tanks must have a pressure-vacuum relief valve installed at the highest point in the vent line or connection with another tank. All hatches, connections, and other access points must be installed and maintained in accordance with manufacturers’ specifications.
(4) All oil storage tanks must be clearly identified and have an operator-generated number unique to the lease, unit PA, or CA, stenciled on the tank and maintained in a legible condition.
(5) Each oil storage tank associated with an approved FMP that has a tank-gauging system must be set and maintained level.
(6) Each oil storage tank associated with an approved FMP that has a tank-gauging system must be equipped with a distinct gauging reference point, consistent with API 3.1A (incorporated by reference, see § 3174.3). The height of the reference point must be stamped on a fixed bench-mark plate or stenciled on the tank near the gauging hatch, and be maintained in a legible condition.
(c) Sales tank calibrations. The operator must accurately calibrate each oil storage tank associated with an approved FMP that has a tank-gauging system using either API 2.2A, API 2.2B, or API 2.2C; and API RP 2556 (all incorporated by reference, see § 3174.3). The operator must:
(1) Determine sales tank capacities by tank calibration using actual tank measurements;
(i) The unit volume must be in barrels (bbl); and
(ii) The incremental height measurement must match gauging increments specified in § 3174.6(b)(5)(i)(C);
(2) Recalibrate a sales tank if it is relocated or repaired, or the capacity is changed as a result of denting, damage, installation, removal of interior components, or other alterations; and
(3) Submit sales tank calibration charts (tank tables) to the AO within 45 days after calibration. Tank tables may be in paper or electronic format.
§ 3174.6 Oil measurement by tank gauging – procedures.
(a) The procedures for oil measurement by tank gauging must comply with the requirements outlined in this section.
(b) The operator must follow the procedures identified in API 18.1 or API 18.2 (both incorporated by reference, see § 3174.3) as further specified in this paragraph to determine the quality and quantity of oil measured under field conditions at an FMP.
(1) Isolate tank. Isolate the tank for at least 30 minutes to allow contents to settle before proceeding with tank gauging operations. The tank isolating valves must be closed and sealed under § 3173.2 of this part.
(2) Determine opening oil temperature. Determination of the temperature of oil contained in a sales tank must comply with paragraphs (b)(2)(i) through (iii) of this section, API 7, and API 7.3 (both incorporated by reference, see § 3174.3). Opening temperature may be determined before, during, or after sampling.
(i) Glass thermometers must be clean, be free of fluid separation, have a minimum graduation of 1.0 °F, and have an accuracy of ±0.5 °F.
(ii) Electronic thermometers must have a minimum graduation of 0.1 °F and have an accuracy of ±0.5 °F.
(iii) Record the temperature to the nearest 1.0 °F for glass thermometers or 0.1 °F for portable electronic thermometers.
(3) Take oil samples. Sampling operations must be conducted prior to taking the opening gauge unless automatic sampling methods are being used. Sampling of oil removed from an FMP tank must yield a representative sample of the oil and its physical properties and must comply with API 8.1 or API 8.2 (both incorporated by reference, see § 3174.3).
(4) Determine observed oil gravity. Tests for oil gravity must comply with paragraphs (b)(4)(i) through (iii) of this section and API 9.1, API 9.2, or API 9.3 (all incorporated by reference, see § 3174.3).
(i) The hydrometer or thermohydrometer (as applicable) must be calibrated for an oil gravity range that includes the observed gravity of the oil sample being tested and must be clean, with a clearly legible oil gravity scale and with no loose shot weights.
(ii) Allow the temperature to stabilize for at least 5 minutes prior to reading the thermometer.
(iii) Read and record the observed API oil gravity to the nearest 0.1 degree. Read and record the temperature reading to the nearest 1.0 °F.
(5) Measure the opening tank fluid level. Take and record the opening gauge only after samples have been taken, unless automatic sampling methods are being used. Gauging must comply with either paragraph (b)(5)(i) of this section, API 3.1A, and API 18.1 (both incorporated by reference, see § 3174.3); or paragraph (b)(5)(ii) of this section, API 3.1B, API 3.6, and API 18.2 (all incorporated by reference, see § 3174.3); or paragraph (b)(5)(iii) of this section for dynamic volume determination.
(i) For manual gauging, comply with the requirements of API 3.1A and API 18.1 (both incorporated by reference, see § 3174.3) and the following:
(A) The proper bob must be used for the particular measurement method, i.e., either innage gauging or outage gauging;
(B) A gauging tape must be used. The gauging tape must be made of steel or corrosion-resistant material with graduation clearly legible, and must not be kinked or spliced;
(C) Either obtain two consecutive identical gauging measurements for any tank regardless of size, or:
(1) For tanks of 1,000 bbl or less in capacity, three consecutive measurements that are within 1/4-inch of each other and average these three measurements to the nearest
(2) For tanks greater than 1,000 bbl in capacity, three consecutive measurements within
(D) A suitable product-indicating paste may be used on the tape to facilitate the reading. The use of chalk or talcum powder is prohibited; and
(E) The same tape and bob must be used for both opening and closing gauges.
(ii) For automatic tank gauging (ATG), comply with the requirements of API 3.1B, API 3.6, and API 18.2 (all incorporated by reference, see § 3174.3) and the following:
(A) The specific makes and models of ATG that are identified and described at www.blm.gov are approved for use;
(B) The ATG must be inspected and its accuracy verified to within ±
(C) A log of field verifications must be maintained and available upon request. The log must include the following information: The date of verification; the as-found manual gauge readings; the as-found ATG readings; and whether the ATG was field calibrated. If the ATG was field calibrated, the as-left manual gauge readings and as-left ATG readings must be recorded.
(iii) For dynamic volume determination under API 18.2, Subsection 10.1.1, (incorporated by reference, see § 3174.3), the specific makes and models of in-line meters that are identified and described at www.blm.gov are approved for use.
(6) Determine S&W content. Using the oil samples obtained pursuant to paragraph (b)(3) of this section, determine the S&W content of the oil in the sales tanks, according to API 10.4 (incorporated by reference, see § 3174.3).
(7) Transfer oil. Break the tank load line valve seal and transfer oil to the tanker truck. After transfer is complete, close the tank valve and seal the valve under §§ 3173.2 and 3173.5 of this part.
(8) Determine closing oil temperature. Determine the closing oil temperature using the procedures in paragraph (b)(2) of this section.
(9) Take closing gauge. Take the closing tank gauge using the procedures in paragraph (b)(5) of this section.
(10) Complete measurement ticket. Following procedures in § 3174.12.
§ 3174.7 LACT system – general requirements.
(a) A LACT system must meet the construction and operation requirements and minimum standards of this section, § 3174.8, and § 3174.4.
(b) A LACT system must be proven as prescribed in § 3174.11 of this subpart.
(c) Measurement tickets must be completed under § 3174.12(b) of this subpart.
(d) All components of a LACT system must be accessible for inspection by the AO.
(e)(1) The operator must notify the AO, within 72 hours after discovery, of any LACT system failures or equipment malfunctions that may have resulted in measurement error.
(2) Such system failures or equipment malfunctions include, but are not limited to, electrical, meter, and other failures that affect oil measurement.
(f) Any tests conducted on oil samples extracted from LACT system samplers for determination of temperature, oil gravity, and S&W content must meet the requirements and minimum standards in § 3174.6(b)(2), (4), and (6) of this subpart.
(g) Automatic temperature compensators and automatic temperature and gravity compensators are prohibited.
§ 3174.8 LACT system – components and operating requirements.
(a) LACT system components. Each LACT system must include all of the equipment listed in API 6.1 (incorporated by reference, see § 3174.3), with the following exceptions:
(1) The custody transfer meter must be a positive displacement meter or a Coriolis meter. The specific make, models, and sizes of positive displacement or Coriolis meter and associated software that are identified and described at www.blm.gov are approved for use.
(2) An electronic temperature averaging device must be installed.
(3) Meter back pressure must be applied by a back pressure valve or other controllable means of applying back pressure to ensure single-phase flow.
(b) LACT system operating requirements. Operation of all LACT system components must meet the requirements of API 6.1 (incorporated by reference, see § 3174.3) and the following:
(1) Sampling must be conducted according to API 8.2 and API 8.3 (both incorporated by reference, see § 3174.3) and the following:
(i) The sample extractor probe must be inserted within the center half of the flowing stream;
(ii) The extractor probe must be horizontally oriented; and
(iii) The external body of the extractor probe must be marked with the direction of the flow.
(2) Any tests conducted on oil samples extracted from LACT system samplers for determination of oil gravity and S&W content must meet the requirements of either API 9.1, API 9.2, or API 9.3, and API 10.4 (all incorporated by reference, see § 3174.3).
(3) The composite sample container must be emptied and cleaned upon completion of sample withdrawal.
(4) The positive displacement or Coriolis meter (see § 3174.10) must be equipped with a non-resettable totalizer. The meter must include or allow for the attachment of a device that generates at least 8,400 pulses per barrel of registered volume.
(5) The system must have a pressure-indicating device downstream of the meter, but upstream of meter-proving connections. The pressure-indicating device must be capable of providing pressure data to calculate the CPL correction factor.
(6) An electronic temperature averaging device must be installed, operated, and maintained as follows:
(i) The temperature sensor must be placed in compliance with API 7 (incorporated by reference, see § 3174.3);
(ii) The electronic temperature averaging device must be volume-weighted and take a temperature reading following API 21.2, Subsection 9.2.8 (incorporated by reference, see § 3174.3);
(iii) The average temperature for the measurement ticket must be calculated by the volumetric averaging method using API 21.2, Subsection 9.2.13.2a (incorporated by reference, see § 3174.3);
(iv) The temperature averaging device must have a reference accuracy of ±0.5 °F or better, and have a minimum graduation of 0.1 °F; and
(v) The temperature averaging device must include a display of instantaneous temperature and the average temperature calculated since the measurement ticket was opened.
(vi) The average temperature calculated since the measurement ticket was opened must be used to calculate the CTL correction factor.
(7) Determination of net standard volume: Calculate the net standard volume at the close of each measurement ticket following the guidelines in API 12.2.1 and API 12.2.2 (both incorporated by reference, see § 3174.3).
§ 3174.9 Coriolis measurement systems (CMS) – general requirements and components.
The following Coriolis measurement systems section is intended for Coriolis measurement applications independent of LACT measurement systems.
(a) A CMS must meet the requirements and minimum standards of this section, § 3174.4, and § 3174.10.
(b) The specific makes, models, and sizes of Coriolis meters and associated software that have been reviewed by the PMT, as provided in § 3174.13, approved by the BLM, and identified and described at www.blm.gov are approved for use.
(c) A CMS system must be proven at the frequency and under the requirements of § 3174.11 of this subpart.
(d) Measurement tickets must be completed under § 3174.12(b) of this subpart.
(e) A CMS at an FMP must be installed with the components listed in API 5.6 (incorporated by reference, see § 3174.3). Additional requirements are as follows:
(1) The pressure transducer must meet the requirements of § 3174.8(b)(5) of this subpart.
(2) Temperature determination must meet the requirements of § 3174.8(b)(6) of this subpart.
(3) If nonzero S&W content is to be used in determining net oil volume, the sampling system must meet the requirements of § 3174.8(b)(1) through (3) of this subpart. If no sampling system is used, or the sampling system does not meet the requirements of § 3174.8(b)(1) through (3) of this subpart, the S&W content must be reported as zero;
(4) Sufficient back pressure must be applied to ensure single phase flow through the meter.
(f) Determination of API oil gravity. The API oil gravity reported for the measurement ticket period must be determined by one of the following methods:
(1) Determined from a composite sample taken pursuant to § 3174.8(b)(1) through (3) of this subpart; or
(2) Calculated from the average density as measured by the CMS over the measurement ticket period under API 21.2, Subsection 9.2.13.2a (incorporated by reference, see § 3174.3). Density must be corrected to base temperature and pressure using API 11.1 (incorporated by reference, see § 3174.3).
(g) Determination of net standard volume. Calculate the net standard volume at the close of each measurement ticket following the guidelines in API 12.2.1 and API 12.2.2 (both incorporated by reference, see § 3174.3).
§ 3174.10 Coriolis meter for LACT and CMS measurement applications – operating requirements.
(a) Minimum electronic pulse level. The Coriolis meter must register the volume of oil passing through the meter as determined by a system that constantly emits electronic pulse signals representing the indicated volume measured. The pulse per unit volume must be set at a minimum of 8,400 pulses per barrel.
(b) Meter specifications. (1) The Coriolis meter specifications must identify the make and model of the Coriolis meter to which they apply and must include the following:
(i) The reference accuracy for both mass flow rate and density, stated in either percent of reading, percent of full scale, or units of measure;
(ii) The effect of changes in temperature and pressure on both mass flow and fluid density readings, and the effect of flow rate on density readings. These specifications must be stated in percent of reading, percent of full scale, or units of measure over a stated amount of change in temperature, pressure, or flow rate (e.g., “±0.1 percent of reading per 20 psi”);
(iii) The stability of the zero reading for volumetric flow rate. The specifications must be stated in percent of reading, percent of full scale, or units of measure;
(iv) Design limits for flow rate and pressure; and
(v) Pressure drop through the meter as a function of flow rate and fluid viscosity.
(2) Submission of meter specifications: The operator must submit Coriolis meter specifications to the BLM upon request.
(c) Non-resettable totalizer. The Coriolis meter must have a non-resettable internal totalizer for indicated volume.
(d) Verification of meter zero value using the manufacturer’s specifications. If the indicated flow rate is within the manufacturer’s specifications for zero stability, no adjustments are required. If the indicated flow rate is outside the manufacturer’s specification for zero stability, the meter’s zero reading must be adjusted. After the meter’s zero has been adjusted, the meter must be proven required by § 3174.11. A copy of the zero value verification procedure must be made available to the AO upon request.
(e) Required on-site information. (1) The Coriolis meter display must be readable without using data collection units, laptop computers, or any special equipment, and must be on-site and accessible to the AO.
(2) For each Coriolis meter, the following values and corresponding units of measurement must be displayed:
(i) The instantaneous density of liquid (pounds/bbl, pounds/gal, or degrees API);
(ii) The instantaneous indicated volumetric flow rate through the meter (bbl/day);
(iii) The meter factor;
(iv) The instantaneous pressure (psi);
(v) The instantaneous temperature ( °F);
(vi) The cumulative gross standard volume through the meter (non-resettable totalizer) (bbl); and
(vii) The previous day’s gross standard volume through the meter (bbl).
(3) The following information must be correct, be maintained in a legible condition, and be accessible to the AO at the FMP without the use of data collection equipment, laptop computers, or any special equipment:
(i) The make, model, and size of each sensor; and
(ii) The make, range, calibrated span, and model of the pressure and temperature transducer used to determine gross standard volume.
(4) A log must be maintained of all meter factors, zero verifications, and zero adjustments. For zero adjustments, the log must include the zero value before adjustment and the zero value after adjustment. The log must be made available upon request.
(f) Audit trail requirements. The information specified in paragraphs (f)(1) through (4) of this section must be recorded and retained under the recordkeeping requirements of § 3170.7 of this part. Audit trail requirements must follow API 21.2, Subsection 10 (incorporated by reference, see § 3174.3). All data must be available and submitted to the BLM upon request.
(1) Quantity transaction record (QTR). Follow the requirements for a measurement ticket in § 3174.12(b) of this subpart.
(2) Configuration log. The configuration log must comply with the requirements of API 21.2, Subsection 10.2 (incorporated by reference, see § 3174.3). The configuration log must contain and identify all constant flow parameters used in generating the QTR.
(3) Event log. The event log must comply with the requirements of API 21.2, Subsection 10.6 (incorporated by reference, see § 3174.3). In addition, the event log must be of sufficient capacity to record all events such that the operator can retain the information under the recordkeeping requirements of § 3170.7 of this part.
(4) Alarm log The type and duration of any of the following alarm conditions must be recorded:
(i) Density deviations from acceptable parameters; and
(ii) Instances in which the flow rate exceeded the manufacturer’s maximum recommended flow rate or was below the manufacturer’s minimum recommended flow rate.
(g) Data protection. Each Coriolis meter must have installed and maintained in an operable condition a backup power supply or a nonvolatile memory capable of retaining all data in the unit’s memory to ensure that the audit trail information required under paragraph (f) of this section is protected.
§ 3174.11 Meter-proving requirements.
(a) Applicability. This section specifies the minimum requirements for conducting volumetric meter proving for all FMP meters.
(b) Meter prover. Acceptable provers are positive displacement master meters, Coriolis master meters, and displacement provers. The operator must ensure that the meter prover used to determine the meter factor has a valid certificate of calibration on site and available for review by the AO. The certificate must show that the prover, identified by serial number assigned to and inscribed on the prover, was calibrated as follows:
(1) Master meters must have a meter factor within 0.9900 to 1.0100 determined by a minimum of five consecutive prover runs within 0.0005 (0.05 percent repeatability) as described in API 4.5, Subsection 6.5 (incorporated by reference, see § 3174.3). The master meter must not be mechanically compensated for oil gravity or temperature; its readout must indicate units of volume without corrections. The meter factor must be documented on the calibration certificate and must be calibrated at least once every 12 months. New master meters must be calibrated immediately and recalibrated in three months. Master meters that have undergone mechanical repairs, alterations, or changes that affect the calibration must be calibrated immediately upon completion of this work and calibrated again 3 months after this date under API 4.5, API 4.8, Subsection 10.2, and API 4.8, Annex B (all incorporated by reference, see § 3174.3).
(2) Displacement provers must meet the requirements of API 4.2 (incorporated by reference, see § 3174.3) and be calibrated using the water-draw method under API 4.9.2 (incorporated by reference, see § 3174.3), at the calibration frequencies specified in API 4.8, Subsection 10.1(b) (incorporated by reference, see § 3174.3).
(3) The base prover volume of a displacement prover must be calculated under API 12.2.4 (incorporated by reference, see § 3174.3).
(4) Displacement provers must be sized to obtain a displacer velocity through the prover that is within the appropriate range during proving under API 4.2, Subsection 4.3.4.2, Minimum Displacer Velocities and API 4.2, Subsection 4.3.4.1, Maximum Displacer Velocities (incorporated by reference, see § 3174.3).
(5) Fluid velocity is calculated using API 4.2, Subsection 4.3.4.3, Equation 12 (incorporated by reference, see § 3174.3).
(c) Meter proving runs. Meter proving must follow the applicable section(s) of API 4.1, Proving Systems (incorporated by reference, see § 3174.3).
(1) Meter proving must be performed under normal operating fluid pressure, fluid temperature, and fluid type and composition, as follows:
(i) The oil flow rate through the LACT or CMS during proving must be within 10 percent of the normal flow rate;
(ii) The absolute pressure as measured by the LACT or CMS during proving must be within 10 percent of the normal operating absolute pressure;
(iii) The temperature as measured by the LACT or CMS during the proving must be within 10 °F of the normal operating temperature; and
(iv) The gravity of the oil during proving must be within 5° API of the normal oil gravity.
(v) If the normal flow rate, pressure, temperature, or oil gravity vary by more than the limits defined in paragraphs (c)(i) through (c)(iv) of this section, meter provings must be conducted, at a minimum, under the three following conditions: At the lower limit of normal operating conditions, at the upper limit of normal operation conditions, and at the midpoint of normal operating conditions.
(2) If each proving run is not of sufficient volume to generate at least 10,000 pulses, as specified by API 4.2, Subsection 4.3.2 (incorporated by reference, see § 3174.3), from the positive displacement meter or the Coriolis meter, then pulse interpolation must be used in accordance with API 4.6 (incorporated by reference, see § 3174.3).
(3) Proving runs must be made until the calculated meter factor or meter generated pulses from five consecutive runs match within a tolerance of 0.0005 (0.05 percent) between the highest and the lowest value in accordance with API 12.2.3, Subsection 9 (incorporated by reference, see § 3174.3).
(4) The new meter factor is the arithmetic average of the meter generated pulses or intermediate meter factors calculated from the five consecutive runs in accordance with API 12.2.3, Subsection 9 (incorporated by reference, see § 3174.3).
(5) Meter factor computations must follow the sequence described in API 12.2.3 (incorporated by reference, see § 3174.3).
(6) If multiple meters factors are determined over a range of normal operating conditions, then:
(i) If all the meter factors determined over a range of conditions fall within 0.0020 of each other, then a single meter factor may be calculated for that range as the arithmetic average of all the meter factors within that range. The full range of normal operating conditions may be divided into segments such that all the meter factors within each segment fall within a range of 0.0020. In this case, a single meter factor for each segment may be calculated as the arithmetic average of the meter factors within that segment; or
(ii) The metering system may apply a dynamic meter factor derived (using, e.g., linear interpolation, polynomial fit, etc.) from the series of meter factors determined over the range of normal operating conditions, so long as no two neighboring meter factors differ by more than 0.0020.
(7) The meter factor must be at least 0.9900 and no more than 1.0100.
(8) The initial meter factor for a new or repaired meter must be at least 0.9950 and no more than 1.0050.
(9) For positive displacement meters, the back pressure valve may be adjusted after proving only within the normal operating fluid flow rate and fluid pressure as described in paragraph (c)(1) of this section. If the back pressure valve is adjusted after proving, the operator must document the as left fluid flow rate and fluid pressure on the proving report.
(10) If a composite meter factor is calculated, the CPL value must be calculated from the pressure setting of the back pressure valve or the normal operating pressure at the meter. Composite meter factors must not be used with a Coriolis meter.
(d) Minimum proving frequency. The operator must prove any FMP meter before removal or sales of production after any of the following events:
(1) Initial meter installation;
(2) Every 3 months (quarterly) after the last proving, or each time the registered volume flowing through the meter, as measured on the non-resettable totalizer from the last proving, increases by 75,000 bbl, whichever comes first, but no more frequently than monthly;
(3) Meter zeroing (Coriolis meter);
(4) Modification of mounting conditions;
(5) A change in fluid temperature that exceeds the transducer’s calibrated span;
(6) A change in pressure, density, or flow rate that exceeds the operating proving limits;
(7) The mechanical or electrical components of the meter have been changed, repaired, or removed;
(8) Internal calibration factors have been changed or reprogrammed; or
(9) At the request of the AO.
(e) Excessive meter factor deviation. (1) If the difference between meter factors established in two successive provings exceeds ±0.0025, the meter must be immediately removed from service, checked for damage or wear, adjusted or repaired, and reproved before returning the meter to service.
(2) The arithmetic average of the two successive meter factors must be applied to the production measured through the meter between the date of the previous meter proving and the date of the most recent meter proving.
(3) The proving report submitted under paragraph (i) of this section must clearly show the most recent meter factor and describe all subsequent repairs and adjustments.
(f) Verification of the temperature transducer. As part of each required meter proving and upon replacement, the temperature averager for a LACT system and the temperature transducer used in conjunction with a CMS must be verified against a known standard according to the following:
(1) The temperature averager or temperature transducer must be compared with a test thermometer traceable to NIST and with a stated accuracy of ±0.25 °F or better.
(2) The temperature reading displayed on the temperature averager or temperature transducer must be compared with the reading of the test thermometer using one of the following methods:
(i) The test thermometer must be placed in a test thermometer well located not more than 12″ from the probe of the temperature averager or temperature transducer; or
(ii) Both the test thermometer and probe of the temperature averager or temperature transducer must be placed in an insulated water bath. The water bath temperature must be within 20 °F of the normal flowing temperature of the oil.
(3) The displayed reading of instantaneous temperature from the temperature averager or the temperature transducer must be compared with the reading from the test thermometer. If they differ by more than 0.5 °F, then the difference in temperatures must be noted on the meter proving report and:
(i) The temperature averager or temperature transducer must be adjusted to match the reading of the test thermometer; or
(ii) The temperature averager or temperature transducer must be recalibrated, repaired, or replaced.
(g) Verification of the pressure transducer (if applicable). (1) As part of each required meter proving and upon replacement, the pressure transducer must be compared with a test pressure device (dead weight or pressure gauge) traceable to NIST and with a stated maximum uncertainty of no more than one-half of the accuracy required from the transducer being verified.
(2) The pressure reading displayed on the pressure transducer must be compared with the reading of the test pressure device.
(3) The pressure transducer must be tested at the following three points:
(i) Zero (atmospheric pressure);
(ii) 100 percent of the calibrated span of the pressure transducer; and
(iii) A point that represents the normal flowing pressure through the Coriolis meter.
(4) If the pressure applied by the test pressure device and the pressure displayed on the pressure transducer vary by more than the required accuracy of the pressure transducer, the pressure transducer must be adjusted to read within the stated accuracy of the test pressure device.
(h) Density verification (if applicable). As part of each required meter proving, if the API gravity of oil is determined from the average density measured by the Coriolis meter (rather than from a composite sample), then during each proving of the Coriolis meter, the instantaneous flowing density determined by the Coriolis meter must be verified by comparing it with an independent density measurement as specified under API 5.6, Subsection 9.1.2.1 (incorporated by reference, see § 3174.3). The difference between the indicated density determined from the Coriolis meter and the independently determined density must be within the specified density reference accuracy specification of the Coriolis meter. Sampling must be performed in accordance with API 8.1, API 8.2, or API 8.3 (incorporated by reference, see § 3174.3), as appropriate.
(i) Meter proving reporting requirements. (1) The operator must report to the AO all meter-proving and volume adjustments after any LACT system or CMS malfunction, including excessive meter-factor deviation, using the appropriate form in either API 12.2.3 or API 5.6 (both incorporated by reference, see § 3174.3), or any similar format showing the same information as the API form, provided that the calculation of meter factors maintains the proper calculation sequence and rounding.
(2) In addition to the information required under paragraph (i)(1) of this section, each meter-proving report must also show the:
(i) Unique meter ID number;
(ii) Lease number, CA number, or unit PA number;
(iii) The temperature from the test thermometer and the temperature from the temperature averager or temperature transducer;
(iv) For pressure transducers, the pressure applied by the pressure test device and the pressure reading from the pressure transducer at the three points required under paragraph (g)(3) of this section;
(v) For density verification (if applicable), the instantaneous flowing density (as determined by Coriolis meter), and the independent density measurement, as compared under paragraph (h) of this section; and
(vi) The “as left” fluid flow rate and fluid pressure, if the back pressure valve is adjusted after proving as described in paragraph (c)(9) of this section.
(3) The operator must submit the meter-proving report to the AO no later than 14 days after the meter proving. The proving report may be either in a hard copy or electronic format.
§ 3174.12 Measurement tickets.
(a) Tank gauging. After oil is measured by tank gauging under §§ 3174.5 and 3174.6 of this subpart, the operator, purchaser, or transporter, as appropriate, must complete a uniquely numbered measurement ticket, in either paper or electronic format, with the following information:
(1) Lease, unit PA, or CA number;
(2) Unique tank number and nominal tank capacity;
(3) Opening and closing dates and times;
(4) Opening and closing gauges and observed temperatures in °F;
(5) Observed volume for opening and closing gauge, using tank specific calibration charts (see § 3174.5(c));
(6) Total gross standard volume removed from the tank following API 11.1 (incorporated by reference, see § 3174.3);
(7) Observed API oil gravity and temperature in °F;
(8) API oil gravity at 60 °F, following API 11.1 (incorporated by reference, see § 3174.3);
(9) S&W content percent;
(10) Unique number of each seal removed and installed;
(11) Name of the individual performing the tank gauging; and
(12) Name of the operator.
(b) LACT system and CMS. (1) At the beginning of every month, and, unless the operator is using a flow computer under § 3174.10, before conducting proving operations on a LACT system, the operator, purchaser, or transporter, as appropriate, must complete a uniquely numbered measurement ticket, in either paper or electronic format, with the following information:
(i) Lease, unit PA, or CA number;
(ii) Unique meter ID number;
(iii) Opening and closing dates;
(iv) Opening and closing totalizer readings of the indicated volume;
(v) Meter factor, indicating if it is a composite meter factor;
(vi) Total gross standard volume removed through the LACT system or CMS;
(vii) API oil gravity. For API oil gravity determined from a composite sample, the observed API oil gravity and temperature must be indicated in °F and the API oil gravity must be indicated at 60 °F. For API oil gravity determined from average density (CMS only), the average uncorrected density must be determined by the CMS;
(viii) The average temperature in °F;
(ix) The average flowing pressure in psig;
(x) S&W content percent;
(xi) Unique number of each seal removed and installed;
(xii) Name of the purchaser’s representative; and
(xiii) Name of the operator.
(2) Any accumulators used in the determination of average pressure, average temperature, and average density must be reset to zero whenever a new measurement ticket is opened.
§ 3174.13 Oil measurement by other methods.
(a) Any method of oil measurement other than tank gauging, LACT system, or CMS at an FMP requires prior BLM approval.
(b)(1) Any operator requesting approval to use alternate oil measurement equipment or measurement method must submit to the BLM performance data, actual field test results, laboratory test data, or any other supporting data or evidence that demonstrates that the proposed alternate oil equipment or method would meet or exceed the objectives of the applicable minimum requirements of this subpart and would not affect royalty income or production accountability.
(2) The PMT will review the submitted data to ensure that the alternate oil measurement equipment or method meets the requirements of this subpart and will make a recommendation to the BLM to approve use of the equipment or method, disapprove use of the equipment or method, or approve use of the equipment or method with conditions for its use. If the PMT recommends, and the BLM approves new equipment or methods, the BLM will post the make, model, range or software version (as applicable), or method on the BLM Web site www.blm.gov as being appropriate for use at an FMP for oil measurement without further approval by the BLM, subject to any conditions of approval identified by the PMT and approved by the BLM.
(c) The procedures for requesting and granting a variance under § 3170.6 of this part may not be used as an avenue for approving new technology, methods, or equipment. Approval of alternative oil measurement equipment or methods may be obtained only under this section.
§ 3174.14 Determination of oil volumes by methods other than measurement.
(a) Under 43 CFR 3162.7-2, when production cannot be measured due to spillage or leakage, the amount of production must be determined by using any method the AO approves or prescribes. This category of production includes, but is not limited to, oil that is classified as slop oil or waste oil.
(b) No oil may be classified or disposed of as waste oil unless the operator can demonstrate to the satisfaction of the AO that it is not economically feasible to put the oil into marketable condition.
(c) The operator may not sell or otherwise dispose of slop oil without prior written approval from the AO. Following the sale or disposal of slop oil, the operator must notify the AO in writing of the volume sold or disposed of and the method used to compute the volume.
§ 3174.15 Immediate assessments.
Certain instances of noncompliance warrant the imposition of immediate assessments upon the BLM’s discovery of the violation, as prescribed in the following table. Imposition of any of these assessments does not preclude other appropriate enforcement actions.
Table 1 to § 3174.15 – Violations Subject to an Immediate Assessment
| Violations subject to an immediate assessment | |
|---|---|
| Violation: | Assessment amount per violation: |
| 1. Missing or nonfunctioning FMP LACT system components as required by § 3174.8 of this subpart | $1,000 |
| 2. Failure to notify the AO within 72 hours, as required by § 3174.7(e) of this subpart, of any FMP LACT system failure or equipment malfunction resulting in use of an unapproved alternate method of measurement | 1,000 |
| 3. Missing or nonfunctioning FMP CMS components as required by § 3174.9 of this subpart | 1,000 |
| 4. Failure to meet the proving frequency requirements for an FMP, detailed in § 3174.11 of this subpart | 1,000 |
| 5. Failure to obtain a written approval, as required by § 3174.13 of this subpart, before using any oil measurement method other than tank gauging, LACT system, or CMS at a FMP | 1,000 |
Subpart 3175 – Measurement of Gas
§ 3175.10 Definitions and acronyms.
(a) As used in this subpart, the term:
AGA Report No. (followed by a number) means a standard prescribed by the American Gas Association, with the number referring to the specific standard.
Area ratio means the smallest unrestricted area at the primary device divided by the cross-sectional area of the meter tube. For example, the area ratio (A
As-found means the reading of a mechanical or electronic transducer when compared to a certified test device, prior to making any adjustments to the transducer.
As-left means the reading of a mechanical or electronic transducer when compared to a certified test device, after making adjustments to the transducer, but prior to returning the transducer to service.
Atmospheric pressure means the pressure exerted by the weight of the atmosphere at a specific location.
Beta ratio means the measured diameter of the orifice bore divided by the measured inside diameter of the meter tube. This is also referred to as a diameter ratio.
Bias means a systematic shift in the mean value of a set of measurements away from the true value of what is being measured.
British thermal unit (Btu) means the amount of heat needed to raise the temperature of one pound of water by 1 °F.
Component-type electronic gas measurement system means an electronic gas measurement system comprising transducers and a flow computer, each identified by a separate make and model, from which performance specifications are obtained.
Configuration log means a list of all fixed or user-programmable parameters used by the flow computer that could affect the calculation or verification of flow rate, volume, or heating value.
Discharge coefficient means an empirically derived correction factor that is applied to the theoretical differential flow equation in order to calculate a flow rate that is within stated uncertainty limits.
Effective date of a spot or composite gas sample means the first day on which the relative density and heating value determined from the sample are used in calculating the volume and quality on which royalty is based.
Electronic gas measurement (EGM) means all of the hardware and software necessary to convert the static pressure, differential pressure, and flowing temperature developed as part of a primary device, to a quantity, rate, or quality measurement that is used to determine Federal royalty. For orifice meters, this includes the differential-pressure transducer, static-pressure transducer, flowing-temperature transducer, on-line gas chromatograph (if used), flow computer, display, memory, and any internal or external processes used to edit and present the data or values measured.
Element range means the difference between the minimum and maximum value that the element (differential-pressure bellows, static-pressure element, and temperature element) of a mechanical recorder is designed to measure.
Event log means an electronic record of all exceptions and changes to the flow parameters contained within the configuration log that occur and have an impact on a quantity transaction record.
GPA (followed by a number) means a standard prescribed by the Gas Processors Association, with the number referring to the specific standard.
Heating value means the gross heat energy released by the complete combustion of one standard cubic foot of gas at 14.73 pounds per square inch absolute (psia) and 60 °F.
Heating value variability means the deviation of previous heating values over a given time period from the average heating value over that same time period, calculated at a 95 percent confidence level. Unless otherwise approved by the BLM, variability is determined with the following equation:
High-volume facility measurement point or high-volume FMP means any FMP that measures more than 200 Mcf/day, but less than or equal to 1,000 Mcf/day over the averaging period.
Hydrocarbon dew point means the temperature at which hydrocarbon liquids begin to form within a gas mixture. For the purpose of this regulation, the hydrocarbon dew point is the flowing temperature of the gas measured at the FMP, unless otherwise approved by the AO.
Integration means a process by which the lines on a circular chart (differential pressure, static pressure, and flowing temperature) used in conjunction with a mechanical chart recorder are re-traced or interpreted in order to determine the volume that is represented by the area under the lines. An integration statement documents the values determined from the integration.
Live input variable means a datum that is automatically obtained in real time by an EGM system.
Low-volume facility measurement point or low-volume FMP means any FMP that measures more than 35 Mcf/day, but less than or equal to 200 Mcf/day, over the averaging period.
Lower calibrated limit means the minimum engineering value for which a transducer was calibrated by certified equipment, either in the factory or in the field.
Mean means the sum of all the values in a data set divided by the number of values in the data set.
Mole percent means the number of molecules of a particular type that are present in a gas mixture divided by the total number of molecules in the gas mixture, expressed as a percentage.
Normal flowing point means the differential pressure, static pressure, and flowing temperature at which an FMP normally operates when gas is flowing through it.
Primary device means the volume-measurement equipment installed in a pipeline that creates a measureable and predictable pressure drop in response to the flow rate of fluid through the pipeline. It includes the pressure-drop device, device holder, pressure taps, required lengths of pipe upstream and downstream of the pressure-drop device, and any flow conditioners that may be used to establish a fully developed symmetrical flow profile.
Qualified test facility means a facility with currently certified measurement systems for mass, length, time, temperature, and pressure traceable to the NIST primary standards or applicable international standards approved by the BLM.
Quantity transaction record (QTR) means a report generated by an EGM system that summarizes the daily and hourly volumes calculated by the flow computer and the average or totals of the dynamic data that is used in the calculation of volume.
Reynolds number means the ratio of the inertial forces to the viscous forces of the fluid flow, and is defined as:
Redundancy verification means a process of verifying the accuracy of an EGM system by comparing the readings of two sets of transducers placed on the same primary device.
Secondary device means the differential-pressure, static-pressure, and temperature transducers in an EGM system, or a mechanical recorder, including the differential pressure, static pressure, and temperature elements, and the clock, pens, pen linkages, and circular chart.
Self-contained EGM system means an EGM system in which the transducers and flow computer are identified by a single make and model number from which the performance specifications for the transducers and flow computer are obtained. Any change to the make or model numbers of either a transducer or a flow computer within a self-contained EGM system changes the system to a component-type EGM system.
Senior fitting means a type of orifice plate holder that allows the orifice plate to be removed, inspected, and replaced without isolating and depressurizing the meter tube.
Standard cubic foot (scf) means a cubic foot of gas at 14.73 psia and 60 °F.
Standard deviation means a measure of the variation in a distribution, and is equal to the square root of the arithmetic mean of the squares of the deviations of each value in the distribution from the arithmetic mean of the distribution.
Tertiary device means, for EGM systems, the flow computer and associated memory, calculation, and display functions.
Threshold of significance means the maximum difference between two data sets (a and b) that can be attributed to uncertainty effects. The threshold of significance is determined as follows:
Transducer means an electronic device that converts a physical property such as pressure, temperature, or electrical resistance into an electrical output signal that varies proportionally with the magnitude of the physical property. Typical output signals are in the form of electrical potential (volts), current (milliamps), or digital pressure or temperature readings. The term transducer includes devices commonly referred to as transmitters.
Turndown means a reduction of the measurement range of a transducer in order to improve measurement accuracy at the lower end of its scale. It is typically expressed as the ratio of the upper range limit to the upper calibrated limit.
Type test means a test on a representative number of a specific make, model, and range of a device to determine its performance over a range of operating conditions.
Uncertainty means the range of error that could occur between a measured value and the true value being measured, calculated at a 95 percent confidence level.
Upper calibrated limit means the maximum engineering value for which a transducer was calibrated by certified equipment, either in the factory or in the field.
Upper range limit (URL) means the maximum value that a transducer is designed to measure.
Verification means the process of determining the amount of error in a differential pressure, static pressure, or temperature transducer or element by comparing the readings of the transducer or element with the readings from a certified test device with known accuracy.
Very-low-volume facility measurement point or very-low-volume FMP means any FMP that measures 35 Mcf/day or less over the averaging period.
Very-high-volume facility measurement point or very-high-volume FMP means any FMP that measures more than 1,000 Mcf/day over the averaging period.
(b) As used in this subpart the following additional acronyms carry the meaning prescribed:
GARVS means the BLM’s Gas Analysis Reporting and Verification System.
GC means gas chromatograph.
GPA means the Gas Processors Association.
Mcf means 1,000 standard cubic feet.
psia means pounds per square inch – absolute.
psig means pounds per square inch – gauge.
§ 3175.20 General requirements.
Measurement of all gas at an FMP must comply with the standards prescribed in this subpart, except as otherwise approved under § 3170.6 of this part.
§ 3175.30 Incorporation by reference.
(a) Certain material identified in this section is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. Operators must comply with all incorporated standards and material as they are listed in this section. To enforce any edition other than that specified in this section, the BLM must publish a rule in the
(b) American Gas Association (AGA), 400 North Capitol Street NW., Suite 450, Washington, DC 20001; telephone 202-824-7000.
(1) AGA Report No. 3, Orifice Metering of Natural Gas and Other Related Hydrocarbon Fluids, Second Edition, September, 1985 (“AGA Report No. 3 (1985)”), IBR approved for §§ 3175.61(a) and (b), 3175.80(k), and 3175.94(a).
(2) AGA Transmission Measurement Committee Report No. 8, Compressibility Factors of Natural Gas and Other Related Hydrocarbon Gases; Second Edition, November 1992 (“AGA Report No. 8”), IBR approved for §§ 3175.103(a) and 3175.120(d).
(c) American Petroleum Institute (API), 1220 L Street NW., Washington, DC 20005; telephone 202-682-8000. API also offers free, read-only access to some of the material at http://publications.api.org.
(1) API Manual of Petroleum Measurement Standards (MPMS) Chapter 14 – Natural Gas Fluids Measurement, Section 1, Collecting and Handling of Natural Gas Samples for Custody Transfer; Seventh Edition, May 2016 (“API 14.1”), IBR approved for §§ 3175.112(b) and (c), 3175.113(c), and 3175.114(b).
(2) API MPMS, Chapter 14, Section 3, Orifice Metering of Natural Gas and Other Related Hydrocarbon Fluids – Concentric, Square-edged Orifice Meters, Part 1, General Equations and Uncertainty Guidelines; Fourth Edition, September 2012; Errata, July 2013 (“API 14.3.1”), IBR approved for § 3175.31(a) and Table 1 to § 3175.80.
(3) API MPMS Chapter 14, Section 3, Orifice Metering of Natural Gas and Other Related Hydrocarbon Fluids – Concentric, Square-edged Orifice Meters, Part 2, Specification and Installation Requirements; Fifth Edition, March 2016 (“API 14.3.2”), IBR approved for §§ 3175.46(b) and (c), 3175.61(a), 3175.80(c) through (g) and (i) through (l), and Table 1 to § 3175.80.
(4) API MPMS Chapter 14, Section 3, Orifice Metering of Natural Gas and Other Related Hydrocarbon Fluids – Concentric, Square-edged Orifice Meters, Part 3, Natural Gas Applications; Fourth Edition, November 2013 (“API 14.3.3”), IBR approved for §§ 3175.94(a) and 3175.103(a).
(5) API MPMS Chapter 14, Natural Gas Fluids Measurement, Section 3, Concentric, Square-Edged Orifice Meters, Part 3, Natural Gas Applications, Third Edition, August, 1992 (“API 14.3.3 (1992)”), IBR approved for § 3175.61(b).
(6) API MPMS, Chapter 14, Section 5, Calculation of Gross Heating Value, Relative Density, Compressibility and Theoretical Hydrocarbon Liquid Content for Natural Gas Mixtures for Custody Transfer; Third Edition, January 2009; Reaffirmed February 2014 (“API 14.5”), IBR approved for §§ 3175.120(c) and 3175.125(a).
(7) API MPMS Chapter 21, Section 1, Flow Measurement Using Electronic Metering Systems – Electronic Gas Measurement; Second Edition, February 2013 (“API 21.1”), IBR approved for Table 1 to § 3175.100, §§ 3175.101(e), 3175.102(a) and (c) through (e), 3175.103(b) and (c), and 3175.104(a) through (d).
(8) API MPMS Chapter 22 – Testing Protocol, Section 2, Differential Pressure Flow Measurement Devices; First Edition, August 2005; Reaffirmed August 2012 (“API 22.2”), IBR approved for § 3175.47(b) through (d).
(d) Gas Processors Association (GPA), 6526 E. 60th Street, Tulsa, OK 74145; telephone 918-493-3872.
(1) GPA Standard 2166-05, Obtaining Natural Gas Samples for Analysis by Gas Chromatography Revised 2005 (“GPA 2166-05”), IBR approved for §§ 3175.113(c) and (d), 3175.114(a), and 3175.117(a).
(2) GPA Standard 2261-13, Analysis for Natural Gas and Similar Gaseous Mixtures by Gas Chromatography; Revised 2013 (“GPA 2261-13”), IBR approved for § 3175.118(a) and (c).
(3) GPA Standard 2198-03, Selection, Preparation, Validation, Care and Storage of Natural Gas and Natural Gas Liquids Reference Standard Blends; Revised 2003 (“GPA 2198-03”), IBR approved for § 3175.118(c).
(4) GPA Standard 2286-14, Method for the Extended Analysis of Natural Gas and Similar Gaseous Mixtures by Temperature Program Gas Chromatography; Revised 2014 (“GPA 2286-14”), IBR approved for § 3175.118(e).
(e) Pipeline Research Council International (PRCI), 3141 Fairview Park Dr., Suite 525, Falls Church, VA 22042; telephone 703-205-1600.
(1) PRCI Contract-NX-19, Manual for the Determination of Supercompressibility Factors for Natural Gas; December 1962 (“PRCI NX 19”), IBR approved for § 3175.61(b).
(2) [Reserved]
You may also be able to purchase these standards from the following resellers: Techstreet, 3916 Ranchero Drive, Ann Arbor, MI 48108; telephone 734-780-8000; www.techstreet.com/api/apigate.html; IHS Inc., 321 Inverness Drive South, Englewood, CO 80112; 303-790-0600; www.ihs.com; SAI Global, 610 Winters Ave., Paramus, NJ 07652; telephone 201-986-1131; http://infostore.saiglobal.com/store/.
§ 3175.31 Specific performance requirements.
(a) Flow rate measurement uncertainty levels. (1) For high-volume FMPs, the measuring equipment must achieve an overall flow rate measurement uncertainty within ±3 percent.
(2) For very-high-volume FMPs, the measuring equipment must achieve an overall flow rate measurement uncertainty within ±2 percent.
(3) The determination of uncertainty is based on the values of flowing parameters (e.g., differential pressure, static pressure, and flowing temperature for differential meters or velocity, mass flow rate, or volumetric flow rate for linear meters) determined as follows, listed in order of priority:
(i) The average flowing parameters listed on the most recent daily QTR, if available to the BLM at the time of uncertainty determination; or
(ii) The average flowing parameters from the previous day, as required under § 3175.101(b)(4)(i) through (iii) (for differential meters).
(4) The uncertainty must be calculated under API 14.3.1, Section 12 (incorporated by reference, see § 3175.30) or other methods approved by the AO.
(b) Heating value uncertainty levels. (1) For high-volume FMPs, the measuring equipment must achieve an annual average heating value uncertainty within ±2 percent.
(2) For very-high-volume FMPs, the measuring equipment must achieve an annual average heating value uncertainty within ±1 percent.
(3) Unless otherwise approved by the AO, the average annual heating value uncertainty must be determined as follows:
(c) Bias. For low-volume, high-volume, and very-high-volume FMPs, the measuring equipment used for either flow rate or heating value determination must achieve measurement without statistically significant bias.
(d) Verifiability. An operator may not use measurement equipment for which the accuracy and validity of any input, factor, or equation used by the measuring equipment to determine quantity, rate, or heating value are not independently verifiable by the BLM. Verifiability includes the ability to independently recalculate the volume, rate, and heating value based on source records and field observations.
§ 3175.40 Measurement equipment approved by standard or make and model.
The measurement equipment described in §§ 3175.41 through 3175.49 is approved for use at FMPs under the conditions and circumstances stated in those sections, provided it meets or exceeds the minimum standards prescribed in this subpart.
§ 3175.41 Flange-tapped orifice plates.
Flange-tapped orifice plates that are constructed, installed, operated, and maintained in accordance with the standards in § 3175.80 are approved for use.
§ 3175.42 Chart recorders.
Chart recorders used in conjunction with approved differential-type meters that are installed, operated, and maintained in accordance with the standards in § 3175.90 are approved for use for low-volume and very-low-volume FMPs only, and are not approved for high-volume or very-high-volume FMPs.
§ 3175.43 Transducers.
(a) A transducer of a specific make, model, and URL is approved for use in conjunction with differential meters for high-volume or very-high-volume FMPs if it meets the following requirements:
(1) It has been type-tested under § 3175.130;
(2) The documentation required in § 3175.134 has been submitted to the PMT; and
(3) It has been approved by the BLM and placed on the list of type-tested equipment maintained at www.blm.gov.
(b) A transducer of a specific make, model, and URL, in use at an FMP before January 17, 2017, is approved for continued use if:
(1) Data supporting the published performance specification of the transducer are submitted to the PMT in lieu of the documentation required in paragraph (a)(2) of this section; and
(2) It has been approved by the BLM and placed on the list of type-tested equipment maintained at www.blm.gov.
(c) All transducers are approved for use at very-low- and low-volume FMPs.
§ 3175.44 Flow-computer software.
(a) A flow computer of a particular make and model, and equipped with a particular software version, is approved for use at high- and very-high-volume FMPs if the flow computer and software version meet the following requirements:
(1) The documentation required in § 3175.144 has been submitted to the PMT;
(2) The PMT has determined that the flow computer and software version passed the type-testing required in § 3175.140, except as provided in paragraph (b) of this section; and
(3) The BLM has approved the flow computer and software version and has placed them on the list of approved equipment maintained at www.blm.gov.
(b) Software versions (high- and very-high-volume FMPs). (1) Software revisions that affect or have the potential to affect determination of flow rate, determination of volume, determination of heating value, or data or calculations used to verify flow rate, volume, or heating value must be type-tested under § 3175.140.
(2) Software revisions that do not affect or have the potential to affect the determination of flow rate, determination of volume, determination of heating value, or data and calculations used to verify flow rate, volume, or heating value are not required to be type-tested, however, the operator must provide the BLM with a list of these software versions and a brief description of what changes were made from the previous version. (The software manufacturer may provide such information instead of the operator.)
(c) Software versions (low- and very-low-volume FMPs). All software versions are approved for use at low- and very-low-volume FMPs, unless otherwise required by the BLM.
§ 3175.45 Gas chromatographs.
GCs that meet the standards in §§ 3175.117 and 3175.118 for determining heating value and relative density are approved for use.
§ 3175.46 Isolating flow conditioners.
The BLM will list on www.blm.gov the make, model, and size of isolating flow conditioner that is approved for use in conjunction with a flange-tapped orifice plate, so long as the isolating flow conditioner is installed, operated, and maintained in compliance with the requirements of this section. Approval of a particular make and model is obtained as prescribed in this section.
(a) All testing required under this section must be performed at a qualified test facility not affiliated with the flow-conditioner manufacturer.
(b) The operator or manufacturer must test the flow conditioner under API 14.3.2, Annex D (incorporated by reference, see § 3175.30) and submit all test data to the BLM.
(c) The PMT will review the test data to ensure that the device meets the requirements of API 14.3.2, Annex D (incorporated by reference, see § 3175.30) and make a recommendation to the BLM to either approve use of the device, disapprove use of the device, or approve it with conditions for its use.
(d) If approved, the BLM will add the approved make and model, and any applicable conditions of use, to the list maintained at www.blm.gov.
§ 3175.47 Differential primary devices other than flange-tapped orifice plates.
A make, model, and size of differential primary device listed at www.blm.gov is approved for use if it is installed, operated, and maintained in compliance with any applicable conditions of use identified on www.blm.gov for that device. Approval of a particular make and model is obtained as follows:
(a) All testing required under this section must be performed at a qualified test facility not affiliated with the primary device manufacturer.
(b) The primary device must be tested under API 22.2 (incorporated by reference, see § 3175.30).
(c) The operator must submit to the BLM all test data required under API 22.2 (incorporated by reference, see § 3175.30). (The manufacturer of the primary device may submit such information instead of the operator.)
(d) The PMT will review the test data to ensure that the primary device meets the requirements of API 22.2 (incorporated by reference, see § 3175.30) and § 3175.31(c) and (d) and make a recommendation to the BLM to either approve use of the device, disapprove use of the device, or approve its use with conditions.
(e) If the primary device is approved by the BLM, the BLM will add the approved make and model, and any applicable conditions of use, to the list maintained at www.blm.gov.
§ 3175.48 Linear measurement devices.
A make, model, and size of linear measurement device listed at www.blm.gov is approved for use if it is installed, operated, and maintained in compliance with any conditions of use identified on www.blm.gov for that device. Approval of a particular make and model is obtained as follows:
(a) The linear measurement device must be tested at a qualified test facility not affiliated with the linear-measurement-device manufacturer;
(b) The operator or manufacturer must submit to the BLM all test data required by the PMT;
(c) The PMT will review the test data to ensure that the linear measurement device meets the requirements of § 3175.31(c) and (d) and make a recommendation to the BLM to either approve use of the device, disapprove use of the device, or approve its use with conditions; and
(d) If the linear measurement device is approved, the BLM will add the approved make and model, and any applicable conditions of use, to the list maintained at www.blm.gov.
§ 3175.49 Accounting systems.
An accounting system with a name and version listed at www.blm.gov is approved for use in reporting logs and records to the BLM. The approval is specific to those makes and models of flow computers for which testing demonstrates compatibility. Approval for a particular name and version of accounting system used with a particular make and model of flow computer is obtained as follows:
(a) For daily QTRs (see § 3175.104(a)), an operator or vendor must submit daily QTRs to the BLM both from the accounting system and directly from the flow computer for at least 6 consecutive monthly reporting periods;
(b) For hourly QTRs (see § 3175.104(a)), an operator must submit hourly QTRs to the BLM both from the accounting system and directly from the flow computer for at least 15 consecutive daily reporting periods. (A vendor may submit such information on behalf of an operator);
(c) For configuration logs (see § 3175.104(b)), an operator must submit at least 10 configuration logs to the BLM taken at random times covering a span of at least 6 months both from the accounting system and directly from the flow computer. (A vendor may submit such information on behalf of an operator);
(d) For event logs (see § 3175.104(c)), an operator must submit an event log to the BLM containing at least 50 events both from the accounting system and directly from the flow computer. (A vendor may submit such information on behalf of an operator);
(e) For alarm logs (see § 3175.104(d)), an operator must submit an alarm log to the BLM containing at least 50 alarm conditions both from the accounting system and directly from the flow computer (a vendor may submit such information on behalf of an operator);
(f) The BLM may require additional tests and records that may be necessary to determine that the software meets the requirements of § 3175.104(a);
(g) The records retrieved directly from the flow computer in paragraphs (a) through (d) of this section must be unedited;
(h) The records retrieved from the accounting system in paragraphs (a) through (d) must include both edited and unedited versions; and
(i) The BLM will approve the accounting system name and version for use with the make and model of flow computer used for comparison, and add the system name and version to the list of approved systems maintained at www.blm.gov if:
(1) The BLM compares the records retrieved directly from the flow computer with the unedited records from the accounting system and there are no significant discrepancies; and
(2) The BLM compares the records retrieved directly from the flow computer with the edited records from the accounting system and all changes are clearly indicated, the reason for each change is indicated or is available upon request, and the edited version is clearly distinguishable from the unedited version.
§ 3175.60 Timeframes for compliance.
(a) New FMPs. (1) Except as allowed in paragraphs (a)(2) through (4) of this section, the measuring procedures and equipment installed at any FMP on or after January 17, 2017 must comply with all of the requirements of this subpart upon installation.
(2) The gas analysis reporting requirements of § 3175.120(e) and (f) will begin on January 17, 2019.
(3) High- and very-high-volume FMPs must comply with the sampling frequency requirements of § 3175.115(b) starting on January 17, 2019. Between January 17, 2017 and January 17, 2019, the initial sampling frequencies required at high- and very-high-volume FMPs are those listed in Table 1 to § 3175.110.
(4) Equipment approvals required in §§ 3175.43, 3175.44, and 3175.46 through 3175.49 will be required after January 17, 2019.
(b) Existing FMPs. (1) Except as allowed in § 3175.61, measuring procedures and equipment at any FMP in place before January 17, 2017 must comply with the requirements of this subpart within the timeframes specified in this paragraph (b).
(2) High- and very-high-volume FMPs must comply with:
(i) All of the requirements of this subpart except as specified in paragraphs (b)(2)(ii) and (iii) of this section by January 17, 2018;
(ii) The gas analysis reporting requirements of § 3175.120(e) and (f) starting on January 17, 2019; and
(iii) Equipment approvals required in §§ 3175.43, 3175.44, and 3175.46 through 3175.49 starting on January 17, 2019.
(3) Low-volume FMPs must comply with all of the requirements of this subpart by January 17, 2019.
(4) Very-low-volume FMPs must comply with all of the requirements of this subpart by January 17, 2020.
(c) During the phase-in timeframes in paragraph (b) of this section, measuring procedures and equipment in place before January 17, 2017 must comply with the requirements in place prior to the issuance of this rule, including Onshore Oil and Gas Order No. 5, Measurement of Gas, and applicable NTLs, COAs, and written orders.
(d) Onshore Oil and Gas Order No. 5, Measurement of Gas, statewide NTLs, variance approvals, and written orders that establish requirements or standards related to gas measurement and that are in effect on January 17, 2017 are rescinded as of:
(1) January 17, 2018 for high-volume and very-high-volume FMPs;
(2) January 17, 2019 for low-volume FMPs; and
(3) January 17, 2020 for very-low-volume FMPs.
§ 3175.61 Grandfathering.
(a) Meter tubes. Meter tubes installed at high- and low-volume FMPs before January 17, 2017 are exempt from the meter tube requirements of API 14.3.2, Subsection 6.2 (incorporated by reference, see § 3175.30), and § 3175.80(f) and (k). For high-volume FMPs, the BLM will add an uncertainty of ±0.25 percent to the discharge coefficient uncertainty when determining overall meter uncertainty under § 3175.31(a), unless the PMT reviews, and the BLM approves, data showing otherwise. Meter tubes grandfathered under this section must still meet the following requirements:
(1) Orifice plate eccentricity must comply with AGA Report No. 3 (1985), Section 4.2.4 (incorporated by reference, see § 3175.30).
(2) Meter tube construction and condition must comply with AGA Report No. 3 (1985), Section 4.3.4 (incorporated by reference, see § 3175.30).
(3) Meter tube lengths. (i) Meter tube lengths must comply with AGA Report No. 3 (1985), Section 4.4 (dimensions “A” and “A’” from Figures 4-8) (incorporated by reference, see § 3175.30).
(ii) If the upstream meter tube contains a 19-tube bundle flow straightener or isolating flow conditioner, the installation must comply with § 3175.80(g);
(b) EGM software. (1) EGM software installed at very-low-volume FMPs before January 17, 2017 is exempt from the requirements in § 3175.103(a)(1). However, flow-rate calculations must still be calculated in accordance with AGA Report No. 3 (1985), Section 6, or API 14.3.3 (1992), and supercompressibility calculations must still be calculated in accordance with PRCI NX 19 (all incorporated by reference, see § 3175.30).
(2) EGM software installed at low-volume FMPs before January 17, 2017 is exempt from the requirements at § 3175.103(a)(1)(i) if the differential-pressure to static-pressure ratio, based on the monthly average differential pressure and static pressure, is less than the value of “x
§ 3175.70 Measurement location.
(a) Commingling and allocation. Gas produced from a lease, unit PA, or CA may not be commingled with production from other leases, unit PAs, CAs, or non-Federal properties before the point of royalty measurement, unless prior approval is obtained under 43 CFR subpart 3173.
(b) Off-lease measurement. Gas must be measured on the lease, unit, or CA unless approval for off-lease measurement is obtained under 43 CFR subpart 3173.
§ 3175.80 Flange-tapped orifice plates (primary devices).
Except as stated in this section, as prescribed in Table 1 to this section, or grandfathered under § 3175.61, the standards and requirements in this section apply to all flange-tapped orifice plates (Note: The following table lists the standards in this subpart and the API standards that the operator must follow to install and maintain flange-tapped orifice plates. A requirement applies when a column is marked with an “x” or a number.).
(a) The Beta ratio must be no less than 0.10 and no greater than 0.75.
(b) The orifice bore diameter must be no less than 0.45 inches.
(c) For FMPs measuring production from wells first coming into production, or from existing wells that have been re-fractured (including FMPs already measuring production from one or more other wells), the operator must inspect the orifice plate upon installation and then every 2 weeks thereafter. If the inspection shows that the orifice plate does not comply with API 14.3.2, Section 4 (incorporated by reference, see § 3175.30), the operator must replace the orifice plate. When the inspection shows that the orifice plate complies with API 14.3.2, Section 4 (incorporated by reference, see § 3175.30), the operator thereafter must inspect the orifice plate as prescribed in paragraph (d) of this section.
(d) The operator must pull and inspect the orifice plate at the frequency (in months) identified in Table 1 to this section. The operator must replace orifice plates that do not comply with API 14.3.2, Section 4 (incorporated by reference, see § 3175.30), with an orifice plate that does comply with these standards.
(e) The operator must retain documentation for every plate inspection and must include that documentation as part of the verification report (see § 3175.92(d) for mechanical recorders, or § 3175.102(e) for EGM systems). The operator must provide that documentation to the BLM upon request. The documentation must include:
(1) The information required in § 3170.7(g) of this part;
(2) Plate orientation (bevel upstream or downstream);
(3) Measured orifice bore diameter;
(4) Plate condition (compliance with API 14.3.2, Section 4 (incorporated by reference, see § 3175.30));
(5) The presence of oil, grease, paraffin, scale, or other contaminants on the plate;
(6) Time and date of inspection; and
(7) Whether or not the plate was replaced.
(f) Meter tubes must meet the requirements of API 14.3.2, Subsections 5.1 through 5.4 (incorporated by reference, see § 3175.30).
(g) If flow conditioners are used, they must be either isolating-flow conditioners approved by the BLM and installed under BLM requirements (see § 3175.46) or 19-tube-bundle flow straighteners constructed in compliance with API 14.3.2, Subsections 5.5.2 through 5.5.4, and located in compliance with API 14.3.2, Subsection 6.3 (incorporated by reference, see § 3175.30).
(h) Basic meter tube inspection. The operator must:
(1) Perform a basic inspection of meter tubes within the timeframe (in years) specified in Table 1 to this section;
(2) Conduct a basic inspection that is able to identify obstructions, pitting, and buildup of foreign substances (e.g., grease and scale);
(3) Notify the AO at least 72 hours in advance of performing a basic inspection or submit a monthly or quarterly schedule of basic inspections to the AO in advance;
(4) Conduct additional inspections, as the AO may require, if warranted by conditions, such as corrosive or erosive-flow (e.g., high H
(5) Maintain documentation of the findings from the basic meter tube inspection including:
(i) The information required in § 3170.7(g) of this part;
(ii) The time and date of inspection;
(iii) The type of equipment used to make the inspection; and
(iv) A description of findings, including location and severity of pitting, obstructions, and buildup of foreign substances; and
(6) Complete the first inspection after January 17, 2017 within the timeframes (in years) given in Table 1 to this section.
(i) Detailed meter tube inspection. (1) Within 30 days of a basic inspection that indicates the presence of pitting, obstructions, or a buildup of foreign substances, the operator must:
(i) For low-volume FMPs, clean the meter tube of obstructions and foreign substances;
(ii) For high- and very-high-volume FMPs, physically measure and inspect the meter tube to determine if the meter tube complies with API 14.3.2, Subsections 5.1 through 5.4 and API 14.3.2, Subsection 6.2 (incorporated by reference, see § 3175.30), or the requirements under § 3175.61(a), if the meter tube is grandfathered under § 3175.61(a). If the meter tube does not comply with the applicable standards, the operator must repair the meter tube to bring the meter tube into compliance with these standards or replace the meter tube with one that meets these standards; or
(iii) Submit a request to the AO for an extension of the 30-day timeframe, justifying the need for the extension.
(2) For all high- and very-high volume FMPs installed after January 17, 2017, the operator must perform a detailed inspection under paragraph (i)(1)(ii) of this section before operation of the meter. The operator may submit documentation showing that the meter tube complies with API 14.3.2, Subsections 5.1 through 5.4 (incorporated by reference, see § 3175.30) in lieu of performing a detailed inspection.
(3) The operator must notify the AO at least 24 hours before performing a detailed inspection.
(j) The operator must retain documentation of all detailed meter tube inspections, demonstrating that the meter tube complies with API 14.3.2, Subsections 5.1 through 5.4 (incorporated by reference, see § 3175.30), and showing all required measurements. The operator must provide such documentation to the BLM upon request for every meter-tube inspection. Documentation must also include the information required in § 3170.7(g) of this part.
(k) Meter tube lengths. (1) Meter-tube lengths and the location of 19-tube-bundle flow straighteners, if applicable, must comply with API 14.3.2, Subsection 6.3 (incorporated by reference, see § 3175.30).
(2) For Beta ratios of less than 0.5, the location of 19-tube bundle flow straighteners installed in compliance with AGA Report No. 3 (1985), Section 4.4 (incorporated by reference, see § 3175.30), also complies with the location of 19-tube bundle flow straighteners as required in paragraph (k)(1) of this section.
(3) If the diameter ratio (β) falls between the values in Tables 7, 8a, or 8b of API 14.3.2, Subsection 6.3 (incorporated by reference, see § 3175.30), the length identified for the larger diameter ratio in the appropriate Table is the minimum requirement for meter-tube length and determines the location of the end of the 19-tube-bundle flow straightener closest to the orifice plate. For example, if the calculated diameter ratio is 0.41, use the table entry for a 0.50 diameter ratio.
(l) Thermometer wells. (1) Thermometer wells used for determining the flowing temperature of the gas as well as thermometer wells used for verification (test well) must be located in compliance with API 14.3.2, Subsection 6.5 (incorporated by reference, see § 3175.30).
(2) Thermometer wells must be located in such a way that they can sense the same flowing gas temperature that exists at the orifice plate. The operator may accomplish this by physically locating the thermometer well(s) in the same ambient temperature conditions as the primary device (such as in a heated meter house) or by installing insulation and/or heat tracing along the entire meter run. If the operator chooses to use insulation to comply with this requirement, the AO may prescribe the quality of the insulation based on site specific factors such as ambient temperature, flowing temperature of the gas, composition of the gas, and location of the thermometer well in relation to the orifice plate (i.e., inside or outside of a meter house).
(3) Where multiple thermometer wells have been installed in a meter tube, the flowing temperature must be measured from the thermometer well closest to the primary device.
(4) Thermometer wells used to measure or verify flowing temperature must contain a thermally conductive liquid.
(m) The sampling probe must be located as specified in § 3175.112(b).
§ 3175.90 Mechanical recorder (secondary device).
(a) The operator may use a mechanical recorder as a secondary device only on very-low-volume and low-volume FMPs.
(b) Table 1 to this section lists the standards that the operator must follow to install, operate, and maintain mechanical recorders. A requirement applies when a column is marked with an “x” or a number.
§ 3175.91 Installation and operation of mechanical recorders.
(a) Gauge lines connecting the pressure taps to the mechanical recorder must:
(1) Have a nominal diameter of not less than 3/8 inch, including ports and valves;
(2) Be sloped upwards from the pressure taps at a minimum pitch of 1 inch per foot of length with no visible sag;
(3) Be the same internal diameter along their entire length;
(4) Not include tees, except for the static-pressure line;
(5) Not be connected to more than one differential-pressure bellows and static-pressure element, or to any other device; and
(6) Be no longer than 6 feet.
(b) The differential-pressure pen must record at a minimum reading of 10 percent of the differential-pressure-bellows range for the majority of the flowing period. This requirement does not apply to inverted charts.
(c) The flowing temperature of the gas must be continuously recorded and used in the volume calculations under § 3175.94(a)(1).
(d) The following information must be maintained at the FMP in a legible condition, in compliance with § 3170.7(g) of this part, and accessible to the AO at all times:
(1) Differential-pressure-bellows range;
(2) Static-pressure-element range;
(3) Temperature-element range;
(4) Relative density (specific gravity) of the gas;
(5) Static-pressure units of measure (psia or psig);
(6) Meter elevation;
(7) Meter-tube inside diameter;
(8) Primary device type;
(9) Orifice-bore or other primary-device dimensions necessary for device verification, Beta- or area-ratio determination, and gas-volume calculation;
(10) Make, model, and location of approved isolating flow conditioners, if used;
(11) Location of the downstream end of 19-tube-bundle flow straighteners, if used;
(12) Date of last primary-device inspection; and
(13) Date of last meter verification.
(e) The differential pressure, static pressure, and flowing temperature elements must be operated between the lower- and upper-calibrated limits of the respective elements.
§ 3175.92 Verification and calibration of mechanical recorders.
(a) Verification after installation or following repair. (1) Before performing any verification of a mechanical recorder required in this part, the operator must perform a leak test. The verification must not proceed if leaks are present. The leak test must be conducted in a manner that will detect leaks in the following:
(i) All connections and fittings of the secondary device, including meter manifolds and verification equipment;
(ii) The isolation valves; and
(iii) The equalizer valves.
(2) The operator must adjust the time lag between the differential- and static-pressure pens, if necessary, to be 1/96 of the chart rotation period, measured at the chart hub. For example, the time lag is 15 minutes on a 24-hour test chart and 2 hours on an 8-day test chart.
(3) The meter’s differential pen arc must be able to duplicate the test chart’s time arc over the full range of the test chart, and must be adjusted, if necessary.
(4) The as-left values must be verified in the following sequence against a certified pressure device for the differential-pressure and static-pressure elements (if the static-pressure pen has been offset for atmospheric pressure, the static-pressure element range is in psia):
(i) Zero (vented to atmosphere);
(ii) 50 percent of element range;
(iii) 100 percent of element range;
(iv) 80 percent of element range;
(v) 20 percent of element range; and
(vi) Zero (vented to atmosphere).
(5) The following as-left temperatures must be verified by placing the temperature probe in a water bath with a certified test thermometer:
(i) Approximately 10 °F below the lowest expected flowing temperature;
(ii) Approximately 10 °F above the highest expected flowing temperature; and
(iii) At the expected average flowing temperature.
(6) If any of the readings required in paragraph (a)(4) or (5) of this section vary from the test device reading by more than the tolerances shown in Table 1 to this section, the operator must replace and verify the element for which readings were outside the applicable tolerances before returning the meter to service.
(7) If the static-pressure pen is offset for atmospheric pressure:
(i) The atmospheric pressure must be calculated under appendix A to this subpart; and
(ii) The pen must be offset prior to obtaining the as-left verification values required in paragraph (a)(4) of this section.
(b) Routine verification frequency. The differential pressure, static pressure, and temperature elements must be verified under the requirements of this section at the frequency specified in Table 1 to § 3175.90, in months.
(c) Routine verification procedures. (1) Before performing any verification required in this part, the operator must perform a leak test in the manner required under paragraph (a)(1) of this section.
(2) No adjustments to the pens or linkages may be made until an as-found verification is obtained. If the static pen has been offset for atmospheric pressure, the static pen must not be reset to zero until the as-found verification is obtained.
(3) The operator must obtain the as-found values of differential and static pressure against a certified pressure device at the readings listed in paragraph (a)(4) of this section, with the following additional requirements:
(i) If there is sufficient data on site to determine the point at which the differential and static pens normally operate, the operator must also obtain an as-found value at those points;
(ii) If there is not sufficient data on site to determine the points at which the differential and static pens normally operate, the operator must also obtain as-found values at 5 percent of the element range and 10 percent of the element range; and
(iii) If the static-pressure pen has been offset for atmospheric pressure, the static-pressure element range is in units of psia.
(4) The as-found value for temperature must be taken using a certified test thermometer placed in a test thermometer well if there is flow through the meter and the meter tube is equipped with a test thermometer well. If there is no flow through the meter or if the meter is not equipped with a test thermometer well, the temperature probe must be verified by placing it along with a test thermometer in an insulated water bath.
(5) The element undergoing verification must be calibrated according to manufacturer specifications if any of the as-found values determined under paragraph (c)(3) or (4) of this section are not within the tolerances shown in Table 1 to this section, when compared to the values applied by the test equipment.
(6) The operator must adjust the time lag between the differential- and static-pressure pens, if necessary, to be 1/96 of the chart rotation period, measured at the chart hub. For example, the time lag is 15 minutes on a 24-hour test chart and 2 hours on an 8-day test chart.
(7) The meter’s differential pen arc must be able to duplicate the test chart’s time arc over the full range of the test chart, and must be adjusted, if necessary.
(8) If any adjustment to the meter was made, the operator must perform an as-left verification on each element adjusted using the procedures in paragraphs (c)(3) and (4) of this section.
(9) If, after an as-left verification, any of the readings required in paragraph (c)(3) or (4) of this section vary by more than the tolerances shown in Table 1 to this section when compared with the test-device reading, any element which has readings that are outside of the applicable tolerances must be replaced and verified under this section before the operator returns the meter to service.
(10) If the static-pressure pen is offset for atmospheric pressure:
(i) The atmospheric pressure must be calculated under appendix A to this subpart; and
(ii) The pen must be offset prior to obtaining the as-left verification values required in paragraph (c)(3) of this section.
(d) The operator must retain documentation of each verification, as required under § 3170.7(g) of this part, and submit it to the BLM upon request. This documentation must include:
(1) The time and date of the verification and the prior verification date;
(2) Primary-device data (meter-tube inside diameter and differential-device size and Beta or area ratio) if the orifice plate is pulled and inspected;
(3) The type and location of taps (flange or pipe, upstream or downstream static tap);
(4) Atmospheric pressure used to offset the static-pressure pen, if applicable;
(5) Mechanical recorder data (make, model, and differential pressure, static pressure, and temperature element ranges);
(6) The normal operating points for differential pressure, static pressure, and flowing temperature;
(7) Verification points (as-found and applied) for each element;
(8) Verification points (as-left and applied) for each element, if a calibration was performed;
(9) Names, contact information, and affiliations of the person performing the verification and any witness, if applicable; and
(10) Remarks, if any.
(e) Notification of verification. (1) For verifications performed after installation or following repair, the operator must notify the AO at least 72 hours before conducting the verifications.
(2) For routine verifications, the operator must notify the AO at least 72 hours before conducting the verification or submit a monthly or quarterly verification schedule to the AO in advance.
(f) If, during the verification, the combined errors in as-found differential pressure, static pressure, and flowing temperature taken at the normal operating points tested result in a flow-rate error greater than 2 percent or 2 Mcf/day, whichever is greater, the volumes reported on the OGOR and on royalty reports submitted to ONRR must be corrected beginning with the date that the inaccuracy occurred. If that date is unknown, the volumes must be corrected beginning with the production month that includes the date that is half way between the date of the last verification and the date of the current verification. For example: Meter verification determined that the meter was reading 4 Mcf/day high at the normal operating points. The average flow rate measured by the meter is 90 Mcf/day. There is no indication of when the inaccuracy occurred. The date of the current verification was December 15, 2015. The previous verification was conducted on June 15, 2015. The royalty volumes reported on OGOR B that were based on this meter must be corrected for the 4 Mcf/day error back to September 15, 2015.
(g) Test equipment used to verify or calibrate elements at an FMP must be certified at least every 2 years. Documentation of the recertification must be on-site during all verifications and must show:
(1) Test equipment serial number, make, and model;
(2) The date on which the recertification took place;
(3) The test equipment measurement range; and
(4) The uncertainty determined or verified as part of the recertification.
§ 3175.93 Integration statements.
An unedited integration statement must be retained and made available to the BLM upon request. The integration statement must contain the following information:
(a) The information required in § 3170.7(g) of this part;
(b) The name of the company performing the integration;
(c) The month and year for which the integration statement applies;
(d) Meter-tube inside diameter (inches);
(e) The following primary device information, as applicable:
(i) Orifice bore diameter (inches); or
(ii) Beta or area ratio, discharge coefficient, and other information necessary to calculate the flow rate;
(f) Relative density (specific gravity);
(g) CO
(h) N
(i) Heating value calculated under § 3175.125 (Btu/standard cubic feet);
(j) Atmospheric pressure or elevation at the FMP;
(k) Pressure base;
(l) Temperature base;
(m) Static-pressure tap location (upstream or downstream);
(n) Chart rotation (hours or days);
(o) Differential-pressure bellows range (inches of water);
(p) Static-pressure element range (psi); and
(q) For each chart or day integrated:
(i) The time and date on and time and date off;
(ii) Average differential pressure (inches of water);
(iii) Average static pressure;
(iv) Static-pressure units of measure (psia or psig);
(v) Average temperature ( °F);
(vi) Integrator counts or extension;
(vii) Hours of flow; and
(viii) Volume (Mcf).
§ 3175.94 Volume determination.
(a) The volume for each chart integrated must be determined as follows:
(1) If the primary device is a flange-tapped orifice plate, a single IMV must be calculated for each chart or chart interval using the following equation:
(2) For other types of primary devices, the IMV must be calculated using the equations and procedures recommended by the PMT and approved by the BLM, specific to the make, model, size, and area ratio of the primary device being used.
(3) Variables that are functions of differential pressure, static pressure, or flowing temperature (e.g., C
(b) Atmospheric pressure used to convert static pressure in psig to static pressure in psia must be determined under appendix A to this subpart.
§ 3175.100 Electronic gas measurement (secondary and tertiary device).
Except as stated in this section, as prescribed in Table 1 to this section, or grandfathered under § 3175.61, the standards and requirements in this section apply to all EGM systems used at FMPs (Note: The following table lists the standards in this subpart and the API standards that the operator must follow to install and maintain EGM systems. A requirement applies when a column is marked with an “x” or a number.).
§ 3175.101 Installation and operation of electronic gas measurement systems.
(a) Manifolds and gauge lines connecting the pressure taps to the secondary device must:
(1) Have a nominal diameter of not less than
(2) Be sloped upwards from the pressure taps at a minimum pitch of 1 inch per foot of length with no visible sag;
(3) Have the same internal diameter along their entire length;
(4) Not include tees except for the static-pressure line;
(5) Not be connected to any other devices or more than one differential pressure and static-pressure transducer. If the operator is employing redundancy verification, two differential pressure and two static-pressure transducers may be connected; and
(6) Be no longer than 6 feet.
(b) Each FMP must include a display, which must:
(1) Be readable without the need for data-collection units, laptop computers, a password, or any special equipment;
(2) Be on site and in a location that is accessible to the AO;
(3) Include the units of measure for each required variable;
(4) Display the software version and previous-day’s volume, as well as the following variables consecutively:
(i) Current flowing static pressure with units (psia or psig);
(ii) Current differential pressure (inches of water);
(iii) Current flowing temperature ( °F); and
(iv) Current flow rate (Mcf/day or scf/day); and
(5) Either display or post on site and accessible to the AO an hourly or daily QTR (see § 3175.104(a)) no more than 31 days old showing the following information:
(i) Previous-period (for this section, previous period means at least 1 day prior, but no longer than 1 month prior) average differential pressure (inches of water);
(ii) Previous-period average static pressure with units (psia or psig); and
(iii) Previous-period average flowing temperature ( °F).
(c) The following information must be maintained at the FMP in a legible condition, in compliance with § 3170.7(g) of this part, and accessible to the AO at all times:
(1) The unique meter ID number;
(2) Relative density (specific gravity);
(3) Elevation of the FMP;
(4) Primary device information, such as orifice bore diameter (inches) or Beta or area ratio and discharge coefficient, as applicable;
(5) Meter-tube mean inside diameter;
(6) Make, model, and location of approved isolating flow conditioners, if used;
(7) Location of the downstream end of 19-tube-bundle flow straighteners, if used;
(8) For self-contained EGM systems, make and model number of the system;
(9) For component-type EGM systems, make and model number of each transducer and the flow computer;
(10) URL and upper calibrated limit for each transducer;
(11) Location of the static-pressure tap (upstream or downstream);
(12) Last primary-device inspection date; and
(13) Last secondary device verification date.
(d) The differential pressure, static pressure, and flowing temperature transducers must be operated between the lower and upper calibrated limits of the transducer. The BLM may approve the differential pressure to exceed the upper calibrated limit of the differential-pressure transducer for brief periods in plunger lift operations; however, the differential pressure may not exceed the URL.
(e) The flowing temperature of the gas must be continuously measured and used in the flow-rate calculations under API 21.1, Section 4 (incorporated by reference, see § 3175.30).
§ 3175.102 Verification and calibration of electronic gas measurement systems.
(a) Transducer verification and calibration after installation or repair. (1) Before performing any verification required in this section, the operator must perform a leak test in the manner prescribed in § 3175.92(a)(1).
(2) The operator must verify the points listed in API 21.1, Subsection 7.3.3 (incorporated by reference, see § 3175.30), by comparing the values from the certified test device with the values used by the flow computer to calculate flow rate. If any of these as-left readings vary from the test equipment reading by more than the tolerance determined by API 21.1, Subsection 8.2.2.2, Equation 24 (incorporated by reference, see § 3175.30), then that transducer must be replaced and the new transducer must be tested under this paragraph.
(3) For absolute static-pressure transducers, the value of atmospheric pressure used when the transducer is vented to atmosphere must be calculated under appendix A to this subpart, measured by a NIST-certified barometer with a stated accuracy of ±0.05 psi or better, or obtained from an absolute-pressure calibration device.
(4) Before putting a meter into service, the differential-pressure transducer must be tested at zero with full working pressure applied to both sides of the transducer. If the absolute value of the transducer reading is greater than the reference accuracy of the transducer, expressed in inches of water column, the transducer must be re-zeroed.
(b) Routine verification frequency. (1) If redundancy verification under paragraph (d) of this section is not used, the differential pressure, static pressure, and temperature transducers must be verified under the requirements of paragraph (c) of this section at the frequency specified in Table 1 to § 3175.100, in months; or
(2) If redundancy verification under paragraph (d) of this section is used, the differential pressure, static pressure, and temperature transducers must be verified under the requirements of paragraph (d) of this section. In addition, the transducers must be verified under the requirements of paragraph (c) of this section at least annually.
(c) Routine verification procedures. Verifications must be performed according to API 21.1, Subsection 8.2 (incorporated by reference, see § 3175.30), with the following exceptions, additions, and clarifications:
(1) Before performing any verification required under this section, the operator must perform a leak test consistent with § 3175.92(a)(1).
(2) An as-found verification for differential pressure, static pressure and temperature must be conducted at the normal operating point of each transducer.
(i) The normal operating point is the mean value taken over a previous time period not less than 1 day or greater than 1 month. Acceptable mean values include means weighted based on flow time and flow rate.
(ii) For differential and static-pressure transducers, the pressure applied to the transducer for this verification must be within five percentage points of the normal operating point. For example, if the normal operating point for differential pressure is 17 percent of the upper calibrated limit, the normal point verification pressure must be between 12 percent and 22 percent of the upper calibrated limit.
(iii) For the temperature transducer, the water bath or test thermometer well must be within 20 °F of the normal operating point for temperature.
(3) If any of the as-found values are in error by more than the manufacturer’s specification for stability or drift – as adjusted for static pressure and ambient temperature – on two consecutive verifications, that transducer must be replaced prior to returning the meter to service.
(4) If a transducer is calibrated, the as-left verification must include the normal operating point of that transducer, as defined in paragraph (c)(2) of this section.
(5) The as-found values for differential pressure obtained with the low side vented to atmospheric pressure must be corrected to working-pressure values using API 21.1, Annex H, Equation H.1 (incorporated by reference, see § 3175.30).
(6) The verification tolerance for differential and static pressure is defined by API 21.1, Subsection 8.2.2.2, Equation 24 (incorporated by reference, see § 3175.30). The verification tolerance for temperature is equivalent to the uncertainty of the temperature transmitter or 0.5 °F, whichever is greater.
(7) All required verification points must be within the verification tolerance before returning the meter to service.
(8) Before putting a meter into service, the differential-pressure transducer must be tested at zero with full working pressure applied to both sides of the transducer. If the absolute value of the transducer reading is greater than the reference accuracy of the transducer, expressed in inches of water column, the transducer must be re-zeroed.
(d) Redundancy verification procedures. Redundancy verifications must be performed as required under API 21.1, Subsection 8.2 (incorporated by reference, see § 3175.30), with the following exceptions, additions, and clarifications:
(1) The operator must identify which set of transducers is used for reporting on the OGOR (the primary transducers) and which set of transducers is used as a check (the check set of transducers);
(2) For every calendar month, the operator must compare the flow-time linear averages of differential pressure, static pressure, and temperature readings from the primary transducers with those from the check transducers;
(3)(i) If for any transducer the difference between the averages exceeds the tolerance defined by the following equation:
(ii) The operator must verify both the primary and check transducer under paragraph (c) of this section within the first 5 days of the month following the month in which the redundancy verification was performed. For example, if the redundancy verification for March reveals that the difference in the flow-time linear averages of differential pressure exceeded the verification tolerance, both the primary and check differential-pressure transducers must be verified under paragraph (c) of this section by April 5th.
(e) The operator must retain documentation of each verification for the period required under § 3170.7 of this part, including calibration data for transducers that were replaced, and submit it to the BLM upon request.
(1) For routine verifications, this documentation must include:
(i) The information required in § 3170.7(g) of this part;
(ii) The time and date of the verification and the last verification date;
(iii) Primary device data (meter-tube inside diameter and differential-device size, Beta or area ratio);
(iv) The type and location of taps (flange or pipe, upstream or downstream static tap);
(v) The flow computer make and model;
(vi) The make and model number for each transducer, for component-type EGM systems;
(vii) Transducer data (make, model, differential, static, temperature URL, and upper calibrated limit);
(viii) The normal operating points for differential pressure, static pressure, and flowing temperature;
(ix) Atmospheric pressure;
(x) Verification points (as-found and applied) for each transducer;
(xi) Verification points (as-left and applied) for each transducer, if calibration was performed;
(xii) The differential device inspection date and condition (e.g., clean, sharp edge, or surface condition);
(xiii) Verification equipment make, model, range, accuracy, and last certification date;
(xiv) The name, contact information, and affiliation of the person performing the verification and any witness, if applicable; and
(xv) Remarks, if any.
(2) For redundancy verification checks, this documentation must include;
(i) The information required in § 3170.7(g) of this part;
(ii) The month and year for which the redundancy check applies;
(iii) The makes, models, upper range limits, and upper calibrated limits of the primary set of transducers;
(iv) The makes, models, upper range limits, and upper calibrated limits of the check set of transducers;
(v) The information required in API 21.1, Annex I (incorporated by reference, see § 3175.30);
(vii) The tolerance for differential pressure, static pressure, and temperature as calculated under paragraph (d)(2) of this section; and
(viii) Whether or not each transducer required verification under paragraph (c) of this section.
(f) Notification of verification. (1) For verifications performed after installation or following repair, the operator must notify the AO at least 72 hours before conducting the verifications.
(2) For routine verifications, the operator must notify the AO at least 72 hours before conducting the verification or submit a monthly or quarterly verification schedule to the AO in advance.
(g) If, during the verification, the combined errors in as-found differential pressure, static pressure, and flowing temperature taken at the normal operating points tested result in a flow-rate error greater than 2 percent or 2 Mcf/day, whichever is greater, the volumes reported on the OGOR and on royalty reports submitted to ONRR must be corrected beginning with the date that the inaccuracy occurred. If that date is unknown, the volumes must be corrected beginning with the production month that includes the date that is half way between the date of the last verification and the date of the present verification. See the example in § 3175.92(f).
(h) Test equipment requirements. (1) Test equipment used to verify or calibrate transducers at an FMP must be certified at least every 2 years. Documentation of the certification must be on site and made available to the AO during all verifications and must show:
(i) The test equipment serial number, make, and model;
(ii) The date on which the recertification took place;
(iii) The range of the test equipment; and
(iv) The uncertainty determined or verified as part of the recertification.
(2) Test equipment used to verify or calibrate transducers at an FMP must meet the following accuracy standards:
(i) The accuracy of the test equipment, stated in actual units of measure, must be no greater than 0.5 times the reference accuracy of the transducer being verified, also stated in actual units of measure; or
(ii) The equipment must have a stated accuracy of at least 0.10 percent of the upper calibrated limit of the transducer being verified.
§ 3175.103 Flow rate, volume, and average value calculation.
(a) The flow rate must be calculated as follows:
(1) For flange-tapped orifice plates, the flow rate must be calculated under:
(i) API 14.3.3, Section 4 and API 14.3.3, Section 5 (incorporated by reference, see § 3175.30); and
(ii) AGA Report No. 8 (incorporated by reference, see § 3175.30), for supercompressibility.
(2) For primary devices other than flange-tapped orifice plates, for which there are no industry standards, the flow rate must be calculated under the equations and procedures recommended by the PMT and approved by the BLM, specific to the make, model, size, and area ratio of the primary device used.
(b) Atmospheric pressure used to convert static pressure in psig to static pressure in psia must be determined under API 21.1, Subsection 8.3.3 (incorporated by reference, see § 3175.30).
(c) Hourly and daily gas volumes, average values of the live input variables, flow time, and integral value or average extension as required under § 3175.104 must be determined under API 21.1, Section 4 and API 21.1, Annex B (incorporated by reference, see § 3175.30).
§ 3175.104 Logs and records.
(a) The operator must retain, and submit to the BLM upon request, the original, unaltered, unprocessed, and unedited daily and hourly QTRs, which must contain the information identified in API 21.1, Subsection 5.2 (incorporated by reference, see § 3175.30), with the following additions and clarifications:
(1) The information required in § 3170.7(g) of this part;
(2) The volume, flow time, and integral value or average extension must be reported to at least 5 decimal places. The average differential pressure, static pressure, and temperature as calculated in § 3175.103(c), must be reported to at least three decimal places; and
(3) A statement of whether the operator has submitted the integral value or average extension.
(b) The operator must retain, and submit to the BLM upon request, the original, unaltered, unprocessed, and unedited configuration log, which must contain the information specified in API 21.1, Subsection 5.4 (including the flow-computer snapshot report in API 21.1, Subsection 5.4.2), and API 21.1, Annex G (incorporated by reference, see § 3175.30), with the following additions and clarifications:
(1) The information required in § 3170.7(g) of this part;
(2) Software/firmware identifiers under API 21.1, Subsection 5.3 (incorporated by reference, see § 3175.30);
(3) For very-low-volume FMPs only, the fixed temperature, if not continuously measured ( °F); and
(4) The static-pressure tap location (upstream or downstream).
(c) The operator must retain, and submit to the BLM upon request, the original, unaltered, unprocessed, and unedited event log. The event log must comply with API 21.1, Subsection 5.5 (incorporated by reference, see § 3175.30), with the following additions and clarifications: The event log must have sufficient capacity and must be retrieved and stored at intervals frequent enough to maintain a continuous record of events as required under § 3170.7 of this part, or the life of the FMP, whichever is shorter.
(d) The operator must retain an alarm log and provide it to the BLM upon request. The alarm log must comply with API 21.1, Subsection 5.6 (incorporated by reference, see § 3175.30).
(e) Records may only be submitted from accounting system names and versions and flow computer makes and models that have been approved by the BLM (see § 3175.49).
§ 3175.110 Gas sampling and analysis.
Except as stated in this section or as prescribed in Table 1 to this section, the standards and requirements in this section apply to all gas sampling and analyses. (Note: The following table lists the standards in this subpart and the API standards that the operator must follow to take a gas sample, analyze the gas sample, and report the findings of the gas analysis. A requirement applies when a column is marked with an “x” or a number.)
§ 3175.111 General sampling requirements.
(a) Samples must be taken by one of the following methods:
(1) Spot sampling under §§ 3175.113 through 3175.115;
(2) Flow-proportional composite sampling under § 3175.116; or
(3) On-line gas chromatograph under § 3175.117.
(b) At all times during the sampling process, the minimum temperature of all gas sampling components must be the lesser of:
(1) The flowing temperature of the gas measured at the time of sampling; or
(2) 30 °F above the calculated hydrocarbon dew point of the gas.
§ 3175.112 Sampling probe and tubing.
(a) All gas samples must be taken from a sample probe that complies with the requirements of paragraphs (b) and (c) of this section.
(b) Location of sample probe. (1) The sample probe must be located in the meter tube in accordance with API 14.1, Subsection 6.4.2 (incorporated by reference, see § 3175.30), and must be the first obstruction downstream of the primary device.
(2) The sample probe must be exposed to the same ambient temperature as the primary device. The operator may accomplish this by physically locating the sample probe in the same ambient temperature conditions as the primary device (such as in a heated meter house) or by installing insulation and/or heat tracing along the entire meter run. If the operator chooses to use insulation to comply with this requirement, the AO may prescribe the quality of the insulation based on site specific factors such as ambient temperature, flowing temperature of the gas, composition of the gas, and location of the sample probe in relation to the orifice plate (i.e., inside or outside of a meter house).
(c) Sample probe design and type. (1) Sample probes must be constructed from stainless steel.
(2) If a regulating type of sample probe is used, the pressure-regulating mechanism must be inside the pipe or maintained at a temperature of at least 30 °F above the hydrocarbon dew point of the gas.
(3) The sample probe length must be the shorter of:
(i) The length necessary to place the collection end of the probe in the center one third of the pipe cross-section; or
(ii) The recommended length of the probe in Table 1 in API 14.1, Subsection 6.4 (incorporated by reference, see § 3175.30).
(4) The use of membranes, screens, or filters at any point in the sample probe is prohibited.
(d) Sample tubing connecting the sample probe to the sample container or analyzer must be constructed of stainless steel or nylon 11.
§ 3175.113 Spot samples – general requirements.
(a) If an FMP is not flowing at the time that a sample is due, a sample must be taken within 15 days after flow is re-initiated. Documentation of the non-flowing status of the FMP must be entered into GARVS as required under § 3175.120(f).
(b) The operator must notify the AO at least 72 hours before obtaining a spot sample as required by this subpart, or submit a monthly or quarterly schedule of spot samples to the AO in advance of taking samples.
(c) Sample cylinder requirements. Sample cylinders must:
(1) Comply with API 14.1, Subsection 9.1 (incorporated by reference, see § 3175.30);
(2) Have a minimum capacity of 300 cubic centimeters; and
(3) Be cleaned before sampling under GPA 2166-05, Appendix A (incorporated by reference, see § 3175.30), or an equivalent method. The operator must maintain documentation of cleaning (see § 3170.7), have the documentation available on site during sampling, and provide it to the BLM upon request.
(d) Spot sampling using portable gas chromatographs. (1) Sampling separators, if used, must:
(i) Be constructed of stainless steel;
(ii) Be cleaned under GPA 2166-05, Appendix A (incorporated by reference, see § 3175.30), or an equivalent method, prior to sampling. The operator must maintain documentation of cleaning (see § 3170.7), have the documentation available on site during sampling, and provide it to the BLM upon request; and
(iii) Be operated under GPA 2166-05, Appendix B.3 (incorporated by reference, see § 3175.30).
(2) The sample port and inlet to the sample line must be purged using the gas being sampled before completing the connection between them.
(3) The portable GC must be operated, verified, and calibrated under § 3175.118.
(4) The documentation of verification or calibration required in § 3175.118(d) must be available for inspection by the BLM at the time of sampling.
(5) Minimum number of samples and analyses. (i) For low- and very-low-volume FMPs, at least three samples must be taken and analyzed;
(ii) For high-volume FMPs, samples must be taken and analyzed until the difference between the maximum heating value and minimum heating value calculated from three consecutive analyses is less than or equal to 16 Btu/scf;
(iii) For very-high-volume FMPs, samples must be taken and analyzed until the difference between the maximum heating value and minimum heating value calculated from three consecutive analyses is less than or equal to 8 Btu/scf.
(6) The heating value and relative density used for OGOR reporting must be:
(i) The mean heating value and relative density calculated from the three analyses required in paragraph (d)(5) of this section;
(ii) The median heating value and relative density calculated from the three analyses required in paragraph (d)(5) of this section; or
(iii) Any other method approved by the BLM.
§ 3175.114 Spot samples – allowable methods.
(a) Spot samples must be obtained using one of the following methods:
(1) Purging – fill and empty method. Samples taken using this method must comply with GPA 2166-05, Section 9.1 (incorporated by reference, see § 3175.30);
(2) Helium “pop” method. Samples taken using this method must comply with GPA 2166-05, Section 9.5 (incorporated by reference, see § 3175.30). The operator must maintain documentation demonstrating that the cylinder was evacuated and pre-charged before sampling and make the documentation available to the AO upon request;
(3) Floating piston cylinder method. Samples taken using this method must comply with GPA 2166-05, Sections 9.7.1 to 9.7.3 (incorporated by reference, see § 3175.30). The operator must maintain documentation of the seal material and type of lubricant used and make the documentation available to the AO upon request;
(4) Portable gas chromatograph. Samples taken using this method must comply with § 3175.118; or
(5) Other methods approved by the BLM (through the PMT) and posted at www.blm.gov.
(b) If the operator uses either a purging – fill and empty method or a helium “pop” method, and if the flowing pressure at the sample port is less than or equal to 15 psig, the operator may also employ a vacuum-gathering system. Samples taken using a vacuum-gathering system must comply with API 14.1, Subsection 11.10 (incorporated by reference, see § 3175.30), and the samples must be obtained from the discharge of the vacuum pump.
§ 3175.115 Spot samples – frequency.
(a) Unless otherwise required under paragraph (b) of this section, spot samples for all FMPs must be taken and analyzed at the frequency (once during every period, stated in months) prescribed in Table 1 to § 3175.110.
(b) After the time frames listed in paragraph (b)(1) of this section, the BLM may change the required sampling frequency for high-volume and very-high-volume FMPs if the BLM determines that the sampling frequency required in Table 1 in § 3175.110 is not sufficient to achieve the heating value uncertainty levels required in § 3175.31(b).
(1) Timeframes for implementation. (i) For high-volume FMPs, the BLM may change the sampling frequency no sooner than 2 years after the FMP begins measuring gas or January 19, 2021, whichever is later; and
(ii) For very-high-volume FMPs, the BLM may change the sampling frequency or require compliance with paragraph (b)(5) of this section no sooner than 1 year after the FMP begins measuring gas or January 17, 2020, whichever is later.
(2) The BLM will calculate the new sampling frequency needed to achieve the heating value uncertainty levels required in § 3175.31(b). The BLM will base the sampling frequency calculation on the heating value variability. The BLM will notify the operator of the new sampling frequency.
(3) The new sampling frequency will remain in effect until the heating value variability justifies a different frequency.
(4) The new sampling frequency will not be more frequent than once every 2 weeks nor less frequent than once every 6 months.
(5) For very-high-volume FMPs, the BLM may require the installation of a composite sampling system or on-line GC if the heating value uncertainty levels in § 3175.31(b) cannot be achieved through spot sampling. Composite sampling systems or on-line gas chromatographs that are installed and operated in accordance with this section comply with the uncertainty requirement of § 3175.31(b)(2).
(c) The time between any two samples must not exceed the timeframes shown in Table 1 to this section.
(d) If a composite sampling system or an on-line GC is installed under § 3175.116 or § 3175.117, either on the operator’s own initiative or in response to a BLM order for a very-high-volume FMP under paragraph (b)(5) of this section, it must be installed and operational no more than 30 days after the due date of the next sample.
(e) The required sampling frequency for an FMP at which a composite sampling system or an on-line gas chromatograph is removed from service is prescribed in paragraph (a) of this section.
§ 3175.116 Composite sampling methods.
(a) Composite samplers must be flow-proportional.
(b) Samples must be collected using a positive-displacement pump.
(c) Sample cylinders must be sized to ensure the cylinder capacity is not exceeded within the normal collection frequency.
§ 3175.117 On-line gas chromatographs.
(a) On-line GCs must be installed, operated, and maintained under GPA 2166-05, Appendix D (incorporated by reference, see § 3175.30), and the manufacturer’s specifications, instructions, and recommendations.
(b) The GC must comply with the verification and calibration requirements of § 3175.118. The results of all verifications must be submitted to the AO upon request.
(c) Upon request, the operator must submit to the AO the manufacturer’s specifications and installation and operational recommendations.
§ 3175.118 Gas chromatograph requirements.
(a) All GCs must be installed, operated, and calibrated under GPA 2261-13 (incorporated by reference, see § 3175.30).
(b) Samples must be analyzed until the un-normalized sum of the mole percent of all gases analyzed is between 97 and 103 percent.
(c) A GC may not be used to analyze any sample from an FMP until the verification meets the standards of this paragraph (c).
(1) GCs must be verified under GPA 2261-13, Section 6 (incorporated by reference, see § 3175.30), not less than once every 7 days.
(2) All gases used for verification and calibration must meet the standards of GPA 2198-03, Sections 3 and 4 (incorporated by reference, see § 3175.30).
(3) All new gases used for verification and calibration must be authenticated prior to verification or calibration under the standards of GPA 2198-03, Section 5 (incorporated by reference, see § 3175.30).
(4) The gas used to calibrate a GC must be maintained under Section 6 of GPA 2198-03 (incorporated by reference, see § 3175.30).
(5) If the composition of the gas used for verification as determined by the GC varies from the certified composition of the gas used for verification by more than the reproducibility values listed in GPA 2261-13, Section 10 (incorporated by reference, see § 3175.30), the GC must be calibrated under GPA 2261-13, Section 6 (incorporated by reference, see § 3175.30).
(6) If the GC is calibrated, it must be re-verified under paragraph (c)(5) of this section.
(d) The operator must retain documentation of the verifications for the period required under § 3170.6 of this part, and make it available to the BLM upon request. The documentation must include:
(1) The components analyzed;
(2) The response factor for each component;
(3) The peak area for each component;
(4) The mole percent of each component as determined by the GC;
(5) The mole percent of each component in the gas used for verification;
(6) The difference between the mole percents determined in paragraphs (d)(4) and (5) of this section, expressed in relative percent;
(7) Evidence that the gas used for verification and calibration:
(i) Meets the requirements of paragraph (c)(2) of this section, including a unique identification number of the calibration gas used, the name of the supplier of the calibration gas, and the certified list of the mole percent of each component in the calibration gas;
(ii) Was authenticated under paragraph (c)(3) of this section prior to verification or calibration, including the fidelity plots; and
(iii) Was maintained under paragraph (c)(4) of this section, including the fidelity plot made as part of the calibration run;
(8) The chromatograms generated during the verification process;
(9) The time and date the verification was performed; and
(10) The name and affiliation of the person performing the verification.
(e) Extended analyses must be taken in accordance with GPA 2286-14 (incorporated by reference, see § 3175.30) or other method approved by the BLM.
§ 3175.119 Components to analyze.
(a) The gas must be analyzed for the following components:
(1) Methane;
(2) Ethane;
(3) Propane;
(4) Iso Butane;
(5) Normal Butane;
(6) Pentanes;
(7) Hexanes + (C
(8) Carbon dioxide; and
(9) Nitrogen.
(b) When the concentration of C
(1) Hexanes;
(2) Heptanes;
(3) Octanes; and
(4) Nonanes +.
(c) In lieu of testing each sample for the components required under paragraph (b) of this section, the operator may periodically test for these components and adjust the assumed C
(1) For high-volume FMPs, once per year; and
(2) For very-high-volume FMPs, once every 6 months.
§ 3175.120 Gas analysis report requirements.
(a) The gas analysis report must contain the following information:
(1) The information required in § 3170.7(g) of this part;
(2) The date and time that the sample for spot samples was taken or, for composite samples, the date the cylinder was installed and the date the cylinder was removed;
(3) The date and time of the analysis;
(4) For spot samples, the effective date, if other than the date of sampling;
(5) For composite samples, the effective start and end date;
(6) The name of the laboratory where the analysis was performed;
(7) The device used for analysis (i.e., GC, calorimeter, or mass spectrometer);
(8) The make and model of analyzer;
(9) The date of last calibration or verification of the analyzer;
(10) The flowing temperature at the time of sampling;
(11) The flowing pressure at the time of sampling, including units of measure (psia or psig);
(12) The flow rate at the time of sampling;
(13) The ambient air temperature at the time of sampling;
(14) Whether or not heat trace or any other method of heating was used;
(15) The type of sample (i.e., spot-cylinder, spot-portable GC, composite);
(16) The sampling method if spot-cylinder (e.g., fill and empty, helium pop);
(17) A list of the components of the gas tested;
(18) The un-normalized mole percents of the components tested, including a summation of those mole percents;
(19) The normalized mole percent of each component tested, including a summation of those mole percents;
(20) The ideal heating value (Btu/scf);
(21) The real heating value (Btu/scf), dry basis;
(22) The hexane+ split, if applicable;
(23) The pressure base and temperature base;
(24) The relative density; and
(25) The name of the company obtaining the gas sample.
(b) Components that are listed on the analysis report, but not tested, must be annotated as such.
(c) The heating value and relative density must be calculated under API 14.5 (incorporated by reference, see § 3175.30).
(d) The base supercompressibility must be calculated under AGA Report No. 8 (incorporated by reference, see § 3175.30).
(e) The operator must submit all gas analysis reports to the BLM within 15 days of the due date for the sample as specified in § 3175.115.
(f) Unless a variance is granted, the operator must submit all gas analysis reports and other required related information electronically through the GARVS. The BLM will grant a variance to the electronic-submission requirement only in cases where the operator demonstrates that it is a small business, as defined by the U.S. Small Business Administration, and does not have access to the Internet.
§ 3175.121 Effective date of a spot or composite gas sample.
(a) Unless otherwise specified on the gas analysis report, the effective date of a spot sample is the date on which the sample was taken.
(b) The effective date of a spot gas sample may be no later than the first day of the production month following the operator’s receipt of the laboratory analysis of the sample.
(c) Unless otherwise specified on the gas analysis report, the effective date of a composite sample is the first of the month in which the sample was removed.
(d) The provisions of this section apply only to OGORs, QTRs, and gas sample reports generated after January 17, 2017.
§ 3175.125 Calculation of heating value and volume
(a) The heating value of the gas sampled must be calculated as follows:
(1) Gross heating value is defined by API 14.5, Subsection 3.7 (incorporated by reference, see § 3175.30) and must be calculated under API 14.5, Subsection 7.1 (incorporated by reference, see § 3175.30); and
(2) Real heating value must be calculated by dividing the gross heating value of the gas calculated under paragraph (a)(1) of this section by the compressibility factor of the gas at 14.73 psia and 60 °F.
(b) Average heating value determination. (1) If a lease, unit PA, or CA has more than one FMP, the average heating value for the lease, unit PA, or CA for a reporting month must be the volume-weighted average of heating values, calculated as follows:
(2) If the effective date of a heating value for an FMP is other than the first day of the reporting month, the average heating value of the FMP must be the volume-weighted average of heating values, determined as follows:
(c) The volume must be determined under § 3175.94 (mechanical recorders) or § 3175.103(c) (EGM systems).
§ 3175.126 Reporting of heating value and volume.
(a) The gross heating value and real heating value, or average gross heating value and average real heating value, as applicable, derived from all samples and analyses must be reported on the OGOR in units of Btu/scf under the following conditions:
(1) Containing no water vapor (“dry”), unless the water vapor content has been determined through actual on-site measurement and reported on the gas analysis report. The heating value may not be reported on the basis of an assumed water-vapor content. Acceptable methods of measuring water vapor are:
(i) Chilled mirror;
(ii) Laser detectors; and
(iii) Other methods approved by the BLM;
(2) Adjusted to a pressure of 14.73 psia and a temperature of 60 °F; and
(3) For samples analyzed under § 3175.119(a), and notwithstanding any provision of a contract between the operator and a purchaser or transporter, the composition of hexane+ is deemed to be:
(i) 60 percent n-hexane, 30 percent n-heptane, and 10 percent n-octane; or
(ii) The composition determined under § 3175.119(c).
(b) The volume for royalty purposes must be reported on the OGOR in units of Mcf as follows:
(1) The volume must not be adjusted for water-vapor content or any other factors that are not included in the calculations required in § 3175.94 or § 3175.103; and
(2) The volume must match the monthly volume(s) shown in the unedited QTR(s) or integration statement(s) unless edits to the data are documented under paragraph (c) of this section.
(c) Edits and adjustments to reported volume or heating value. (1) If for any reason there are measurement errors stemming from an equipment malfunction that results in discrepancies to the calculated volume or heating value of the gas, the volume or heating value reported during the period in which the volume or heating value error persisted must be estimated.
(2) All edits made to the data before the submission of the OGOR must be documented and include verifiable justifications for the edits made. This documentation must be maintained under § 3170.7 of this part and must be submitted to the BLM upon request.
(3) All values on daily and hourly QTRs that have been changed or edited must be clearly identified and must be cross referenced to the justification required in paragraph (c)(2) of this section.
(4) The volumes reported on the OGOR must be corrected beginning with the date that the inaccuracy occurred. If that date is unknown, the volumes must be corrected beginning with the production month that includes the date that is half way between the date of the previous verification and the most recent verification date.
§ 3175.130 Transducer testing protocol.
The BLM will approve a particular make, model, and range of differential-pressure, static-pressure, or temperature transducer for use in an EGM system only if the testing performed on the transducer met all of the standards and requirements stated in §§ 3175.131 through 3175.135.
§ 3175.131 General requirements for transducer testing.
(a) All testing must be performed by a qualified test facility.
(b) Number and selection of transducers tested. (1) A minimum of five transducers of the same make, model, and URL, selected at random from the stock used to supply normal field operations, must be type-tested.
(2) The serial number of each transducer selected must be documented. The date, location, and batch identifier, if applicable, of manufacture must be ascertainable from the serial number.
(3) For the purpose of this section, the term “model” refers to the base model number on which the BLM determines the transducer performance. For example: A manufacturer makes a transmitter with a model number 1234-XYZ, where “1234” identifies the transmitter cell, “X” identifies the output type, “Y” identifies the mounting type, and “Z” identifies where the static pressure is taken. The testing under this section would only be required on the base model number (“1234”), assuming that “X”, “Y”, or “Z” does not affect the performance of the transmitter.
(4) For multi-variable transducers, each cell URL must be tested only once under this section. For example: A manufacturer of a transducer measuring both differential and static pressure makes a model with available differential-pressure URLs of 100 inches, 500 inches, and 1,000 inches, and static-pressure URLs of 250 psia, 1,000 psia, and 2,500 psia. Although there are nine possible combinations of differential-pressure and static-pressure URLs, only six tests are required to cover each cell URL.
(c) Test conditions – general. The electrical supply must meet the following minimum tolerances:
(1) Rated voltage: ±1 percent uncertainty;
(2) Rated frequency: ±1 percent uncertainty;
(3) Alternating current harmonic distortion: Less than 5 percent; and
(4) Direct current ripple: Less than 0.10 percent uncertainty.
(d) The input and output (if the output is analog) of each transducer must be measured with equipment that has a published reference uncertainty less than or equal to 25 percent of the published reference uncertainty of the transducer under test across the measurement range common to both the transducer under test and the test instrument. Reference uncertainty for both the test instrument and the transducer under test must be expressed in the units the transducer measures to determine acceptable uncertainty. For example, if the transducer under test has a published reference uncertainty of ±0.05 percent of span, and a span of 0 to 500 psia, then this transducer has a reference accuracy of ±0.25 psia (0.05 percent of 500 psia). To meet the requirements of this paragraph (d), the test instrument in this example must have an uncertainty of ±0.0625 psia or less (25 percent of ±0.25 psia).
(e) If the manufacturer’s performance specifications for the transducer under test include corrections made by an external device (such as linearization), then the external device must be tested along with the transducer and be connected to the transducer in the same way as in normal field operations.
(f) If the manufacturer specifies the extent to which the measurement range of the transducer under test may be adjusted downward (i.e., spanned down), then each test required in §§ 3175.132 and 3175.133 must be carried out at least at both the URL and the minimum upper calibrated limit specified by the manufacturer. For upper calibrated limits between the maximum and the minimum span that are not tested, the BLM will use the greater of the uncertainties measured at the maximum and minimum spans in determining compliance with the requirements of § 3175.31(a).
(g) After initial calibration, no calibration adjustments to the transducer may be made until all required tests in §§ 3175.132 and 3175.133 are completed.
(h) For all of the testing required in §§ 3175.132 and 3175.133, the term “tested for accuracy” means a comparison between the output of the transducer under test and the test equipment taken as follows:
(1) The following values must be tested in the order shown, expressed as a percent of the transducer span:
(i) (Ascending values) 0, 10, 20, 30, 40, 50, 60, 70, 80, 90, and 100; and
(ii) (Descending values) 100, 90, 80, 70, 60, 50, 40, 30, 20, 10, and 0.
(2) If the device under test is an absolute-pressure transducer, the “0” values listed in paragraphs (h)(1)(i) and (ii) of this section must be replaced with “atmospheric pressure at the test facility;”
(3) Input approaching each required test point must be applied asymptotically without overshooting the test point;
(4) The comparison of the transducer and the test equipment measurements must be recorded at each required point; and
(5) For static-pressure transducers, the following test point must be included for all tests:
(i) For gauge-pressure transducers, a gauge pressure of −5 psig; and
(ii) For absolute-pressure transducers, an absolute pressure of 5 psia.
§ 3175.132 Testing of reference accuracy.
(a) The following reference test conditions must be maintained for the duration of the testing:
(1) Ambient air temperature must be between 59 °F and 77 °F and must not vary over the duration of the test by more than ±2 °F;
(2) Relative humidity must be between 45 percent and 75 percent and must not vary over the duration of the test by more than ±5 percent;
(3) Atmospheric pressure must be between 12.46 psi and 15.36 psi and must not vary over the duration of the test by more than ±0.2 psi;
(4) The transducer must be isolated from any externally induced vibrations;
(5) The transducer must be mounted according to the manufacturer’s specifications in the same manner as it would be mounted in normal field operations;
(6) The transducer must be isolated from any external electromagnetic fields; and
(7) For reference accuracy testing of differential-pressure transducers, the downstream side of the transducer must be vented to the atmosphere.
(b) Before reference testing begins, the following pre-conditioning steps must be followed:
(1) After power is applied to the transducer, it must be allowed to stabilize for at least 30 minutes before applying any input pressure or temperature;
(2) The transducer must be exercised by applying three full-range traverses in each direction; and
(3) The transducer must be calibrated according to manufacturer specifications if a calibration is required or recommended by the manufacturer.
(c) Immediately following preconditioning, the transducer must be tested at least three times for accuracy under § 3175.131(h). The results of these tests must be used to determine the transducer’s reference accuracy under § 3175.135.
§ 3175.133 Testing of influence effects.
(a) General requirements. (1) Reference conditions (see § 3175.132), with the exception of the influence effect being tested under this section, must be maintained for the duration of these tests.
(2) After completing the required tests for each influence effect under this section, the transducer under test must be returned to reference conditions and tested for accuracy under § 3175.132.
(b) Ambient temperature. (1) The transducer’s accuracy must be tested at the following temperatures ( °F): +68, +104, +140, + 68, 0, −4, −40, +68.
(2) The ambient temperature must be held to ±4 °F from each required temperature during the accuracy test at each point.
(3) The rate of temperature change between tests must not exceed 2 °F per minute.
(4) The transducer must be allowed to stabilize at each test temperature for at least 1 hour.
(5) For each required temperature test point listed in this paragraph, the transducer must be tested for accuracy under § 3175.131(h).
(c) Static-pressure effects (differential-pressure transducers only). (1) For single-variable transducers, the following pressures must be applied equally to both sides of the transducer, expressed in percent of maximum rated working pressure: 0, 50, 100, 75, 25, 0.
(2) For multivariable transducers, the following pressures must be applied equally to both sides of the transducer, expressed in percent of the URL of the static-pressure transducer: 0, 50, 100, 75, 25, 0.
(3) For each point required in paragraphs (c)(1) and (2) of this section, the transducer must be tested for accuracy under § 3175.131(h).
(d) Mounting position effects. The transducer must be tested for accuracy at four different orientations under § 3175.131(h) as follows:
(1) At an angle of −10° from a vertical plane;
(2) At an angle of +10° from a vertical plane;
(3) At an angle of −10° from a vertical plane perpendicular to the vertical plane required in paragraphs (d)(1) and (2) of this section; and
(4) At an angle of +10° from a vertical plane perpendicular to the vertical plane required in paragraphs (d)(1) and (2) of this section.
(e) Over-range effects. (1) A pressure of 150 percent of the URL, or to the maximum rated working pressure of the transducer, whichever is less, must be applied for at least 1 minute.
(2) After removing the applied pressure, the transducer must be tested for accuracy under § 3175.131(h).
(3) No more than 5 minutes must be allowed between performing the procedures described in paragraphs (e)(1) and (2) of this section.
(f) Vibration effects. (1) An initial resonance test must be conducted by applying the following test vibrations to the transducer along each of the three major axes of the transducer while measuring the output of the transducer with no pressure applied:
(i) The amplitude of the applied test frequency must be at least 0.35mm below 60 Hertz (Hz) and 49 meter per second squared (m/s
(ii) The applied frequency must be swept from 10 Hz to 2,000 Hz at a rate not greater than 0.5 octaves per minute.
(2) After the initial resonance search, an endurance conditioning test must be conducted as follows:
(i) Twenty frequency sweeps from 10 Hz to 2,000 Hz to 10 Hz must be applied to the transducer at a rate of 1 octave per minute, repeated for each of the 3 major axes; and
(ii) The measurement of the transducer’s output during this test is unnecessary.
(3) A final resonance test must be conducted under paragraph (f)(1) of this section.
§ 3175.134 Transducer test reporting.
(a) Each test required by §§ 3175.131 through 3175.133 must be fully documented by the test facility performing the tests. The report must indicate the results for each required test and include all data points recorded.
(b) The report must be submitted to the PMT. If the PMT determines that all testing was completed as required by §§ 3175.131 through 3175.133, it will make a recommendation that the BLM approve the transducer make, model, and range, along with the reference uncertainty, influence effects, and any operating restrictions, and posts them to the BLM’s website at www.blm.gov as an approved device.
§ 3175.135 Uncertainty determination.
(a) Reference uncertainty calculations for each transducer of a given make, model, URL, and turndown must be determined as follows (the result for each transducer is denoted by the subscript i):
(1) Maximum error (E
(2) Hysteresis (H
(3) Repeatability (R
(b) Reference uncertainty of a transducer. The reference uncertainty of each transducer of a given make, model, URL, and turndown (U
(c) Reference uncertainty for the make, model, URL, and turndown of a transducer (U
(d) Influence effects. The uncertainty from each influence effect required to be tested under § 3175.133 must be determined as follows:
(1) Zero-based errors of each transducer. Zero-based errors from each influence test must be determined as follows:
(2) Span-based errors of each transducer. Span-based errors from each influence effect must be determined as follows:
(3) Zero- and span-based errors due to influence effects for a make, model, URL, and turndown of a transducer must be determined as follows:
§ 3175.140 Flow-computer software testing.
The BLM will approve a particular version of flow-computer software for use in a specific make and model of flow computer only if the testing performed on the software meets all of the standards and requirements in §§ 3175.141 through 3175.144. Type-testing is required for each software version that affects the calculation of flow rate, volume, heating value, live input variable averaging, flow time, or the integral value. Software updates or changes that do not affect these items do not require BLM approval.
§ 3175.141 General requirements for flow-computer software testing.
(a) Test facility. All testing must be performed by a qualified test facility not affiliated with the flow-computer manufacturer.
(b) Selection of flow-computer software to be tested. (1) Each software version tested must be identical to the software version installed at FMPs for normal field operations.
(2) Each software version must have a unique identifier.
(c) Testing method. Input variables may be either:
(1) Applied directly to the hardware registers; or
(2) Applied physically to a transducer. If input variables are applied physically to a transducer, the values received by the hardware registers from the transducer must be recorded.
(d) Pass-fail criteria. (1) For each test listed in §§ 3175.142 and 3175.143, the value(s) required to be calculated by the software version under test must be compared to the value(s) calculated by BLM-approved reference software, using the same digital input for both.
(2) The software under test may be used at an FMP only if the difference between all values calculated by the software version under test and the reference software is less than 50 parts per million (0.005 percent) and the results of the tests required in §§ 3175.142 and 3175.143 are satisfactory to the PMT. If the test results are satisfactory, the BLM will identify the software version tested as acceptable for use on its website at www.blm.gov.
§ 3175.142 Required static tests.
(a) Instantaneous flow rate. The instantaneous flow rates must meet the criteria in § 3175.141(d) for each test identified in Table 1 to this section, using the gas compositions identified in Table 2 to this section, as prescribed in Table 1 to this section.
(b) Sums and averages. (1) Fixed input values from test 2 in Table 1 to this section must be applied for a period of at least 24 hours.
(2) At the conclusion of the 24-hour period, the following hourly and daily values must meet the criteria in § 3175.141(d):
(i) Volume;
(ii) Integral value;
(iii) Flow time;
(iv) Average differential pressure;
(v) Average static pressure; and
(vi) Average flowing temperature.
(c) Other tests. The following additional tests must be performed on the flow-computer software:
(1) Each parameter of the configuration log must be changed to ensure the event log properly records the changes according to the variables listed in § 3175.104(c); and
(2) Inputs simulating a 15 percent and 150 percent over-range of the differential and static-pressure transducer’s calibrated span must be entered to verify that the over-range condition triggers an alarm or an entry in the event log.
§ 3175.143 Required dynamic tests.
(a) Square wave test. The pressures and temperatures must be applied to the software revision under test for at least 60 minutes as follows:
(1) Differential pressure. The differential pressure must be cycled from a low value, below the no-flow cutoff, to a high value of approximately 80 percent of the upper calibrated limit of the differential-pressure transducer. The cycle must approximate a square wave pattern with a period of 60 seconds, and the maximum and minimum values must be the same for each cycle;
(2) Static pressure. The static pressure must be cycled between approximately 20 percent and approximately 80 percent of the upper calibrated limit of the static-pressure transducer in a square wave pattern identical to the cycling pattern used for the differential pressure. The maximum and minimum values must be the same for each cycle;
(3) Temperature. The temperature must be cycled between approximately 20 °F and approximately 100 °F in a square wave pattern identical to the cycling pattern used for the differential pressure. The maximum and minimum values must be the same for each cycle; and
(4) At the conclusion of the 1-hour period, the following hourly values must meet the criteria in § 3175.141(d):
(i) Volume;
(ii) Integral value;
(iii) Flow time;
(iv) Average differential pressure;
(v) Average static pressure; and
(vi) Average flowing temperature.
(b) Sawtooth test. The pressures and temperatures must be applied to the software revision under test for 24 hours as follows:
(1) Differential pressure. The differential pressure must be cycled from a low value, below the no-flow cutoff, to a high value of approximately 80 percent of the maximum value of differential pressure for which the flow computer is designed. The cycle must approximate a linear sawtooth pattern between the low value and the high value and there must be 3 to 10 cycles per hour. The no-flow period between cycles must last approximately 10 percent of the cycle period;
(2) Static pressure. The static pressure must be cycled between approximately 20 percent and approximately 80 percent of the maximum value of static pressure for which the flow computer is designed. The cycle must approximate a linear sawtooth pattern between the low value and the high value and there must be 3 to 10 cycles per hour;
(3) Temperature. The temperature must be cycled between approximately 20 °F and approximately 100 °F. The cycle should approximate a linear sawtooth pattern between the low value and the high value and there must be 3 to 10 cycles per hour; and
(4) At the conclusion of the 24-hour period, the following hourly and daily values must meet the criteria in § 3175.141(d):
(i) Volume;
(ii) Integral value;
(iii) Flow time;
(iv) Average differential pressure;
(v) Average static pressure; and
(vi) Average flowing temperature.
(c) Random test. The pressures and temperatures must be applied to the software revision under test for 24 hours as follows:
(1) Differential pressure. Differential-pressure random values must range from a low value, below the no-flow cutoff, to a high value of approximately 80 percent of the upper calibrated limit of the differential-pressure transducer. The no-flow period between cycles must last for approximately 10 percent of the test period;
(2) Static pressure. Static-pressure random values must range from a low value of approximately 20 percent of the upper calibrated limit of the static-pressure transducer, to a high value of approximately 80 percent of the upper calibrated limit of the static-pressure transducer;
(3) Temperature. Temperature random values must range from approximately 20 °F to approximately 100 °F; and
(4) At the conclusion of the 24-hour period, the following hourly values must meet the criteria in § 3175.141(d):
(i) Volume;
(ii) Integral value;
(iii) Flow time;
(iv) Average differential pressure;
(v) Average static pressure; and
(vi) Average flowing temperature.
(d) Long-term volume accumulation test. (1) Fixed inputs of differential pressure, static pressure, and temperature must be applied to the software version under test to simulate a flow rate greater than 500,000 Mcf/day for a period of at least 7 days.
(2) At the end of the 7-day test period, the accumulated volume must meet the criteria in § 3175.141(d).
§ 3175.144 Flow-computer software test reporting.
(a) The test facility performing the tests must fully document each test required by §§ 3175.141 through 3175.143. The report must indicate the results for each required test and include all data points recorded.
(b) The report must be submitted to the AO by the operator or the manufacturer. If the PMT determines all testing was completed as required by this section, it will make a recommendation that the BLM approve the software version and post it on the BLM’s website at www.blm.gov as approved software.
§ 3175.150 Immediate assessments.
(a) Certain instances of noncompliance warrant the imposition of immediate assessments upon discovery. Imposition of any of these assessments does not preclude other appropriate enforcement actions.
(b) The BLM will issue the assessments for the violations listed as follows:
Appendix A to Subpart 3175 of Part 3170 – Table of Atmospheric Pressures
Subpart 3178 – Royalty-Free Use of Lease Production
§ 3178.1 Purpose.
The purpose of this subpart is to address the circumstances under which oil or gas produced from Federal and Indian leases may be used royalty-free in operations on the lease, unit, or communitized area. This subpart supersedes those portions of Notice to Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases, Royalty or Compensation for Oil or Gas Lost (NTL-4A), pertaining to oil or gas used for beneficial purposes.
§ 3178.2 Scope.
(a) This subpart applies to:
(1) All onshore Federal and Indian (other than Osage Tribe) oil and gas leases, units, and communitized areas, except as otherwise provided in this subpart;
(2) Indian Mineral Development Act (IMDA) oil and gas agreements, unless specifically excluded in the agreement or unless the relevant provisions of this subpart are inconsistent with the agreement;
(3) Leases and other business agreements and contracts for the development of tribal energy resources under a Tribal Energy Resource Agreement entered into with the Secretary, unless specifically excluded in the lease, other business agreement, or Tribal Energy Resource Agreement;
(4) Committed State or private tracts in a federally approved unit or communitization agreement defined by or established under 43 CFR subpart 3105 or 43 CFR part 3180; and
(5) All onshore wells, and production equipment located on a Federal or Indian lease or a federally approved unit or communitized area, and compressors located on a Federal or Indian lease or a federally approved unit or communitized area and which compress production from the same Federal or Indian lease or federally approved unit or communitized area.
(b) For purposes of this subpart, the term “lease” also includes IMDA agreements.
§ 3178.3 Production on which royalty is not due.
(a) To the extent specified in §§ 3178.4 and 3178.5, royalty is not due on:
(1) Oil or gas that is produced from a lease or communitized area and used for operations and production purposes (including placing oil or gas in marketable condition) on the same lease or communitized area without being removed from the lease or communitized area; or
(2) Oil or gas that is produced from a unit PA and used for operations and production purposes (including placing oil or gas in marketable condition) on the unit, for the same unit PA, without being removed from the unit.
(b) For the uses described in § 3178.5, the operator must obtain prior written BLM approval for the volumes used for operational and production purposes to be royalty free.
§ 3178.4 Uses of oil or gas on a lease, unit, or communitized area that do not require prior written BLM approval for royalty-free treatment of volumes used.
(a) Oil or gas produced from a lease, unit, or communitized area may be used royalty-free for operations and production purposes on the lease, unit, or communitized area without prior written BLM approval in the following circumstances:
(1) Use of fuel to generate power or operate combined heat and power;
(2) Use of fuel to power equipment, including artificial lift equipment, equipment used for enhanced recovery, drilling rigs, and completion and workover equipment;
(3) Use of gas to actuate pneumatic controllers or operate pneumatic pumps at production facilities;
(4) Use of fuel to heat, separate, or dehydrate production;
(5) Use of gas as a pilot fuel or as assist gas for a flare, combustor, thermal oxidizer, or other control device;
(6) Use of fuel to compress or treat gas to place it in marketable condition;
(7) Use of oil to clean the well and improve production, e.g., hot oil treatments. The operator must document the removal of the oil from the tank or pipeline under Onshore Oil and Gas Order No. 3 (Site Security), or any successor regulation;
(8) Use of oil as a circulating medium in drilling operations, if the use is part of an approved Drilling Plan under Onshore Oil and Gas Order No. 1;
(9) Injection of gas for the purpose of conserving gas or increasing the recovery of oil or gas, if the BLM has approved the injection under applicable regulations in parts 3100, 3160, or 3180 of this title; and
(10) Injection of gas that is cycled in a contained gas-lift system.
(b) The volume to be treated as royalty free must not exceed the amount of fuel reasonably necessary to perform the operational function, using equipment of appropriate capacity.
§ 3178.5 Uses of oil or gas on a lease, unit, or communitized area that require prior written BLM approval for royalty-free treatment of volumes used.
(a) Oil or gas produced from a lease, unit, or communitized area may also be used royalty-free for the following operations and production purposes on the lease, unit, or communitized area, but prior written BLM approval is required to ensure that production accountability is maintained:
(1) Use of oil or gas that the operator removes from the pipeline at a location downstream of the Facility Measurement Point (FMP);
(2) Use of gas that has been removed from the lease, unit PA, or communitized area for treatment or processing because of particular physical characteristics of the gas that require the gas to be treated or processed prior to use, where the gas is returned to, and used on, the lease, unit PA, or communitized area from which it was produced; and
(3) Any other types of use of produced oil or gas for operations and production purposes, which are not identified in § 3178.4.
(b)(1) The operator must obtain BLM approval to conduct activities under paragraph (a) of this section by submitting a Form 3160-5, Sundry Notices and Reports on Wells (Sundry Notice) containing the information required under § 3178.9. If the BLM disapproves a request for royalty-free treatment for volumes used under this section, the operator must pay royalties on such volumes. If the BLM approves a request for royalty-free treatment for volumes used under this section, such approval will be deemed effective from the date the request was filed.
(2) With respect to uses under paragraph (a)(1) of this section, the operator must measure the volume of oil or gas used in accordance with Onshore Oil and Gas Orders No. 4 (oil) and 5 (gas) as applicable, or other successor regulations.
(3) With respect to removals under paragraph (a)(2) of this section, the operator must measure any gas returned to the lease, unit, or communitized area under such an approval in accordance with Onshore Oil and Gas Order No. 5 or other successor regulations.
§ 3178.6 Uses of oil or gas moved off the lease, unit, or communitized area that do not require prior written approval for royalty-free treatment of volumes used.
Oil or gas used after being moved off the lease, unit, or communitized area may be treated as royalty free without prior written BLM approval only if the use meets the criteria under § 3178.4 and when:
(a) The oil or gas is transported from one area of the lease, unit, or communitized area to another area of the same lease, unit, or communitized area where it is used, and no oil or gas is added to or removed from the pipeline while crossing lands that are not part of the lease, unit, or communitized area; or
(b) A well is directionally drilled, the wellhead is not located on the producing lease, unit, or communitized area, and oil or gas is used on the same well pad for operations and production purposes for that well.
§ 3178.7 Uses of oil or gas moved off the lease, unit, or communitized area that require prior written approval for royalty-free treatment of volumes used.
(a) Except as provided in § 3178.6(b) and paragraph (b) of this section, royalty is owed on all oil or gas used in operations conducted off the lease, unit, or communitized area.
(b) The BLM may grant prior written approval to treat oil or gas used in operations conducted off the lease, unit, or communitized area as royalty free (referred to as off-lease royalty-free use) if the use is among those listed in § 3178.4(a) and § 3178.5(a) and if:
(1) The equipment or facility in which the operation is conducted is located off the lease, unit, or communitized area for engineering, economic, resource protection, or physical accessibility reasons; and
(2) The operations are conducted upstream of the FMP.
(c) The operator must obtain BLM approval under paragraph (b) of this section by submitting a Sundry Notice containing the information required under § 3178.9. If the BLM disapproves a request for royalty-free treatment for volumes used under this section, the operator must pay royalties on such volumes. If the BLM approves a request for royalty-free treatment for volumes used under this section, such approval will be deemed effective from the date the request was filed.
(d) Approval of measurement or commingling off the lease, unit, or communitized area under other regulations does not constitute approval of off-lease royalty-free use. The operator or lessee must expressly request, and submit its justification for, approval of off-lease royalty-free use.
(e) If equipment or a facility located on a particular lease, unit, or communitized area treats oil or gas produced from properties that are not unitized or communitized with the property on which the equipment or facility is located, in addition to treating oil or gas produced from the lease, unit, or communitized area on which the equipment or facility is located, the operator may report as royalty free only that portion of the oil or gas used as fuel that is properly allocable to the share of production contributed by the lease, unit, or communitized area on which the equipment is located, unless otherwise authorized by the BLM under this section.
§ 3178.8 Measurement or estimation of volumes of oil or gas that are used royalty-free.
(a) The operator must measure or estimate the volumes of royalty-free gas used in operations upstream of the FMP.
(b) The operator must measure the volume of gas that is removed from the product stream downstream of the FMP and used royalty-free pursuant to sections 3178.4 through 3178.7.
(c) The operator must measure the volume of oil that is used royalty-free pursuant to sections 3178.4 through 3178.7. The operator must also document removal of such oil from the tank or pipeline.
(d) If the operator removes oil or gas downstream of the FMP and that oil or gas is used royalty-free pursuant to sections 3178.4 through 3178.7, the operator must apply for an FMP under section 3173.12 to measure the oil or gas that is removed for use.
(e) When estimating gas volumes, the operator must use the best available information to make a reasonable estimate.
(f) Each of the volumes required to be measured or estimated, as applicable, under this subpart, must be reported by the operator following applicable ONRR reporting requirements.
§ 3178.9 Requesting approval of royalty-free treatment when approval is required.
To request written approval of royalty-free use when required under § 3178.5 or § 3178.7, the operator must submit a Sundry Notice that includes the following information:
(a) A complete description of the operation to be conducted, including the location of all facilities and equipment involved in the operation and the location of the FMP;
(b) The volume of oil or gas that the operator expects will be used in the operation, and the method of measuring or estimating that volume;
(c) If the volume of gas expected to be used will be estimated, the basis for the estimate (e.g., equipment manufacturer’s published consumption or usage rates); and
(d) The proposed disposition of the oil or gas used (e.g., whether gas used would be consumed as fuel, vented through use of a gas-activated pneumatic controller, returned to the reservoir, or used in some other way).
§ 3178.10 Facility and equipment ownership.
The operator is not required to own or lease the equipment or facility that uses oil or gas royalty free. The operator is responsible for obtaining all authorizations, measuring production, reporting production, and all other applicable requirements.
Subpart 3179 – Waste Prevention and Resource Conservation
§ 3179.1 Purpose.
The purpose of this subpart is to implement and carry out the purposes of statutes relating to prevention of waste from Federal and Indian (other than Osage Tribe) leases, conservation of surface resources, and management of the public lands for multiple use and sustained yield. This subpart supersedes those portions of Notice to Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases, Royalty or Compensation for Oil and Gas Lost (NTL-4A), pertaining to, among other things, flaring and venting of produced gas, unavoidably and avoidably lost gas, and waste prevention.
§ 3179.2 Scope.
(a) This subpart applies to:
(1) All onshore Federal and Indian (other than Osage Tribe) oil and gas leases, units, and communitized areas, except as otherwise provided in this subpart;
(2) IMDA oil and gas agreements, unless specifically excluded in the agreement or unless the relevant provisions of this subpart are inconsistent with the agreement;
(3) Leases and other business agreements and contracts for the development of tribal energy resources under a Tribal Energy Resource Agreement entered into with the Secretary, unless specifically excluded in the lease, other business agreement, or Tribal Energy Resource Agreement;
(4) Committed State or private tracts in a federally approved unit or communitization agreement defined by or established under 43 CFR part 3100, subpart 3105, or 43 CFR part 3180; and
(5) All onshore well facilities located on a Federal or Indian lease or a federally approved unit or communitized area.
(b) For purposes of this subpart, the term “lease” also includes IMDA agreements.
§ 3179.3 Definitions and acronyms.
As used in this subpart, the term:
Automatic ignition system means an automatic ignitor and, where needed to ensure continuous combustion, a continuous pilot flame.
Capture means the physical containment of natural gas for transportation to market or productive use of natural gas, and includes injection and royalty-free on-site uses pursuant to subpart 3178 of this part.
Gas-to-oil ratio (GOR) means the ratio of gas to oil in the production stream expressed in standard cubic feet of gas per barrel of oil.
Gas well means a well for which the energy equivalent of the gas produced, including its entrained liquefiable hydrocarbons, exceeds the energy equivalent of the oil produced, as determined at the time of well completion.
Liquids unloading means the removal of an accumulation of liquid hydrocarbons or water from the wellbore of a completed gas well.
Lost oil or lost gas means produced oil or gas that escapes containment, either intentionally or unintentionally, or is flared before being removed from the lease, unit, or communitized area, and cannot be recovered.
Oil well means a well for which the energy equivalent of the oil produced exceeds the energy equivalent of the gas produced, as determined at the time of well completion.
Waste of oil or gas means any act or failure to act by the operator that is not sanctioned by the authorized officer as necessary for proper development and production, where compliance costs are not greater than the monetary value of the resources they are expected to conserve, and which results in:
(1) A reduction in the quantity or quality of oil and gas ultimately producible from a reservoir under prudent and proper operations; or
(2) Avoidable surface loss of oil or gas.
For purposes of this subpart:
(a) Avoidably lost production means:
(1) Gas that is vented or flared without the authorization or approval of the BLM; or
(2) Produced oil or gas that is lost when the BLM determines that such loss occurred as a result of:
(i) Negligence on the part of the operator;
(ii) The failure of the operator to take all reasonable measures to prevent or control the loss; or
(iii) The failure of the operator to comply fully with the applicable lease terms and regulations, appropriate provisions of the approved operating plan, or prior written orders of the BLM.
(b) Unavoidably lost production means:
(1) Oil or gas that is lost because of line failures, equipment malfunctions, blowouts, fires, or other similar circumstances, except where the BLM determines that the loss was avoidable pursuant to paragraph (a)(2) of this section;
(2) Oil or gas that is lost from the following operations or sources, except where the BLM determines that the loss was avoidable pursuant to paragraph (a)(2) of this section:
(i) Well drilling;
(ii) Well completion and related operations;
(iii) Initial production tests, subject to the limitations in § 3179.101;
(iv) Subsequent well tests, subject to the limitations in § 3179.102;
(v) Exploratory coalbed methane well dewatering;
(vi) Emergencies, subject to the limitations in § 3179.103;
(vii) Normal gas vapor losses from a storage tank or other low pressure production vessel, unless the BLM determines that recovery of the gas vapors is warranted;
(viii) Well venting in the course of downhole well maintenance and/or liquids unloading performed in compliance with § 3179.104; or
(ix) Facility and pipeline maintenance, such as when an operator must blow-down and depressurize equipment to perform maintenance or repairs; or
(3) Produced gas that is flared or vented with BLM authorization or approval.
§ 3179.5 When lost production is subject to royalty.
(a) Royalty is due on all avoidably lost oil or gas.
(b) Royalty is not due on any unavoidably lost oil or gas.
§ 3179.6 Venting limitations.
(a) Gas well gas may not be flared or vented, except where it is unavoidably lost pursuant to § 3179.4(b).
(b) The operator must flare, rather than vent, any gas that is not captured, except:
(1) When flaring the gas is technically infeasible, such as when the gas is not readily combustible or the volumes are too small to flare;
(2) Under emergency conditions, as defined in § 3179.105, when the loss of gas is uncontrollable or venting is necessary for safety;
(3) When the gas is vented through normal operation of a natural gas-activated pneumatic controller or pump;
(4) When gas vapor is vented from a storage tank or other low pressure production vessel, unless the BLM determines that recovery of the gas vapors is warranted;
(5) When the gas is vented during downhole well maintenance or liquids unloading activities;
(6) When the gas venting is necessary to allow non-routine facility and pipeline maintenance to be performed, such as when an operator must, upon occasion, blow-down and depressurize equipment to perform maintenance or repairs; or
(7) When a release of gas is unavoidable under § 3179.4 and flaring is prohibited by Federal, State, local or tribal law, regulation, or enforceable permit term.
(c) For purposes of this subpart, all flares or combustion devices must be equipped with an automatic ignition system.
Authorized Flaring and Venting of Gas
§ 3179.101 Initial production testing.
(a) Gas flared during the initial production test of each completed interval in a well is royalty free until one of the following occurs:
(1) The operator determines that it has obtained adequate reservoir information;
(2) Thirty (30) days have passed since the beginning of the production test, unless the BLM approves a longer test period; or
(3) The operator has flared 50 million cubic feet (MMcf) of gas.
(b) The operator may request a longer test period and must submit its request using a Sundry Notice.
§ 3179.102 Subsequent well tests.
(a) Gas flared during well tests subsequent to the initial production test is royalty free for a period not to exceed 24 hours, unless the BLM approves or requires a longer test period.
(b) The operator may request a longer test period and must submit its request using a Sundry Notice.
§ 3179.103 Emergencies.
(a) Gas flared or vented during an emergency is royalty free for a period not to exceed 24 hours, unless the BLM determines that emergency conditions exist necessitating venting or flaring for a longer period.
(b) For purposes of this subpart, an “emergency” is a temporary, infrequent and unavoidable situation in which the loss of gas or oil is uncontrollable or necessary to avoid risk of an immediate and substantial adverse impact on safety, public health, or the environment, and is not due to operator negligence.
(c) The following do not constitute emergencies for the purpose of royalty assessment:
(1) The operator’s failure to install appropriate equipment of a sufficient capacity to accommodate the production conditions;
(2) Failure to limit production when the production rate exceeds the capacity of the related equipment, pipeline, or gas plant, or exceeds sales contract volumes of oil or gas;
(3) Scheduled maintenance;
(4) A situation caused by operator negligence, including recurring equipment failures; or
(5) A situation on a lease, unit, or communitized area that has already experienced 3 or more emergencies within the past 30 days, unless the BLM determines that the occurrence of more than 3 emergencies within the 30 day period could not have been anticipated and was beyond the operator’s control.
(d) Within 45 days of the start of the emergency, the operator must estimate and report to the BLM on a Sundry Notice the volumes flared or vented beyond the timeframe specified in paragraph (a) of this section.
§ 3179.104 Downhole well maintenance and liquids unloading.
(a) Gas vented or flared during downhole well maintenance and well purging is royalty free for a period not to exceed 24 hours per event, provided that the requirements of paragraphs (b) through (d) of this section are met. Gas vented or flared from a plunger lift system and/or an automated well control system is royalty free, provided the requirements of paragraphs (b) and (c) of this section are met.
(b) The operator must minimize the loss of gas associated with downhole well maintenance and liquids unloading, consistent with safe operations.
(c) For wells equipped with a plunger lift system and/or an automated well control system, minimizing gas loss under paragraph (b) of this section includes optimizing the operation of the system to minimize gas losses to the extent possible consistent with removing liquids that would inhibit proper function of the well.
(d) For any liquids unloading by manual well purging, the operator must ensure that the person conducting the well purging remains present on-site throughout the event to end the event as soon as practical, thereby minimizing to the maximum extent practicable any venting to the atmosphere.
(e) For purposes of this section, “well purging” means blowing accumulated liquids out of a wellbore by reservoir gas pressure, whether manually or by an automatic control system that relies on real-time pressure or flow, timers, or other well data, where the gas is vented to the atmosphere, and it does not apply to wells equipped with a plunger lift system.
Other Venting or Flaring
§ 3179.201 Oil-well gas.
(a) Except as provided in §§ 3179.101, 3179.102, 3179.103, and 3179.104, vented or flared oil-well gas is royalty free if it is vented or flared pursuant to applicable rules, regulations, or orders of the appropriate State regulatory agency or tribe. Applicable State or tribal rules, regulations, or orders are appropriate if they place limitations on the venting and flaring of oil-well gas, including through general or qualified prohibitions, volume or time limitations, capture percentage requirements, or trading mechanisms.
(b) With respect to production from Indian leases, vented or flared oil-well gas will be treated as royalty free pursuant to paragraph (a) of this section only to the extent it is consistent with the BLM’s trust responsibility.
(c) Except as otherwise provided in this subpart, oil-well gas may not be vented or flared royalty free unless the BLM approves it in writing. The BLM may approve an application for royalty-free venting or flaring of oil-well gas if it determines that it is justified by the operator’s submission of either:
(1) An evaluation report supported by engineering, geologic, and economic data that demonstrates to the BLM’s satisfaction that the expenditures necessary to market or beneficially use such gas are not economically justified. If flaring exceeds 10 MMcf per well during any month, the BLM may determine that the gas is avoidably lost and therefore subject to royalty; or
(2) An action plan showing how the operator will minimize the venting or flaring of the oil-well gas within 1 year. An operator may apply for approval of an extension of the 1-year time limit, if justified. If the operator fails to implement the action plan, the gas vented or flared during the time covered by the action plan will be subject to royalty. If flaring exceeds 10 MMcf per well during any month, the BLM may determine that the gas is avoidably lost and therefore subject to royalty.
(d) The evaluation report in paragraph (c)(1) of this section:
(1) Must include all appropriate engineering, geologic, and economic data to support the applicant’s determination that marketing or using the gas is not economically viable. The information provided must include the applicant’s estimates of the volumes of oil and gas that would be produced to the economic limit if the application to vent or flare were approved and the volumes of the oil and gas that would be produced if the applicant was required to market or use the gas. When evaluating the feasibility of marketing or using of the gas, the BLM will determine whether the operator can economically operate the lease if it is required to market or use the gas, considering the total leasehold production, including both oil and gas, as well as the economics of a field-wide plan; and
(2) The BLM may require the operator to provide an updated evaluation report as additional development occurs or economic conditions improve, but no more than once a year.
(e) An approval to flare royalty free, which is in effect as of November 27, 2018, will continue in effect unless:
(1) The approval is no longer necessary because the venting or flaring is authorized by the applicable rules, regulations, or orders of an appropriate State regulatory agency or tribe, as provided in paragraph (a) of this section; or
(2) The BLM requires an updated evaluation report under paragraph (d)(2) of this section and determines to amend or revoke its approval.
Measurement and Reporting Responsibilities
§ 3179.301 Measuring and reporting volumes of gas vented and flared.
(a) The operator must estimate or measure all volumes of lost oil and gas, whether avoidably or unavoidably lost, from wells, facilities and equipment on a lease, unit PA, or communitized area and report those volumes under applicable ONRR reporting requirements.
(b) The operator may:
(1) Estimate or measure vented or flared gas in accordance with applicable rules, regulations, or orders of the appropriate State or tribal regulatory agency;
(2) Estimate the volume of the vented or flared gas based on the results of a regularly performed GOR test and measured values for the volumes of oil production and gas sales, to allow BLM to independently verify the volume, rate, and heating value of the flared gas; or
(3) Measure the volume of the flared gas.
(c) The BLM may require the installation of additional measurement equipment whenever it is determined that the existing methods are inadequate to meet the purposes of this subpart.
(d) The operator may combine gas from multiple leases, unit PAs, or communitized areas for the purpose of flaring or venting at a common point, but must use a method approved by the BLM to allocate the quantities of the vented or flared gas to each lease, unit PA, or communitized area.
Additional Deference to Tribal Regulations
§ 3179.401 Deference to tribal regulations.
(a) A tribe that has rules, regulations, or orders that are applicable to any of the matters addressed in this subpart may seek approval from the BLM to have such rules, regulations, or orders apply in place of any or all of the provisions of this subpart with respect to lands and minerals over which that tribe has jurisdiction.
(b) The BLM will approve a tribe’s request under paragraph (a) to the extent that it is consistent with the BLM’s trust responsibility.
(c) The deference to tribal rules, regulations, or orders provided for in this section is supplemental to, and does not limit, the deference to tribal rules, regulations, or orders provided for in § 3179.201.
PART 3180 – ONSHORE OIL AND GAS UNIT AGREEMENTS: UNPROVEN AREAS
Many existing unit agreements currently in effect specifically refer to the United States Geological Survey, USGS, Minerals Management Service, MMS, Supervisor, Conservation Manager, Deputy Conservation Manager, Minerals Manager and Deputy Minerals Manager in the body of the agreements, as well as references to 30 CFR part 221 or specific sections thereof. Those references shall now be read in the context of Secretarial Order 3087 and now mean either the Bureau of Land Management or Minerals Management Service, as appropriate.
Subpart 3180 – Onshore Oil and Gas Unit Agreements: General
§ 3180.0-1 Purpose.
The regulations in this part prescribe the procedures to be followed and the requirements to be met by the owners of any right, title or interest in Federal oil and gas leases (see § 3160.0-5 of this title) and their representatives who wish to unite with each other, or jointly or separately with others, in collectively adopting and operating under a unit plan for the development of any oil or gas pool, field or like area, or any part thereof. All unit agreements on Federal leases are subject to the regulations contained in part 3160 of this title, Onshore Oil and Gas Operations. All unit operations on non-Federal lands included within Federal unit plans are subject to the reporting requirements of part 3160 of this title.
§ 3180.0-2 Policy.
Subject to the supervisory authority of the Secretary of the Interior, the administration of the regulations in this part shall be under the jurisdiction of the authorized officer. In the exercise of his/her discretion, the authorized officer shall be subject to the direction and supervisory authority of the Director, Bureau of Land Management, who may exercise the jurisdiction of the authorized officer.
§ 3180.0-3 Authority.
The Mineral Leasing Act, as amended and supplemented (30 U.S.C. 181, 189, 226(e) and 226(j)), and Order Number 3087, dated December 3, 1982, as amended on February 7, 1983 (48 FR 8983), under which the Secretary consolidated and transferred the onshore minerals management functions of the Department, except mineral revenue functions and the responsibility for leasing of restricted Indian lands, to the Bureau of Land Management.
§ 3180.0-5 Definitions.
The following terms, as used in this part or in any unit agreement approved under the regulations in this part, shall have the meanings here indicated unless otherwise defined in such unit agreement:
Federal lease. A lease issued under the Act of February 25, 1920, as amended (30 U.S.C. 181, et seq.); the Act of May 21, 1930 (30 U.S.C. 351-359); the Act of August 7, 1947 (30 U.S.C. 351, et seq.); or the Act of November 16, 1981 (Pub. L. 97-98, 95 Stat. 1070).
Participating area. That part of a unit area which is considered reasonably proven to be productive of unitized substances in paying quantities or which is necessary for unit operations and to which production is allocated in the manner prescribed in the unit agreement.
Unit area. The area described in an agreement as constituting the land logically subject to exploration and/or development under such agreement.
Unitized land. Those lands and formations within a unit area which are committed to an approved agreement or plan.
Unitized substances. Deposits of oil and gas contained in the unitized land which are recoverable in paying quantities by operation under and pursuant to an agreement.
Working interest. An interest held in unitized substances or in lands containing the same by virtue of a lease, operating agreement, fee title, or otherwise, under which, except as otherwise provided in the agreement, the owner of such interest is vested with the right to explore for, develop, and produce such substances. The rights delegated to the unit operator by the unit agreement are not regarded as a working interest.
Subpart 3181 – Application for Unit Agreement
§ 3181.1 Preliminary consideration of unit agreement.
The model unit agreement set forth in § 3186.1 of this title, is acceptable for use in unproven areas. Unique situations requiring special provisions should be clearly identified, since these and other special conditions may necessitate a modification of the model unit agreement set forth in § 3186.1 of this title. Any proposed special provisions or other modifications of the model agreement should be submitted for preliminary consideration so that any necessary revision may be prescribed prior to execution by the interested parties. Where Federal lands constitute less than 10 percent of the total unit area, a non-Federal unit agreement may be used. Upon submission of such an agreement, the authorized officer will take appropriate action to commit the Federal lands.
§ 3181.2 Designation of unit area; depth of test well.
An application for designation of an area as logically subject to development under a unit agreement and for determination of the depth of a test well may be filed by a proponent of such an agreement at the proper BLM office. Such application shall be accompanied by a map or diagram on a scale of not less than 2 inches to 1 mile, outlining the area sought to be designated under this section. The Federal, State, Indian and privately owned land should be indicated by distinctive symbols or colors. Federal and Indian oil and gas leases and lease applications should be identified by lease serial numbers. Geologic information, including the results of any geophysical surveys, and any other available information showing that unitization is necessary and advisable in the public interest should be furnished. All information submitted under this section is subject to part 2 of this title, which sets forth the rules of the Department of the Interior relating to public availability of information contained in Departmental records, as provided under this part at § 3100.4 of this chapter. These data will be considered by the authorized officer and the applicant will be informed of the decision reached. The designation of an area, pursuant to an application filed under this section, shall not create an exclusive right to submit an agreement for such area, nor preclude the inclusion of such area or any party thereof in another unit area.
§ 3181.3 Parties to unit agreement.
The owners of any right, title, or interest in the oil and gas deposits to be unitized are regarded as proper parties to a proposed agreement. All such parties must be invited to join the agreement. If any party fails or refuses to join the agreement, the proponent of the agreement, at the time it is filed for approval, must submit evidence of reasonable effort made to obtain joinder of such party and, when requested, the reasons for such nonjoinders. The address of each signatory party to the agreement should be inserted below the signature. Each signature should be attested by at least one witness if not notarized. The signing parties may execute any number of counterparts of the agreement with the same force and effect as if all parties signed the same document, or may execute a ratification or consent in a separate instrument with like force and effect.
§ 3181.4 Inclusion of non-Federal lands.
(a) Where State-owned land is to be unitized with Federal lands, approval of the agreement by appropriate State officials must be obtained prior to its submission to the proper BLM office for final approval. When authorized by the laws of the State in which the unitized land is situated, appropriate provision may be made in the agreement, recognizing such laws to the extent that they are applicable to non-Federal unitized land.
(b) When Indian lands are included, modification of the unit agreement will be required where appropriate. Approval of an agreement containing Indian lands by the Bureau of Indian Affairs must be obtained prior to final approval by the authorized officer.
§ 3181.5 Compensatory royalty payment for unleased Federal land.
The unit agreement submitted by the unit proponent for approval by the authorized officer shall provide for payment to the Federal Government of a 12
Subpart 3182 – Qualifications of Unit Operator
§ 3182.1 Qualifications of unit operator.
A unit operator must qualify as to citizenship in the same manner as those holding interests in Federal oil and gas leases under the regulations at subpart 3102 of this title. The unit operator may be an owner of a working interest in the unit area or such other party as may be selected by the owners of working interests. The unit operator shall execute an acceptance of the duties and obligations imposed by the agreement. No designation of or change in a unit operator will become effective until approved by the authorized officer, and no such approval will be granted unless the successor unit operator is deemed qualified to fulfill the duties and obligations prescribed in the agreement.
Subpart 3183 – Filing and Approval of Documents
§ 3183.1 Where to file papers.
All papers, instruments, documents, and proposals submitted under this part shall be filed in the proper BLM office.
§ 3183.2 Designation of area.
An application for designation of a proposed unit area and determination of the required depth of test well(s) shall be filed in duplicate. A like number of counterparts should be filed of any geologic data and any other information submitted in support of such application.
§ 3183.3 Executed agreements.
Where a duly executed agreement is submitted for final approval, a minimum of four signed counterparts should be filed. The number of counterparts to be filed for supplementing, modifying, or amending an existing agreement, including change of unit operator, designation of new unit operator, establishment or revision of a participating area, and termination shall be prescribed by the authorized officer.
§ 3183.4 Approval of executed agreement.
(a) A unit agreement shall be approved by the authorized officer upon a determination that such agreement is necessary or advisable in the public interest and is for the purpose of more properly conserving natural resources. Such approval shall be incorporated in a Certification-Determination document appended to the agreement (see § 3186.1 of this part for an example), and the unit agreement shall not be deemed effective until the authorized officer has executed the Certification-Determination document. No such agreement shall be approved unless the parties signatory to the agreement hold sufficient interests in the unit area to provide reasonably effective control of operations.
(b) The public interest requirement of an approved unit agreement for unproven areas shall be satisfied only if the unit operator commences actual drilling operations and thereafter diligently prosecutes such operations in accordance with the terms of said agreement. If an application is received for voluntary termination of a unit agreement for an unproven area during its fixed term or such an agreement automatically expires at the end of its fixed term without the public interest requirement having been satisfied, the approval of that agreement by the authorized officer and lease segregations and extensions under § 3107.3-2 of this title shall be invalid, and no Federal lease shall be eligible for extensions under § 3107.4 of this title.
(c) Any modification of an approved agreement shall require the prior approval of the authorized officer.
§ 3183.5 Participating area.
Two counterparts of a substantiating geologic report, including structure-contour map, cross sections, and pertinent data, shall accompany each application for approval of a participating area or revision thereof under an approved agreement.
§ 3183.6 Plan of development.
Three counterparts of all plans of development and operation shall be submitted for approval under an approved agreement.
§ 3183.7 Return of approved documents.
One approved counterpart of each instrument or document submitted for approval will be returned to the unit operator by the authorized officer or his representative, together with such additional counterparts as may have been furnished for that purpose.
Subpart 3184 [Reserved]
Subpart 3185 – Appeals
§ 3185.1 Appeals.
Any party adversely affected by an instruction, order, or decision issued under the regulations in this part may request an administrative review before the State Director under § 3165.3 of this title. Any party adversely affected by a decision of the State Director after State Director review may appeal that decision as provided in part 4 of this title.
Subpart 3186 – Model Forms
§ 3186.1 Model onshore unit agreement for unproven areas.
This agreement, entered into as of the ____________ day of ____________, 19____ by and between the parties subscribing, ratifying, or consenting hereto, and herein referred to as the “parties hereto,” WHEREAS, the parties hereto are the owners of working, royalty, or other oil and gas interests in the unit area subject to this agreement; and WHEREAS, the Mineral Leasing Act of February 25, 1920, 41 Stat. 437, as amended, 30 U.S.C. Sec. 181 et seq., authorizes Federal lessees and their representatives to unite with each other, or jointly or separately with others, in collectively adopting and operating under a unit plan of development or operations of any oil and gas pool, field, or like area, or any part thereof for the purpose of more properly conserving the natural resources thereof whenever determined and certified by the Secretary of the Interior to be necessary or advisable in the public interest; and WHEREAS, the parties hereto hold sufficient interests in the __________ Unit Area covering the land hereinafter described to give reasonably effective control of operations therein; and WHEREAS, it is the purpose of the parties hereto to conserve natural resources, prevent waste, and secure other benefits obtainable through development and operation of the area subject to this agreement under the terms, conditions, and limitations herein set forth; NOW, THEREFORE, in consideration of the premises and the promises herein contained, the parties hereto commit to this agreement their respective interests in the below-defined unit area, and agree severally among themselves as follows: 1. ENABLING ACT AND REGULATIONS. The Mineral Leasing Act of February 25, 1920, as amended, supra, and all valid pertinent regulations including operating and unit plan regulations, heretofore issued thereunder or valid, pertinent, and reasonable regulations hereafter issued thereunder are accepted and made a part of this agreement as to Federal lands, provided such regulations are not inconsistent with the terms of this agreement; and as to non-Federal lands, the oil and gas operating regulations in effect as of the effective date hereof governing drilling and producing operations, not inconsistent with the terms hereof or the laws of the State in which the non-Federal land is located, are hereby accepted and made a part of this agreement. 2. UNIT AREA. The area specified on the map attached hereto marked Exhibit A is hereby designated and recognized as constituting the unit area, containing ______ acres, more or less. Exhibit A shows, in addition to the boundary of the unit area, the boundaries and identity of tracts and leases in said area to the extent known to the Unit Operator. Exhibit B attached hereto is a schedule showing to the extent known to the Unit Operator, the acreage, percentage, and kind of ownership of oil and gas interests in all lands in the unit area. However, nothing herein or in Exhibits A or B shall be construed as a representation by any party hereto as to the ownership of any interest other than such interest or interests as are shown in the Exhibits as owned by such party. Exhibits A and B shall be revised by the Unit Operator whenever changes in the unit area or in the ownership interests in the individual tracts render such revision necessary, or when requested by the Authorized Officer, hereinafter referred to as AO and not less than four copies of the revised Exhibits shall be filed with the proper BLM office. The above-described unit area shall when practicable be expanded to include therein any additional lands or shall be contracted to exclude lands whenever such expansion or contraction is deemed to be necessary or advisable to conform with the purposes of this agreement. Such expansion or contraction shall be effected in the following manner: (a) Unit Operator, on its own motion (after preliminary concurrence by the AO), or on demand of the AO, shall prepare a notice of proposed expansion or contraction describing the contemplated changes in the boundaries of the unit area, the reasons therefor, any plans for additional drilling, and the proposed effective date of the expansion or contraction, preferably the first day of a month subsequent to the date of notice. (b) Said notice shall be delivered to the proper BLM office, and copies thereof mailed to the last known address of each working interest owner, lessee and lessor whose interests are affected, advising that 30 days will be allowed for submission to the Unit Operator of any objections. (c) Upon expiration of the 30-day period provided in the preceding item (b) hereof, Unit Operator shall file with the AO evidence of mailing of the notice of expansion or contraction and a copy of any objections thereto which have been filed with Unit Operator, together with an application in triplicate, for approval of such expansion or contraction and with appropriate joinders. (d) After due consideration of all pertinent information, the expansion or contraction shall, upon approval by the AO, become effective as of the date prescribed in the notice thereof or such other appropriate date. (e) All legal subdivisions of lands (i.e., 40 acres by Government survey or its nearest lot or tract equivalent; in instances of irregular surveys, unusually large lots or tracts shall be considered in multiples of 40 acres or the nearest aliquot equivalent thereof), no parts of which are in or entitled to be in a participating area on or before the fifth anniversary of the effective date of the first initial participating area established under this unit agreement, shall be eliminated automatically from this agreement, effective as of said fifth anniversary, and such lands shall no longer be a part of the unit area and shall no longer be subject to this agreement, unless diligent drilling operations are in progress on unitized lands not entitled to participation on said fifth anniversary, in which event all such lands shall remain subject hereto for so long as such drilling operations are continued diligently, with not more than 90-days time elapsing between the completion of one such well and the commencement of the next such well. All legal subdivisions of lands not entitled to be in a participating area within 10 years after the effective date of the first initial participating area approved under this agreement shall be automatically eliminated from this agreement as of said tenth anniversary. The Unit Operator shall, within 90 days after the effective date of any elimination hereunder, describe the area so eliminated to the satisfaction of the AO and promptly notify all parties in interest. All lands reasonably proved productive of unitized substances in paying quantities by diligent drilling operations after the aforesaid 5-year period shall become participating in the same manner as during said first 5-year period. However, when such diligent drilling operations cease, all nonparticipating lands not then entitled to be in a participating area shall be automatically eliminated effective as the 91st day thereafter. Any expansion of the unit area pursuant to this section which embraces lands theretofore eliminated pursuant to this subsection 2(e) shall not be considered automatic commitment or recommitment of such lands. If conditions warrant extension of the 10-year period specified in this subsection, a single extension of not to exceed 2 years may be accomplished by consent of the owners of 90 percent of the working interest in the current nonparticipating unitized lands and the owners of 60 percent of the basic royalty interests (exclusive of the basic royalty interests of the United States) in nonparticipating unitized lands with approval of the AO, provided such extension application is submitted not later than 60 days prior to the expiration of said 10-year period. 3. UNITIZED LAND AND UNITIZED SUBSTANCES. All land now or hereafter committed to this agreement shall constitute land referred to herein as “unitized land” or “land subject to this agreement.” All oil and gas in any and all formations of the unitized land are unitized under the terms of this agreement and herein are called “unitized substances.” 4. UNIT OPERATOR. __________ is hereby designated as Unit Operator and by signature hereto as Unit Operator agrees and consents to accept the duties and obligations of Unit Operator for the discovery, development, and production of unitized substances as herein provided. Whenever reference is made herein to the Unit Operator, such reference means the Unit Operator acting in that capacity and not as an owner of interest in unitized substances, and the term “working interest owner” when used herein shall include or refer to Unit Operator as the owner of a working interest only when such an interest is owned by it. 5. RESIGNATION OR REMOVAL OF UNIT OPERATOR. Unit Operator shall have the right to resign at any time prior to the establishment of a participating area or areas hereunder, but such resignation shall not become effective so as to release Unit Operator from the duties and obligations of Unit Operator and terminate Unit Operator’s rights as such for a period of 6 months after notice of intention to resign has been served by Unit Operator on all working interest owners and the AO and until all wells then drilled hereunder are placed in a satisfactory condition for suspension or abandonment, whichever is required by the AO, unless a new Unit Operator shall have been selected and approved and shall have taken over and assumed the duties and obligations of Unit Operator prior to the expiration of said period. Unit Operator shall have the right to resign in like manner and subject to like limitations as above provided at any time after a participating area established hereunder is in existence, but in all instances of resignation or removal, until a successor Unit Operator is selected and approved as hereinafter provided, the working interest owners shall be jointly responsible for performance of the duties of Unit Operator, and shall not later than 30 days before such resignation or removal becomes effective appoint a common agent to represent them in any action to be taken hereunder. The resignation of Unit Operator shall not release Unit Operator from any liability for any default by it hereunder occurring prior to the effective date of its resignation. The Unit Operator may, upon default or failure in the performance of its duties or obligations hereunder, be subject to removal by the same percentage vote of the owners of working interests as herein provided for the selection of a new Unit Operator. Such removal shall be effective upon notice thereof to the AO. The resignation or removal of Unit Operator under this agreement shall not terminate its right, title, or interest as the owner of working interest or other interest in unitized substances, but upon the resignation or removal of Unit Operator becoming effective, such Unit Operator shall deliver possession of all wells, equipment, materials, and appurtenances used in conducting the unit operations to the new duly qualified successor Unit Operator or to the common agent, if no such new Unit Operator is selected to be used for the purpose of conducting unit operations hereunder. Nothing herein shall be construed as authorizing removal of any material, equipment, or appurtenances needed for the preservation of any wells. 6. SUCCESSOR UNIT OPERATOR. Whenever the Unit Operator shall tender his or its resignation as Unit Operator or shall be removed as hereinabove provided, or a change of Unit Operator is negotiated by the working interest owners, the owners of the working interests according to their respective acreage interests in all unitized land shall, pursuant to the Approval of the Parties requirements of the unit operating agreement, select a successor Unit Operator. Such selection shall not become effective until: (a) a Unit Operator so selected shall accept in writing the duties and responsibilities of Unit Operator, and (b) the selection shall have been approved by the AO. If no successor Unit Operator is selected and qualified as herein provided, the AO at his election may declare this unit agreement terminated. 7. ACCOUNTING PROVISIONS AND UNIT OPERATING AGREEMENT. If the Unit Operator is not the sole owner of working interests, costs and expenses incurred by Unit Operator in conducting unit operations hereunder shall be paid and apportioned among and borne by the owners of working interests, all in accordance with the agreement or agreements entered into by and between the Unit Operator and the owners of working interests, whether one or more, separately or collectively. Any agreement or agreements entered into between the working interest owners and the Unit Operator as provided in this section, whether one or more, are herein referred to as the “unit operating agreement.” Such unit operating agreement shall also provide the manner in which the working interest owners shall be entitled to receive their respective proportionate and allocated share of the benefits accruing hereto in conformity with their underlying operating agreements, leases, or other independent contracts, and such other rights and obligations as between Unit Operator and the working interest owners as may be agreed upon by Unit Operator and the working interest owners; however, no such unit operating agreement shall be deemed either to modify any of the terms and conditions of this unit agreement or to relieve the Unit Operator of any right or obligation established under this unit agreement, and in case of any inconsistency or conflict between this agreement and the unit operating agreement, this agreement shall govern. Two copies of any unit operating agreement executed pursuant to this section shall be filed in the proper BLM office prior to approval of this unit agreement. 8. RIGHTS AND OBLIGATIONS OF UNIT OPERATOR. Except as otherwise specifically provided herein, the exclusive right, privilege, and duty of exercising any and all rights of the parties hereto which are necessary or convenient for prospecting for, producing, storing, allocating, and distributing the unitized substances are hereby delegated to and shall be exercised by the Unit Operator as herein provided. Acceptable evidence of title to said rights shall be deposited with Unit Operator and, together with this agreement, shall constitute and define the rights, privileges, and obligations of Unit Operator. Nothing herein, however, shall be construed to transfer title to any land or to any lease or operating agreement, it being understood that under this agreement the Unit Operator, in its capacity as Unit Operator, shall exercise the rights of possession and use vested in the parties hereto only for the purposes herein specified. 9. DRILLING TO DISCOVERY. Within 6 months after the effective date hereof, the Unit Operator shall commence to drill an adequate test well at a location approved by the AO, unless on such effective date a well is being drilled in conformity with the terms hereof, and thereafter continue such drilling diligently until the ______ formation has been tested or until at a lesser depth unitized substances shall be discovered which can be produced in paying quantities (to wit: quantities sufficient to repay the costs of drilling, completing, and producing operations, with a reasonable profit) or the Unit Operator shall at any time establish to the satisfaction of the AO that further drilling of said well would be unwarranted or impracticable, provided, however, that Unit Operator shall not in any event be required to drill said well to a depth in excess of ____ feet. Until the discovery of unitized substances capable of being produced in paying quantities, the Unit Operator shall continue drilling one well at a time, allowing not more than 6 months between the completion of one well and the commencement of drilling operations for the next well, until a well capable of producing unitized substances in paying quantities is completed to the satisfaction of the AO or until it is reasonably proved that the unitized land is incapable of producing unitized substances in paying quantities in the formations drilled hereunder. Nothing in this section shall be deemed to limit the right of the Unit Operator to resign as provided in Section 5, hereof, or as requiring Unit Operator to commence or continue any drilling during the period pending such resignation becoming effective in order to comply with the requirements of this section. The AO may modify any of the drilling requirements of this section by granting reasonable extensions of time when, in his opinion, such action is warranted. Until the establishment of a participating area, the failure to commence a well subsequent to the drilling of the initial obligation well, or in the case of multiple well requirements, if specified, subsequent to the drilling of those multiple wells, as provided for in this (these) section(s), within the time allowed including any extension of time granted by the AO, shall cause this agreement to terminate automatically. Upon failure to continue drilling diligently any well other than the obligation well(s) commenced hereunder, the AO may, after 15 days notice to the Unit Operator, declare this unit agreement terminated. Failure to commence drilling the initial obligation well, or the first of multiple obligation wells, on time and to drill it diligently shall result in the unit agreement approval being declared invalid ab initio by the AO. In the case of multiple well requirements, failure to commence drilling the required multiple wells beyond the first well, and to drill them diligently, may result in the unit agreement approval being declared invalid ab initio by the AO; 10. PLAN OF FURTHER DEVELOPMENT AND OPERATION. Within 6 months after completion of a well capable of producing unitized substances in paying quantities, the Unit Operator shall submit for the approval of the AO an acceptable plan of development and operation for the unitized land which, when approved by the authorized officier, shall constitute the further drilling and development obligations of the Unit Operator under this agreement for the period specified therein. Thereafter, from time to time before the expiration of any existing plan, the Unit Operator shall submit for the approval of the AO a plan for an additional specified period for the development and operation of the unitized land. Subsequent plans should normally be filed on a calendar year basis not later than March 1 each year. Any proposed modification or addition to the existing plan should be filed as a supplement to the plan. Any plan submitted pursuant to this section shall provide for the timely exploration of the unitized area, and for the diligent drilling necessary for determination of the area or areas capable of producing unitized substances in paying quantities in each and every productive formation. This plan shall be as complete and adequate as the AO may determine to be necessary for timely development and proper conservation of the oil and gas resources in the unitized area and shall: (a) Specify the number and locations of any wells to be drilled and the proposed order and time for such drilling; and (b) Provide a summary of operations and production for the previous year. Plans shall be modified or supplemented when necessary to meet changed conditions or to protect the interests of all parties to this agreement. Reasonable diligence shall be exercised in complying with the obligations of the approved plan of development and operation. The AO is authorized to grant a reasonable extension of the 6-month period herein prescribed for submission of an initial plan of development and operation where such action is justified because of unusual conditions or circumstances. After completion of a well capable of producing unitized substances in paying quantities, no further wells, except such as may be necessary to afford protection against operations not under this agreement and such as may be specifically approved by the AO, shall be drilled except in accordance with an approved plan of development and operation. 11. PARTICIPATION AFTER DISCOVERY. Upon completion of a well capable of producing unitized substances in paying quantities, or as soon thereafter as required by the AO, the Unit Operator shall submit for approval by the AO, a schedule, based on subdivisions of the public-land survey or aliquot parts thereof, of all land then regarded as reasonably proved to be productive of unitized substances in paying quantities. These lands shall constitute a participating area on approval of the AO, effective as of the date of completion of such well or the effective date of this unit agreement, whichever is later. The acreages of both Federal and non-Federal lands shall be based upon appropriate computations from the courses and distances shown on the last approved public-land survey as of the effective date of each initial participating area. The schedule shall also set forth the percentage of unitized substances to be allocated, as provided in Section 12, to each committed tract in the participating area so established, and shall govern the allocation of production commencing with the effective date of the participating area. A different participating area shall be established for each separate pool or deposit of unitized substances or for any group thereof which is produced as a single pool or zone, and any two or more participating areas so established may be combined into one, on approval of the AO. When production from two or more participating areas is subsequently found to be from a common pool or deposit, the participating areas shall be combined into one, effective as of such appropriate date as may be approved or prescribed by the AO. The participating area or areas so established shall be revised from time to time, subject to the approval of the AO, to include additional lands then regarded as reasonably proved to be productive of unitized substances in paying quantities or which are necessary for unit operations, or to exclude lands then regarded as reasonably proved not to be productive of unitized substances in paying quantities, and the schedule of allocation percentages shall be revised accordingly. The effective date of any revision shall be the first of the month in which the knowledge or information is obtained on which such revision is predicated; provided, however, that a more appropriate effective date may be used if justified by Unit Operator and approved by the AO. No land shall be excluded from a participating area on account of depletion of its unitized substances, except that any participating area established under the provisions of this unit agreement shall terminate automatically whenever all completions in the formation on which the participating area is based are abandoned. It is the intent of this section that a participating area shall represent the area known or reasonably proved to be productive of unitized substances in paying quantities or which are necessary for unit operations; but, regardless of any revision of the participating area, nothing herein contained shall be construed as requiring any retroactive adjustment for production obtained prior to the effective date of the revision of the participating area. In the absence of agreement at any time between the Unit Operator and the AO as to the proper definition or redefinition of a participating area, or until a participating area has, or areas have, been established, the portion of all payments affected thereby shall, except royalty due the United States, be impounded in a manner mutually acceptable to the owners of committed working interests. Royalties due the United States shall be determined by the AO and the amount thereof shall be deposited, as directed by the AO, until a participating area is finally approved and then adjusted in accordance with a determination of the sum due as Federal royalty on the basis of such approved participating area. Whenever it is determined, subject to the approval of the AO, that a well drilled under this agreement is not capable of production of unitized substances in paying quantities and inclusion in a participating area of the land on which it is situated is unwarranted, production from such well shall, for the purposes of settlement among all parties other than working interest owners, be allocated to the land on which the well is located, unless such land is already within the participating area established for the pool or deposit from which such production is obtained. Settlement for working interest benefits from such a nonpaying unit well shall be made as provided in the unit operating agreement. 12. ALLOCATION OF PRODUCTION. All unitized substances produced from a participating area established under this agreement, except any part thereof used in conformity with good operating practices within the unitized area for drilling, operating, and other production or development purposes, or for repressuring or recycling in accordance with a plan of development and operations that has been approved by the AO, or unavoidably lost, shall be deemed to be produced equally on an acreage basis from the several tracts of unitized land and unleased Federal land, if any, included in the participating area established for such production. Each such tract shall have allocated to it such percentage of said production as the number of acres of such tract included in said participating area bears to the total acres of unitized land and unleased Federal land, if any, included in said participating area. There shall be allocated to the working interest owner(s) of each tract of unitized land in said participating area, in addition, such percentage of the production attributable to the unleased Federal land within the participating area as the number of acres of such unitized tract included in said participating area bears to the total acres of unitized land in said participating area, for the payment of the compensatory royalty specified in section 17 of this agreement. Allocation of production hereunder for purposes other than for settlement of the royalty, overriding royalty, or payment out of production obligations of the respective working interest owners, including compensatory royalty obligations under section 17, shall be prescribed as set forth in the unit operating agreement or as otherwise mutually agreed by the affected parties. It is hereby agreed that production of unitized substances from a participating area shall be allocated as provided herein, regardless or whether any wells are drilled on any particular part or tract of the participating area. If any gas produced from one participating area is used for repressuring or recycling purposes in another participating area, the first gas withdrawn from the latter participating area for sale during the life of this agreement shall be considered to be the gas so transferred, until an amount equal to that transferred shall be so produced for sale and such gas shall be allocated to the participating area from which initially produced as such area was defined at the time that such transferred gas was finally produced and sold. 13. DEVELOPMENT OR OPERATION OF NONPARTICIPATING LAND OR FORMATIONS. Any operator may with the approval of the AO, at such party’s sole risk, costs, and expense, drill a well on the unitized land to test any formation provided the well is outside any participating area established for that formation, unless within 90 days of receipt of notice from said party of his intention to drill the well, the Unit Operator elects and commences to drill the well in a like manner as other wells are drilled by the Unit Operator under this agreement. If any well drilled under this section by a non-unit operator results in production of unitized substances in paying quantities such that the land upon which it is situated may properly be included in a participating area, such participating area shall be established or enlarged as provided in this agreement and the well shall thereafter be operated by the Unit Operator in accordance with the terms of this agreement and the unit operating agreement. If any well drilled under this section by a non-unit operator that obtains production in quantities insufficient to justify the inclusion of the land upon which such well is situated in a participating area, such well may be operated and produced by the party drilling the same, subject to the conservation requirements of this agreement. The royalties in amount or value of production from any such well shall be paid as specified in the underlying lease and agreements affected. 14. ROYALTY SETTLEMENT. The United States and any State and any royalty owner who is entitled to take in kind a share of the substances now unitized hereunder shall be hereafter be entitled to the right to take in kind its share of the unitized substances, and Unit Operator, or the non-unit operator in the case of the operation of a well by a non-unit operator as herein provided for in special cases, shall make deliveries of such royalty share taken in kind in conformity with the applicable contracts, laws, and regulations. Settlement for royalty interest not taken in kind shall be made by an operator responsible therefor under existing contracts, laws and regulations, or by the Unit Operator on or before the last day of each month for unitized substances produced during the preceding calendar month; provided, however, that nothing in this section shall operate to relieve the responsible parties of any land from their respective lease obligations for the payment of any royalties due under their leases. If gas obtained from lands not subject to this agreement is introduced into any participating area hereunder, for use in repressuring, stimulation of production, or increasing ultimate recovery, in conformity with a plan of development and operation approved by the AO, a like amount of gas, after settlement as herein provided for any gas transferred from any other participating area and with appropriate deduction for loss from any cause, may be withdrawn from the formation into which the gas is introduced, royalty free as to dry gas, but not as to any products which may be extracted therefrom; provided that such withdrawal shall be at such time as may be provided in the approved plan of development and operation or as may otherwise be consented to by the AO as conforming to good petroleum engineering practice; and provided further, that such right of withdrawal shall terminate on the termination of this unit agreement. Royalty due the United States shall be computed as provided in 30 CFR Group 200 and paid in value or delivered in kind as to all unitized substances on the basis of the amounts thereof allocated to unitized Federal land as provided in Section 12 at the rates specified in the respective Federal leases, or at such other rate or rates as may be authorized by law or regulation and approved by the AO; provided, that for leases on which the royalty rate depends on the daily average production per well, said average production shall be determined in accordance with the operating regulations as though each participating area were a single consolidated lease. 15. RENTAL SETTLEMENT. Rental or minimum royalties due on leases committed hereto shall be paid by the appropriate parties under existing contracts, laws, and regulations, provided that nothing herein contained shall operate to relieve the responsible parties of the land from their respective obligations for the payment of any rental or minimum royalty due under their leases. Rental or minimum royalty for lands of the United States subject to this agreement shall be paid at the rate specified in the respective leases from the United States unless such rental or minimum royalty is waived, suspended, or reduced by law or by approval of the Secretary or his duly authorized representative. With respect to any lease on non-Federal land containing provisions which would terminate such lease unless drilling operations are commenced upon the land covered thereby within the time therein specified or rentals are paid for the privilege of deferring such drilling operations, the rentals required thereby shall, notwithstanding any other provision of this agreement, be deemed to accure and become payable during the term thereof as extended by this agreement and until the required drilling operations are commenced upon the land covered thereby, or until some portion of such land is included within a participating area. 16. CONSERVATION. Operations hereunder and production of unitized substances shall be conducted to provide for the most economical and efficient recovery of said substances without waste, as defined by or pursuant to State or Federal law or regulation. 17. DRAINAGE. (a) The Unit Operator shall take such measures as the AO deems appropriate and adequate to prevent drainage of unitized substances from unitized land by wells on land not subject to this agreement, which shall include the drilling of protective wells and which may include the payment of a fair and reasonable compensatory royalty, as determined by the AO. (b) Whenever a participating area approved under section 11 of this agreement contains unleased Federal lands, the value of 12 18. LEASES AND CONTRACTS CONFORMED AND EXTENDED. The terms, conditions, and provisions of all leases, subleases, and other contracts relating to exploration, drilling, development or operation for oil or gas on lands committed to this agreement are hereby expressly modified and amended to the extent necessary to make the same conform to the provisions hereof, but otherwise to remain in full force and effect; and the parties hereto hereby consent that the Secretary shall and by his approval hereof, or by the approval hereof by his duly authorized representative, does hereby establish, alter, change, or revoke the drilling, producing, rental, minimum royalty, and royalty requirements of Federal leases committed hereto and the regulations in respect thereto to conform said requirements to the provisions of this agreement, and, without limiting the generality of the foregoing, all leases, subleases, and contracts are particularly modified in accordance with the following: (a) The development and operation of lands subject to this agreement under the terms hereof shall be deemed full performance of all obligations for development and operation with respect to each and every separately owned tract subject to this agreement, regardless of whether there is any development of any particular tract of this unit area. (b) Drilling and producing operations performed hereunder upon any tract of unitized lands will be accepted and deemed to be performed upon and for the benefit of each and every tract of unitized land, and no lease shall be deemed to expire by reason of failure to drill or produce wells situated on the land therein embraced. (c) Suspension of drilling or producing operations on all unitized lands pursuant to direction or consent of the AO shall be deemed to constitute such suspension pursuant to such direction or consent as to each and every tract of unitized land. A suspension of drilling or producing operations limited to specified lands shall be applicable only to such lands. (d) Each lease, sublease, or contract relating to the exploration, drilling, development, or operation for oil or gas of lands other than those of the United States committed to this agreement which, by its terms might expire prior to the termination of this agreement, is hereby extended beyond any such term so provided therein so that it shall be continued in full force and effect for and during the term of this agreement. (e) Any Federal lease committed hereto shall continue in force beyond the term so provided therein or by law as to the land committed so long as such lease remains subject hereto, provided that production of unitized substances in paying quantities is established under this unit agreement prior to the expiration date of the term of such lease, or in the event actual drilling operations are commenced on unitized land, in accordance with provisions of this agreement, prior to the end of the primary term of such lease and are being diligently prosecuted at that time, such lease shall be extended for 2 years, and so long thereafter as oil or gas is produced in paying quantities in accordance with the provisions of the Mineral Leasing Act, as amended. (f) Each sublease or contract relating to the operation and development of unitized substances from lands of the United States committed to this agreement, which by its terms would expire prior to the time at which the underlying lease, as extended by the immediately preceding paragraph, will expire is hereby extended beyond any such term so provided therein so that it shall be continued in full force and effect for and during the term of the underlying lease as such term is herein extended. (g) The segregation of any Federal lease committed to this agreement is governed by the following provision in the fourth paragraph of sec. 17(m) of the Mineral Leasing Act, as amended by the Act of September 2, 1960 (74 Stat. 781-784) (30 U.S.C. 226(m)): “Any [Federal] lease heretofore or hereafter committed to any such [unit] plan embracing lands that are in part within and in part outside of the area covered by any such plan shall be segregated into separate leases as to the lands committed and the lands not committed as of the effective date of unitization: Provided, however, That any such lease as to the nonunitized portion shall continue in force and effect for the term thereof but for not less than two years from the date of such segregation and so long thereafter as oil or gas is produced in paying quantities.” 19. CONVENANTS RUN WITH LAND. The covenants herein shall be construed to be covenants running with the land with respect to the interests of the parties hereto and their successors in interest until this agreement terminates, and any grant, transfer or conveyance of interest in land or leases subject hereto shall be and hereby is conditioned upon the assumption of all privileges and obligations hereunder by the grantee, transferee, or other successor in interest. No assignment or transfer of any working interest, royalty, or other interest subject hereto shall be binding upon Unit Operator until the first day of the calendar month after Unit Operator is furnished with the original, photostatic, or certified copy of the instrument of transfer. 20. EFFECTIVE DATE AND TERM. This agreement shall become effective upon approval by the AO and shall automatically terminate 5 years from said effective date unless: (a) Upon application by the Unit Operator such date of expiration is extended by the AO, or (b) It is reasonably determined prior to the expiration of the fixed term or any extension thereof that the unitized land is incapable of production of unitized substances in paying quantities in the formations tested hereunder, and after notice of intention to terminate this agreement on such ground is given by the Unit Operator to all parties in interest at their last known addresses, this agreement is terminated with the approval of the AO, or (c) A valuable discovery of unitized substances in paying quantities has been made or accepted on unitized land during said initial term or any extension thereof, in which event this agreement shall remain in effect for such term and so long thereafter as unitized substances can be produced in quantities sufficient to pay for the cost of producing same from wells on unitized land within any participating area established hereunder. Should production cease and diligent drilling or reworking operations to restore production or new production are not in progress within 60 days and production is not restored or should new production not be obtained in paying quantities on committed lands within this unit area, this agreement will automatically terminate effective the last day of the month in which the last unitized production occurred, or (d) It is voluntarily terminated as provided in this agreement. Except as noted herein, this agreement may be terminated at any time prior to the discovery of unitized substances which can be produced in paying quantities by not less than 75 per centum, on an acreage basis, of the working interest owners signatory hereto, with the approval of the AO. The Unit Operator shall give notice of any such approval to all parties herto. If the public interest requirement is not satisfied, the approval of this unit by the AO shall be invalid. 21. RATE OF PROSPECTING, DEVELOPMENT, AND PRODUCTION. The AO is hereby vested with authority to alter or modify from time to time, in his discretion, the quantity and rate of production under this agreement when such quantity and rate are not fixed pursuant to Federal or State law, or do not conform to any Statewide voluntary conservation or allocation program which is established, recognized, and generally adhered to by the majority of operators in such State. The above authority is hereby limited to alteration or modifications which are in the public interest. The public interest to be served and the purpose thereof, must be stated in the order of alteration or modification. Without regard to the foregoing, the AO is also hereby vested with authority to alter or modify from time to time, in his discretion, the rate of prospecting and development and the quantity and rate of production under this agreement when such alteration or modification is in the interest of attaining the conservation objectives stated in this agreement and is not in violation of any applicable Federal or State law. Powers is the section vested in the AO shall only be exercised after notice to Unit Operator and opportunity for hearing to be held not less than 15 days from notice. 22. APPEARANCES. The Unit Operator shall, after notice to other parties affected, have the right to appear for and on behalf of any and all interests affected hereby before the Department of the Interior and to appeal from orders issued under the regulations of said Department, or to apply for relief from any of said regulations, or in any proceedings relative to operations before the Department, or any other legally constituted authority; provided, however, that any other interested party shall also have the right at its own expense to be heard in any such proceeding. 23. NOTICES. All notices, demands, or statements required hereunder to be given or rendered to the parties hereto shall be in writing and shall be personally delivered to the party or parties, or sent by postpaid registered or certified mail, to the last-known address of the party or parties. 24. NO WAIVER OF CERTAIN RIGHTS. Nothing contained in this agreement shall be construed as a waiver by any party hereto of the right to assert any legal or constitutional right or defense as to the validity or invalidity of any law of the State where the unitized lands are located, or of the United States, or regulations issued thereunder in any way affecting such party, or as a waiver by any such party of any right beyond his or its authority to waive. 25. UNAVOIDABLE DELAY. All obligations under this agreement requiring the Unit Operator to commence or continue drilling, or to operate on, or produce unitized substances from any of the lands covered by this agreement, shall be suspended while the Unit Operator, despite the exercise of due care and diligence, is prevented from complying with such obligations, in whole or in part, by strikes, acts of God, Federal, State, or municipal law or agencies, unavoidable accidents, uncontrollable delays in transportation, inability to obtain necessary materials or equipment in the open market, or other matters beyond the reasonable control of the Unit Operator, whether similar to matters herein enumerated or not. 26. NONDISCRIMINATION. In connection with the performance of work under this agreement, the Unit Operator agrees to comply with all the provisions of section 202 (1) to (7) inclusive, of Executive Order 11246 (30 FR 12319), as amended, which are hereby incorporated by reference in this agreement. 27. LOSS OF TITLE. In the event title to any tract of unitized land shall fail and the true owner cannot be induced to join in this unit agreement, such tract shall be automatically regarded as not committed hereto, and there shall be such readjustment of future costs and benefits as may be required on account of the loss of such title. In the event of a dispute as to title to any royalty, working interest, or other interests subject thereto, payment or delivery on account thereof may be withheld without liability for interest until the dispute is finally settled; provided, that, as to Federal lands or leases, no payments of funds due the United States shall be withheld, but such funds shall be deposited as directed by the AO, to be held as unearned money pending final settlement of the title dispute, and then applied as earned or returned in accordance with such final settlement. Unit Operator as such is relieved from any responsibility for any defect or failure of any title hereunder. 28. NONJOINDER AND SUBSEQUENT JOINDER. If the owner of any substantial interest in a tract within the unit area fails or refuses to subscribe or consent to this agreement, the owner of the working interest in that tract may withdraw the tract from this agreement by written notice delivered to the proper BLM office and the Unit Operator prior to the approval of this agreement by the AO. Any oil or gas interests in lands within the unit area not committed hereto prior to final approval may thereafter be committed hereto by the owner or owners thereof subscribing or consenting to this agreement, and, if the interest is a working interest, by the owner of such interest also subscribing to the unit operating agreement. After operations are commenced hereunder, the right of subsequent joinder, as provided in this section, by a working interest owner is subject to such requirements or approval(s), if any, pertaining to such joinder, as may be provided for in the unit operating agreement. After final approval hereof, joinder by a nonworking interest owner must be consented to in writing by the working interest owner committed hereto and responsible for the payment of any benefits that may accrue hereunder in behalf of such nonworking interest. A nonworking interest may not be committed to this unit agreement unless the corresponding working interest is committed hereto. Joinder to the unit agreement by a working interest owner, at any time, must be accompanied by appropriate joinder to the unit operating agreement, in order for the interest to be regarded as committed to this agreement. Except as may otherwise herein be provided, subsequent joinders to this agreement shall be effective as of the date of the filing with the AO of duly executed counterparts of all or any papers necessary to establish effective commitment of any interest and/or tract to this agreement. 29. COUNTERPARTS. This agreement may be executed in any number of counterparts, no one of which needs to be executed by all parties, or may be ratified or consented to by separate instrument in writing specifically referring hereto and shall be binding upon all those parties who have executed such a counterpart, ratification, or consent hereto with the same force and effect as if all such parties had signed the same document, and regardless of whether or not it is executed by all other parties owning or claiming an interest in the lands within the above-described unit area. If as a result of any such surrender, the working interest rights as to such lands become vested in any party other than the fee owner of the unitized substances, said party may forfeit such rights and further benefits from operations hereunder as to said land to the party next in the chain of title who shall be and become the owner of such working interest. If as the result of any such surrender or forfeiture working interest rights become vested in the fee owner of the unitized substances, such owner may: (a) Accept those working interest rights subject to this agreement and the unit operating agreement; or (b) Lease the portion of such land as is included in a participating area established hereunder subject to this agreement and the unit operating agreement; or (c) Provide for the independent operation of any part of such land that is not then included within a participating area established hereunder. If the fee owner of the unitized substances does not accept the working interest rights subject to this agreement and the unit operating agreement or lease such lands as above provided within 6 months after the surrendered or forfeited, working interest rights become vested in the fee owner; the benefits and obligations of operations accruing to such lands under this agreement and the unit operating agreement shall be shared by the remaining owners of unitized working interests in accordance with their respective working interest ownerships, and such owners of working interests shall compensate the fee owner of unitized substances in such lands by paying sums equal to the rentals, minimum royalties, and royalties applicable to such lands under the lease in effect when the lands were unitized. An appropriate accounting and settlement shall be made for all benefits accruing to or payments and expenditures made or incurred on behalf of such surrendered or forfeited working interests subsequent to the date of surrender or forfeiture, and payment of any moneys found to be owing by such an accounting shall be made as between the parties within 30 days. The exercise of any right vested in a working interest owner to reassign such working interest to the party from whom obtained shall be subject to the same conditions as set forth in this section in regard to the exercise of a right to surrender. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed and have set opposite their respective names the date of execution. 1. Executed agreement to be legally complete. 2. Agreement submitted for approval must contain Exhibit A and B in accordance with models shown in §§ 3186.1-1 and 3186.1-2 of this title. 3. Consents should be identified (in pencil) by tract numbers as listed in Exhibit B and assembled in that order as far as practical. Unit agreements submitted for approval shall include a list of the overriding royalty interest owners who have executed ratifications of the unit agreement. Subsequent joinders by overriding royalty interest owners shall be submitted in the same manner, except each must include or be accompanied by a statement that the corresponding working interest owner has consented in writing to such joinder. Original ratifications of overriding royalty owners will be kept on file by the Unit Operator or his designated agent. 4. All leases held by option should be noted on Exhibit B with an explanation as to the type of option, i.e., whether for operating rights only, for full leasehold record title, or for certain interests to be earned by performance. In all instances, optionee committing such interests is expected to exercise option promptly. 5. All owners of oil and gas interests must be invited to join the unit agreement, and statement to that effect must accompany executed agreement, together with summary of results of such invitations. A written reason for all interest owners who have not joined shall be furnished by the unit operator. 6. In the event fish and wildlife lands are included, add the following as a separate section: “Wildlife Stipulation. Nothing in this unit agreement shall modify the special Federal lease stipulations applicable to lands under the jurisdiction of the United States Fish and Wildlife Service.” 7. In the event National Forest System lands are included within the unit area, add the following as a separate section: “Forest Land Stipulation. Notwithstanding any other terms and conditions contained in this agreement, all of the stipulations and conditions of the individual leases between the United States and its lessees or their successors or assigns embracing lands within the unit area included for the protection of lands or functions under the jurisdiction of the Secretary of Agriculture shall remain in full force and effect the same as though this agreement had not been entered into, and no modification thereof is authorized except with the prior consent in writing of the Regional Forester, United States Forest Service, ______, 8. In the event National Forest System lands within the Jackson Hole Area of Wyoming are included within the unit area, additional “special” stipulations may be required to be included in the unit agreement by the U.S. Forest Service, including the Jackson Hole Special Stipulation. 9. In the event reclamation lands are included, add the following as a new separate section: “Reclamation Lands. Nothing in this agreement shall modify the special, Federal lease stipulations applicable to lands under the jurisdiction of the Bureau of Reclamation.” 10. In the event a powersite is embraced in the proposed unit area, the following section should be added: “Powersite. Nothing in this agreement shall modify the special, Federal lease stipulations applicable to lands under the jurisdiction of the Federal Energy Regulatory Commission.” 11. In the event special surface stipulations have been attached to any of the Federal oil and gas leases to be included, add the following as a separate section: “Special surface stipulations. Nothing in this agreement shall modify the special Federal lease stipulations attached to the individual Federal oil leases.” 12. In the event State lands are included in the proposed unit area, add the appropriate State Lands Section as separate section. 13. In the event restricted Indian lands are involved, consult the AO regarding appropriate requirements under § 3181.4(b) of this title. Pursuant to the authority vested in the Secretary of the Interior, under the Act approved February 25, 1920, 41 Stat. 437, as amended, 30 U.S.C. sec. 181, et seq., and delegated to (the appropriate Name and Title of the authorized officer, BLM) under the authority of 43 CFR part 3180, I do hereby: A. Approve the attached agreement for the development and operation of the ____, Unit Area, State of ______. This approval shall be invalid ab initio if the public interest requirement under § 3183.4(b) of this title is not met. B. Certify and determine that the unit plan of development and operation contemplated in the attached agreement is necessary and advisable in the public interest for the purpose of more properly conserving the natural resources. C. Certify and determine that the drilling, producing, rental, minimum royalty, and royalty requirements of all Federal leases committed to said agreement are hereby established altered, changed, or revoked to conform with the terms and conditions of this agreement. Dated ________.
§ 3186.1-1 Model Exhibit “A”.
§ 3186.1-2 Model Exhibit “B”.
Swan Unit Area, Campbell County, Wyoming
| Tract No. | Description of land | No. of acres | Serial No. and expiration date of lease | Basic royalty and ownership percentage | Lessee of record | Overriding royalty and percentage | Working interest and percentage |
|---|---|---|---|---|---|---|---|
| All in the area of T54N-R59W, 6th P.M. | |||||||
| Federal Land | |||||||
| 1 | Sec. 14: All | 1,920.00 | W-8470, 6-30-81 | U.S.: All | T.J. Cook 100% | T.J. Cook 2% | Frost Oil Co. 100%. |
| Sec. 15: All | |||||||
| Sec. 23: All | |||||||
| 2 | Sec. 35: All | 640.00 | W-9123, 7-31-81 | U.S.: All | O.M. Odom 100% | O.M. Odom 1% | Deer Oil Co. 100%. |
| 3 | Sec. 21: All | 1,280.00 | W-41345, 6-30-85 | U.S.: All | Max Pen 50% | Max Pen 1% | Frost Oil Co. 100%. |
| Sec. 28: All | Sam Small 50% | Sam Small 1% | |||||
| 4 | Sec. 27: All | 1,280.00 | W-41679, 6-30-85 | U.S.: All | Al Preen 100% | Al Preen 2% | Deer Oil Co. 50%. |
| Doe Oil Co.,30% | |||||||
| Able Drilling Co. 20%. | |||||||
| Sec. 33: All | Deer Oil Co. 50%. | ||||||
| Doe Oil Co., 30% | |||||||
| Able Drilling Co. 20%. | |||||||
| 5 | Sec. 26: All | 961.50 | W-52780,12-31-85 | U.S.: All | Deer Oil Co. 100% | J.G. Goodin 2% | Deer Oil Co. 100%. |
| Sec. 25: Lots 3,4, SW | |||||||
| 6 | Sec. 24: Lots 1,2,3,4,W | 965.80 | W-53970, 2-28-86 | U.S.: All | T.H. Holder 100% | T.H. Holder 100%. | |
| Sec. 25: Lots 1,2,NW | |||||||
| 6 Federal tracts totalling 7,047.30 acres or 68.76018% of unit area | |||||||
| State Land | |||||||
| 7 | Sec. 16: All | 1,280.60 | 78620, 6-30-88 | State: All | Deer Oil Co. 100% | T.T. Timo 2% | Deer Oil Co. 100%. |
| Sec. 36: Lots 1, 2, 3, 4, W | |||||||
| 1 State tract totalling 1,280.60 acres or 12.49476% of unit area. | |||||||
| Patented Land | |||||||
| 8 | Sec. 13: Lots 1, 2, 3, 4, W | 641.20 | 5-31-82 | J.C. Smith: 100% | Doe Oil Co. 100% | Doe Oil Co. 100%. | |
| 9 | Sec. 22: All | 640.00 | 5-31-82 | T.J. Cook: 100% | W.W. Smith 100% | Sam Spade 1% | W.W. Smith 100%. |
| 10 | Sec. 34: All | 640.00 | 6-30-82 | A.A. Aben: 75%, L.P. Carr: 25% | Deer Oil Co. 100% | Deer Oil Co. 100%. | |
| 3 Patented tracts totalling 1,921.20 acres or 18.74506% of unit area | |||||||
| Total: 10 tracts 10,249.10 acres in entire unit area. | |||||||
§ 3186.2 Model collective bond.
Know all men by these presents. That we, __________________ (Name of unit operator), signing as Principal, for and on behalf of the record owners of unitized substances now or hereafter covered by the unit agreement for the __________________ (Name of unit), approved __________________ (Date) ____________________ (Name and address of Surety), as Surety are jointly and severally held and firmly bound unto the United States of America in the sum of ______ (Amount of bond) Dollars, lawful money of the United States, for the use and benefit of and to be paid to the United States and any entryman or patentee of any portion of the unitized land here-to-fore entered or patented with the reservation of the oil or gas deposits to the United States, for which payment, well and truly to be made, we bind ourselves, and each of us, and each of our heirs, executors, administrators, successors, and assigns by these presents. The condition of the foregoing obligation is such, that, whereas the Secretary of the Interior on ________________ (Date) approved under the provisions of the Act of February 25, 1920, 41 Stat. 437, 30 U.S.C. secs. 181 et seq., as amended by the Act of August 8, 1946, 60 Stat. 950, a unit agreement for the development and operation of the ______________________ (Name of unit and State); and Whereas said Principal and record owners of unitized substances, pursuant to said unit agreement, have entered into certain covenants and agreements as set forth therein, under which operations are to be conducted; and Whereas said Principal as Unit Operator has assumed the duties and obligations of the respective owners of unitized substances as defined in said unit agreement; and Whereas said Principal and Surety agree to remain bound in the full amount of the bond for failure to comply with the terms of the unit agreement, and the payment of rentals, minimum royalties, and royalties due under the Federal leases committed to said unit agreement; and Whereas the Surety hereby waives any right of notice of and agrees that this bond may remain in force and effect notwithstanding; (a) Any additions to or change in the ownership of the unitized substances herein described; (b) Any suspension of the drilling or producing requirements or waiver, suspension, or reduction of rental or minimum royalty payments or reduction of royalties pursuant to applicable laws or regulations thereunder; and Whereas said Principal and Surety agree to the payment of compensatory royalty under the regulations of the Interior Department in lieu of drilling necessary offset wells in the event of drainage; and Whereas nothing herein contained shall preclude the United States (from requiring an additional bond at any time when deemed necessary); Now, therefore, if the said Principal shall faithfully comply with all of the provisions of the above-indentified unit agreement and with the terms of the leases committed thereto, then the above obligation is to be of no effect; otherwise to remain in full force and virtue. Signed, sealed, and delivered this ______ day of ____________________, in the presence of: Witnesses:
§ 3186.3 Model for designation of successor unit operator by working interest owners.
Designation of successor Unit Operator ______ Unit Area, County of ______, State of ______. No. ______. This indenture, dated as of the __________ day of ____________, 19____, by and between ______________, hereinafter designated as “First Party,” and the owners of unitized working interests, hereinafter designated as “Second Parties,” Witnesseth: Whereas under the provisions of the Act of February 25, 1920, 41 Stat. 437, 30 U.S.C. secs. 181, et seq., as amended by the Act of August 8, 1946, 60 Stat. 950, the Secretary of the Interior, on the ____________ day of ____________, 19____, approved a unit agreement ______ Unit Area, wherein __________________ is designated as Unit Operator, and Whereas said __________________ has resigned as such Operator Whereas the First Party has been and hereby is designated by Second Parties as Unit Operator, and said First Party desires to assume all the rights, duties, and obligations of Unit Operator under the said unit agreement: Now, therefore, in consideration of the premises hereinbefore set forth and the promises hereinafter stated, the First Party hereby covenants and agrees to fulfill the duties and assume the obligations of Unit Operator under and pursuant to all the terms of the ______ unit agreement, and the Second Parties covenant and agree that, effective upon approval of this indenture by the (Name and Title of authorized officer, BLM) First Party shall be granted the exclusive right and privilege of exercising any and all rights and privileges as Unit Operator, pursuant to the terms and conditions of said unit agreement; said Unit agreement being hereby incorporated herein by reference and made a part hereof as fully and effectively as though said unit agreement were expressly set forth in this instrument. In witness whereof, the parties hereto have executed this instrument as of the date hereinabove set forth. I hereby approve the foregoing indenture designating __________________ as Unit Operator under the unit agreement for the ______ Unit Area, this __________ day of ____________, 19____.
§ 3186.4 Model for change in unit operator by assignment.
Change in Unit Operator ______ Unit Area, County of ____________, State of ______________, No. __. This indenture, dated as of the ____________ day of ______________, 19____, by and between ____________________ hereinafter designated as “First Party,” and __________________ hereinafter designated as “Second Party.” Witnesseth: Whereas under the provisions of the Act of February 25, 1920, 41 Stat. 437 30 U.S.C. secs. 181, et seq., as amended by the Act of August 8, 1946, 60 Stat. 950, the Department of the Interior, on the ____________ day of ______________, 19____, approved a unit agreement for the ______ Unit Area, wherein the First Party is designated as Unit Operator; and Whereas the First Party desires to transfer, assign, release, and quitclaim, and the Second Party desires to assume all the rights, duties and obligations of Unit Operator under the unit agreement; and Whereas for sufficient and valuable consideration, the receipt whereof is hereby acknowledged, the First Party has transferred, conveyed, and assigned all his/its rights under certain operating agreements involving lands within the area set forth in said unit agreement unto the Second Party; Now, therefore, in consideration of the premises hereinbefore set forth, the First Party does hereby transfer, assign, release, and quitclaim unto Second Party all of First Party’s rights, duties, and obligations as Unit Operator under said unit agreement; and Second Party hereby accepts this assignment and hereby covenants and agrees to fulfill the duties and assume the obligations of Unit Operator under and pursuant to all the terms of said unit agreement to the full extent set forth in this assignment, effective upon approval of this indenture by the (Name and Title of authorized officer, BLM); said unit agreement being hereby incorporated herein by reference and made a part hereof as fully and effectively as though said unit agreement were expressly set forth in this instrument. In witness whereof, the parties hereto have executed this instrument as of the date hereinabove set forth. I hereby approve the foregoing indenture designating ______ as Unit Operator under the unit agreement for the ______ Unit Area, this ____________ day of __________________, 19____.
PART 3190 – DELEGATION OF AUTHORITY, COOPERATIVE AGREEMENTS AND CONTRACTS FOR OIL AND GAS INSPECTION
Subpart 3190 – Delegation of Authority, Cooperative Agreements and Contracts for Oil and Gas Inspections: General
§ 3190.0-1 Purpose.
The purpose of the part is to provide procedures for approval, implementation and administration of delegations of authority, cooperative agreements and contracts for inspection, enforcement and investigative activities related to oil and gas production operations on Federal and Indian lands under the provisions of the Federal Oil and Gas Royalty Management Act of 1982 (30 U.S.C. 1701 et seq.).
§ 3190.0-3 Authority.
The Federal Oil and Gas Royalty Management Act of 1982 (30 U.S.C. 1701 et seq.).
§ 3190.0-4 Objective.
The objective of this part is to assure that delegations of authority, cooperative agreements and contracts as provided for under the Federal Oil and Gas Royalty Management Act are carried out in accordance with the provisions of the Act and this title.
§ 3190.0-5 Definitions.
As used in this part, the term:
(a) Inspection means the examination of oil and gas lease sites, records or motor vehicle documentation by an authorized representative of the Secretary of the Interior to determine if there is compliance with applicable regulations, Onshore Oil and Gas orders, approvals, Notices to Lessees and Operators, approvals, other written orders, the mineral leasing laws, and the Federal Oil and Gas Royalty Management Act.
(b) Investigation means any inquiry into any action by or on behalf of a lessee or operator of a Federal or Indian lease, or transporter of oil from such lease.
(c) Contractor means any individual, corporation, association, partnership, consortium or joint venture who has contracted to carry out activities under this part.
(d) Enforcement means action taken by an authorized representative of the Secretary in order to obtain compliance with applicable regulations, Onshore Oil and Gas Orders, Notices to Lessees and Operators, approvals, other written orders, the mineral leasing laws, and the Federal Oil and Gas Royalty Management Act.
(e) Indian lands means any lands or interests in lands of an Indian tribe or an Indian allottee held in trust by the United States or which is subject to Federal restriction against alienation, including mineral resources and mineral estates reserved to an Indian tribe or Indian allottee in the conveyance of a surface or nonmineral estate, except that such term does not include any lands subject to the provisions of section 3 of the Act of June 28, 1906 (34 Stat. 539).
(f) Proprietary data means information obtained from a lessee that constitutes trade secrets, or commercial or financial information that is privileged or confidential, or other information that may be withheld under the Freedom of Information Act (5 U.S.C. 552(b)).
§ 3190.0-7 Cross references.
(a) 25 CFR 211.18; 212.24; 213.34.
(b) 30 CFR part 229.
(c) 43 CFR part 3160.
§ 3190.1 Proprietary data.
With regard to any data or information obtained by a State, Indian tribe or individual, whether under a delegation of authority, cooperative agreement or contract, the following applies:
(a) Proprietary data shall be made available to a State or Indian tribe pursuant to a cooperative agreement under the provisions of 30 U.S.C. 1732 if such State or Indian tribe:
(1) Consents in writing to restrict the dissemination of such information to such persons directly involved in an investigation under 30 U.S.C. 1732 who need the information to conduct the investigation;
(2) Agrees in writing to accept liability for wrongful disclosure;
(3) In the case of a State, the State demonstrates that such information is essential to the conduct of an investigation or to litigation under 30 U.S.C. 1734; and
(4) In the case of an Indian tribe, the tribe demonstrates that such information is essential to the conduct of an audit or investigation and waives sovereign immunity by express consent for wrongful disclosure.
(b)(1) Any person or State that obtains proprietary data pursuant to a delegation of authority, cooperative agreement or contract under this part is subject to the same provisions of law with respect to the disclosure of such information as would apply to any officer or employee of the United States.
(2) Disclosure of proprietary data obtained pursuant to a delegation of authority, cooperative agreement, or contract under this part may not be compelled under State law.
§ 3190.2 Recordkeeping, funding and audit.
§ 3190.2-1 Recordkeeping.
(a) Records and accounts relating to activities under delegations of authority, cooperative agreements or contracts shall be identified in the delegation, cooperative agreement or contract.
(b) All records and other materials relating to a delegation of authority, cooperative agreement or contract shall be maintained by the State, Indian Tribe or contractor for a period of 6 years from the date they are generated or such other period as may be specified in the delegation, cooperative agreement or contract.
§ 3190.2-2 Funding.
(a) States and Tribes shall provide adequate funding for administration and execution of activities carried out under a delegation or cooperative agreement.
(b) Reimbursement for allowable costs incurred by a State, Indian tribe or contractor as a result of activities carried out under a delegation of authority, cooperative agreement or contract shall be as negotiated, with the following limitations:
(1) Up to 100 percent for a delegation of authority; or
(2)Up to 100 percent for a cooperative agreement.
(c) Funding shall be subject to the availability of funds.
(d) States, Indian tribes or contractors shall maintain financial records relating to the funds received and expended under a delegation of authority, cooperative agreement or contract as specified in the delegation of authority, cooperative agreement or contract.
(e) Reimbursement shall be at least quarterly and only shall be made upon submission of an invoice or request for reimbursement to the authorized officer.
§ 3190.2-3 Audit.
In maintaining financial records relating to the funds received and expended under a delegation of authority, cooperative agreement, or contract, States, Indian tribes and contractors shall comply with generally accepted accounting principles and audit requirements established by the Department of the Interior and Bureau of Land Management.
§ 3190.3 Sharing of civil penalties.
Fifty percent of any civil penalty collected by the United States as a result of activities carried out by a State under a delegation of authority or a State or Indian tribe under a cooperative agreement shall be payable to that State or Indian tribe upon receipt by the United States. Such amount shall be deducted from compensation due to the State or Indian tribe by the United States under the delegation of authority or cooperative agreement.
§ 3190.4 Availability of information.
Information in the possession of the Bureau of Land Management that is necessary to carry out activities authorized by delegations of authority, cooperative agreements, or contracts entered into under this part will be provided by the BLM to the States and Indian tribes party to such agreements. Release of proprietary data shall be subject to the provisions of § 3190.1 of this part.
Subpart 3191 – Delegation of Authority
§ 3191.1 Petition for delegation.
§ 3191.1-1 Petition.
The Governor or other authorized official of any eligible State may request in writing that the Director delegate all or part of his/her authority and responsibility for inspection, enforcement and investigation on oil and gas leases on Federal lands within the State and on Indian lands within the State where the affected Indian tribe or Indian allottee has given written permission for such inspection, enforcement and investigation. Requests by a State for delegation of other activities may be granted by the Director with the approval of the Secretary.
§ 3191.1-2 Eligibility.
Any State with producing oil or gas leases on Federal or Indian lands may request a delegation of authority.
§ 3191.1-3 Action upon petition.
Upon request for a delegation of authority, the Director shall determine if:
(a) The State has proposed an acceptable plan for carrying out the delegated activities and will provide adequate resources to achieve the purposes of 30 U.S.C. 1735. This plan shall, at a minimum:
(1) Identify specific authorities and responsibilities for which the State is requesting a delegation of authority and whether it is applicable to Federal lands only or includes Indian lands;
(2) Provide evidence of written permission of the affected Indian tribe(s) or allottee(s) for such lands;
(3) Include specifics for carrying out the delegated activities;
(4) Indicate the inspector resources for carrying out the delegated activities and documentation of inspector qualifications;
(5) Describe the proposed record keeping for funding purposes;
(6) Detail the frequency and method of payment; and
(7) Include copies of any non-Federal forms that are to be used.
(b) The State has demonstrated that it will effectively and faithfully administer the rules and regulations of the Department of the Interior in accordance with the provisions of 30 U.S.C. 1735.
(c) The delegation will be carried out in coordination with activities retained by the Bureau so that such delegation will not create an unreasonable burden on any lessee.
§ 3191.1-4 Public hearing on petition.
Prior to the granting of any delegation of authority, the notice of proposed delegation shall be published in the
§ 3191.2 Terms of delegation.
(a) Delegations shall be continuing, contingent upon available funding, providing that there is an annual finding by the Director that the provisions of the delegation and the mineral leasing laws are still being carried out and that the requirements of § 3191.1-3 (a), (b) and (c) of this title are still in effect.
(b) Authority delegated to a State under this subpart shall not be redelegated.
(c) The State regulatory authority shall maintain sufficient qualified, personnel to comply with the terms and purpose of the delegation.
(d) Inspection identification cards shall be issued by the authorized officer to all certified State inspectors for the purpose of identifying the bearer as an authorized representative of the Secretary. Identification cards remain the property of the United States.
(e) The delegation shall provide for coordination with designated offices of the Bureau of Land Management, the Minerals Management Service, and, where appropriate, the Bureau of Indian Affairs, Forest Service, and other surface management agencies.
(f) The delegation shall provide for annual program review.
(g) The delegation shall provide for annual budget and program reporting in conjunction with the Federal Budget process.
(h) The Director reserves the right to make inspections on Federal and Indian leases inspected by a State under this subpart for the purpose of evaluating the manner in which the delegation is being carried out.
(i) The Director reserves the right to act independently to carry out his/her responsibilities under the law.
§ 3191.3 Termination and reinstatement.
§ 3191.3-1 Termination.
(a) The delegation may be terminated by mutual written consent at any time.
(b) The Director may revoke a delegation if it is determined that the State has failed to meet the minimum standards for complying with the delegated authority.
(c) Prior to any action to revoke a delegation, the Director shall notify the State in writing of the deficiencies in the program leading to such revocation.
(d) Upon notification of intent to revoke a delegation, the State shall have 30 days to respond with a plan to correct the cited deficiencies. If the Director determines that the plan of correction is acceptable, the Director shall then approve the plan and specify the timeframe within which the cited deficiencies shall be corrected.
(e) In the event the Director makes a determination to revoke a delegation of authority, the State shall be provided an opportunity for a hearing prior to final action.
§ 3191.3-2 Reinstatement.
Terminated delegations of authority may be reinstated as set out below:
(a) For a delegation terminated by mutual consent under § 3191.3-1(a) of this title, the State shall apply for reinstatement by filing a petition with the Director, who shall determine whether such reinstatement should be granted.
(b) For a delegation of authority revoked by the Director, the State shall file a petition requesting reinstatement. In applying for reinstatement, the State shall provide written evidence that it has remedied all defects for which the delegation was revoked and that it is fully capable of resuming the activities carried out under the delegation. Upon receipt of the petition, the following actions shall be taken:
(1) The authorized officer, after review of the petition, may recommend approval of the reinstatement but shall provide proof that the deficiencies have been corrected and that the State is fully capable of carrying out the delegation.
(2) The Director shall review the petition and the recommendation of the authorized officer and may approve the reinstatement of a delegation upon a determination that the findings of the authorized officer are acceptable.
§ 3191.4 Standards of delegation.
(a) The Director shall establish minimum standards to be used by a State in carrying out activities established in the delegation.
(b) The delegation shall identify functions, if any, that are to be carried out jointly.
(c) A delegation shall be made in accordance with the requirements of this section.
(d) Copies of delegations shall be on file in the Washington Office of the Bureau and shall be available for public inspection.
§ 3191.5 Delegation for Indian lands.
§ 3191.5-1 Indian lands included in delegation.
(a) No activity under a delegation made under this subpart may be carried out on Indian lands without the written permission of the affected Indian tribe or allottee.
(b) A State requesting a delegation involving Indian lands shall provide, as evidence of permission, a written agreement signed by an appropriate official(s) of the Indian tribe for tribal lands, or by the individual allottee(s) or their representative(s) for allotted lands. The agreement shall at a minimum specify the type and extent of activities to be carried out by the State under the agreement, and provisions for State access to carry out the specified activities.
(c) Delegations covering Indian lands shall be separate from delegations covering Federal lands.
§ 3191.5-2 Indian lands withdrawn from delegation.
(a) When an Indian tribe or allottee withdraws permission for a State to conduct inspection and related activities on its lands, the Indian tribe or allottee shall provide written notice of its withdrawal of permission to the State.
(b) Immediately upon receipt of a notice of withdrawal of permission, the State shall provide written notification of said notice to the authorized officer, who immediately shall take all necessary action to provide for inspection and enforcement activities on the affected Indian lands.
(c) No later than 120 days after receipt of a notice of withdrawal of permission draw from an Indian tribe or allottee, the delegation on the lands covered by the notice shall terminate.
(d) Upon termination of a delegation covering Indian lands, appropriate changes in funding shall be made by the authorized officer.
Subpart 3192 – Cooperative Agreements
§ 3192.1 What is a cooperative agreement?
(a) A cooperative agreement is a contract between the Bureau of Land Management (BLM) and a Tribe or State to conduct inspection, investigation, or enforcement activities on producing Indian Tribal or allotted oil and gas leases.
(b) BLM will enter into a cooperative agreement with a State to inspect oil and gas leases on Indian lands only with the permission of the Tribe with jurisdiction over the lands.
§ 3192.2 Who may apply for a cooperative agreement with BLM to conduct oil and gas inspections?
(a) The Tribal chairperson, or other authorized official, of a Tribe with producing oil or gas leases, or agreements under the Indian Mineral Development Act of 1982 (25 U.S.C. 2101 et seq.), may apply for a cooperative agreement with BLM for Indian lands under the Tribe’s jurisdiction.
(b) Tribes may join together to apply for a multi-tribe cooperative agreement.
(c) The Governor of a State having a Tribal resolution from the Tribe with jurisdiction over the Indian lands, permitting the Governor to enter into a cooperative agreement, may apply for a cooperative agreement with BLM.
§ 3192.3 What must a Tribe or State include in its application for a cooperative agreement?
(a) To apply for a cooperative agreement you must complete –
(1) Standard Form 424, Application for Federal Assistance;
(2) Standard Form 424A, Budget Information – Non-Construction Programs; and
(3) Standard Form 424B, Assurances – Non-Construction Programs.
(b) You must describe the type and extent of oil and gas inspection, enforcement, and investigative activities proposed under the agreement and the period of time the proposed agreement will be in effect (See section 11 of Standard Form 424).
(c) You may include allotted lands under an agreement with the written consent of all allottees or their heirs. BLM will ask the Bureau of Indian Affairs (BIA) to verify that the Tribe or State has obtained all of the necessary signatures to commit 100 percent of each individual tract of allotted lands to the agreement.
§ 3192.4 What is the term of a cooperative agreement?
Cooperative agreements can be in effect for a period from 1 to 5 years from the effective date of the agreement, as set out in the agreement.
§ 3192.5 How do I modify a cooperative agreement?
You may modify a cooperative agreement by having all parties to the agreement consent to the change in writing. If the agreement is with a State, and the modification would affect the duration or scope of the agreement, then the State must obtain the written consent of the affected Tribe and/or allottee or heir.
§ 3192.6 How will BLM evaluate my request for proprietary data?
BLM will evaluate Tribal or State requests for proprietary data on a case-by-case basis according to the requirements of § 3190.1 of this part.
§ 3192.7 What must I do with Federal assistance I receive?
You must use Federal assistance that you receive only for costs incurred which are directly related to the activities carried out under the cooperative agreement.
§ 3192.8 May I subcontract activities in the agreement?
You must obtain BLM’s written approval before you subcontract any activities in the agreement with the exception of financial audits of program funds that are required by the Single Audit Act of 1984 (31 U.S.C. 7501 et seq.).
§ 3192.9 What terms must a cooperative agreement contain?
The cooperative agreement must –
(a) State its purpose, objective, and authority;
(b) Define terms used in the agreement;
(c) Describe the Indian lands covered;
(d) Describe the roles and responsibilities of BLM and the Tribe or State;
(e) Describe the activities the Tribe or State will carry out;
(f) Define the minimum performance standards to evaluate Tribal or State performance;
(g) Include provisions to –
(1) Protect proprietary data, as provided in § 3190.1 of this part;
(2) Prevent conflict of interest, as provided in § 3192.14(d);
(3) Share civil penalties, as provided in § 3192.11; and
(4) Terminate the agreement;
(h) List BLM and Tribal or State contacts;
(i) Avoid duplication of effort between BLM and the Tribe or State when conducting inspections;
(j) List schedules for –
(1) Inspection activities;
(2) Training of Tribal or State inspectors;
(3) Periodic reviews and meetings;
(k) Specify the limit on the dollar amount of Federal funding;
(l) Describe procedures for Tribes or States to request payment reimbursement;
(m) Describe allowable costs subject to reimbursement; and
(n) Describe plans for BLM oversight of the cooperative agreement.
§ 3192.10 What costs will BLM pay?
(a) BLM will pay expenses allowed under part 12, subpart A, Administrative and Audit Requirements and Cost Principles for Assistance Programs, of this title.
(b) BLM will fund the agreements up to 100 percent of allowable costs.
(c) Funding is subject to the availability of BLM funds.
(d) Funding for cooperative agreements is subject to the shared civil penalties requirement of § 3192.11.
(a) Civil penalties that the Federal Government collects resulting from an activity carried out by a Tribe or State under a cooperative agreement are shared equally between the inspecting Tribe or State and BLM.
(b) BLM must deduct the amount of the civil penalty paid to the Tribe or State from the funding paid to the Tribe or State for the cooperative agreement.
§ 3192.12 What activities may Tribes or States perform under cooperative agreements?
Activities carried out under the cooperative agreement must be in accordance with the policies of the appropriate BLM State or field office and as specified in the agreement, and may include –
(a) Inspecting Tribal or allotted oil and gas leases for compliance with BLM regulations;
(b) Issuing initial Notices of Incidents of Non-Compliance, Form 3160-9, and Notices to Shut Down Operations, Form 3160-12;
(c) Conducting investigations; or
(d) Conducting oil transporter inspections.
§ 3192.13 What responsibilities must BLM keep?
(a) Under cooperative agreements, BLM continues to –
(1) Issue Notices of Incidents of Noncompliance that impose monetary assessments and penalties;
(2) Collect assessments and penalties;
(3) Calculate and distribute shared civil penalties;
(4) Train and certify Tribal or State inspectors;
(5) Issue and regulate inspector identification cards; and
(6) Identify leases to be inspected, taking into account the priorities of the Tribe. Priorities for allotted lands will be established through consultation with the BIA office with jurisdiction over the lands in the agreement.
(b) If BLM enters into a cooperative agreement, that agreement does not affect BLM’s right to enter lease sites to conduct inspections, enforcement, investigations or other activities necessary to supervise lease operations.
§ 3192.14 What are the requirements for Tribal or State inspectors?
(a) Tribal or State inspectors must be certified by BLM before they conduct independent inspections on Indian oil and gas leases.
(b) The standards for certifying Tribal or State inspectors must be the same as the standards BLM uses for certifying BLM inspectors.
(c) Tribal and State inspectors must satisfactorily complete on-the-job and classroom training in order to qualify for certification.
(d) Tribal or State inspectors must not –
(1) Inspect the operations of companies in which they, a member of their immediate family, or their immediate supervisor, have a direct financial interest; or
(2) Use for personal gain, or gain by another person, information he or she acquires as a result of his or her participating in the cooperative agreement.
§ 3192.15 May cooperative agreements be terminated?
(a) Cooperative agreements may be terminated at any time if all parties agree to the termination in writing.
(b) BLM may terminate an agreement without Tribal or State agreement if the –
(1) Tribe or State fails to carry out the terms of the agreement; or
(2) Agreement is no longer needed.
(c) A Tribe may unilaterally terminate an agreement after notifying BLM. For a unilateral termination, the agreement terminates 60 days after the Tribe notifies BLM.
§ 3192.16 How will I know if BLM intends to terminate my agreement?
(a) If BLM intends to terminate your agreement because you did not carry out the terms of the agreement, BLM must send you a notice that lists the reason(s) why BLM intends to terminate the agreement.
(b) Within 30 days after receiving the notice, you must send BLM a plan to correct the problem(s) BLM listed in the notice. BLM has 30 days to approve or disapprove the plan, in writing.
(c) If BLM approves the plan, you have 30 days after you receive notice of the approval to correct the problem(s).
(d) If you have not corrected the problem within 30 days, BLM will send you a second written termination notice that will give you another opportunity to correct the problem.
(e) If the problem is not corrected within 60 days after you receive the second notice, BLM will terminate the agreement.
§ 3192.17 Can BLM reinstate cooperative agreements that have been terminated?
(a) If your cooperative agreement was terminated by consent, you may request that BLM reinstate the agreement at any time.
(b) If BLM terminated an agreement because you did not carry out the terms of the agreement, you must prove that you have corrected the problem(s) and are able to carry out the terms of the agreement.
(c) For any reinstatement request BLM will decide whether or not your cooperative agreement may be reinstated and, if so, whether you must make any changes to the agreement before it can be reinstated.
§ 3192.18 Can I appeal a BLM decision?
Any party adversely affected by a BLM decision made under this subpart may appeal the decision in accordance with parts 4 and 1840 of this title.
PART 3195 – HELIUM CONTRACTS
General Information
§ 3195.10 What is the purpose of these regulations?
The purpose of these regulations is to establish procedures governing the sale of helium to Federal agencies with major helium requirements. In order to sell a major helium requirement to a Federal agency, a Federal helium supplier must be under contract with BLM to purchase from BLM an amount of crude helium equivalent to the amount of refined helium it has supplied to the Federal agency.
§ 3195.11 What terms do I need to know to understand this subpart?
To understand this subpart you need to know that:
BLM means the Bureau of Land Management, Helium Operations, United States Department of the Interior, Amarillo, TX 79101.
Buyer means anyone who is purchasing refined helium for a Federal agency or Federal agency contractor.
Crude helium means a helium-gas mixture containing no more than ninety-nine (99) percent helium by volume.
Federal agency means any department, independent establishment, commission, administration, foundation, authority, board, or bureau of the United States, or any corporation owned, controlled, or in which the United States has a proprietary interest, as these terms are used in 5 U.S.C. 101-105; 5 U.S.C. 551(1); or in 18 U.S.C. 6, but does not include Federal agency contractors.
Federal helium supplier means a private helium merchant who has an In-Kind Crude Helium Sales Contract with an effective date of January 1, 1998, or later, with BLM, and who has helium available for sale to:
(1) Federal agencies; or
(2) Private helium purchasers for use in Federal Government contracts.
Helium means the element helium regardless of its physical state.
Helium use location means the location where the major helium requirement will be used.
Like (equivalent) amount of crude helium means the amount of crude helium measured at a pressure of 14.65 pounds per square inch absolute (psia) and a temperature of 60 degrees Fahrenheit (F), and rounded up to the nearest thousand (1,000) cubic feet, that is equivalent to a specified amount of refined helium measured at 14.7 psia and 70 degrees Fahrenheit.
Major helium requirement means an estimated refined helium requirement greater than 200,000 standard cubic feet (scf) of gaseous helium or 7510 liters of liquid helium delivered to a helium use location per year.
Standard cubic foot (SCF) means the volume of gaseous helium occupying one cubic foot at a pressure of 14.7 psia and a temperature of 70 degrees Fahrenheit. One liter of liquid helium is equivalent to 26.63 scf of gaseous helium. One U.S. gallon of liquid helium is equivalent to 100.8 scf of gaseous helium. One pound of liquid helium is equivalent to 96.72 scf of gaseous helium. If BLM approves, you may use appropriate gaseous equivalents of volumes of helium mixtures different from these figures.
§ 3195.12 What is an In-Kind Crude Helium Sales Contract?
It is a written contract between BLM and a Federal helium supplier requiring that whenever a supplier sells a major helium requirement to a Federal agency or its contractors, the supplier must purchase a like amount of crude helium from BLM.
§ 3195.13 If I am a Federal helium supplier or buyer, what reports must I submit to BLM?
In accordance with the In-Kind Crude Helium Sales Contract:
(a) Federal helium suppliers and buyers must report the total itemized quarterly deliveries of major helium requirements within 45 calendar days after the end of the previous quarter (see §§ 3195.26 and 3195.33).
(b) Federal helium suppliers must report the annual cumulative helium delivery report by November 15 of each year (see § 3195.33).
§ 3195.14 How should I submit reports?
You must submit reports by:
(a) Mail;
(b) Fax;
(c) E-mail; or
(d) Any other method to which you and BLM agree.
Federal Agency Requirements
§ 3195.20 Who must purchase major helium requirements from Federal helium suppliers?
(a) The Department of Defense;
(b) The National Aeronautics and Space Administration;
(c) The Department of Energy;
(d) Any other Federal agency; and
(e) Federal agency contractors.
You must use an authorized Federal helium supplier for any major helium requirement.
An authorized Federal helium supplier must be used whenever the contractor or subcontractor uses a major helium requirement in performance of a Federal contract.
You must request the list from BLM in writing.
§ 3195.24 What must I do before contacting a non-Federal helium supplier for my helium needs?
You must make an initial determination about the annual helium demand for each helium use location for the expected life of the purchase order/contract. If the annual helium demand for a helium use location is a major helium requirement, it must be supplied by a Federal helium supplier.
§ 3195.25 What information must be in my purchase order/contract for a major helium requirement?
A purchase order/contract must state each helium use location and whether the anticipated demand exceeds the amount defined as a major helium requirement at each helium use location.
§ 3195.26 What information must I report to BLM?
In accordance with the In-Kind Crude Helium Sales Contract, within 45 days of the end of each quarter, you must report to BLM (see § 3195.13) the following:
(a) The name of the company from which you purchased a major helium requirement;
(b) The amount of helium you purchased and the date it was delivered; and
(c) The helium use location.
§ 3195.27 What do I do if my helium requirement becomes a major helium requirement after the initial determination has been made?
As soon as you determine that your forecasted demand of helium for a particular helium use location will become a major helium requirement, you must purchase your helium (for that helium use location) from an authorized Federal helium supplier for the remainder of the purchase order/contract as a major helium requirement.
Federal Helium Supplier Requirements
§ 3195.30 How do I apply to become a Federal helium supplier?
In order to become a Federal helium supplier,
(a) You must be a private helium merchant and demonstrate to BLM in writing that you have:
(1) Adequate financial resources to pay for BLM helium and helium related services;
(2) Adequate facilities and equipment to meet delivery schedules and quality standards required by Federal helium buyers; and
(3) A satisfactory record of performance in the distribution of helium or other compressed gases.
(b) You must fill out and execute BLM’s In-Kind Crude Helium Sales Contract and submit it to BLM for approval.
§ 3195.31 What are the general terms of an In-Kind Crude Helium Sales Contract?
A BLM helium In-Kind Crude Helium Sales Contract requires you to:
(a) Deliver helium to a Federal agency specified helium use location;
(b) Purchase crude helium from BLM equivalent to the amount of refined helium you sold to Federal agencies;
(c) Report to BLM the amount of refined helium you sold to Federal agencies; and
(d) Maintain records for inspection and audit by BLM in accordance with 30 U.S.C. 17.13(b).
§ 3195.32 Where can I find a list of Federal agencies that use helium?
You must request from BLM in writing the list of Federal agencies that have purchased a major helium requirement during the past year.
§ 3195.33 What information must I report to BLM?
(a) In accordance with the In-Kind Crude Helium Sales Contract, within 45 days of the end of each quarter, you must report to BLM (see § 3195.13) the following:
(1) The name of the Federal agency to which you supplied helium;
(2) The amount of helium you delivered and the date you delivered it; and
(3) The helium use location.
(b) In accordance with the In-Kind Crude Helium Sales Contract, by November 15 of each year, you must report to BLM (see § 3195.13) the following:
(1) The name of the Federal agency to which you supplied helium; and
(2) The cumulative amount of helium delivered during the previous fiscal year for each Federal agency.
§ 3195.34 What happens to my Helium Distribution Contracts?
Helium Distribution Contracts between BLM and a helium distributor have been terminated. You must execute an In-Kind Crude Helium Sales Contract before you sell a major helium requirement to a Federal agency.
§ 3195.35 What happens if I have an outstanding obligation to purchase refined helium under a Helium Distribution Contract?
If you were obligated to buy refined helium under a Helium Distribution Contract, your In-Kind Crude Helium Sales Contract requires you to buy an equivalent amount of crude helium in lieu of that obligation.
§ 3195.36 What happens if there is a shortage of helium?
If there is a shortage of helium (either company specific or industry wide) which would cause you to defer helium shipments to a buyer, you must, in accordance with your In-Kind Crude Helium Sales Contract, give the United States priority over non-government requirements.
BLM has the authority to terminate you as an authorized Federal helium supplier for:
(a) Nonpayment for a like amount of crude helium;
(b) Not reporting helium deliveries according to your In-Kind Crude Helium Sales Contract and these regulations;
(c) Not taking delivery of a purchase of a like amount of crude helium not covered by a valid helium storage contract; or
(d) Any other breach of contract or violation of these regulations.
The collections of information contained in parts 3200, 3210, 3220, 3240, 3250, and 3260 of Group 3200 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance numbers 1004-0034, 1004-0074, 1004.0132, and 1004-0160. The information will be used to maintain an orderly program for leasing, development, and production of Federal geothermal resources. Responses are required to obtain benefits in accordance with the Geothermal Steam Act of 1970, as amended.
Public reporting burden for this information is estimated to average 1.6 hours per response, including the time for reviewing insstructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Division of Information Resources Management, Bureau of Land Management, 1800 C Street, NW., Premier Building, Room 208, Washington DC 20240; and the Paperwork Reduction Project (1004-0160), Office of Management and Budget, Washington, DC 20503.
PART 3200 – GEOTHERMAL RESOURCE LEASING
Subpart 3200 – Geothermal Resource Leasing
§ 3200.1 Definitions.
For purposes of this part and part 3280:
Acquired lands means lands or mineral estates that the United States obtained by deed through purchase, gift, condemnation or other legal process.
Act means the Geothermal Steam Act of 1970, as amended (30 U.S.C. 1001 et seq.).
Additional extension means the period of years added to the primary term of a lease beyond the first 10 years and subsequent 5-year initial extension of a geothermal lease. The additional extension may not exceed 5 years.
Byproducts are minerals (exclusive of oil, hydrocarbon gas, and helium), found in solution or in association with geothermal steam, that no person would extract and produce by themselves because they are worth less than 75 percent of the value of the geothermal steam or because extraction and production would be too difficult.
Casual use means activities that ordinarily lead to no significant disturbance of Federal lands, resources, or improvements.
Commercial operation means delivering Federal geothermal resources, or electricity or other benefits derived from those resources, for sale. This term also includes delivering resources to the utilization point, if you are utilizing Federal geothermal resources for your own benefit and not selling energy to another entity.
Commercial production means production of geothermal resources when the economic benefits from the production are greater than the cost of production.
Commercial production or generation of electricity means generation of electricity that is sold or is subject to sale, including the electricity or energy that is reasonably required to produce the resource used in production of electricity for sale or to convert the resource into electrical energy for sale.
Commercial quantities means either:
(1) For production from a lease, a sufficient volume (in terms of flow and temperature) of the resource to provide a reasonable return after you meet all costs of production; or
(2) For production from a unit, a sufficient volume (in terms of flow and temperature) of the resource to provide a reasonable return after you meet all costs of drilling and production.
Commercial use permit means BLM authorization for commercially operating a utilization facility and/or utilizing Federal geothermal resources.
Development or drilling contract means a BLM-approved agreement between one or more lessees and one or more entities that makes resource exploration more efficient and protects the public interest.
Direct use means utilization of geothermal resources for commercial, residential, agricultural, public facilities, or other energy needs other than the commercial production or generation of electricity. Direct use may occur under either a regular geothermal lease or a direct use lease.
Direct use lease means a lease issued noncompetitively in an area BLM designates as available exclusively for:
(1) Direct use of geothermal resources, without sale; and
(2) Purposes other than commercial generation of electricity.
Exploration operations means any activity relating to the search for evidence of geothermal resources, where you are physically present on the land and your activities may cause damage to those lands. Exploration operations include, but are not limited to, geophysical operations, drilling temperature gradient wells, drilling holes used for explosive charges for seismic exploration, core drilling or any other drilling method, provided the well is not used for geothermal resource production. It also includes related construction of roads and trails, and cross-country transit by vehicles over public land. Exploration operations do not include the direct testing of geothermal resources or the production or utilization of geothermal resources.
Facility construction permit means BLM permission to build and test a utilization facility.
Facility operator means the person receiving BLM authorization to site, construct, test, and/or operate a utilization facility. A facility operator may be a lessee, a unit operator, or a third party.
Geothermal drilling permit means BLM written permission to drill for and test Federal geothermal resources.
Geothermal exploration permit means BLM written permission to conduct only geothermal exploration operations and associated surface disturbance activities under an approved Notice of Intent to Conduct Geothermal Resource Exploration Operations, and includes any necessary conditions BLM imposes.
Geothermal resources operational order means a formal, numbered order, issued by BLM, that implements or enforces the regulations in this part.
Geothermal steam and associated geothermal resources means:
(1) All products of geothermal processes, including indigenous steam, hot water, and hot brines;
(2) Steam and other gases, hot water, and hot brines resulting from water, gas, or other fluids artificially introduced into geothermal formations;
(3) Heat or other associated energy found in geothermal formations; and
(4) Any byproducts.
Gross proceeds means gross proceeds as defined by the Minerals Management Service at 30 CFR 206.351.
Initial extension means a period of years, no longer than 5 years, added to the primary term of a geothermal lease beyond the first 10 years of the lease, provided certain lease obligations are met.
Interest means ownership in a lease of all or a portion of the record title or operating rights.
Known geothermal resource area (KGRA) means an area where BLM determines that persons knowledgeable in geothermal development would spend money to develop geothermal resources.
Lessee means a person holding record title interest in a geothermal lease issued by BLM.
MMS means the Minerals Management Service of the Department of the Interior.
Notice to Lessees (NTL) means a written notice issued by BLM that implements the regulations in this part, part 3280, or geothermal resource operational orders, and provides more specific instructions on geothermal issues within a state, district, or field office. Notices to Lessees may be obtained by contacting the BLM State Office that issued the NTL.
Operating rights (working interest) means any interest held in a lease with the right to explore for, develop, and produce leased substances.
Operating rights owner means a person who holds operating rights in a lease. A lessee is an operating rights owner if the lessee did not transfer all of its operating rights. An operator may or may not own operating rights.
Operations plan, or plan of operations means a plan which fully describes the location of proposed drill pad, access roads and other facilities related to the drilling and testing of Federal geothermal resources, and includes measures for environmental and other resources protection and mitigation.
Operator means any person who has taken responsibility in writing for the operations conducted on leased lands.
Person means an individual, firm, corporation, association, partnership, trust, municipality, consortium, or joint venture.
Primary term means the first 10 years of a lease, not including any periods of suspension.
Produced or utilized in commercial quantities means the completion of a well that:
(1) Produces geothermal resources in commercial quantities; or
(2) Is capable of producing geothermal resources in commercial quantities so long as BLM determines that diligent efforts are being made toward the utilization of the geothermal resource.
Public lands means the same as defined in 43 U.S.C. 1702(e).
Record title means legal ownership of a geothermal lease established in BLM’s records.
Relinquishment means the lessee’s voluntary action to end the lease in whole or in part.
Secretary means the Secretary of the Interior or the Secretary’s delegate.
Site license means BLM’s written authorization to site a utilization facility on leased Federal lands.
Stipulation means additional conditions BLM attaches to a lease or permit.
Sublease means the lessee’s conveyance of its interests in a lease to an operating rights owner. A sublessee is responsible for complying with all terms, conditions, and stipulations of the lease.
Subsequent well operations are those operations done to a well after it has been drilled. Examples of subsequent well operations include: cleaning the well out, surveying it, performing well tests, chemical stimulation, running a liner or another casing string, repairing existing casing, or converting the well from a producer to an injector or vice versa.
Sundry notice is your written request to perform work not covered by another type of permit, or to change operations in your previously approved permit.
Surface management agency means any Federal agency, other than BLM, that is responsible for managing the surface overlying Federally-owned minerals.
Temperature gradient well means a well authorized under a geothermal exploration permit drilled in order to obtain information on the change in temperature over the depth of the well.
Transfer means any conveyance of an interest in a lease by assignment, sublease, or otherwise.
Unit agreement means an agreement to explore for, produce and utilize separately-owned interests in geothermal resources as a single consolidated unit. A unit agreement defines how costs and benefits will be allocated among the holders of interest in the unit area.
Unit area means all tracts committed to an approved unit agreement.
Unit operator means the person who has stated in writing to BLM that the interest owners of the committed leases have designated it as operator of the unit area.
Unitized substances means geothermal resources recovered from lands committed to a unit agreement.
Utilization Plan or plan of utilization means a plan which fully describes the utilization facility, including measures for environmental protection and mitigation.
Waste means:
(1) Physical waste, including refuse; or
(2) Improper use or unnecessary dissipation of geothermal resources through inefficient drilling, production, transmission, or utilization.
§ 3200.3 Changes in agency duties.
There are many leases and agreements currently in effect, and that will remain in effect, involving Federal geothermal resources leases that specifically refer to the United States Geological Survey, USGS, Minerals Management Service, MMS, or Conservation Division. These leases and agreements may also specifically refer to various officers such as Supervisor, Conservation Manager, Deputy Conservation Manager, Minerals Manager, and Deputy Minerals Manager. Those references must now be read to mean either the Bureau of Land Management or the Minerals Management Service, as appropriate. In addition, many leases and agreements specifically refer to 30 CFR part 270 or a specific section of that part. Effective December 3, 1982, references in such leases and agreements to 30 CFR part 270 should be read as references to this part 3200, which is the successor regulation to 30 CFR part 270.
§ 3200.4 What requirements must I comply with when taking any actions or conducting any operations under this part?
When you are taking any actions or conducting any operations under this part, you must comply with:
(a) The Act and the regulations of this part;
(b) Geothermal resource operational orders;
(c) Notices to lessees;
(d) Lease terms and stipulations;
(e) Approved plans and permits;
(f) Conditions of approval;
(g) Verbal orders from BLM that will be confirmed in writing;
(h) Other instructions from BLM; and
(i) Any other applicable laws and regulations.
§ 3200.5 What are my rights of appeal?
(a) If you are adversely affected by a BLM decision under this part, you may appeal that decision under parts 4 and 1840 of this title.
(b) All BLM decisions or approvals under this part are immediately effective and remain in effect while appeals are pending unless a stay is granted in accordance with § 4.21(b) of this title.
§ 3200.6 What types of geothermal leases will BLM issue?
BLM will issue two types of geothermal leases:
(a) Geothermal leases (competitively issued under subpart 3203 or noncompetitively issued under subpart 3204) which may be used for any type of geothermal use, such as commercial generation of electricity or direct use of the resource.
(b) Direct use leases (issued under subpart 3205).
§ 3200.7 What regulations apply to geothermal leases issued before August 8, 2005?
(a) General applicability. (1) Leases issued before August 8, 2005, are subject to this part and part 3280, except that such leases are subject to the BLM regulations in effect on August 8, 2005 (43 CFR parts 3200 and 3280 (2004)), with regard to regulatory provisions relating to royalties, minimum royalties, rentals, primary term and lease extensions, diligence and annual work requirements, and renewals.
(2) The lessee of a lease issued before August 8, 2005, may elect to be subject to all of the regulations in this part and part 3280, without regard to the exceptions in paragraph (a)(1) of this section. Such an election must occur no later than December 1, 2008. Any such election as it pertains to lease terms relating to royalty rates must be made under the royalty rate conversion provisions of subpart 3212. A lessee must obtain a royalty conversion under subpart 3212 to make an election under this paragraph effective.
(b) Royalty rate conversion and production incentives. The lessee of a lease issued before August 8, 2005, may:
(1) Choose to convert lease terms relating to royalty rates under subpart 3212; or
(2) If it does not convert lease terms relating to royalty rates, apply for a production incentive under subpart 3212 (if eligible under that subpart).
(c) Two year extension. The lessee of a lease issued before August 8, 2005, may apply to extend a lease that was within 2 years of the end of its term on August 8, 2005, for up to 2 years to allow achievement of production under the lease or to allow the lease to be included in a producing unit.
§ 3200.8 What regulations apply to leases issued in response to applications pending on August 8, 2005?
(a) Any leases issued in response to applications that were pending on August 8, 2005, are subject to this part and part 3280, except that such leases are subject to the BLM regulations in effect on August 8, 2005 (43 CFR parts 3200 and 3280 (2004)), with regard to regulatory provisions relating to royalties, minimum royalties, rentals, primary term and lease extensions, diligence and annual work requirements, and renewals.
(b)(1) The lessee of a lease issued pursuant to an application that was pending on August 8, 2005, may elect to be subject to all of the regulations in this part and part 3280, without regard to the exceptions in paragraph (a) of this section.
(2) For leases issued on or after August 8, 2005, and before June 1, 2007, an election under paragraph (b)(1) of this section must occur no later than December 1, 2008.
(3) For leases issued on or after June 1, 2007, the lease applicant must make its election under paragraph (b)(1) of this section and notify BLM before the lease is issued.
Subpart 3201 – Available Lands
§ 3201.10 What lands are available for geothermal leasing?
(a) BLM may issue leases on:
(1) Lands administered by the Department of the Interior, including public and acquired lands not withdrawn from such use;
(2) Lands administered by the Department of Agriculture with its concurrence;
(3) Lands conveyed by the United States where the geothermal resources were reserved to the United States; and
(4) Lands subject to Section 24 of the Federal Power Act, as amended (16 U.S.C. 818), with the concurrence of the Secretary of Energy.
(b) If your activities under your lease or permit might adversely affect a significant thermal feature of a National Park System unit, BLM will include stipulations to protect this thermal feature in your lease or permit. These stipulations will be added, if necessary, when your lease or permit is issued, extended, renewed or modified.
§ 3201.11 What lands are not available for geothermal leasing?
BLM will not issue leases for:
(a) Lands where the Secretary has determined that issuing the lease would cause unnecessary or undue degradation of public lands and resources;
(b) Lands contained within a unit of the National Park System, or otherwise administered by the National Park Service;
(c) Lands within a National Recreation Area;
(d) Lands where the Secretary determines after notice and comment that geothermal operations, including exploration, development or utilization of lands, are reasonably likely to result in a significant adverse effect on a significant thermal feature within a unit of the National Park System;
(e) Fish hatcheries or wildlife management areas administered by the Secretary;
(f) Indian trust or restricted lands within or outside the boundaries of Indian reservations;
(g) The Island Park Geothermal Area; and
(h) Lands where Section 43 of the Mineral Leasing Act (30 U.S.C. 226-3) prohibits geothermal leasing, including:
(1) Wilderness areas or wilderness study areas administered by BLM or other surface management agencies;
(2) Lands designated by Congress as wilderness study areas, except where the statute designating the study area specifically allows leasing to continue; and
(3) Lands within areas allocated for wilderness or further planning in Executive Communication 1504, Ninety-Sixth Congress (House Document 96-119), unless such lands are allocated to uses other than wilderness by a land and resource management plan or are released to uses other than wilderness by an Act of Congress.
Subpart 3202 – Lessee Qualifications
§ 3202.10 Who may hold a geothermal lease?
You may hold a geothermal lease if you are:
(a) A United States citizen who is at least 18 years old;
(b) An association of United States citizens, including a partnership;
(c) A corporation organized under the laws of the United States, any state or the District of Columbia; or
(d) A domestic governmental unit.
§ 3202.11 Must I prove I am qualified to hold a lease when filing an application to lease?
You do not need to submit proof that you are qualified to hold a lease under § 3202.10 at the time you submit an application to lease, but BLM may ask you in writing for information about your qualifications at any time. You must submit the additional information to BLM within 30 days after you receive the request.
§ 3202.12 Are other persons allowed to act on my behalf to file an application to lease?
Another person may act on your behalf to file an application to lease. The person acting for you must be qualified to hold a lease under § 3202.10, and must do the following:
(a) Sign the application;
(b) State his or her title;
(c) Identify you as the person he or she is acting for; and
(d) Provide written proof of his or her qualifications and authority to take such action, if BLM requests it.
§ 3202.13 What happens if the applicant dies before the lease is issued?
If the applicant dies before the lease is issued, BLM will issue the lease to either the administrator or executor of the estate or the heirs. If the heirs are minors, BLM will issue the lease to either a legal guardian or trustee, provided that the legal guardian or trustee is qualified to hold a lease under § 3202.10.
Subpart 3203 – Competitive Leasing
§ 3203.5 What is the general process for obtaining a geothermal lease?
(a) The competitive geothermal leasing process consists of the following steps:
(1)(i) Entities interested in geothermal development nominate lands by submitting to BLM descriptions of lands they seek to be included in a lease sale; or
(ii) BLM may include land in a competitive lease sale on its own initiative.
(2) BLM provides notice of the parcels to be offered, and the time, location, and process for participating in the lease sale.
(3) BLM holds the lease sale and offers leases to the successful bidder.
(b) BLM will issue geothermal leases to the highest responsible qualified bidder after a competitive leasing process, except for situations where noncompetitive leasing is allowed under subparts 3204 and 3205, which include:
(1) Lease applications pending on August 8, 2005;
(2) Lands for which no bid was received in a competitive lease sale;
(3) Direct use lease applications for which no competitive interest exists; and
(4) Lands subject to mining claims.
§ 3203.10 How are lands included in a competitive sale?
(a) A qualified company or individual may nominate lands for competitive sale by submitting an applicable BLM nomination form.
(b) A nomination is a description of lands that you seek to be included in one lease. Each nomination may not exceed 5,120 acres, unless the area to be leased includes an irregular subdivision. Your nomination must provide a description of the lands nominated by legal land description.
(1) For lands surveyed under the public land rectangular survey system, describe the lands to the nearest aliquot part within the legal subdivision, section, township, and range;
(2) For unsurveyed lands, describe the lands by metes and bounds, giving courses and distances, and tie this information to an official corner of the public land surveys, or to a prominent topographic feature;
(3) For approved protracted surveys, include an entire section, township, and range. Do not divide protracted sections into aliquot parts;
(4) For unsurveyed lands in Louisiana and Alaska that have water boundaries, discuss the description with BLM before submission; and
(5) For fractional interest lands, identify the United States mineral ownership by percentage.
(c) You may submit more than one nomination, as long as each nomination separately satisfies the requirements of paragraph (b) of this section and includes the filing fee specified in § 3203.12.
(d) BLM may reconfigure lands to be included in each parcel offered for sale.
(e) BLM may include land in a lease sale on its own initiative.
§ 3203.11 Under what circumstances may parcels be offered as a block for competitive sale?
(a) As part of your nomination, you may request that lands be offered as a block at competitive sale by:
(1) Specifying that the lands requested will be associated with a project or unit: and
(2) Including information to support your request. BLM may require that you provide additional information.
(b) BLM may offer parcels as a block in response to a request under paragraph (a) of this section or on its own initiative. BLM will offer parcels as a block only if information is available to BLM indicating that a geothermal resource that could be produced as one unit can reasonably be expected to underlie such parcels.
§ 3203.12 What fees must I pay to nominate lands?
Submit with your nomination a filing fee for nominations of lands as found in the fee schedule in § 3000.12 of this chapter.
§ 3203.13 How often will BLM hold a competitive lease sale?
BLM will hold a competitive lease sale at least once every 2 years for lands available for leasing in a state that has nominations pending. A sale may include lands in more than one state. BLM may hold a competitive lease sale in a state that has no nominations pending.
§ 3203.14 How will BLM provide notice of a competitive lease sale?
(a) The lands available for competitive lease sale under this subpart will be described in a Notice of Competitive Geothermal Lease Sale, which will include:
(1) The lease sale format and procedures;
(2) The time, date, and place of the lease sale; and
(3) Stipulations applicable to each parcel.
(b) At least 45 days before conducting a competitive lease sale, BLM will post the Notice in the BLM office having jurisdiction over the lands to be offered, and make it available for posting to surface managing agencies having jurisdiction over any of the included lands.
(c) BLM may take other measures of notification for the competitive sale such as:
(1) Issuing news releases;
(2) Notifying interested parties of the lease sale;
(3) Publishing notice in the newspaper; or
(4) Posting the list of parcels on the Internet.
§ 3203.15 How does BLM conduct a competitive lease sale?
(a) BLM will offer parcels for competitive bidding as specified in the sale notice.
(b) The winning bid will be the highest bid by a qualified bidder.
(c) You may not withdraw a bid. Your bid constitutes a legally binding commitment by you.
(d) BLM will reject all bids and re-offer a parcel if:
(1) BLM determines that the high bidder is not qualified; or
(2) The high bidder fails to make all payments required under § 3203.17.
§ 3203.17 How must I make payments if I am the successful bidder?
(a) You must make payments by personal check, cashier’s check, certified check, bank draft, or money order payable to the “Department of the Interior – Bureau of Land Management” or by other means deemed acceptable by BLM.
(b) By the close of official business hours on the day of the sale or such other time as BLM may specify, you must submit for each parcel:
(1) Twenty percent of the bid;
(2) The total amount of the first year’s rental; and
(3) The processing fee for competitive lease applications found in the fee schedule in § 3000.12 of this chapter.
(c) Within 15 calendar days after the last day of the sale, you must submit the balance of the bid to the BLM office conducting the sale.
(d) If you fail to make all payments required under this section, or fail to meet the qualifications in § 3202.10, BLM will revoke acceptance of your bid and keep all money that has been submitted.
§ 3203.18 What happens to parcels that receive no bids at a competitive lease sale?
Lands offered at a competitive lease sale that receive no bids will be available for leasing in accordance with subpart 3204.
Subpart 3204 – Noncompetitive Leasing Other Than Direct Use Leases
§ 3204.5 How can I obtain a noncompetitive lease?
(a) Lands offered at a competitive lease sale that receive no bids will be available for noncompetitive leasing for a 2-year period beginning the first business day following the sale.
(b) You may obtain a noncompetitive lease for lands available exclusively for direct use of geothermal resources, under subpart 3205.
(c) The holder of a mining claim may obtain a noncompetitive lease for lands subject to the mining claim under § 3204.12.
(d) If your lease application was pending on August 8, 2005, you may obtain a noncompetitive lease under the leasing process in effect on that date, unless you notify BLM in writing that you elect for the lease application to be subject to the competitive leasing process specified in this subpart. If you elect for your lease application to be subject to the competitive leasing process in this subpart, your application will be considered a nomination for future competitive lease offerings for the lands in your application. An election made under this paragraph is not the same as an election made under § 3200.8.
§ 3204.10 What payment must I submit with my noncompetitive lease application?
Submit the processing fee for noncompetitive lease applications found in the fee schedule in § 3000.12 of this chapter for each lease application, and an advance rent in the amount of $1 per acre (or fraction of an acre). BLM will refund the advance rent if we reject the lease application or if you withdraw the lease application before BLM accepts it. If the advance rental payment you send is less than 90 percent of the correct amount, BLM will reject the lease application.
§ 3204.11 How may I acquire a noncompetitive lease for lands that were not sold at a competitive lease sale?
(a) For a 2-year period following a competitive lease sale, you may file a noncompetitive lease application for lands on which no bids were received, on a form available from BLM. Submit 2 executed copies of the applicable form to BLM. At least one form must have an original signature. We will accept only exact copies of the form on one 2-sided page.
(1) For 30 days after the competitive geothermal lease sale, noncompetitive applications will be accepted only for parcels as configured in the Notice of Competitive Geothermal Lease Sale.
(2) Subsequent to the 30-day period specified in paragraph (a)(1) of this section, you may file a noncompetitive application for any available lands covered by the competitive lease sale.
(b)(1) All applications for a particular parcel under this section will be considered simultaneously filed if received in the proper BLM office any time during the first business day following the competitive lease sale. You may submit only one application per parcel. An application will not be available for public inspection the day it is filed. BLM will randomly select an application among those accepted on the first business day to receive a lease offer.
(2) Subsequent to the first business day following the competitive lease sale, the first qualified applicant to submit an application will be offered the lease. If BLM receives simultaneous applications as to date and time for overlapping lands, BLM will randomly select one to receive a lease offer.
§ 3204.12 How may I acquire a noncompetitive lease for lands subject to a mining claim?
If you hold a mining claim for which you have a current approved plan of operations, you may file a noncompetitive lease application for lands within the mining claim, on a form available from BLM. Submit two (2) executed copies of the applicable form to BLM, together with documentation of mining claim ownership and the current approved plan of operations for the mine. At least one form must have an original signature. We will accept only exact copies of the form on one 2-sided page.
§ 3204.13 How will BLM process noncompetitive lease applications pending on August 8, 2005?
Noncompetitive lease applications pending on August 8, 2005, will be processed under policies and procedures existing on that date unless the applicant notifies BLM in writing that it elects for the lease application to be subject to the competitive leasing process specified in this subpart, in which case the application will be considered a nomination for future competitive lease offerings for the lands in the application.
§ 3204.14 May I amend my application for a noncompetitive lease?
You may amend your application for a noncompetitive lease at any time before we issue the lease, provided your amended application meets the requirements in this subpart and does not add lands not included in the original application. To add lands, you must file a new application.
§ 3204.15 May I withdraw my application for a noncompetitive lease?
During the 30-day period after the competitive lease sale, BLM will only accept a withdrawal of the entire application. Following that 30-day period, you may withdraw your noncompetitive lease application in whole or in part at any time before BLM issues the lease. If a partial withdrawal causes your lease application to contain less than the minimum acreage required under § 3206.12, BLM will reject the application.
Subpart 3205 – Direct Use Leasing
§ 3205.6 When may BLM issue a direct use lease to an applicant?
(a) BLM may issue a direct use lease to an applicant if the following conditions are satisfied:
(1) The lands included in the lease application are open for geothermal leasing;
(2) BLM determines that the lands are appropriate for exclusive direct use operations, without sale, for purposes other than commercial generation of electricity;
(3) The acreage covered by the lease application is not greater than the quantity of acreage that is reasonably necessary for the proposed use;
(4) BLM has published a notice of the land proposed for a direct use lease for 90 days before issuing the lease;
(5) During the 90-day period beginning on the date of publication, BLM did not receive any nomination to include the lands in the next competitive lease sale following that period for which the lands would be eligible;
(6) BLM determines there is no competitive interest in the resource; and
(7) The applicant is the first qualified applicant.
(b) If BLM determines that the land for which an applicant has applied under this subpart is open for geothermal leasing and is appropriate only for exclusive direct use operations, but determines that there is competitive interest in the resource, it will include the land in a competitive lease sale with lease stipulations limiting operations to exclusive direct use.
§ 3205.7 How much acreage should I apply for in a direct use lease?
You should apply for only the amount of acreage that is necessary for your intended operation. A direct use lease may not cover more than the quantity of acreage that BLM determines is reasonably necessary for the proposed use. In no case may a direct use lease exceed 5,120 acres, unless the area to be leased includes an irregular subdivision.
§ 3205.10 How do I obtain a direct use lease?
(a) You may file an application for a direct use lease for any lands on which BLM manages the geothermal resources, on a form available from BLM. You may not sell the geothermal resource and you may not use it for the commercial generation of electricity.
(b) In your application, you must also provide information that will allow BLM to determine how much acreage is reasonably necessary for your proposed use, including:
(1) A description of all anticipated structures, facilities, wells, and pipelines including their size, location, function, and associated surface disturbance;
(2) A description of the utilization process;
(3) A description and analysis of anticipated reservoir production, injection, and characteristics to the extent required by BLM; and
(4) Any additional information or data that we may require.
(c) Submit with your application the nonrefundable processing fee for noncompetitive lease applications found in the fee schedule in § 3000.12 of this chapter for each direct use lease application.
§ 3205.12 How will BLM respond to direct use lease applications on lands managed by another agency?
BLM will respond to a direct use lease application on lands managed by another surface management agency by forwarding the application to that agency for its review. If that agency consents to lease issuance and recommends that the lands are appropriate for direct use operations, without sale, for purposes other than commercial generation of electricity, BLM will consider that consent and recommendation in determining whether to issue the lease. BLM may not issue a lease without the consent of the surface management agency.
§ 3205.13 May I withdraw my application for a direct use lease?
You may withdraw your application for a direct use lease any time before issuance of a lease.
§ 3205.14 May I amend my application for a direct use lease?
You may amend your application for a direct use lease at any time before we issue the lease, provided your amended application meets the requirements in this subpart and does not add lands. To add lands, you must file a new application.
§ 3205.15 How will I know whether my direct use lease will be issued?
(a) If BLM decides to issue you a direct use lease, it will do so in accordance with this subpart and subpart 3206.
(b) If BLM decides to deny your application for a direct use lease, it will advise you of its decision in writing.
Subpart 3206 – Lease Issuance
§ 3206.10 What must I do for BLM to issue a lease?
Before BLM issues any lease, you must:
(a) Accept all lease stipulations;
(b) Make all required payments to BLM;
(c) Sign a unit joinder or waiver, if applicable; and
(d) Comply with the maximum limit on acreage holdings (see §§ 3206.12 and 3206.16).
§ 3206.11 What must BLM do before issuing a lease?
For all leases, BLM must:
(a) Determine that the land is available; and
(b) Determine that your lease development will not have a significant adverse impact on any significant thermal feature within any of the following units of the National Park System:
(1) Mount Rainier National Park;
(2) Crater Lake National Park;
(3) Yellowstone National Park;
(4) John D. Rockefeller, Jr. Memorial Parkway;
(5) Bering Land Bridge National Preserve;
(6) Gates of the Arctic National Park and Preserve;
(7) Katmai National Park;
(8) Aniakchak National Monument and Preserve;
(9) Wrangell-St. Elias National Park and Preserve;
(10) Lake Clark National Park and Preserve;
(11) Hot Springs National Park;
(12) Big Bend National Park (including that portion of the Rio Grande National Wild Scenic River within the boundaries of Big Bend National Park);
(13) Lassen Volcanic National Park;
(14) Hawaii Volcanoes National Park;
(15) Haleakala National Park;
(16) Lake Mead National Recreation Area; and
(17) Any other significant thermal features within National Park System units that the Secretary may add to the list of these features, in accordance with 30 U.S.C. 1026(a)(3).
§ 3206.12 What are the minimum and maximum lease sizes?
Other than for direct use leases (the size for which is addressed in § 3205.7), the smallest lease we will issue is 640 acres, or all lands available for leasing in the section, whichever is less. The largest lease we will issue is 5,120 acres, unless the area to be leased includes an irregular subdivision. A lease must embrace a reasonably compact area.
§ 3206.13 What is the maximum acreage I may hold?
You may not directly or indirectly hold more than 51,200 acres in any one state.
§ 3206.14 How does BLM compute acreage holdings?
BLM computes acreage holdings as follows:
(a) If you own an undivided lease interest, your acreage holdings include the total lease acreage:
(b) If you own stock in a corporation or a beneficial interest in an association which holds a geothermal lease, your acreage holdings will include your proportionate part of the corporation’s or association’s share of the total lease acreage. This paragraph applies only if you own more than 10 percent of the corporate stock or a beneficial interest in the association; and
(c) If you own a lease interest, you will be charged with the proportionate share of the total lease acreage based on your share of the lease ownership. You will not be charged twice for the same acreage where you own both record title and operating rights for the lease. For example, if you own 50 percent record title interest in a 640 acre lease and 25 percent operating rights, you are charged with 320 acres.
§ 3206.15 How will BLM charge acreage holdings if the United States owns only a fractional interest in the geothermal resources in a lease?
Where the United States owns only a fractional interest in the geothermal resources of the lands in a lease, BLM will only charge you with the part owned by the United States as acreage holdings. For example, if you own 100 percent of record title in a 100 acre lease, and the United States owns 50 percent of the mineral estate, you are charged with 50 acres.
§ 3206.16 Is there any acreage which is not chargeable?
BLM does not count leased acreage included in any approved unit agreement, drilling contract, or development contract as part of your total state acreage holdings.
§ 3206.17 What will BLM do if my holdings exceed the maximum acreage limits?
BLM will notify you in writing if your acreage holdings exceed the limit in § 3206.13. You have 90 days from the date you receive the notice to reduce your holdings to within the limit. If you do not comply, BLM will cancel your leases, beginning with the lease most recently issued, until your holdings are within the limit.
§ 3206.18 When will BLM issue my lease?
BLM issues your lease the day we sign it. Your lease goes into effect the first day of the next month after the issuance date.
Subpart 3207 – Lease Terms and Extensions
§ 3207.5 What terms (time periods) apply to my lease?
Your lease may include a number of different time periods. Not every time period applies to every lease. These periods include:
(a) A primary term consisting of:
(1) Ten years;
(2) An initial extension of the primary term for up to 5 years;
(3) An additional extension of the primary term for up to 5 years;
(b) A drilling extension of 5 years under § 3207.14;
(c) A production extension of up to 35 years; and
(d) A renewal period of up to 55 years.
§ 3207.10 What is the primary term of my lease?
(a) Leases have a primary term of 10 years.
(b) BLM will extend the primary term for 5 years if:
(1) By the end of the 10th year of the primary term in paragraph (a), you have satisfied the requirements in § 3207.11; and
(2) At the end of each year after the 10th year of the lease, you have satisfied the requirements in § 3207.12(a) or (d) for that year.
(c) BLM will extend the primary term for 5 additional years if:
(1) You satisfied the requirements of § 3207.12(b) or (d); and
(2) At the end of each year of the second 5-year extension you satisfy the requirements in § 3207.12(c) or (d) for that year.
(d) If you do not satisfy the annual requirements during the initial or additional extension of your primary term, your lease terminates or expires.
§ 3207.11 What work am I required to perform during the first 10 years of my lease for BLM to grant the initial extension of the primary term of my lease?
(a) By the end of the 10th year, you must expend a minimum of $40 per acre in development activities that provide additional geologic or reservoir information, such as:
(1) Geologic investigation and analysis;
(2) Drilling temperature gradient wells;
(3) Core drilling;
(4) Geochemical or geophysical surveys;
(5) Drilling production or injection wells;
(6) Reservoir testing; or
(7) Other activities approved by BLM.
(b) In lieu of the work requirement in paragraph (a) of this section, you may:
(1) Make a payment to BLM equivalent to the required work expenditure such that the total of the payment and the value of the work you perform equals $40 per acre (or fraction thereof) of land included in your lease; or
(2) Submit documentation to BLM that you have produced or utilized geothermal resources in commercial quantities.
(c) Prior to the end of the 10th year of the primary term, you must submit detailed information to BLM demonstrating that you have complied with paragraph (a) or (b) of this section. Describe the activities by type, location, date(s) conducted, and the dollar amount spent on those operations. Include all geologic information obtained from your activities in your report. Submit additional information that BLM requires to determine compliance within the timeframe that we specify. We must approve the type of work done and the expenditures claimed in your report before we can credit them toward your requirements.
(d) If you do not perform development activities, make payments, or document production or utilization as required by this section, your lease will expire at the end of the 10-year primary term.
(e) If you complied with paragraph (c) of this section, but BLM has not determined by the end of the 10th year whether you have complied with the requirements of paragraph (a) or (b) of this section, upon request we will suspend your lease effective immediately before its expiration in order to determine your compliance. If we determine that you have complied, we will lift the suspension and grant the first 5-year extension of the primary term effective on the first day of the month following our determination of compliance. If we determine that you have not complied, we will terminate the suspension and your lease will expire upon the date of the termination of the suspension.
(f) Every 3 calendar years the dollar amount of the work requirements and the amount to be paid in lieu of such work required by this section will automatically be updated. The update will be based on the change in the Implicit Price Deflator-Gross Domestic Product for those 3 years.
§ 3207.12 What work am I required to perform each year for BLM to continue the initial and additional extensions of the primary term of my lease?
(a) To continue the initial extension of the primary term of your lease, in each of lease years 11, 12, 13, and 14, you must expend a minimum of $15 per acre (or fraction thereof) per year in development activities that establish a geothermal potential or confirm the existence of producible geothermal resources. Such activities include, but are not limited to:
(1) Geologic investigation and analysis;
(2) Drilling temperature gradient wells;
(3) Core drilling;
(4) Geochemical or geophysical surveys;
(5) Drilling production or injection wells;
(6) Reservoir testing; or
(7) Other activities approved by BLM.
(b) For BLM to grant the additional extension of the primary term of your lease, in year 15 you must expend a minimum of $15 per acre (or fraction thereof) in development activities that provide additional geologic or reservoir information, such as those described in paragraph (a) of this section.
(c) To continue the additional extension of the primary term of your lease, in each of lease years 16, 17, 18, and 19, you must expend a minimum of $25 per acre (or fraction thereof) per year in development activities that provide additional geologic or reservoir information, such as those described in paragraph (a) of this section.
(d) In lieu of the work requirements in paragraphs (a), (b), and (c) of this section, you may:
(1) Submit documentation to BLM that you have produced or utilized geothermal resources in commercial quantities; or
(2) Make a payment to BLM equivalent to the required annual work expenditure such that the total of the payment and the value of the work you perform equals $15 or $25 per acre per year of land included in your lease, as applicable. BLM may limit the number of years that it will accept such payments if it determines that further payments in lieu of the work requirements would impair achievement of diligent development of the geothermal resources.
(e) Under paragraph (a) or paragraph (b) of this section, if you expend an amount greater than the amount specified, you may apply any payment in excess of the specified amount to any subsequent year within the applicable 5-year extension of the primary term. An excess payment during the first 5-year extension period may not be applied to any year within the second 5-year extension period.
(f) You must submit information to BLM showing that you have complied with the applicable requirements in this section no later than:
(1) 60 days after the end of years 11, 12, 13, and 14;
(2) 60 days before the end of year 15; and
(3) 60 days after the end of years 16, 17, 18, and 19.
(g) In your submission, describe your activities by type, location, date(s) conducted, and the dollar amount spent on those operations. Include all geologic information obtained from your activities in your report. We must approve the type of work done and the expenditures claimed in your report before we can credit them toward your requirements. We will notify you if you have not met the requirements.
(h) If you do not comply with the requirements of this section in any year of a 5-year extension of the primary term, BLM will terminate your lease at the end of that year unless you qualify for a drilling extension under § 3207.13.
(i) Every three calendar years the dollar amount of the work requirements and the amount to be paid in lieu of such work required by this section will automatically be updated. The update will be based on the change in the Implicit Price Deflator-Gross Domestic Product for those three years.
§ 3207.13 Must I comply with the requirements of §§ 3207.11 and 3207.12 when my lease overlies a mining claim?
(a) BLM will exempt you from complying with the requirements of §§ 3207.11 and 3207.12 when you demonstrate to BLM that:
(1) The mining claim has a plan of operations approved by the appropriate Federal land management agency; and
(2) Your development of the geothermal resource on the lease would interfere with the mining operations.
(b) The exemption provided under paragraph (a) of this section expires upon termination of the mining operations.
§ 3207.14 How do I qualify for a drilling extension?
(a) BLM will extend your lease for 5 years under a drilling extension if at the end of the 10th year or any subsequent year of the initial or additional extension of the primary term you:
(1) Have not met the requirements that you must satisfy for BLM to grant or to continue the initial or additional extensions of your primary lease term under § 3207.12, or your lease is in its 20th year;
(2) Commenced drilling a well before the end of such year for the purposes of testing or producing a geothermal reservoir; and
(3) Are diligently drilling to a target that BLM determines is adequate, based on the local geology and type of development you propose.
(b) The drilling extension is effective on the first day following the expiration or termination of the primary term.
(c) At the end of your drilling extension, your lease will expire unless you qualify for a production extension under § 3207.15.
§ 3207.15 How do I qualify for a production extension?
(a) BLM will grant a production extension of up to 35 years, if you are producing or utilizing geothermal resources in commercial quantities.
(b) Before granting a production extension, BLM must determine that you:
(1) Have a well that is actually producing geothermal resources in commercial quantities; or
(2)(i) Have completed a well that is capable of producing geothermal resources in commercial quantities; and
(ii) Are making diligent efforts toward utilization of the resource.
(c) To qualify for a production extension under paragraph (b)(2) of this section, unless BLM specifies otherwise you must demonstrate on an annual basis that you are making diligent efforts toward utilization of the resource.
(d) BLM will make the determinations required under paragraphs (b)(1) and (b)(2)(i) of this section based on the information you provide under subparts 3264 and 3276 and any other information that BLM may require you to submit.
(e) For BLM to make the determination required under paragraph (b)(2)(ii) of this section, you must provide BLM with information, such as:
(1) Actions you have taken to identify and define the geothermal resource on your lease;
(2) Actions you have taken to negotiate marketing arrangements, sales contracts, drilling agreements, or financing for electrical generation and transmission projects;
(3) Current economic factors and conditions that would affect the decision of a prudent operator to produce or utilize geothermal resources in commercial quantities on your lease; and
(4) Other actions you have taken, such as obtaining permits, conducting environmental studies, and meeting permit requirements.
(f) Your production extension will begin on the first day of the month following the end of the primary term (including the initial and additional extensions) or the drilling extension.
(g) Your production extension will continue for up to 35 years as long as the geothermal resource is being produced or utilized in commercial quantities. If you fail to produce or utilize geothermal resources in commercial quantities, BLM will terminate your lease unless you meet the conditions set forth in § 3212.15 or § 3213.19.
§ 3207.16 When may my lease be renewed?
You have a preferential right to renew your lease for a second term of up to 55 years, under such terms and conditions as BLM deems appropriate, if at the end of the production extension you are producing or utilizing geothermal resources in commercial quantities and the lands are not needed for any other purpose. The renewal term will continue for up to 55 years if you produce or utilize geothermal resources in commercial quantities and satisfy other terms and conditions BLM imposes.
§ 3207.17 How is the term of my lease affected by commitment to a unit?
(a) If your lease is committed to a unit agreement and its term would expire before the unit term would, BLM may extend your lease to match the term of the unit. We will do this if unit development has been diligently pursued while your lease is committed to the unit.
(b) To extend the term of a lease committed to a unit, the unit operator must send BLM a request for lease extension at least 60 days before the lease expires showing that unit development has been diligently pursued. BLM may require additional information.
(c) Within 30 days after receiving your complete extension request, BLM will notify the unit operator whether we approve.
§ 3207.18 Can my lease be extended if it is eliminated from a unit?
If your lease is eliminated from a unit under § 3283.6, it is eligible for an extension if it meets the requirements for such extension.
Subpart 3210 – Additional Lease Information
§ 3210.10 When does lease segregation occur?
(a) Lease segregation occurs when:
(1) A portion of a lease is committed to a unit agreement while other portions are not committed; or
(2) Only a portion of a lease remains in a participating area when the unit contracts. The portions of the lease outside the participating area are eliminated from the unit agreement and segregated as of the effective date of the unit contraction.
(b) BLM will assign the original lease serial number to the portion within the agreement. BLM will give the lease portion outside the agreement a new serial number, and the same lease terms as the original lease.
§ 3210.11 Does a lease segregated from an agreement or plan receive any benefits from unitization of the committed portion of the original lease?
The new segregated lease stands alone and does not receive any of the benefits provided to the portion committed to the unit. We will not give you an extension for the eliminated portion of the lease based on status of the lands committed to the unit, including production in commercial quantities or the existence of a producible well.
§ 3210.12 May I consolidate leases?
BLM may approve your consolidation of two or more adjacent leases that have the same ownership and same lease terms, including expiration dates, if the combined leases do not exceed the size limitations in § 3206.12. We may consolidate leases that have different stipulations if all other lease terms are the same. You must include the processing fee for lease consolidations found in the fee schedule in § 3000.12 of this chapter with your request to consolidate leases.
§ 3210.13 Who may lease or locate other minerals on the same lands as my geothermal lease?
Anyone may lease or locate other minerals on the same lands as your geothermal lease. The United States reserves the ownership of and the right to extract helium, oil, and hydrocarbon gas from all geothermal steam and associated geothermal resources. In addition, BLM allows mineral leasing or location on the same lands that are leased for geothermal resources, provided that operations under the mineral leasing or mining laws do not unreasonably interfere with or endanger your geothermal operations.
§ 3210.14 May BLM readjust the terms and conditions in my lease?
(a)(1) Except for rentals and royalties (readjustments of which are addressed in paragraph (b) of this section, BLM may readjust the terms and conditions of your lease 10 years after you begin production of geothermal resources from your lease, and at not less than 10-year intervals thereafter, under the procedures of paragraphs (c), (d), and (e) of this section.
(2) If another Federal agency manages the lands’ surface, we will ask that agency to review the related terms and conditions and propose any readjustments. Once BLM and the surface managing agency reach agreement and the surface managing agency approves the proposed readjustment, we will follow the procedures in paragraphs (c), (d), and (e) of this section.
(b) BLM may readjust your lease rentals and royalties at not less than 20-year intervals beginning 35 years after we determine that your lease is producing geothermal resources in commercial quantities. BLM will not increase your rentals or royalties by more than 50 percent over the rental or royalties you paid before the readjustment.
(c) BLM will give you a written proposal to readjust the rentals, royalties, or other terms and conditions of your lease. You will have 30 days after you receive the proposal to file with BLM an objection in writing to the proposed new terms and conditions.
(d) If you do not object in writing or relinquish your lease, you will conclusively be deemed to have agreed to the proposed new terms and conditions. BLM will issue a written decision setting the date that the new terms and conditions become effective as part of your lease. This decision will be in full force and effect under its own terms, and you are not authorized to appeal the BLM decision to the Office of Hearings and Appeals.
(e)(1) If you file a timely objection in writing, BLM may issue a written decision making the readjusted terms and conditions effective no sooner than 90 days after we receive your objections, unless we reach an agreement with you as to the readjusted terms and conditions of your lease that makes them effective sooner.
(2) If BLM does not reach an agreement with you by 60 days after we receive your objections, then either the lessee or BLM may terminate your lease, upon giving the other party 30 days’ notice in writing. A termination under this paragraph does not affect your obligations that accrued under the lease when it was in effect, including those specified in § 3200.4.
§ 3210.15 What if I appeal BLM’s decision to readjust my lease terms?
If you appeal BLM’s decision under § 3210.14(e)(1) to readjust the rentals, royalties, or other terms and conditions of your lease, the decision is effective during the appeal. If you win your appeal and we must change our decision, you will receive a refund or credit for any overpaid rents or royalties.
§ 3210.16 How must I prevent drainage of geothermal resources from my lease?
You must prevent the drainage of geothermal resources from your lease by diligently drilling and producing wells that protect the Federal geothermal resource from loss caused by production from other properties.
§ 3210.17 What will BLM do if I do not protect my lease from drainage?
BLM will determine the amount of geothermal resources drained from your lease. MMS will bill you for a compensatory royalty based on our findings. This royalty will equal the amount you would have paid for producing those resources. All interest owners in a lease are jointly and severally liable for drainage protection and any compensatory royalties.
Subpart 3211 – Filing and Processing Fees, Rent, Direct Use Fees, and Royalties
§ 3211.10 What are the processing and filing fees for leases?
(a) Processing or filing fees are required for the following actions:
(1) Nomination of lands for competitive leasing;
(2) Competitive lease application;
(3) Noncompetitive lease application (including application for direct use leases);
(4) Assignment and transfer of record title or operating right;
(5) Name change, corporate merger, or transfer to heir/devisee;
(6) Lease consolidation;
(7) Lease reinstatement;
(8) Site license application; and
(9) Assignment or transfer of site license.
(b) The amounts of these fees can be found in § 3000.12 of this chapter.
§ 3211.11 What are the annual lease rental rates?
(a) BLM calculates annual rent based on the amount of acreage covered by your lease. To determine lease acreage for this section, round up any partial acreage up to the next whole acre. For example, the annual rent on a 2,456.39 acre lease is calculated based on 2,457 acres.
(b) For leases issued on or after August 8, 2005 (other than leases issued in response to applications that were pending on that date for which no election is made under § 3200.8(b)(1)), and for leases issued before August 8, 2005, for which an election is made under § 3200.7(a)(2), the rental rate is as follows:
(1) If you obtained your lease through a competitive lease sale, then your annual rent is $2 per acre for the first year, and $3 per acre for the second through tenth year;
(2) If you obtained your lease noncompetitively, then your annual rent is $1 per acre for the first 10 years; and
(3) After the tenth year, your annual rent will be $5 per acre, regardless of whether you obtained your lease through a competitive lease sale or noncompetitively.
(c) For leases issued before August 8, 2005, for which no election is made under § 3200.7(a)(2), and for leases issued in response to applications pending on that date for which no election is made under § 3200.8(b)(1), the rental rate is the rate prescribed in the regulations in effect on August 8, 2005 (43 CFR 3211.10 (2004)).
(d) For leases in which the United States owns only a fractional interest in the geothermal resources, BLM will prorate the rents established in paragraphs (a), (b), and (c) of this section, based on the fractional interest owned by the United States. For example, if the United States owns 50 percent of the geothermal resources in a 640 acre lease, you pay rent based on 320 acres.
§ 3211.12 How and where do I pay my rent?
(a) First year. Pay BLM the first year’s rent in advance. You may use a personal check, cashier’s check, or money order made payable to the Department of the Interior – Bureau of Land Management. You may also make payments by credit card or electronic funds transfer with our prior approval.
(b) Subsequent years. For all subsequent years, make your rental payments to MMS. See MMS regulations at 30 CFR part 218.
§ 3211.13 When is my annual rental payment due?
Your rent is always due in advance. MMS must receive your annual rental payment by the anniversary date of the lease each year. See the MMS regulations at 30 CFR part 218, which explain when MMS considers a payment as received. If less than a full year remains on a lease, you must still pay a full year’s rent by the anniversary date of the lease. For example, the rent on a 2,000-acre lease for the 11th year, would be $10,000 ($5 per acre), due prior to the 10th anniversary of the lease.
§ 3211.14 Will I always pay rent on my lease?
(a) For leases issued on or after August 8, 2005 (other than leases issued in response to applications that were pending on that date for which no election is made under § 3200.8(b)(1)), and for leases issued before August 8, 2005, for which an election is made under § 3200.7(a)(2), you must always pay rental, whether you are in a unit or outside of a unit, whether your lease is in production or not, and whether royalties or direct use fees apply to your production.
(b) For leases issued before August 8, 2005, for which no election is made under § 3200.7(a)(2), and for leases issued in response to applications pending on that date for which no election is made under § 3200.8(b)(1), you must pay rent for all the lands in your lease until:
(1) Your lease achieves production in commercial quantities, at which time you pay royalties; or
(2) Lands in your lease are within the participating area of a unit agreement or cooperative plan, at which time you pay rent for lands outside the participating area and pay royalties for lands within the participating area.
§ 3211.15 How do I credit rent towards royalty?
You may credit rental towards royalty under MMS regulations at 30 CFR 218.303.
§ 3211.16 Can I credit rent towards direct use fees?
No. You may not credit rental towards direct use fees. See MMS regulations at 30 CFR 218.304.
§ 3211.17 What is the royalty rate on geothermal resources produced from or attributable to my lease that are used for commercial generation of electricity?
(a) For leases issued on or after August 8, 2005 (other than leases issued in response to applications that were pending on that date for which the lessee does not make an election under § 3200.8(b)(1)), the royalty rate is the rate prescribed in this paragraph.
(1) If you or your affiliate sell(s) electricity generated by use of geothermal resources produced from or attributed to your lease, then:
(i) For the first 10 years of production, the royalty rate is 1.75 percent;
(ii) After the first 10 years of production, the royalty rate is 3.5 percent; and
(iii) You must apply the rate established under this paragraph to the gross proceeds derived from the sale of electricity under applicable MMS rules at 30 CFR part 206, subpart H.
(2) If you or your affiliate sell(s) geothermal resources produced from or attributed to your lease at arm’s length to a purchaser who uses those resources to generate electricity, then the royalty rate is 10 percent. You must apply that rate to the gross proceeds derived from the arm’s-length sale of the geothermal resources under applicable MMS rules at 30 CFR part 206, subpart H.
(b) For leases issued before August 8, 2005, whose royalty terms are modified to the terms prescribed in the Energy Policy Act of 2005 under § 3212.25, BLM will establish royalty rates under paragraphs (b)(1) and (b)(2) of this section.
(1) For leases that, prior to submitting a request to modify the royalty rate terms of the lease under section 3212.26, produced geothermal resources for the commercial generation of electricity, or to which geothermal resource production for the commercial generation of electricity was attributed:
(i) If you or your affiliate uses geothermal resources produced from or attributed to your lease to generate and sell electricity, BLM will establish a rate on a case-by-case basis that it expects will yield total royalty payments over the life of the lease equivalent to those that would have been paid under the royalty rate in effect for the lease before August 5, 2005. The rate is not limited to the range of rates specified in 30 U.S.C. 1004(a)(1). You must apply the rate that BLM establishes to the gross proceeds derived from the sale of electricity under applicable MMS rules at 30 CFR part 206, subpart H.
(ii) If you or your affiliate sells geothermal resources produced from or attributed to your lease at arm’s length to a purchaser who uses those resources to generate electricity, the royalty rate is the rate specified in the lease instrument. You must apply that rate to the gross proceeds derived from the arm’s-length sale of the geothermal resources under applicable MMS rules at 30 CFR part 206, subpart H.
(2) For leases that, prior to submitting a request to modify the royalty rate terms of the lease under section 3212.26, did not produce geothermal resources for the commercial generation of electricity, and to which geothermal resource production for the commercial generation of electricity was not attributed, BLM will establish royalty rates equal to those set forth in paragraph (a)(1) or (a)(2) of this section, whichever is applicable.
(c) For leases issued before August 8, 2005, whose royalty terms are not modified to the terms prescribed in the Energy Policy Act of 2005 under § 3212.25, and for leases issued in response to applications pending on that date for which the lessee does not make an election under § 3200.8(b)(1), the royalty rate is the rate prescribed in the lease instrument.
§ 3211.18 What is the royalty rate on geothermal resources produced from or attributable to my lease that are used directly for purposes other than commercial generation of electricity?
(a) For leases issued on or after August 8, 2005 (other than leases issued in response to applications that were pending on that date for which the lessee does not make an election under § 3200.8(b)), and for leases issued before August 8, 2005, whose royalty terms are modified to the terms prescribed in the Energy Policy Act of 2005 under § 3212.25:
(1) If you or your affiliate use(s) the geothermal resources directly and do(es) not sell those resources at arm’s length, no royalty rate applies. Instead, you must pay direct use fees according to a schedule published by MMS under MMS regulations at 30 CFR 206.356.
(2) If you or your affiliate sell(s) the geothermal resources at arm’s length to a purchaser who uses the resources for purposes other than commercial generation of electricity, your royalty rate is 10 percent. You must apply that royalty rate to the gross proceeds derived from the arm’s-length sale under applicable MMS regulations at 30 CFR part 206, subpart H.
(3) If you are a lessee and you are a state, tribal, or local government, no royalty rate applies. Instead you must pay a nominal fee established under MMS rules at 30 CFR 206.366.
(b) For leases issued before August 8, 2005, whose royalty terms are not modified to the terms prescribed in the Energy Policy Act of 2005 under § 3212.25, and for leases issued in response to applications pending on that date for which the lessee does not make an election under § 3200.8(b), the royalty rate is the rate prescribed in the lease instrument.
(c) For purposes of this section, direct use of geothermal resources includes generation of electricity that is not sold commercially and that is used solely for the operation of a facility unrelated to commercial electrical generation.
§ 3211.19 What is the royalty rate on byproducts derived from geothermal resources produced from or attributable to my lease?
(a) For leases issued on or after August 8, 2005 (other than leases issued in response to applications that were pending on that date for which no election is made under § 3200.8(b)(1)), and for leases issued before August 8, 2005, for which an election is made under § 3200.7(a)(2):
(1) The royalty rate for byproducts derived from geothermal resource production that are identified in Section 1 of the Mineral Leasing Act (MLA), as amended (30 U.S.C. 181), is the royalty rate that is prescribed in the MLA or in the regulations implementing the MLA for production of that mineral under a lease issued under the MLA; and
(2) For a byproduct that is not identified in 30 U.S.C. 181, no royalty is due.
(b) For leases issued before August 8, 2005, for which no election is made under § 3200.7(a)(2), and for leases issued in response to applications pending on that date for which no election is made under § 3200.8(b)(1), the royalty on all byproducts is the rate prescribed in the lease instrument, or if none is prescribed in the lease instrument, the rate prescribed in 43 CFR 3211.10(b) (2004).
§ 3211.20 How do I credit advanced royalty towards royalty?
You may credit advanced royalty toward royalty under MMS regulations at 30 CFR 218.305(c).
§ 3211.21 When do I owe minimum royalty?
(a) You do not owe minimum royalties for:
(1) Leases issued on or after August 8, 2005 (other than for leases issued in response to applications that were pending on that date for which no election is made under § 3200.8(b)(1)); and
(2) Leases issued before August 8, 2005, for which an election is made under § 3200.7(a)(2).
(b) For leases issued before August 8, 2005, for which no election is made under § 3200.7(a)(2), and for leases issued in response to applications pending on that date for which no election is made under § 3200.8(b)(1), you owe minimum royalty of $2.00 per acre (to be paid to MMS) when:
(1) You have not begun actual production following the BLM’s determination that you have a well capable of commercial production; or
(2) The value of actual production is so low that royalty you would pay under the scheduled rate is less than $2.00 per acre (this applies to situations of no production, as long as the lease remains in effect).
Subpart 3212 – Lease Suspensions, Cessation of Production, Royalty Rate Reductions, and Energy Policy Act Royalty Rate Conversions
§ 3212.10 What is the difference between a suspension of operations and production and a suspension of operations?
(a) A suspension of operations and production is a temporary relief from production obligations which you may request from BLM. Under this paragraph you must cease all operations on your lease.
(b) A suspension of operations is when BLM orders you, to stop production temporarily in the interest of conservation.
§ 3212.11 How do I obtain a suspension of operations or a suspension of operations and production on my lease?
(a) If you are the operator, you may request in writing that BLM suspend your operations and production for a producing lease. Your request must fully describe why you need the suspension. BLM will determine if your suspension is justified and, if so, will approve it.
(b) BLM may suspend your operations on any lease in the interest of conservation.
(c) A suspension under this section may include leases committed to an approved unit agreement. If leases committed to a unit are suspended, the unit operator must continue to satisfy unit terms and obligations, unless BLM also suspends unit terms and obligations, in whole or in part, under subpart 3287.
§ 3212.12 How long does a suspension of operations or a suspension of operations and production last?
(a) BLM will state in your suspension notice how long your suspension of operations or operations and production is effective.
(b) During a suspension, you may ask BLM in writing to terminate your suspension. You may not unilaterally terminate a suspension that BLM ordered. A suspension of operations and production that we approved upon your request will automatically terminate when you begin or resume authorized production or drilling operations.
(c) If we receive information showing that you must resume operations to protect the interests of the United States, we will terminate your suspension and order you to resume production.
(d) If a suspension terminates, you must resume paying rents and royalty (see § 3212.14).
§ 3212.13 How does a suspension affect my lease term and obligations?
(a) If BLM approves a suspension of operations and production:
(1) Your lease term is extended by the length of time the suspension is in effect; and
(2) You are not required to drill, produce geothermal resources, or pay rents or royalties during the suspension. We will suspend your obligation to pay lease rents or royalties beginning the first day of the month following the date the suspension is effective.
(b) If BLM orders you to suspend your operations;
(1) Your lease term is extended by the length of time the suspension is in effect; and
(2) Your lease rental or royalty obligations are not suspended, except that BLM may suspend your rental or royalty obligations if you will be denied all beneficial use of your lease during the period of the suspension.
§ 3212.14 What happens when the suspension ends?
When the suspension ends, you must resume rental and royalty payments that were suspended, beginning on the first day of the lease month after BLM terminates the suspension. You must pay the full rental amount due on or before the next lease anniversary date. If you do not make the rental payments on time, BLM will refund your balance and terminate the lease.
§ 3212.15 Will my lease remain in effect if I cease production and I do not have an approved suspension?
In the absence of a suspension issued under § 3212.11, if you cease production for more than one calendar month on a lease that is subject to royalties and that has achieved commercial production (through actual or allocated production), your lease will remain in effect only if the circumstances described in paragraphs (a), (b), or (c) of this section apply:
(a)(1) For leases issued on or after August 8, 2005 (other than leases issued in response to applications pending on that date for which no election is made under § 3200.8(b)(1)), and for leases issued before August 8, 2005, for which an election is made under § 3200.7(a)(2), your lease will remain in effect if, during the period in which there is no production, you continue to pay a monthly advanced royalty under MMS regulations at 30 CFR 218.305. This option is available only for an aggregate of 10 years (120 months, whether consecutive or not).
(2) For leases issued before August 8, 2005, for which no election is made under § 3200.7(a)(2), and for leases issued in response to applications pending on August 8, 2005, for which no election is made under § 3200.8(b)(1), your lease will remain in effect if, during the period in which there is no production you:
(i) Continue to make minimum royalty payments as specified in § 3211.21(b) of this part;
(ii) Maintain a well capable of production in commercial quantities;
(iii) Continue to make diligent efforts to utilize the geothermal resource; and
(iv) Satisfy any other applicable requirements.
(b) The Secretary:
(1) Requires or causes the cessation of production; or
(2) Determines that the cessation in production is required or otherwise caused by:
(i) The Secretary of the Air Force, Army, or Navy;
(ii) A state or a political subdivision of a state; or
(iii) Force majeure.
(c) The discontinuance of production is caused by the performance of maintenance necessary to maintain operations. Such maintenance is considered a production activity, not a cessation of production, and maintenance may include activities such as overhauling your power plant, re-drilling or re-working wells that are critical to plant operation, or repairing and improving gathering systems or transmission lines, that necessitate the discontinuation of production. You must obtain BLM approval by submitting a Geothermal Sundry Notice if the activity will require more than one calendar month, for it to be classified as maintenance under this paragraph. The BLM must receive the Geothermal Sundry Notice before the end of the first calendar month in which there will be no production.
§ 3212.16 Can I apply to BLM to reduce, suspend, or waive the royalty or rental of my lease?
(a) You may apply for a suspension, reduction, or waiver of your rent or royalty for any lease or portion thereof. BLM may grant your request in the interest of conservation and to encourage the greatest ultimate recovery of geothermal resources, if we determine that:
(1) Granting the request is necessary to promote development; or
(2) You cannot successfully operate the lease under its current terms.
(b) BLM will not approve a rental or royalty reduction, suspension, or waiver unless all rental or royalty interest owners other than the United States accept a similar reduction, suspension, or waiver.
§ 3212.17 What information must I submit when I request that BLM suspend, reduce, or waive my royalty or rental?
(a) Your request for suspension, reduction, or waiver of the royalty or rental must include all information BLM needs to determine if the lease can be operated under its current terms, including:
(1) The type of reduction you seek;
(2) The serial number of your lease;
(3) The names and addresses of the lessee and operator;
(4) The location and status of wells;
(5) A summary of monthly production from your lease; and
(6) A detailed statement of expenses and costs.
(b) If you are applying for a royalty or rental reduction, suspension, or waiver, you must also provide to BLM a list of names of royalty and rental interest owners other than the United States, the amounts of royalties or payments out of production and rent paid to them, and every effort you have made to reduce these payments.
§ 3212.18 What are the production incentives for leases?
You will receive a production incentive in the form of a temporary 50 percent reduction in your royalties under MMS regulations at 30 CFR 218.307 if:
(a) Your lease was in effect prior to August 8, 2005;
(b) You do not convert the royalty rates of your lease under § 3212.25;
(c) By August 7, 2011, production from or allocated to your lease is utilized for commercial production in a:
(1) New facility (see § 3212.22); or
(2) Qualified expansion project (see § 3212.21); and
(d) The production from your lease is used for the commercial generation of electricity.
§ 3212.19 How do I apply for a production incentive?
Submit to BLM a written request for a production incentive describing a project that may qualify as a new facility or qualified expansion project. Identify whether you are requesting that the project be considered as a new facility (see § 3212.22) or as a qualified expansion project (see § 3212.21) and explain why your project qualifies under these regulations. The request must be received no later than August 7, 2011.
§ 3212.20 How will BLM review my request for a production incentive?
(a) BLM will review your request on a case-by-case basis to determine whether your project meets the criteria for a qualified expansion project under § 3212.21 or a new facility under § 3212.22. If it does not meet the criteria for the type of project you requested, we will determine whether it meets the criteria for the other type of production incentive project.
(b) If BLM determines that you have a qualified expansion project, we will, as part of our approval, provide you with a schedule of monthly target net generation amounts that you must exceed to qualify for the production incentive. These amounts will quantify the required 10 percent increase in net generation over the projected net generation without the project. The schedule will be specific to the facility or facilities that are affected by the project and will cover the 48-month time period during which your production incentive may apply.
(c) If BLM determines that you have met the criteria for a new facility, we will provide you with written notification of this determination.
§ 3212.21 What criteria establish a qualified expansion project for the purpose of obtaining a production incentive?
A qualified expansion project must meet the following criteria:
(a) It must involve substantial capital expenditure. Examples include the drilling of additional wells, retrofitting existing wells and collection systems to increase production rates, retrofitting turbines or power plant components to increase efficiency, adding additional generation capacity to existing plants, and enhanced recovery projects such as augmented injection. Projects that are not associated with substantial capital expenditure, such as opening production valves and operating existing equipment at higher rates, do not qualify as expansion projects.
(b) The project must have the potential to increase the net generation by more than 10 percent over the projected generation without the project, using data from the previous 5 years. If 5 years of data are not available, it is not a qualified expansion project.
§ 3212.22 What criteria establish a new facility for the purpose of obtaining a production incentive?
(a) Criteria for determining whether a project is a new facility for the purpose of obtaining a production incentive include:
(1) The project requires a new site license or facility construction permit if it is on Federal lands;
(2) The project requires a new Commercial Use Permit;
(3) The project includes at least one new turbine-generator unit;
(4) The project involves a new sales contract;
(5) The project involves a new site or substantially larger footprint; and
(6) The project is not contiguous to an existing project.
(b) Generally, a new facility will not:
(1) Be permitted only with a Geothermal Drilling Permit;
(2) Be constructed entirely within the footprint of an existing facility; or
(3) Involve only well-field projects such as drilling new wells, increasing injection, and enhanced recovery projects.
§ 3212.23 How will the production incentive apply to a qualified expansion project?
(a) The production incentive will begin on the first day of the month following the commencement of commercial operation of the qualified expansion project. The incentive will be in effect for up to 48 consecutive months, applicable only to those months in which the actual generation from the facility or facilities affected by the project exceeds the target generation established by BLM. The amount of the production incentive is established in MMS regulations at 30 CFR 218.307.
(b) The production incentive will apply only to the increase in net generation. The increase in generation for any month in which the production incentive is in effect will be determined as follows:
§ 3212.24 How will the production incentive apply to a new facility?
(a) If BLM determines that your project qualifies as a new facility, the production incentive will begin on the first day of the month following the commencement of commercial operations at that facility, and will be in effect for 48 consecutive months. The incentive applies to the entire commercial generation of electricity from the new facility.
(b) The amount of the production incentive is established in MMS regulations at 30 CFR 218.307.
§ 3212.25 Can I convert the royalty rate terms of my lease in effect before August 8, 2005, to the terms of the Geothermal Steam Act, as amended by the Energy Policy Act of 2005?
(a) If a lease was in effect before August 8, 2005, the lessee may submit to BLM a request to modify the royalty rate terms of your lease to the applicable royalty rate or direct use fee terms prescribed in the Geothermal Steam Act as amended by the Energy Policy Act of 2005. You may withdraw your request before it is granted, but once you accept the new terms, you may not revert to the earlier royalty rates. If your request to modify is granted, the new royalty rate or direct use fees will apply to all geothermal resources produced from your lease for as long as your lease remains in effect. A modification under this section does not affect the royalty rate for byproducts.
(b)(1) The royalty rate for leases whose terms are modified and production from which is used for commercial generation of electricity is prescribed in § 3211.17(b).
(2) The direct use fees or royalty rate for leases whose terms are modified and production from which is used directly for purposes other than commercial generation of electricity is prescribed in § 3211.18(a) of this part and MMS regulations at 30 CFR 206.356.
§ 3212.26 How do I submit a request to modify the royalty rate terms of my lease to the applicable terms prescribed in the Energy Policy Act of 2005?
(a) You must submit a written request to BLM that contains the serial numbers of the leases whose terms you wish to modify and:
(1) For direct use operations, any other information that BLM may require; or
(2) For commercial electrical generation operations, for each month during the 10-year period preceding the date of your request (or from when electrical generation operations began if less than 10 years before the date of your request):
(i) The gross proceeds received by you or your affiliate from the sale of electricity;
(ii) The amount of royalty paid;
(iii) The amount of generating and transmission deductions subtracted from the gross proceeds to derive the royalty value if you are using the geothermal netback procedure under MMS regulations to calculate royalty value; and
(iv) Any other information that BLM may require.
(b) BLM must receive your request no later than:
(1) For leases whose geothermal resource production is used directly for purposes other than commercial generation of electricity, 18 months after the effective date of the schedule of fees established by MMS under 30 CFR 206.356(b); or
(2) For leases whose geothermal resource production is used for commercial generation of electricity, December 1, 2008.
§ 3212.27 How will BLM or MMS review my request to modify the lease royalty rate terms?
After you submit your request to modify the royalty rate terms under § 3212.25, BLM will:
(a) Review your application, and if BLM determines that:
(1) Your application is complete and contains all necessary information, we will notify you of the date on which your complete request was received; or
(2) Your request is not complete or does not contain all necessary information, we will notify you of the additional information that is required;
(b) Analyze the data you submitted to establish a royalty rate if the geothermal resources are used for commercial electrical generation;
(c) Consult with MMS and any state or local governments that may be affected by the change in royalty rate terms; and
(d)(1) No later than 140 days after the day on which we determine a complete request with all necessary information was received, BLM will send you written notification of the proposed royalty rate that BLM determines to be revenue neutral.
(2) If you reject the proposed rate, we must receive written notification from you no later than 30 days after the date of your receipt of our notification. BLM will accept a faxed notification received within the 30-day time limit. However, following the fax, you must submit to BLM written notification which BLM must receive no later than the 179th day following the day on which BLM determines we received your complete request.
(3) If you reject the proposed royalty rate on a timely basis:
(i) BLM will not issue a decision modifying the royalty rate terms of your lease;
(ii) The existing royalty rate terms in your lease continue to apply; and
(iii) You may not reapply for a royalty rate term conversion under § 3212.25.
(4) Unless timely written notification is received from you rejecting the proposed rate, BLM will issue a decision modifying the royalty rate terms of your lease no later than 180 days after the day on which we determine a complete request was received. The effective date of the new royalty rate is the first day of the month following the date on which the decision was issued. For example, a decision issued on July 21, will become effective on August 1.
Subpart 3213 – Relinquishment, Termination, and Cancellation
§ 3213.10 Who may relinquish a lease?
Only the record title owner may relinquish a lease in full or in part. If there is more than one record title owner for a lease, all record title owners must sign the relinquishment.
§ 3213.11 What must I do to relinquish a lease?
Send BLM a written request that includes the serial number of each lease you are relinquishing. If you are relinquishing the entire lease, no legal description of the land is required. If you are relinquishing part of the lease, you must describe the lands to be relinquished. BLM may require additional information if necessary.
§ 3213.12 May BLM accept a partial relinquishment if it will reduce my lease to less than 640 acres?
Except for direct use leases, lands remaining in your lease must contain at least 640 acres, or all of your leased lands must be in one section, whichever is less. Otherwise, we will not accept your partial relinquishment. BLM will only allow an exception if it will further development of the resource. The size of direct use leases is addressed in § 3205.07.
§ 3213.13 When does relinquishment take effect?
(a) If BLM determines your relinquishment request meets the requirements of §§ 3213.11 and 3213.12, your relinquishment is effective the day we receive it.
(b) Notwithstanding the relinquishment, you and your surety continue to be responsible for:
(1) Paying all rents and royalties due before the relinquishment was effective;
(2) Plugging and abandoning all wells on the relinquished land;
(3) Restoring and reclaiming the surface and other resources; and
(4) Complying with § 3200.4.
§ 3213.14 Will BLM terminate my lease if I do not pay my rent on time?
(a) If MMS does not receive your second and subsequent year’s rental payment in full by the lease anniversary date, MMS will notify you that the rent payment is overdue. You have 45 days after the anniversary date to pay the rent plus a 10 percent late fee. If MMS does not receive your rental plus the late fee by the end of the 45-day period, BLM will terminate your lease.
(b) If you receive notification from MMS under paragraph (a) of this section more than 15 days after the lease anniversary date, BLM will reinstate a lease that was terminated under paragraph (a) of this section if MMS receives the rent plus a 10 percent late fee within 30 days after you receive the notification.
§ 3213.15 How will BLM notify me if it terminates my lease?
BLM will send you a notice of the termination by certified mail, return receipt requested.
§ 3213.16 May BLM cancel my lease?
(a) BLM may cancel your lease if it was issued in error.
(b) If BLM cancels your lease because it was issued in error, the cancellation is effective when you receive it.
§ 3213.17 May BLM terminate my lease for reasons other than non-payment of rentals?
BLM may terminate your lease for reasons other than non-payment of rentals, after giving you 30 days written notice, if we determine that you violated the requirements of § 3200.4, including, but not limited to the nonpayment of royalties and fees under 30 CFR parts 206 and 218.
§ 3213.18 When is a termination effective?
If BLM terminates your lease because we determined that you violated the requirements of § 3200.4, the termination takes effect 30 days after the date you receive notice of our determination.
§ 3213.19 What can I do if BLM notifies me that my lease is being terminated because of a violation of the law, regulations, or lease terms?
(a) You can prevent termination of your lease if, within 30 days after receipt of our notice:
(1) You correct the violation; or
(2) You show us that you cannot correct the violation during the 30-day period and that you are making a good faith attempt to correct the violation as quickly as possible, and thereafter you diligently proceed to correct the violation.
(b)(1) You may appeal the lease termination. You have 30 days after receipt of our notice to file an appeal (see parts 4 and 1840 of this title). We will stay the termination of your lease while your appeal is pending.
(2) You are entitled to a hearing on the violation or the proposed lease termination if you request the hearing when you file the appeal. The period for correction of the violation will be extended to 30 days after the decision on appeal is made if the decision concludes that a violation exists.
Subpart 3214 – Personal and Surety Bonds
§ 3214.10 Who must post a geothermal bond?
(a) The lessee or operator must post a bond with BLM before exploration, drilling, or utilization operations begin.
(b) Before we approve a lease transfer or recognize a new designated operator, the lessee or operator must file a new bond or a rider to the existing bond, unless all previous operations on the land have already been reclaimed.
§ 3214.11 Who must my bond cover?
Your bond must cover all record title owners, operating rights owners, operators, and any person who conducts operations on your lease.
§ 3214.12 What activities must my bond cover?
Your bond must cover:
(a) Any activities related to exploration, drilling, utilization, or associated operations on a Federal lease;
(b) Reclamation of the surface and other resources;
(c) Rental and royalty payments; and
(d) Compliance with the requirements of § 3200.4.
§ 3214.13 What is the minimum dollar amount required for a bond?
The minimum bond amount varies depending on the type of activity you are proposing and whether your bond will cover individual, statewide, or nationwide activities. The minimum dollar amounts and bonding options for each type of activity are found in the following regulations:
(a) Exploration operations – see § 3251.15;
(b) Drilling operations – see § 3261.18; and
(c) Utilization operations – see §§ 3271.12 and 3273.19.
§ 3214.14 May BLM increase the bond amount above the minimum?
(a) BLM may increase the bond amount above the minimums referenced in § 3214.13 when:
(1) We determine that the operator has a history of noncompliance;
(2) We previously had to make a claim against a surety because any one person who is covered by the new bond failed to plug and abandon a well and reclaim the surface in a timely manner;
(3) MMS has notified BLM that a person covered by the bond owes uncollected royalties; or
(4) We determine that the bond amount will not cover the estimated reclamation cost.
(b) We may increase bond amounts to any level, but we will not set that amount higher than the total estimated costs of plugging wells, removing structures, and reclaiming the surface and other resources, plus any uncollected royalties due MMS or moneys owed to BLM due to previous violations.
§ 3214.15 What kind of financial guarantee will BLM accept to back my bond?
We will not accept cash bonds. We will only accept:
(a) Corporate surety bonds, provided that the surety company is approved by the Department of Treasury (see Department of the Treasury Circular No. 570, which is published in the
(b) Personal bonds, which are secured by a cashier’s check, certified check, certificate of deposit, negotiable securities such as Treasury notes, or an irrevocable letter of credit (see §§ 3214.21 and 3214.22).
§ 3214.16 Is there a special bond form I must use?
You must use a BLM-approved bond form (Form 3000-4, or Form 3000-4a, June 1988 or later editions) for corporate surety bonds and personal bonds.
§ 3214.17 Where must I submit my bond?
File personal or corporate surety bonds and statewide bonds in the BLM State Office that oversees your lease or operations. You may file nationwide bonds in any BLM State Office. File bond riders in the BLM State Office where your underlying bond is located. For personal or corporate surety bonds, file one originally-signed copy of the bond.
§ 3214.18 Who will BLM hold liable under the lease and what are they liable for?
BLM will hold all interest owners in a lease jointly and severally liable for compliance with the requirements of § 3200.4 for obligations that accrue while they hold their interest. Among other things, all interest owners are jointly and severally liable for:
(a) Plugging and abandoning wells;
(b) Reclaiming the surface and other resources;
(c) Compensatory royalties assessed for drainage; and
(d) Rent and royalties due.
§ 3214.19 What are my bonding requirements when a lease interest is transferred to me?
(a) Except as otherwise provided in this section, if the lands to be transferred to you contain a well or any other surface disturbance which the original lessee did not reclaim, you must post a bond under this subpart before BLM will approve the transfer.
(b) If the original lessee does not transfer all interest in the lease to you, you may become a co-principal on the original bond, rather than posting a new bond.
(c) You do not need to post an additional bond if:
(1) You previously furnished a statewide or nationwide bond sufficient to cover the lands transferred; or
(2) The operator provided the original bond, and the operator does not change.
§ 3214.20 How do I modify my bond?
You may modify your bond by submitting a rider to the BLM State Office where your bond is held. There is no special form required.
§ 3214.21 What must I do if I want to use a certificate of deposit to back my bond?
Your certificate of deposit must:
(a) Be issued by a Federally-insured financial institution authorized to do business in the United States;
(b) Include on its face the statement, “This certificate cannot be redeemed by any party without approval by the Secretary of the Interior or the Secretary’s delegate;” and
(c) Be payable to the Department of the Interior, Bureau of Land Management.
§ 3214.22 What must I do if I want to use a letter of credit to back my bond?
Your letter of credit must:
(a) Be issued by a Federally-insured financial institution authorized to do business in the United States;
(b) Be payable to the Department of the Interior – Bureau of Land Management;
(c) Be irrevocable during its term and have an initial expiration date of no sooner than 1 year after the date we receive it;
(d) Be automatically renewable for a period of at least 1 year beyond the end of the current term, unless the issuing financial institution gives us written notice, at least 90 days before the letter of credit expires, that it will no longer renew the letter of credit; and
(e) Include a clause authorizing the Secretary of the Interior to demand immediate payment, in part or in full:
(i) If you do not meet your obligations under the requirements of § 3200.4; or
(ii) Provide substitute security for a letter of credit which the issuer has stated it will not renew before the letter of credit expires.
Subpart 3215 – Bond Release, Termination, and Collection
§ 3215.10 When may BLM collect against my bond?
If you fail to comply with the requirements listed at § 3200.4, we may collect money from the bond to correct your noncompliance. This amount can be as large as the face amount of the bond. Some examples of when we will collect against your bond are when you do not properly or in a timely manner:
(a) Plug and abandon a well;
(b) Reclaim the lease area;
(c) Pay outstanding royalties; or
(d) Pay assessed royalties to compensate for drainage.
§ 3215.11 Must I replace my bond after BLM collects against it?
If BLM collects against your bond, before you conduct any further operations you must either:
(a) Post a new bond equal to the value of the original bond; or
(b) Restore your existing bond to the original face amount.
§ 3215.12 What will BLM do if I do not restore the face amount or file a new bond?
If we collect against your bond and you do not restore it to the original face amount, we may shut in any well(s) or utilization facilities covered by that bond and may terminate affected leases.
§ 3215.13 Will BLM terminate or release my bond?
(a) BLM does not cancel or terminate bonds. We may inform you that your existing bond is insufficient.
(b) The bond provider may terminate your bond provided it gives you and BLM 30-days notice. The bond provider remains responsible for obligations that accrued during the period of liability while the bond was in effect.
(c) BLM will release a bond, terminating all liability under that bond, if:
(1) The new bond that you file covers all existing liabilities and we accept it; or
(2) After a reasonable period of time, we determine that you paid all royalties, rents, penalties, and assessments, and satisfied all permit and lease obligations.
(d) If an adequate bond is not in place, do not conduct any operations until you provide a new bond that meets our requirements.
§ 3215.14 When BLM releases my bond, does that end my responsibilities?
When BLM releases your bond, we relinquish the security but we continue to hold the lessee or operator responsible for noncompliance with applicable requirements under the lease. Specifically, we do not waive any legal claim we may have against any person under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), or other laws and regulations.
Subpart 3216 – Transfers
§ 3216.10 What types of lease interests may I transfer?
You may transfer record title or operating rights, but you need BLM approval before your transfer is effective (see § 3216.21).
§ 3216.11 Where must I file a transfer request?
File your transfer in the BLM State Office that handles your lease.
§ 3216.12 When does a transferee take responsibility for lease obligations?
After BLM approves your transfer, the transferee is responsible for performing all lease obligations accruing after the date of the transfer, and for plugging and abandoning wells which exist and are not plugged and abandoned at the time of the transfer.
§ 3216.13 What are my responsibilities after I transfer my interest?
After you transfer an interest in a lease you are still responsible for rents, royalties, compensatory royalties, and other obligations that accrued before your transfer became effective. You also remain responsible for plugging and abandoning any wells that were drilled or existing on the lease while you held your interest. You must carry out this responsibility upon the BLM’s determination at any future time that the wells must be plugged and abandoned.
§ 3216.14 What filing fees and forms does a transfer require?
With each transfer request you must send BLM the correct form and pay the transfer fee required by this section. When you calculate your fee, make sure it covers the full amount. For example, if you are transferring record title for three leases, submit three times the fee for “Assignment and transfer of record title or operating rights” in the fee schedule in § 3000.12 of this chapter.
Use the following chart to determine the number and types of forms required. The applicable transfer fees are in the fee schedule in § 3000.12 of this chapter.
| Type of transfer | Form required? | Form No. | Number of copies |
|---|---|---|---|
| (a) Record Title | Yes | 3000-3 | 2 executed copies. |
| (b) Operating Rights | Yes | 3000-3(a) | 2 executed copies. |
| (c) Estate Transfers | No | N/A | 1 List of Leases. |
| (d) Corporate Mergers | No | N/A | 1 List of Leases. |
| (e) Name Changes | No | N/A | 1 List of Leases. |
§ 3216.15 When must I file my transfer request?
(a) File a request to transfer record title or operating rights within 90 days after you sign an agreement with the transferee. If BLM receives your request more than 90 days after signing, we may require you to re-certify that you still intend to complete the transfer.
(b) There is no specific time deadline for filing estate transfers, corporate mergers, and name changes. File them within a reasonable time.
§ 3216.16 Must I file separate transfer requests for each lease?
File two copies of a separate request for each lease for which you are transferring record title or operating rights. The only exception is if you are transferring more than one lease to the same transferee, in which case you file two copies of one transfer request.
§ 3216.17 Where must I file estate transfers, corporate mergers, and name changes?
(a) If you have posted a bond for any Federal lease, you must file estate transfers, corporate mergers, and name changes in the BLM State Office that maintains your bond.
(b) If you have not posted a bond, you must file estate transfers, corporate mergers, and name changes in the State Office having jurisdiction over the lease.
§ 3216.18 How do I describe the lands in my lease transfer?
(a) If you are transferring an interest in your entire lease, you do not need to give BLM a legal description of the land.
(b) If you are transferring an interest in a portion of your lease, describe the lands that are transferred in the same way they are described in the lease.
§ 3216.19 May I transfer record title interest for less than 640 acres?
Except for direct use leases, you may transfer record title interest for less than 640 acres only if your transfer includes an irregular subdivision or all of the lands in your lease are in a section. We may make an exception to the minimum acreage requirements if it is necessary to conserve the resource.
§ 3216.20 When does a transfer segregate a lease?
If you transfer 100 percent of the record title interest in a portion of your lease, BLM will segregate the transferred portion from the original lease and give it a new serial number with the same terms and conditions as those in the original lease.
§ 3216.21 When is my transfer effective?
Your transfer is effective the first day of the month after we approve it.
§ 3216.22 Does BLM approve all transfer requests?
BLM will not approve a transfer if:
(a) The lease account is not in good standing;
(b) The transferee does not qualify to hold a lease under this part; or
(c) An adequate bond has not been provided.
Subpart 3217 – Cooperative Agreements
§ 3217.10 What are unit agreements?
Under unit agreements, lessees unite with each other, or jointly or separately with others, in collectively adopting and operating under agreements to conserve the resources of any geothermal reservoir, field, or like area, or any part thereof. BLM will only approve unit agreements that we determine are in the public interest. Unit agreement application procedures are provided in part 3280 of this chapter.
§ 3217.11 What are communitization agreements?
Under communitization agreements (also called drilling agreements), operators who cannot independently develop separate tracts due to well-spacing or well development programs may cooperatively develop such tracts. Lessees may ask BLM to approve a communitization agreement or, in some cases, we may require the lessees to enter into such an agreement.
§ 3217.12 What does BLM need to approve my communitization agreement?
For BLM to approve a communitization agreement, you must give us the following information:
(a) The location of the separate tracts comprising the drilling or spacing unit;
(b) How you will prorate production or royalties to each separate tract based on total acres involved;
(c) The name of each tract operator; and
(d) Provisions for protecting the interests of all parties, including the United States.
§ 3217.13 When does my communitization agreement go into effect?
(a) Your communitization agreement is effective when BLM approves and signs it.
(b) Before we approve the agreement:
(1) All parties must sign the agreement; and
(2)(i) We must determine that the tracts cannot be independently developed; and
(ii) That the agreement is in the public interest.
§ 3217.14 When will BLM approve my drilling or development contract?
BLM may approve a drilling or development contract when:
(a) One or more geothermal lessees enter into the contract with one or more persons; or
(b) Lessees need the contract for regional exploration of geothermal resources;
(c) BLM has coordinated the review of the proposed contract with appropriate state agencies; and
(d) BLM determines that approval best serves or is necessary for the conservation of natural resources, public convenience or necessity, or the interests of the United States.
§ 3217.15 What does BLM need to approve my drilling or development contract?
For BLM to approve your drilling or development contract, you must send us:
(a) The contract and a statement of why you need it;
(b) A statement of all interests held by the contracting parties in that geothermal area or field;
(c) The type of operations and schedule set by the contract;
(d) A statement that the contract will not violate Federal antitrust laws by concentrating control over the production or sale of geothermal resources; and
(e) Any other information we may require to make a decision about the contract or to attach conditions of approval.
Subpart 3250 – Exploration Operations – General
§ 3250.10 When do the exploration operations regulations apply?
(a) The exploration operations regulations contained in this subpart and subparts 3251 through 3256 apply to geothermal exploration operations:
(1) On BLM-administered public lands, whether or not they are leased for geothermal resources; and
(2) On lands whose surface is managed by another Federal agency, where BLM has leased the subsurface geothermal resources and the lease operator wishes to conduct exploration. In this case, we will consult with the surface managing agency regarding surface use and reclamation requirements before we approve the exploration operations.
(b) These regulations do not apply to:
(1) Unleased land administered by another Federal agency;
(2) Unleased geothermal resources whose surface land is managed by another Federal agency;
(3) Privately owned land; or
(4) Casual use activities.
§ 3250.11 May I conduct exploration operations on my lease, someone else’s lease, or unleased land?
(a) You may request BLM approval to explore any BLM-managed public lands open to geothermal leasing, even if the lands are leased to another person. A BLM-approved exploration permit does not give you exclusive rights.
(b) If you wish to conduct operations on your lease, you may do so after we have approved your Notice of Intent to Conduct Geothermal Resource Exploration Operations. If the lands are already leased, your operations may not unreasonably interfere with or endanger those other operations or other authorized uses, or cause unnecessary or undue degradation of the lands.
§ 3250.12 What general standards apply to exploration operations?
BLM-approved exploration operations must:
(a) Meet all operational and environmental standards;
(b) Protect public health, safety, and property;
(c) Prevent unnecessary impacts on surface and subsurface resources;
(d) Be conducted in a manner consistent with the principles of multiple use; and
(e) Comply with the requirements of § 3200.4.
§ 3250.13 What additional BLM orders or instructions govern exploration?
BLM may issue the following types of orders or instructions:
(a) Geothermal resource operational orders that contain detailed requirements of nationwide applicability;
(b) Notices to lessees that contain detailed requirements on a statewide or regional basis;
(c) Other orders and instructions specific to a field or area;
(d) Conditions of approval contained in an approved Notice of Intent; and
(e) Verbal orders that BLM will confirm in writing.
§ 3250.14 What types of operations may I propose in my application to conduct exploration?
(a) You may propose any activity fitting the definition of “exploration operations” in § 3200.1. Submit Form 3200-9, Notice of Intent to Conduct Geothermal Resource Exploration Operations, together with the information required under § 3251.11, and BLM will review your proposal.
(b) The exploration operations regulations do not address drilling wells intended for production or injection, which is covered in subpart 3260, or geothermal resources utilization, which is covered in subpart 3270.
Subpart 3251 – Exploration Operations: Getting BLM Approval
§ 3251.10 Do I need a permit before I start exploration operations?
BLM must approve a Notice of Intent to Conduct Geothermal Resource Exploration Operations (NOI) before you conduct exploration operations. The approved NOI, including any necessary conditions for approval, constitutes your permit.
§ 3251.11 What information is in a complete Notice of Intent to Conduct Geothermal Resource Exploration Operations application?
To obtain approval of exploration operations on BLM-managed lands, your application must:
(a) Include a complete and signed Form 3200-9, Notice of Intent to Conduct Geothermal Resource Exploration Operations that describes the lands you wish to explore;
(b) For operations other than drilling temperature gradient wells, describe your exploration plans and procedures, including the approximate starting and ending dates for each phase of operations;
(c) For drilling temperature gradient wells, describe your drilling and completion procedures, and include, for each well or for several wells you propose to drill in an area of geologic and environmental similarity:
(1) A detailed description of the equipment, materials, and procedures you will use;
(2) The depth of each well;
(3) The casing and cementing program;
(4) The circulation media (mud, air, foam, etc.);
(5) A description of the logs that you will run;
(6) A description and diagram of the blowout prevention equipment you will use during each phase of drilling;
(7) The expected depth and thickness of fresh water zones;
(8) Anticipated lost circulation zones;
(9) Anticipated temperature gradient in the area;
(10) Well site layout and design;
(11) Existing and planned access roads or ancillary facilities; and
(12) Your source of drill pad and road building material and water supply.
(d) Show evidence of bond coverage (see § 3251.15);
(e) Estimate how much surface disturbance your exploration may cause;
(f) Describe the proposed measures you will take to protect the environment and other resources;
(g) Describe methods to reclaim the surface; and
(h) Include all other information BLM may require.
§ 3251.12 What action will BLM take on my Notice of Intent to Conduct Geothermal Resource Exploration Operations?
(a) When BLM receives your Notice of Intent to Conduct Geothermal Resource Exploration Operations, we will make sure it is complete and signed, and review it for compliance with the requirements of § 3200.4.
(b) If the proposed operations are located on lands described under § 3250.10(a)(2), we will consult with the Federal surface management agency before approving your Notice of Intent.
(c) We will check your Notice of Intent for technical adequacy and we may require additional information.
(d) We will notify you if we need more information to process your Notice of Intent, and suspend the review of your Notice of Intent until we receive the information.
(e) After our review, we will notify you whether we approved or denied your Notice of Intent and of any conditions of approval.
§ 3251.13 Once I have an approved Notice of Intent, how can I change my exploration operations?
Send BLM a complete and signed Form 3260-3, Geothermal Sundry Notice, which fully describes the requested changes. Do not proceed with the change in operations until you receive written approval from BLM.
§ 3251.14 Do I need a bond for conducting exploration operations?
(a) You must not start any exploration operations on BLM-managed lands until we approve your bond. You may meet the requirement for an exploration bond in two ways:
(1) If you have an existing nationwide or statewide oil and gas exploration bond, provide a rider in an amount we have specified to include geothermal resources exploration operations; or
(2) If you must file a new bond for geothermal exploration, the minimum amounts are:
(i) $5,000 for a single operation;
(ii) $25,000 for all of your operations within a state; and
(iii) $50,000 for all of your operations on public lands nationwide.
(b) See subparts 3214 and 3215 for additional details on bonding procedures.
§ 3251.15 When will BLM release my bond?
BLM will release your bond after you request it and we determine that you have:
(a) Plugged and abandoned all wells;
(b) Reclaimed the land and, if necessary, resolved other environmental, cultural, scenic, or recreational issues; and
(c) Complied with the requirements of § 3200.4.
Subpart 3252 – Conducting Exploration Operations
§ 3252.10 What operational standards apply to my exploration operations?
You must keep exploration operations under control at all times by:
(a) Conducting training during your operation to ensure that your personnel are capable of performing emergency procedures quickly and effectively;
(b) Using properly maintained equipment; and
(c) Using operational practices that allow for quick and effective emergency response.
§ 3252.11 What environmental requirements must I meet when conducting exploration operations?
(a) You must conduct your exploration operations in a manner that:
(1) Protects the quality of surface and subsurface waters, air, and other natural resources, including wildlife, soil, vegetation, and natural history;
(2) Protects the quality of cultural, scenic, and recreational resources;
(3) Accommodates other land uses, as BLM deems necessary; and
(4) Minimizes noise.
(b) You must remove or, with our permission, properly store all equipment and materials not in use.
(c) You must provide and use pits, tanks, and sumps of adequate capacity. They must be designed to retain all materials and fluids resulting from drilling temperature gradient wells or other operations, unless we have specified otherwise in writing. When they are no longer needed, you must properly abandon pits and sumps in accordance with your exploration permit.
(d) BLM may require you to submit a contingency plan describing procedures to protect public health, safety, property, and the environment.
§ 3252.12 How deep may I drill a temperature gradient well?
(a) You may drill a temperature gradient well to any depth that we approve in your exploration permit or sundry notice. In all cases, you may not flow test the well or perform injection tests of the well unless you follow the procedures for geothermal drilling operations in subparts 3260 through 3267.
(b) BLM may modify your permitted depth at any time before or during drilling, if we determine that the bottom hole temperature or other information indicates that drilling to the original permitted depth could directly encounter the geothermal resource or create risks to public health, safety, property, the environment, or other resources.
§ 3252.13 How long may I collect information from my temperature gradient well?
You may collect information from your temperature gradient well for as long as your permit allows.
§ 3252.14 How must I complete a temperature gradient well?
Complete temperature gradient wells to allow for proper abandonment, and to prevent interzonal migration of fluids. Cap all tubing when not in use.
§ 3252.15 When must I abandon a temperature gradient well?
When you no longer need it, or when BLM requires you to.
§ 3252.16 How must I abandon a temperature gradient well?
(a) Before abandoning your well, submit a complete and signed Sundry Notice, Form 3260-3, describing how you plan to abandon wells and reclaim the surface. Do not begin abandoning wells or reclaiming the surface until BLM approves your Sundry Notice.
(b) You must plug and abandon your well for permanent prevention of interzonal migration of fluids and migration of fluids to the surface. You must reclaim your well location according to the terms of BLM approvals and orders.
Subpart 3253 – Reports: Exploration Operations
(a) For exploration operations on your geothermal lease, you must submit all data you obtain as a result of the operations with a signed notice of completion of exploration operations under § 3253.11, unless we approve a later submission.
(b) For exploration operations on unleased lands or on leased lands where you are not the lessee or unit operator, you are not required to submit data. However, if you want your exploration operations to count toward your diligent exploration expenditure requirement (see § 3210.13), or if you are making significant expenditures to extend your lease (see § 3208.14), you must send BLM the resulting data under the rules of those sections.
§ 3253.11 Must I notify BLM when I have completed my exploration operations?
After you complete exploration operations, send to BLM a complete and signed notice of completion of exploration operations, describing the exploration operations, well history, completion and abandonment procedures, and site reclamation measures. You must send this to BLM within 30 days after you:
(a) Complete any geophysical exploration operations;
(b) Complete the drilling of temperature gradient well(s) approved under your approved Notice of Intent to conduct exploration;
(c) Plug and abandon a temperature gradient well; and
(d) Plug shot holes and reclaim all exploration sites.
Subpart 3254 – Inspection, Enforcement, and Noncompliance for Exploration Operations
§ 3254.10 May BLM inspect my exploration operations?
BLM may inspect your exploration operations to ensure compliance with the requirements of § 3200.4 and the regulations in this subpart.
§ 3254.11 What will BLM do if my exploration operations are not in compliance with my permit, other BLM approvals or orders, or the regulations in this part?
(a) BLM will issue you a written Incident of Noncompliance and direct you to correct the problem within a set time. If the noncompliance continues or is serious in nature, we will take one or more of the following actions:
(1) Correct the problem at your expense;
(2) Direct you to modify or shut down your operations; or
(3) Collect all or part of your bond.
(b) We may also require you to take actions to prevent unnecessary impacts on the lands. If so, we will notify you of the nature and extent of any required measures and the time you have to complete them.
(c) Noncompliance may result in BLM terminating your lease, if appropriate under §§ 3213.17 through 3213.19.
Subpart 3255 – Confidential, Proprietary Information
§ 3255.10 Will BLM disclose information I submit under these regulations?
All Federal and Indian data and information submitted to the BLM are subject to part 2 of this title. Part 2 includes the regulations of the Department of the Interior covering public disclosure of data and information contained in Department records. Certain mineral information not protected from disclosure under part 2 may be made available for inspection without a Freedom of Information Act (FOIA) request.
§ 3255.11 When I submit confidential, proprietary information, how can I help ensure it is not available to the public?
When you submit data and information that you believe to be exempt from disclosure by 43 CFR part 2, you must clearly mark each page that you believe contains confidential information. BLM will keep all data and information confidential to the extent allowed by 43 CFR 2.13(c).
§ 3255.12 How long will information I give BLM remain confidential or proprietary?
The FOIA (5 U.S.C. 552) does not provide a finite period of time during which information may be exempt from public disclosure. BLM will review each situation individually and in accordance with part 2 of this title.
§ 3255.13 How will BLM treat Indian information submitted under the Indian Mineral Development Act?
Under the Indian Mineral Development Act of 1982 (IMDA) (25 U.S.C. 2101 et seq.), the Department of the Interior will hold as privileged proprietary information of the affected Indian or Indian tribe:
(a) All findings forming the basis of the Secretary’s intent to approve or disapprove any Minerals Agreement under IMDA; and
(b) All projections, studies, data, or other information concerning a Minerals Agreement under IMDA, regardless of the date received, related to:
(1) The terms, conditions, or financial return to the Indian parties;
(2) The extent, nature, value, or disposition of the Indian mineral resources; or
(3) The production, products, or proceeds thereof.
§ 3255.14 How will BLM administer information concerning other Indian minerals?
For information concerning Indian minerals not covered by § 3255.13, BLM will withhold such records as may be withheld under an exemption to the FOIA when it receives a request for information related to tribal or Indian minerals held in trust or subject to restrictions on alienation.
§ 3255.15 When will BLM consult with Indian mineral owners when information concerning their minerals is the subject of a FOIA request?
(a) We use the standards and procedures of § 2.15(d) of this title before making a decision about the applicability of FOIA exemption 4 to information obtained from a person outside the United States Government.
(b) BLM will notify the Indian mineral owner(s) identified in the records of the Bureau of Indian Affairs (BIA), and BIA, and give them a reasonable period of time to state objections to disclosure. BLM will issue this notice following consultation with a submitter under § 2.15(d) of this title if:
(1) BLM determines that the submitter does not have an interest in withholding the records that can be protected under FOIA; and
(2) BLM has reason to believe that disclosure of the information may result in commercial or financial injury to the Indian mineral owner(s), but is uncertain that such is the case.
Subpart 3256 – Exploration Operations Relief and Appeals
§ 3256.10 How do I request a variance from BLM requirements that apply to my exploration operations?
(a) You may submit a request for a variance for your exploration operations from any requirement in § 3200.4. Your request must include enough information to explain:
(1) Why you cannot comply with the regulatory requirement; and
(2) Why you need the variance to control your well, conserve natural resources, or protect public health and safety, property, or the environment.
(b) BLM may approve your request orally or in writing. If we give you an oral approval, we will follow up with written confirmation.
§ 3256.11 How may I appeal a BLM decision regarding my exploration operations?
You may appeal a BLM decision regarding your exploration operations in accordance with § 3200.5.
Subpart 3260 – Geothermal Drilling Operations – General
§ 3260.10 What types of geothermal drilling operations are covered by these regulations?
(a) The regulations in subparts 3260 through 3267 establish permitting and operating procedures for drilling wells and conducting related activities for the purposes of performing flow tests, producing geothermal fluids, or injecting fluids into a geothermal reservoir. These subparts also address redrilling, deepening, plugging back, and other subsequent well operations.
(b) The operations regulations in subparts 3260 through 3267 do not address conducting exploration operations, which are covered in subpart 3250, or geothermal resources utilization, which is covered in subpart 3270.
§ 3260.11 What general standards apply to my drilling operations?
Your drilling operations must:
(a) Meet all environmental and operational standards;
(b) Prevent unnecessary impacts on surface and subsurface resources;
(c) Conserve geothermal resources and minimize waste;
(d) Protect public health, safety, and property; and
(e) Comply with the requirements of § 3200.4.
§ 3260.12 What other orders or instructions may BLM issue?
BLM may issue:
(a) Geothermal resource operational orders for detailed requirements that apply nationwide;
(b) Notices to Lessees for detailed requirements on a statewide or regional basis;
(c) Other orders and instructions specific to a field or area;
(d) Permit conditions of approval; and
(e) Oral orders, which will be confirmed in writing.
Subpart 3261 – Drilling Operations: Getting a Permit
§ 3261.10 How do I get approval to begin well pad construction?
(a) If you do not have an approved geothermal drilling permit, Form 3260-2, apply using a completed and signed Sundry Notice, Form 3260-3, to build well pads and access roads. Send us a complete operations plan (see § 3261.12) and an acceptable bond with your Sundry Notice. You may start well pad construction after we approve your Sundry Notice.
(b) If you already have an approved drilling permit and you have provided an acceptable bond, you do not need any further permission from BLM to start well pad construction, unless you intend to change something in the approved permit. If you propose a change in an approved permit, send us a completed and signed Sundry Notice so we may review your proposed change. Do not proceed with the change until we approve your Sundry Notice.
§ 3261.11 How do I apply for approval of drilling operations and well pad construction?
(a) Send to BLM:
(1) A completed and signed drilling permit application, Form 3260-2;
(2) A complete operations plan (§ 3261.12);
(3) A complete drilling program (§ 3261.13); and
(4) An acceptable bond (§ 3261.18).
(b) Do not start any drilling operations until after BLM approves the permit.
§ 3261.12 What is an operations plan?
An operations plan describes how you will drill for and test the geothermal resources covered by your lease. Your plan must tell BLM enough about your proposal to allow us to assess the environmental impacts of your operations. This information should generally include:
(a) Well pad layout and design;
(b) A description of existing and planned access roads;
(c) A description of any ancillary facilities;
(d) The source of drill pad and road building material;
(e) The water source;
(f) A statement describing surface ownership;
(g) A description of procedures to protect the environment and other resources;
(h) Plans for surface reclamation; and
(i) Any other information that BLM may require.
§ 3261.13 What is a drilling program and how do I apply for drilling program approval?
(a) A drilling program describes all the operational aspects of your proposal to drill, complete, and test a well.
(b) Send to BLM:
(1) A detailed description of the equipment, materials, and procedures you will use;
(2) The proposed/anticipated depth of the well;
(3) If you plan to directionally drill your well, also send us:
(i) The proposed bottom hole location and distances from the nearest section or tract lines;
(ii) The kick-off point;
(iii) The direction of deviation;
(iv) The angle of build-up and maximum angle; and
(v) Plan and cross section maps indicating the surface and bottom hole locations;
(4) The casing and cementing program;
(5) The circulation media (mud, air, foam, etc.);
(6) A description of the logs that you will run;
(7) A description and diagram of the blowout prevention equipment you will use during each phase of drilling;
(8) The expected depth and thickness of fresh water zones;
(9) Anticipated lost circulation zones;
(10) Anticipated reservoir temperature and pressure;
(11) Anticipated temperature gradient in the area;
(12) A plat certified by a licensed surveyor showing the surveyed surface location and distances from the nearest section or tract lines;
(13) Procedures and durations of well testing; and
(14) Any other information we may require.
§ 3261.14 When must I give BLM my operations plan?
Send us a complete operations plan before you begin any surface disturbance on a lease. You do not need to submit an operations plan for subsequent well operations or altering existing production equipment, unless these activities will cause more surface disturbance than originally approved, or we notify you that you must submit an operations plan. Do not start any activities that will result in surface disturbance until we approve your drilling permit or Sundry Notice.
§ 3261.15 Must I give BLM my drilling permit application, drilling program, and operations plan at the same time?
You may submit your completed and signed drilling permit application and complete drilling program and operations plan either together or separately.
(a) If you submit them together and we approve your drilling permit, the approved drilling permit will authorize both the pad construction and the drilling and testing of the well.
(b) If you submit the operations plan separately from the drilling permit application and program, you must:
(1) Submit the operations plan before the drilling permit application and drilling program to allow BLM time to comply with National Environmental Policy Act (NEPA); and
(2) Submit a completed and signed Sundry Notice for well pad and access road construction. Do not begin construction until we approve your Sundry Notice.
§ 3261.16 Can my operations plan, drilling permit, and drilling program apply to more than one well?
(a) Your operations plan and drilling program can sometimes be combined to cover several wells, but your drilling permit cannot. To include more than one well in your operations plan, give us adequate information for all well sites, and we will combine your plan to cover those well sites that are in areas of similar geology and environment.
(b) Your drilling program may also apply to more than one well, provided you will drill the wells in the same manner, and you expect to encounter similar geologic and reservoir conditions.
(c) You must submit a separate geothermal drilling permit application for each well.
§ 3261.17 How do I amend my operations plan or drilling permit?
(a) If BLM has not yet approved your operations plan or drilling permit, send us your amended plan and completed and signed permit application.
(b) To amend an approved operations plan or drilling permit, submit a completed and signed Sundry Notice describing your proposed change. Do not start any amended operations until after BLM approves your drilling permit or Sundry Notice.
§ 3261.18 Do I need to file a bond with BLM before I build a well pad or drill a well?
Before starting any operation, you must:
(a) File with BLM either a surety or personal bond in the following minimum amount:
(1) $10,000 for a single lease;
(2) $50,000 for all of your operations within a state; or
(3) $150,000 for all of your operations nationwide;
(b) Get our approval of your surety or personal bond; and
(c) To cover any drilling operations on all leases committed to a unit, either submit a bond for that unit in an amount we specify, or provide a rider to a statewide or nationwide bond specifically covering the unit in an amount we specify.
(d) See subparts 3214 and 3215 for additional details on bonding procedures.
§ 3261.19 When will BLM release my bond?
BLM will release your bond after you request it and we determine that you have:
(a) Plugged and abandoned all wells;
(b) Reclaimed the surface and other resources; and
(c) Met all the requirements of § 3200.4.
§ 3261.20 How will BLM review applications submitted under this subpart and notify me of its decision?
(a) When we receive your operations plan, we will make sure it is complete and review it for compliance with the requirements of § 3200.4.
(b) If another Federal agency manages the surface of your lease, we will consult with it before we approve your drilling permit.
(c) We will review your drilling permit and drilling program or your Sundry Notice for well pad construction, to make sure they conform with your operations plan and any mitigation measures we developed while reviewing your plan.
(d) We will check your drilling permit and drilling program for technical adequacy and may require additional information.
(e) We will check your drilling permit for compliance with the requirements of § 3200.4.
(f) If we need any further information to complete our review, we will contact you in writing and suspend our review until we receive the information.
(g) After our review, we will notify you as to whether your permit has been approved or denied, as well as any conditions of approval.
§ 3261.21 How do I get approval to change an approved drilling operation?
(a) Send BLM a Sundry Notice, form 3260-3, describing the proposed changes. Do not proceed with the changes until we have approved them in writing, except as provided in paragraph (c) of this section. If your operations such as redrilling, deepening, drilling a new directional leg, or plugging back a well would significantly change your approved permit, BLM may require you to send us a new drilling permit (see 43 CFR 3261.13). A significant change would be, for example, redrilling the well to a completely different target, especially a target in an unknown area.
(b) If your changed drilling operation would cause additional surface disturbance, we may also require you to submit an amended operations plan.
(c) If immediate action is required to properly continue drilling operations, or to protect public health, safety, property or the environment, BLM may provide oral approval to change an approved drilling operation. However, you must submit a written Sundry Notice within 48 hours after we orally approve your change.
§ 3261.22 How do I get approval for subsequent well operations?
Send BLM a Sundry Notice describing your proposed operation. For some routine work, such as cleanouts, surveys, or general maintenance (see § 3264.11(b)), we may waive the Sundry Notice requirement. Contact your local BLM office to ask about waivers for subsequent well operations. Unless you receive a waiver, you must submit a Sundry Notice. Do not start your operations until we grant a waiver or approve the Sundry Notice.
Subpart 3262 – Conducting Drilling Operations
§ 3262.10 What operational requirements must I meet when drilling a well?
(a) When drilling a well, you must:
(1) Keep the well under control at all times by:
(i) Conducting training during your operation to maintain the capability of your personnel to perform emergency procedures quickly and effectively;
(ii) Using properly maintained equipment; and
(iii) Using operational practices that allow for quick and effective emergency response.
(b) You must use sound engineering principles and take into account all pertinent data when:
(1) Selecting and using drilling fluid types and weights;
(2) Designing and implementing a system to control fluid temperatures;
(3) Designing and using blowout prevention equipment; and
(4) Designing and implementing a casing and cementing program.
(c) Your operation must always comply with the requirements of § 3200.4.
§ 3262.11 What environmental requirements must I meet when drilling a well?
(a) You must conduct your operations in a manner that:
(1) Protects the quality of surface and subsurface water, air, natural resources, wildlife, soil, vegetation, and natural history;
(2) Protects the quality of cultural, scenic, and recreational resources;
(3) Accommodates, as necessary, other land uses;
(4) Minimizes noise; and
(5) Prevents property damage and unnecessary or undue degradation of the lands.
(b) You must remove or, with BLM’s approval, properly store all equipment and materials that are not in use.
(c) You must retain all fluids from drilling and testing the well in properly designed pits, sumps, or tanks.
(d) When you no longer need a pit or sump, you must abandon it and restore the site as we direct.
(e) BLM may require you to give us a contingency plan showing how you will protect public health and safety, property, and the environment.
§ 3262.12 Must I post a sign at every well?
Yes. Before you begin drilling a well, you must post a sign in a conspicuous place and keep it there throughout operations until the well site is reclaimed. Put the following information on the sign:
(a) The lessee or operator’s name;
(b) Lease serial number;
(c) Well number; and
(d) Well location described by township, range, section, quarter-quarter section or lot.
§ 3262.13 May BLM require me to follow a well spacing program?
BLM may require you to follow a well spacing program if we determine that it is necessary for proper development. If we require well spacing, we will consider the following factors when we set well spacing:
(a) Hydrologic, geologic, and reservoir characteristics of the field, minimizing well interference;
(b) Topography;
(c) Interference with multiple use of the land; and
(d) Environmental protection, including ground water.
§ 3262.14 May BLM require me to take samples or perform tests and surveys?
(a) BLM may require you to take samples or to test or survey the well to determine:
(1) The well’s mechanical integrity;
(2) The identity and characteristics of formations, fluids, or gases;
(3) Presence of geothermal resources, water, or reservoir energy;
(4) Quality and quantity of geothermal resources;
(5) Well bore angle and direction of deviation;
(6) Formation, casing, or tubing pressures;
(7) Temperatures;
(8) Rate of heat or fluid flow; and
(9) Any other necessary well information.
(b) See § 3264.11 for information on reporting requirements.
Subpart 3263 – Well Abandonment
§ 3263.10 May I abandon a well without BLM’s approval?
(a) You must have a BLM-approved Sundry Notice documenting your plugging and abandonment program before you start abandoning any well.
(b) You must also notify the local BLM office before you begin abandonment activities, so that we may witness the work. Contact your local BLM office before starting to abandon your well to find out what notification we need.
§ 3263.11 What information must I give BLM to approve my Sundry Notice for abandoning a well?
Send us a Sundry Notice with:
(a) All the information required in the well completion report (see § 3264.10), unless we already have that information;
(b) A detailed description of the proposed work, including:
(1) Type, depth, length, and interval of plugs;
(2) Methods you will use to verify the plugs (tagging, pressure testing, etc.);
(3) Weight and viscosity of mud that you will use in the uncemented portions;
(4) Perforating or removing casing; and
(5) Restoring the surface; and
(c) Any other information that we may require.
§ 3263.12 How will BLM review my Sundry Notice to abandon my well and notify me of their decision?
(a) When BLM receives your Sundry Notice, we will make sure it is complete and review it for compliance with the requirements of § 3200.4. We will notify you if we need more information or require additional procedures. If we need any further information to complete our review, we will contact you in writing and suspend our review until we receive the information. If we approve your Sundry Notice, we will send you an approved copy once our review is complete. Do not start abandonment of the well until we approve your Sundry Notice.
(b) BLM may orally approve plugging procedures for a well requiring immediate action. If we do, you must submit the information required in § 3263.11 within 48 hours after we give oral approval.
§ 3263.13 What must I do to restore the site?
You must remove all equipment and materials and restore the site according to the terms of your permit or other BLM approval.
§ 3263.14 May BLM require me to abandon a well?
If we determine that your well is no longer needed for geothermal resource production, injection, or monitoring, or if we determine that the well is not mechanically sound, BLM may order you to abandon the well. In either case, if you disagree you may explain to us why the well should not be abandoned. We will consider your reasons before we issue any final order.
§ 3263.15 May I abandon a producible well?
(a) You may abandon a producible well only after you receive BLM’s approval. Before abandoning a producing well, send BLM the information listed in § 3263.11. We may also require you to explain why you want to abandon the well.
(b) BLM will deny your request if we determine that the well is needed:
(1) To protect a Federal lease from drainage; or
(2) To protect the environment or other resources of the United States.
Subpart 3264 – Reports – Drilling Operations
§ 3264.10 What must I submit to BLM after I complete a well?
You must submit a Geothermal Well Completion Report, Form 3260-4, within 30 days after you complete a well. Your report must include the following:
(a) A complete, chronological well history;
(b) A copy of all logs;
(c) Copies of all directional surveys; and
(d) Copies of all mechanical, flow, reservoir, and other test data.
§ 3264.11 What must I submit to BLM after I finish subsequent well operations?
(a) Submit to BLM a subsequent well operations report within 30 days after completing operations. At a minimum, this report must include:
(1) A complete, chronological history of the work done;
(2) A copy of all logs;
(3) Copies of all directional surveys;
(4) The results of all sampling, tests, or surveys we require you to make (see § 3262.14);
(4) Copies of all mechanical, flow, reservoir, and other test data; and
(5) A statement of whether you achieved your goals. For example, if the well was acidized to increase production, state whether the production rate increased when you put the well back on line.
(b) We may waive this reporting requirement for work we determine to be routine, such as cleanouts, surveys, or general maintenance. To request a waiver, contact BLM. If you do not receive a waiver, you must submit the report.
§ 3264.12 What must I submit to BLM after I abandon a well?
Send us a well abandonment report within 30 days after you abandon a well. If you plan to restore the site at a later date, you may submit a separate report within 30 days after completing site restoration. The well abandonment report must contain:
(a) A complete chronology of all work done;
(b) A description of each plug, including:
(1) Type and amount of cement used;
(2) Depth that the drill pipe or tubing was run to set the plug;
(3) Depth to top of plug; and
(4) If the plug was verified, whether it was done by tagging or pressure testing; and
(c) A description of surface restoration procedures.
§ 3264.13 What drilling and operational records must I maintain for each well?
You must keep the following information for each well, and make it available for BLM to inspect, upon request:
(a) A complete and accurate drilling log, in chronological order;
(b) All other logs;
(c) Water or steam analyses;
(d) Hydrologic or heat flow tests;
(e) Directional surveys;
(f) A complete log of all subsequent well operations, such as cementing, perforating, acidizing, and well cleanouts; and
(g) Any other information regarding the well that could affect its status.
§ 3264.14 How do I notify BLM of accidents occurring on my lease?
You must orally inform us of all accidents that affect operations or create environmental hazards within 24 hours of the accident. When you contact us, we may require you to submit a written report fully describing the incident.
Subpart 3265 – Inspection, Enforcement, and Noncompliance for Drilling Operations
§ 3265.10 What part of my drilling operations may BLM inspect?
(a) BLM may inspect all of your Federal drilling operations regardless of surface ownership. We will inspect your operations for compliance with the requirements of § 3200.4.
(b) BLM may inspect all of your maps, well logs, surveys, records, books, and accounts related to your Federal drilling operations.
§ 3265.11 What records must I keep available for inspection?
You must keep a complete record of all aspects of your activities related to your drilling operation available for our inspection. Store these records in a place which makes them conveniently available to us. Examples of records which we may inspect include:
(a) Well logs and maps;
(b) Records, books, and accounts related to your Federal drilling operations;
(c) Directional surveys;
(d) Records pertaining to casing type and setting;
(e) Records pertaining to formations penetrated;
(f) Well test results;
(g) Records pertaining to characteristics of the geothermal resource;
(h) Records pertaining to emergency procedure training; and
(i) Records pertaining to operational problems.
§ 3265.12 What will BLM do if my operations do not comply with my permit and applicable regulations?
(a) We will issue you a written Incident of Noncompliance, directing you to take required corrective action within a specific time period. If the noncompliance continues or is of a serious nature, we will take one or more of the following actions:
(1) Enter your lease, and correct any deficiencies at your expense;
(2) Collect all or part of your bond;
(3) Direct modification or shutdown of your operations; and
(4) Take other enforcement action under subpart 3213 against a lessee who is ultimately responsible for noncompliance.
(b) Noncompliance may result in BLM terminating your lease. See §§ 3213.17 through 3213.19.
Subpart 3266 – Confidential, Proprietary Information
§ 3266.10 Will BLM disclose information I submit under these regulations?
All Federal and Indian data and information submitted to the BLM are subject to part 2 of this title. Part 2 includes the Department of the Interior regulations covering public disclosure of data and information contained in Department records. Certain mineral information not protected from disclosure under part 2 of this title may be made available for inspection without a Freedom of Information Act (FOIA) request. BLM will not treat surface location, surface elevation, or well status information as confidential.
§ 3266.11 When I submit confidential, proprietary information, how can I help ensure that it is not available to the public?
When you submit data and information that you believe to be exempt from disclosure by part 2 of this title, you must clearly mark each page that you believe contains confidential information. BLM will keep all data and information confidential to the extent allowed by § 2.13(c) of this title.
§ 3266.12 How long will information I give BLM remain confidential or proprietary?
The FOIA does not provide a finite period of time during which information may be exempt from public disclosure. BLM reviews each situation individually and in accordance with part 2 of this title.
Subpart 3267 – Geothermal Drilling Operations Relief and Appeals
§ 3267.10 How do I request a variance from BLM requirements that apply to my drilling operations?
(a) You may file a request for a variance from the requirements of § 3200.4 for your approved drilling operations. Your request must include enough information to explain:
(1) Why you cannot comply with the requirements of § 3200.4; and
(2) Why you need the variance to control your well, conserve natural resources, or protect public health and safety, property, or the environment.
(b) We may approve your request orally or in writing. If BLM gives you an oral approval, we will follow up with written confirmation.
§ 3267.11 How may I appeal a BLM decision regarding my drilling operations?
You may appeal our decisions regarding your drilling operations in accordance with § 3200.5.
Subpart 3270 – Utilization of Geothermal Resources – General
§ 3270.10 What types of geothermal operations are governed by these utilization regulations?
(a) The regulations in subparts 3270 through 3279 of this part cover the permitting and operating procedures for the utilization of geothermal resources. This includes:
(1) Electrical generation facilities;
(2) Direct use facilities;
(3) Related utilization facility operations;
(4) Actual and allocated well field production and injection; and
(5) Related well field operations.
(b) The utilization regulations in subparts 3270 through 3279 do not address conducting exploration operations, which is covered in subpart 3250, or drilling wells intended for production or injection, which is covered in subpart 3260.
§ 3270.11 What general standards apply to my utilization operations?
Your utilization operations must:
(a) Meet all operational and environmental standards;
(b) Prevent unnecessary impacts on surface and subsurface resources;
(c) Result in the maximum ultimate recovery of geothermal resources;
(d) Result in the beneficial use of geothermal resources, with minimum waste;
(e) Protect public health, safety, and property; and
(f) Comply with the requirements of § 3200.4.
§ 3270.12 What other orders or instructions may BLM issue?
BLM may issue:
(a) Geothermal resource operational orders, for detailed requirements that apply nationwide;
(b) Notices to lessees, for detailed requirements on a statewide or regional basis;
(c) Other orders and instructions specific to a field or area;
(d) Permit conditions of approval; and
(e) Oral orders, which BLM will confirm in writing.
Subpart 3271 – Utilization Operations: Getting a Permit
§ 3271.10 What do I need to start preparing a site and building and testing a utilization facility on Federal land leased for geothermal resources?
In order to use Federal land to produce geothermal power, you must obtain a site license and construction permit from BLM before you start preparing the site. Send BLM a plan that shows what you want to do, and draft a proposed site license agreement that you think is fair and reasonable. We will review your proposal and decide whether to give you a permit and license to proceed with work on the site.
§ 3271.11 Who may apply for a permit to build a utilization facility?
The lessee, the facility operator, or the unit operator may apply to build a utilization facility.
§ 3271.12 What do I need to start preliminary site investigations that may disturb the surface?
(a) You must:
(1) Fully describe your proposed operations in a Sundry Notice; and
(2) File a bond meeting the requirements of either § 3251.14 or § 3273.19. See subparts 3214 and 3215 for additional details on bonding procedures.
(b) Do not begin the site investigation or surface disturbing activity until BLM approves your Sundry Notice and bond.
§ 3271.13 How do I obtain approval to build pipelines and facilities connecting the well field to utilization facilities not located on Federal lands leased for geothermal resources?
Before constructing pipelines and well field facilities on Federal lands leased for geothermal resources, you as lessee, unit operator, or facility operator must submit to BLM a utilization plan and facility construction permit addressing any pipelines or facilities. Do not start construction of your pipelines or facilities until BLM approves your facility construction permit.
§ 3271.14 What do I need to do to start building and testing a utilization facility if it is not located on Federal lands leased for geothermal resources?
(a) You do not need a BLM permit to construct a facility located on either:
(1) Private land; or
(2) Lands where the surface is privately owned and BLM has leased the underlying Federal geothermal resources, when the facility will utilize Federal geothermal resources.
(b) Before testing a utilization facility that is not located on Federal lands leased for geothermal resources, send us a Sundry Notice describing the testing schedule and the quantity of Federal geothermal resources you expect to be delivered to the facility during the testing. Do not start delivering Federal geothermal resources to the facility until we approve your Sundry Notice.
§ 3271.15 How do I get a permit to begin commercial operations?
Before using Federal geothermal resources, you as lessee, operator, or facility operator must send us a completed commercial use permit (see § 3274.11). This also applies when you use Federal resources allocated through any form of agreement. Do not start any commercial use operations until BLM approves your commercial use permit.
Subpart 3272 – Utilization Plan and Facility Construction Permit
§ 3272.10 What must I submit to BLM in my utilization plan?
Submit to BLM an application describing:
(a) The proposed facilities as required by § 3272.11; and
(b) The anticipated environmental impacts and how you propose to mitigate those impacts, as required by § 3272.12.
§ 3272.11 How do I describe the proposed utilization facility?
Your submission must include:
(a) A generalized description of all proposed structures and facilities, including their size, location, and function;
(b) A generalized description of proposed facility operations, including estimated total production and injection rates; estimated well flow rates, pressures, and temperatures; facility net and gross electrical generation; and, if applicable, interconnection with other utilization facilities. If it is a direct use facility, send us the information we need to determine the amount of resource utilized;
(c) A contour map of the entire utilization site, showing production and injection well pads, pipeline routes, facility locations, drainage structures, existing and planned access, and lateral roads;
(d) A description of site preparation and associated surface disturbance, including the source for site or road building materials, amounts of cut and fill, drainage structures, analysis of all site evaluation studies prepared for the site(s), and a description of any additional tests, studies, or surveys which are planned to assess the geologic suitability of the site(s);
(e) The source, quality, and proposed consumption rate of water to be used during facility operations, and the source and quantity of water to be used during facility construction;
(f) The methods for meeting air quality standards during facility construction and operation, especially standards concerning non-condensable gases;
(g) An estimated number of personnel needed during construction and operation of the facility;
(h) A construction schedule;
(i) A schedule for testing of the facility and/or well equipment, and for the start of commercial operations;
(j) A description of architectural landscaping or other measures to minimize visual impacts; and
(k) Any additional information or data that we may require.
§ 3272.12 What environmental protection measures must I include in my utilization plan?
(a) Describe, at a minimum, your proposed measures to:
(1) Prevent or control fires;
(2) Prevent soil erosion;
(3) Protect surface or ground water;
(4) Protect fish and wildlife;
(5) Protect cultural, visual, and other natural resources;
(6) Minimize air and noise pollution; and
(7) Minimize hazards to public health and safety during normal operations.
(b) If BLM requires it, you must also describe how you will monitor your facility operations to ensure that they comply with the requirements of § 3200.4, and applicable noise, air, and water quality standards, at all times. We will consult with other involved surface management agencies, if any, regarding monitoring requirements. You must also include provisions for monitoring other environmental parameters we may require.
(c) Based on what level of impacts that BLM finds your operations may cause, we may require you to collect data concerning existing air and water quality, noise, seismicity, subsidence, ecological systems, or other environmental information for up to 1 year before you begin operating. BLM must approve your data collection methodologies, and will consult with any other surface managing agencies involved.
(d) You must also describe how you will abandon utilization facilities and restore the site, in order to comply with the requirements of § 3200.4.
(e) Finally, you must submit any additional information or data that BLM may require.
§ 3272.13 How will BLM review my utilization plan and notify me of its decision?
(a) When BLM receives your utilization plan, we will make sure it is complete and review it for compliance with § 3200.4.
(b) If another Federal agency manages the surface of your lease, we will consult with that agency as part of the plan review.
(c) If we need any further information to complete our review, we will contact you in writing and suspend our review until we receive the information.
(d) We will notify you in writing of our decision on your plan.
§ 3272.14 How do I get a permit to build or test my facility?
(a) Before building or testing a utilization facility, you must submit to BLM a:
(1) Utilization plan;
(2) Completed and signed facility construction permit; and
(3) Completed and signed site license. (See subpart 3273.)
(b) Do not start building or testing your utilization facility until we have approved both your facility construction permit and your site license.
(c) After our review, we will notify you whether we have approved or denied your permit, as well as of any conditions we require for conducting operations.
Subpart 3273 – How To Apply for a Site License
§ 3273.10 When do I need a site license for a utilization facility?
You must obtain a site license approved by BLM, unless your facility will be located on lands leased as described in § 3273.11. Do not start building or testing your utilization facility on public lands leased for geothermal resources until BLM has approved both your facility construction permit (see § 3272.14) and your site license. The facility operator must apply for the license.
§ 3273.11 When is a site license unnecessary?
You do not need a site license if your facility will be located:
(a) On private land or on split estate land where the United States does not own the surface; or
(b) On Federal land not leased for geothermal resources. In this situation, the Federal surface management agency will issue you the permit you need.
§ 3273.12 How will BLM review my site license application?
(a) When BLM receives your site license application, we will make sure it is complete. If we need more information for our review, we will ask you for that information and stop our review until we receive the information.
(b) If your site license is located on geothermal leases where the surface is managed by the Department of Agriculture, we will consult with that agency and obtain concurrence before we approve your application. The agency may require additional license terms and conditions.
(c) If the land is subject to section 24 of the Federal Power Act, we will issue the site license with the terms and conditions requested by the Federal Energy Regulatory Commission.
(d) If another Federal agency manages the surface, we will consult with them to determine if they recommend additional license terms and conditions.
(e) After our review, we will notify you whether we approved or denied your license, as well as any additional conditions we require.
§ 3273.13 What lands are not available for geothermal site licenses?
BLM will not issue site licenses under these regulations for lands that are not leased or not available for geothermal leasing (see § 3201.11).
§ 3273.14 What area does a site license cover?
A site license covers a reasonably compact tract of Federal land, limited to as much of the surface as is necessary to utilize geothermal resources. That means the site license area will only include the utilization facility itself and other necessary structures, such as substations and processing, repair, or storage facility areas.
§ 3273.15 What must I include in my site license application?
Your site license application must include:
(a) A description of the boundaries of the land applied for, as determined by a certified licensed surveyor. Describe the land by legal subdivision, section, township and range, or by approved protraction surveys, if applicable;
(b) The affected acreage;
(c) The filing fee for a site license application found in the fee schedule in § 3000.12 of this chapter;
(d) A site license bond (see § 3273.19);
(e) The first year’s rent, if applicable (see § 3273.18); and
(f) Documentation that the lessee or unit operator accepts the siting of the facility, if the facility operator is neither the lessee nor the unit operator.
§ 3273.16 What is the annual rent for a site license?
BLM will specify the annual rent in your license and the date you must pay it, if you are required to pay rent (see § 3273.18). Your rent will be at least $100 per acre or fraction thereof for an electrical generation facility, and at least $10 per acre or fraction thereof for a direct use facility. Send the first year’s rent to BLM, and all subsequent rental payments to MMS under 30 CFR part 218.
§ 3273.17 When may BLM reassess the annual rent for my site license?
BLM may reassess the rent for lands covered by the license, beginning with the 10th year and every 10 years after that.
§ 3273.18 What facility operators must pay the annual site license rent?
If you are a lessee siting a utilization facility on your own lease, or a unit operator siting a utilization facility on leases committed to the unit, you are not required to pay rent. Only a facility operator who is not also a lessee or unit operator must pay rent.
§ 3273.19 What are the bonding requirements for a site license?
(a) For an electrical generation facility, the facility operator must submit a surety or personal bond to BLM for at least $100,000 that meets the requirements of subpart 3214.BLM may increase the required bond amount. See subparts 3214 and 3215 for additional details on bonding procedures.
(b) For a direct use facility, the facility operator must submit a surety or personal bond to BLM that meets the requirements of subpart 3214 in an amount BLM will specify.
(c) The bond’s terms must cover compliance with the requirements of § 3200.4.
(d) Until BLM approves your bond, do not start construction, testing, or any other activity that would disturb the surface.
§ 3273.20 When will BLM release my bond?
We will release your bond after you request it and we determine that you have:
(a) Removed the utilization facility and all associated equipment;
(b) Reclaimed the land; and
(c) Met all the requirements of § 3200.4.
§ 3273.21 What are my obligations under the site license?
As the facility operator, you:
(a) Must comply with the requirements of § 3200.4;
(b) Are liable for all damages to the lands, property, or resources of the United States caused by yourself, your employees, or your contractors or their employees;
(c) Must indemnify the United States against any liability for damages or injury to persons or property arising from the occupancy or use of the lands authorized under the site license; and
(d) Must restore any disturbed surface, and remove all structures when they are no longer needed for facility construction or operation. This includes the utilization facility if you cannot operate the facility and you are not diligent in your efforts to return the facility to operation.
§ 3273.22 How long will my site license remain in effect?
(a) The primary term of a site license is 30 years, with a preferential right to renew the license under terms and conditions set by BLM.
(b) If your lease on which the licensed site is located ends, you may apply for a facility permit under Section 501 of FLPMA, 43 U.S.C. 1761, if your facility is on BLM-managed lands. Otherwise, you must get permission from the surface management agency to continue using the surface for your facility.
§ 3273.23 May I renew my site license?
(a) You have a preferential right to renew your site license under terms and conditions BLM determines.
(b) If your site license is located on leased lands managed by the Department of Agriculture, we will consult with the surface management agency and obtain concurrence before renewing your license. The agency may require additional license terms and conditions. If another Federal agency manages the surface, we will consult with them before granting your renewal.
§ 3273.24 When may BLM terminate my site license?
(a) BLM may terminate a site license by written order. We may terminate your site license if you:
(1) Do not comply with the requirements of § 3270.11; or
(2) Do not comply with the requirements of § 3200.4.
(b) To prevent termination, you must correct the violation within 30 days after you receive a correction order from BLM, unless we determine that:
(1) The violation cannot be corrected within 30 days; and
(2) You are diligently attempting to correct it.
§ 3273.25 When may I relinquish my site license?
You may request approval to relinquish your site license by sending BLM a written notice requesting relinquishment review and approval. We will not approve the relinquishment until you comply with § 3273.21.
§ 3273.26 When may I assign or transfer my site license?
You may assign or transfer your site license in whole or in part. Send BLM your completed and signed transfer application and the filing fee for assignment or transfer of site license found in the fee schedule in § 3000.12 of this chapter. Your application must include a written statement that the transferee will comply with all license terms and conditions, and that the lessee accepts the transfer. The transferee must submit a bond meeting the requirements of § 3273.19. The transfer is not effective until we approve the bond and site license transfer.
Subpart 3274 – Applying for and Obtaining a Commercial Use Permit
§ 3274.10 Do I need a commercial use permit to start commercial operations?
You must have a commercial use permit approved by BLM before you begin commercial operations from a Federal lease, a Federal unit, or a utilization facility.
§ 3274.11 What must I give BLM to approve my commercial use permit application?
Submit a completed and signed commercial permit form, to BLM, containing the following information:
(a) The design specifications, and the inspection and calibration schedule of production, injection, and royalty meters;
(b) A schematic diagram of the utilization site or individual well, showing the location of each production and royalty meter. If the sales point is located off the utilization site, give us a generalized schematic diagram of the electrical transmission or pipeline system, including meter locations;
(c) A copy of the sales contract for the sale and/or utilization of geothermal resources;
(d) A description and analysis of reservoir, production, and injection characteristics, including the flow rates, temperatures, and pressures of each production and injection well;
(e) A schematic diagram of each production and injection well showing the wellhead configuration, including meters;
(f) A schematic flow diagram of the utilization facility, including interconnections with other facilities, if applicable;
(g) A description of the utilization process in sufficient detail to enable BLM to determine whether the resource will be utilized in a manner consistent with law and regulations;
(h) The planned safety provisions for emergency shutdown to protect public health, safety, property, and the environment. This should include a schedule for the testing and maintenance of safety devices;
(i) The environmental and operational parameters that will be monitored during the operation of the facility and/or well(s); and
(j) Any additional information or data that we may require.
§ 3274.12 How will BLM review my commercial use permit application?
(a) When BLM receives your completed and signed commercial use permit application, we will make sure it is complete and review it for compliance with § 3200.4.
(b) If another Federal agency manages the surface of your lease, we will consult with that agency before we approve your commercial use permit.
(c) We will review your commercial use permit to make sure it conforms with your utilization plan and any mitigation measures we developed while reviewing your plan.
(d) We will check your commercial use permit for technical adequacy, and will ensure that your meters meet the accuracy standards (see §§ 3275.14 and 3275.15).
(e) If we need any further information to complete our review, we will contact you in writing and suspend our review until we receive the information.
(f) After our review, we will notify you whether your permit has been approved or denied, as well as any conditions of approval.
§ 3274.13 May I get a permit even if I cannot currently demonstrate I can operate within required standards?
Yes, but we may limit your operations to a prescribed set of activities and a set period of time, during which we will give you a chance to show you can operate within environmental and operational standards, based on actual facility and well data you collect. Send us a Sundry Notice to get BLM approval for extending your permit. If during this set time period you still cannot demonstrate your ability to operate within the required standards, we will terminate your authorization. You must then stop all operations and restore the surface to the standards we set in the termination notice.
Subpart 3275 – Conducting Utilization Operations
§ 3275.10 How do I change my operations if I have an approved facility construction or commercial use permit?
Send BLM a completed and signed Sundry Notice describing your proposed change. Until we approve your Sundry Notice, you must continue to comply with the original permit terms.
§ 3275.11 What are a facility operator’s obligations?
You must:
(a) Keep the facility in proper operating condition at all times by;
(1) Conducting training during your operation to ensure that your personnel are capable of performing emergency procedures quickly and effectively;
(2) Using properly maintained equipment; and
(3) Using operational practices that allow for quick and effective emergency response.
(b) Base the design of the utilization facility siting and operation on sound engineering principles and other pertinent geologic and engineering data;
(c) Prevent waste of, or damage to, geothermal and other energy and minerals resources; and
(d) Comply with the requirements of § 3200.4.
§ 3275.12 What environmental and safety requirements apply to facility operations?
(a) You must perform all utilization facility operations in a manner that:
(1) Protects the quality of surface and subsurface waters, air, and other natural resources, including wildlife, soil, vegetation, and natural history;
(2) Prevents unnecessary or undue degradation of the lands;
(3) Protects the quality of cultural, scenic, and recreational resources;
(4) Accommodates other land uses as much as possible;
(5) Minimizes noise;
(6) Prevents injury; and
(7) Prevents damage to property.
(b) You must monitor facility operations to identify and address local environmental resources and concerns associated with your facility or lease operations.
(c) You must remove or, with BLM approval, properly store all equipment and materials not in use.
(d) You must properly abandon the facility and reclaim any disturbed surface to standards approved or prescribed by us, when the land is no longer needed for facility construction or operation.
(e) When we require, you must submit a contingency plan describing procedures to protect public health and safety, property, and the environment.
(f) You must comply with the requirements of § 3200.4.
§ 3275.13 How must the facility operator measure the geothermal resources?
The facility operator must:
(a) Measure all production, injection and utilization in accordance with methods and standards approved by BLM (see § 3275.15);
(b) Maintain and test all metering equipment. If your equipment is defective or out of tolerance, you must promptly recalibrate, repair, or replace it; and
(c) Determine the amount of production and/or utilization in accordance with methods and procedures approved by BLM (see § 3275.17).
§ 3275.14 What aspects of my geothermal operations must I measure?
(a) For all well operations, you must measure wellhead flow, wellhead temperature, and wellhead pressure.
(b) For all electrical generation facilities, you must measure:
(1) Steam and/or hot water flow entering the facility;
(2) Temperature of the water and/or steam entering the facility;
(3) Pressure of the water and/or steam entering the facility;
(4) Gross electricity generated;
(5) Net electricity at the facility tailgate;
(6) Electricity delivered to the sales point; and
(7) Temperature of the steam and/or hot water exiting the facility.
(c) For direct use facilities, you must measure:
(1) Flow of steam and/or hot water; and
(2) Temperature of the steam or water entering the facility.
(d) We may also require additional measurements, depending on the type of facility, the type and quality of the resource, and the terms of the sales contract.
§ 3275.15 How accurately must I measure my production and utilization?
It depends on whether you use a meter to calculate Federal production or royalty, and what quantity of resource you are measuring.
(a) For meters that you use to calculate Federal royalty:
(1) If the meter measures electricity, it must have an accuracy of ±0.25% or better of reading;
(2) If the meter measures steam flowing at more than 100,000 lbs/hr on a monthly basis, it must have an accuracy reading of ±2 percent or better;
(3) If the meter measures steam flowing at less than 100,000 lbs/hr on a monthly basis, it must have an accuracy reading of ±4 percent or better;
(4) If the meter measures water flowing at more than 500,000 lbs/hr on a monthly basis, it must have an accuracy reading of ±2 percent or better;
(5) If the meter measures water flowing at 500,000 lbs/hr or less on a monthly basis, it must have an accuracy reading of ±4 percent or better;
(6) If the meter measures heat content, it must have an accuracy reading of ±4 percent, or better; or
(7) If the meter measures two-phase flow at any rate, BLM will determine and inform you of the meter accuracy requirements. You must obtain our prior written approval before installing and using meters for two-phase flow.
(b) Any meters that you do not use to calculate Federal royalty are considered production meters, which must maintain an accuracy of ±5 percent or better.
(c) We may modify these requirements as necessary to protect the interests of the United States.
§ 3275.16 What standards apply to installing and maintaining meters?
(a) You must install and maintain all meters that we require, either according to the manufacturer’s recommendations and specifications or paragraphs (b) through (e) of this section, whichever are more restrictive.
(b) If you use an orifice plate to calculate Federal royalty, the orifice plate installation must comply with “API Manual of Petroleum Measurement Standards, Chapter 14, Section 3, Part 2, Fourth Edition, April 2000.”
(c) For meters used to calculate Federal royalty, you must calibrate the meter against a known standard as follows:
(1) You must annually calibrate meters measuring electricity;
(2) You must calibrate meters measuring steam or hot water flow with a turbine, vortex, ultrasonics, or other linear devices, every 6 months, or as recommended by the manufacturer, whichever is more frequent; and
(3) You must calibrate meters measuring steam or hot water flow with an orifice plate, venturi, pitot tube, or other differential device, every month, and you must inspect and repair the primary device (orifice plate, venturi, pitot tube) annually.
(d) You must use calibration equipment that is more accurate than the equipment you are calibrating.
(e) BLM may modify any of these requirements as necessary to protect the resources of the United States.
§ 3275.17 What must I do if I find an error in a meter?
(a) If you find an error in a meter used to calculate Federal royalty, you must correct the error immediately and notify BLM by the next working day of its discovery.
(b) If the meter is not used to calculate Federal royalty, you must correct the error and notify us within 3 working days after its discovery.
(c) If correcting the error will cause a change in the sales quantity of more than 2 percent for the month(s) in which the error occurred, you must adjust the sales quantity for that month(s) and submit an amended facility report to us within 3 working days.
§ 3275.18 May BLM require me to test for byproducts associated with geothermal resource production?
You must conduct any tests we require, including tests for byproducts, if we find it necessary to require such tests for a given operation.
§ 3275.19 How do I apply to commingle production?
To request approval to commingle production, send us a completed and signed Sundry Notice. We will review your request to commingle production from wells on your lease with production from your other leases or from leases where you do not have an interest. Do not commingle production until we have approved your Sundry Notice.
§ 3275.20 What will BLM do if I waste geothermal resources?
We will determine the amount of any resources you have lost through waste. If you did not take all reasonable precautions to prevent waste, we will require you to pay compensation based on the value of the lost production. If BLM finds that you have not adequately corrected the situation, we will follow the noncompliance procedures in § 3277.12.
§ 3275.21 May BLM order me to drill and produce wells on my lease?
BLM may order you to drill and produce wells on your lease when we find it necessary to protect Federal interests, prevent drainage, or ensure that lease development and production occur in accordance with sound operating practices.
Subpart 3276 – Reports: Utilization Operations
§ 3276.10 What are the reporting requirements for facility and lease operations involving Federal geothermal resources?
(a) When you begin commercial production and operation, you must notify BLM in writing within 5 business days.
(b) Submit completed and signed monthly reports thereafter to BLM as follows:
(1) If you are a lessee or unit operator supplying Federal geothermal resources to a utilization facility on Federal land leased for geothermal resources, submit a monthly report of well operations for all wells on your lease or unit;
(2) If you are the operator of a utilization facility on Federal land leased for geothermal resources, submit a monthly report of facility operations;
(3) If you are both a lessee or unit operator and the operator of a utilization facility on Federal land leased for geothermal resources, you may combine the requirements of paragraphs (b)(1) and (b)(2) of this section into one report; or
(4) If you are a lessee or unit operator supplying Federal geothermal resources to a utilization facility not located on Federal land leased for geothermal resources, and the sales point for the resource utilized is at the facility tailgate, submit all the requirements of paragraphs (b)(1) and (b)(2) of this section. You may combine these into one report.
(c) Unless BLM grants a variance, your reports must be received by BLM by the end of the month following the month that the report covers. For example, the report covering the month of July is due by August 31.
§ 3276.11 What information must I include for each well in the monthly report of well operations?
(a) Any drilling operations or changes made to a well;
(b) Total production or injection in thousands of pounds (klbs);
(c) Production or injection temperature in degrees Fahrenheit (deg. F);
(d) Production or injection pressure in pounds per square inch (psi). You must also specify whether this is gauge pressure (psig) or absolute pressure (psia);
(e) The number of days the well was producing or injecting;
(f) The well status at the end of the month;
(g) The amount of steam or hot water lost to venting or leakage, if the amount is greater than 0.5 percent of total lease production. We may modify this standard by a written order describing the change;
(h) The lease number or unit name where the well is located;
(i) The month and year to which the report applies;
(j) Your name, title, signature, and a phone number where BLM may contact you; and
(k) Any other information that we may require.
§ 3276.12 What information must I give BLM in the monthly report for facility operations?
(a) For all electrical generation facilities, include in your monthly report of facility operations:
(1) Mass of steam and/or hot water, in klbs, used or brought into the facility. For facilities using both steam and hot water, you must report the mass of each;
(2) The temperature of the steam or hot water in deg. F;
(3) The pressure of the steam or hot water in psi. You must also specify whether this is psig or psia;
(4) Gross generation in kilowatt hours (kwh);
(5) Net generation at the tailgate of the facility in kwh;
(6) Temperature in deg. F and volume of the steam or hot water exiting the facility;
(7) The number of hours the plant was on line;
(8) A brief description of any outages; and
(9) Any other information we may require.
(b) For electrical generation facilities where Federal royalty is based on the sale of electricity to a utility, in addition to the information required under paragraph (a) of this section, you must include the following information in your monthly report of facility operations:
(1) Amount of electricity delivered to the sales point in kwh, if the sales point is different from the tailgate of the facility;
(2) Amount of electricity lost to transmission;
(3) A report from the utility purchasing the electricity documenting the total number of kwh delivered to the sales point during the month, or monthly reporting period if it is not a calendar month, and the number of kwh delivered during diurnal and seasonal pricing periods; and
(4) Any other information we may require.
§ 3276.13 What additional information must I give BLM in the monthly report for flash and dry steam facilities?
In addition to the regular monthly report information required by § 3276.12, send to BLM:
(a) Steam flow into the turbine in klbs; for dual flash facilities, you must separate the steam flow into high pressure steam and low pressure steam;
(b) Condenser pressure in psia;
(c) Condenser temperature in deg. F;
(d) Auxiliary steam flow used for gas ejectors, steam seals, pumps, etc., in klbs;
(e) Flow of condensate out of the plant (after the cooling towers) in klbs; and
(f) Any other information we may require.
§ 3276.14 What information must I give BLM in the monthly report for direct use facilities?
(a) Total monthly flow through the facility in thousands of gallons (kgal) or klbs;
(b) Monthly average temperature in, in deg. F;
(c) Number of hours that geothermal heat was used; and
(d) Any other information we may require.
§ 3276.15 How must I notify BLM of accidents occurring at my utilization facility?
You must orally inform us of all accidents that affect operations or create environmental hazards within 24 hours after each accident. When you contact us, we may require you to submit a written report fully describing the incident.
Subpart 3277 – Inspections, Enforcement, and Noncompliance
§ 3277.10 When will BLM inspect my operations?
BLM may inspect all operations to ensure compliance with the requirements of § 3200.4. You must give us access during normal operating hours to inspect all facilities utilizing Federal geothermal resources.
§ 3277.11 What records must I keep available for inspection?
(a) The operator or facility operator must keep all records and information pertaining to the operation of your utilization facility, royalty and production meters, and safety training available for BLM inspection for a period of 6 years following the time the records and information are created.
(b) This requirement also pertains to records and information from meters located off your lease or unit, when BLM needs them to determine:
(1) Resource production to a utilization facility; or
(2) The allocation of resource production to your lease or unit.
(c) Store all of these records in a place where they are conveniently available.
§ 3277.12 What will BLM do if I do not comply with all BLM requirements pertaining to utilization operations?
(a) We will issue you a written Incident of Noncompliance, directing you to take required corrective action within a specific time period. If the noncompliance continues or is serious in nature, BLM will take one or more of the following actions:
(1) Enter the lease, and correct any deficiencies at your expense;
(2) Collect all or part of your bond;
(3) Order modification or shutdown of your operations; and
(4) Take other enforcement action against a lessee who is ultimately responsible for the noncompliance.
(b) Noncompliance may result in BLM terminating your lease (see §§ 3213.17 through 3213.19).
Subpart 3278 – Confidential, Proprietary Information
§ 3278.10 When will BLM disclose information I submit under these regulations?
All Federal and Indian data and information submitted to BLM are subject to part 2 of this title. Part 2 includes the regulations of the Department of the Interior covering public disclosure of data and information contained in Department records. Certain mineral information not protected from disclosure under part 2 may be made available for inspection without a Freedom of Information Act (FOIA) request. Examples of information we will not treat as confidential include:
(a) Facility location;
(b) Facility generation capacity; or
(c) To whom you are selling electricity or produced resources.
§ 3278.11 When I submit confidential, proprietary information, how can I help ensure it is not available to the public?
When you submit data and information that you believe to be exempt from disclosure under part 2 of this title, you must clearly mark each page that you believe contains confidential information. BLM will keep all data and information confidential to the extent allowed by § 2.13(c) of this title.
§ 3278.12 How long will information I give BLM remain confidential or proprietary?
The FOIA does not provide a finite period of time during which information may be exempt from public disclosure. BLM will review each situation individually and in accordance with part 2 of this title.
Subpart 3279 – Utilization Relief and Appeals
§ 3279.10 When may I request a variance from BLM requirements pertaining to utilization operations?
(a) You may file a request with BLM for a variance for your approved utilization operations from the requirements of § 3200.4. Your request must include enough information to explain:
(1) Why you cannot comply with the requirements; and
(2) Why you need the variance to operate your facility, conserve natural resources, or protect public health and safety, property, or the environment.
(b) We may approve your request orally or in writing. If we give you oral approval, we will follow up with written confirmation.
§ 3279.11 How may I appeal a BLM decision regarding my utilization operations?
You may appeal our decision affecting your utilization operations in accordance with § 3200.5.
PART 3280 – GEOTHERMAL RESOURCES UNIT AGREEMENTS
Subpart 3280 – Geothermal Resources Unit Agreements – General
§ 3280.1 What is the purpose and scope of this part?
(a) The purpose of this part is to provide holders of Federal and non-Federal geothermal leases and owners of non-Federal mineral interests the opportunity to unite under a Federal geothermal unit agreement to explore for and develop geothermal resources in a manner that is necessary or advisable in the public interest.
(b) These regulations identify:
(1) The procedures a prospective unit operator must follow to receive BLM approval for unit area designation and a Federal geothermal unit agreement;
(2) The operational requirements a unit operator must meet once the unit agreement is approved; and
(3) The procedures BLM will follow in reviewing, approving, and administering a Federal geothermal unit agreement.
§ 3280.2 Definitions.
The following terms, as used in this part or in any agreement approved under the regulations in this part, have the following meanings unless otherwise defined in such agreement:
Minimum initial unit obligation means the requirement to complete at least one unit well within the timeframe specified in the unit agreement. If this requirement is not met, BLM deems the unit void as though it was never in effect.
Participating area means that part of the unit area that BLM deems to be productive from a horizon or deposit, and to which production would be allocated in the manner described in the unit agreement, assuming that all lands are committed to the unit agreement.
Plan of development means the document a unit operator submits to BLM defining how the unit operator will diligently pursue unit exploration and development to meet both initial and subsequent unit development and public interest obligations.
Public interest means operations within a geothermal unit resulting in:
(1) Diligent development;
(2) Efficient exploration, production and utilization of the resource;
(3) Conservation of natural resources; and
(4) Prevention of waste.
Reasonably proven to produce means a sufficient demonstration, based on scientific and technical information, that lands are contributing to unit production in commercial quantities or are providing reservoir pressure support for unit production.
Unit agreement means an agreement for the exploration, development, production, and utilization of separately owned interests in the geothermal resources made subject thereto as a single consolidated unit without regard to separate ownerships, which provides for the allocation of costs and benefits on a basis defined in the agreement or plan.
Unit area means the area described in a unit agreement as constituting the land logically subject to development under such agreement.
Unit contraction provision means a term of a unit agreement providing that the boundaries of the unit area will contract to the size of the participating area, by having those lands outside of the participating area removed. BLM will contract the unit area if additional unit wells are not drilled and completed within the timeframe specified in the unit agreement.
Unit operator means the person, association, partnership, corporation, or other business entity designated under a unit agreement to conduct operations on unitized land as specified in such agreement.
Unit well means a well that is:
(1) Designed to produce or utilize geothermal resources in commercial quantities;
(2) Drilled and completed to the bona fide geologic objective specified in the unit agreement, unless a commercial resource is found at a shallower depth; and
(3) Located on unitized land.
Unitized land means the part of a unit area committed to a unit agreement.
Unitized substances means deposits of geothermal resources recovered from unitized land by operation under and pursuant to a unit agreement.
Working interest means the interest held in geothermal resources or in lands containing the same by virtue of a lease, operating agreement, fee title, or otherwise, under which, except as otherwise provided in a unit agreement, the owner of such interest is vested with the right to explore for, develop, produce, and utilize such resources. The right delegated to the unit operator as such by the unit agreement is not to be regarded as a working interest.
§ 3280.3 What is BLM’s general policy regarding the formation of unit agreements?
For the purpose of more properly conserving the natural resources of any geothermal reservoir, field, or like area, or any part thereof, lessees and their representatives may unite with each other, or jointly or separately with others, in collectively adopting and operating under a unit agreement for the reservoir, field, or like area, or any part thereof, including direct use resources, if BLM determines and certifies this to be necessary or advisable in the public interest.
§ 3280.4 When may BLM require Federal lessees to unitize their leases or require a Federal lessee to commit a lease to a unit?
(a) BLM may initiate the formation of a unit agreement, or require an existing Federal lease to commit to a unit agreement, if in the public interest.
(b) BLM may require that Federal leases that become effective on or after August 8, 2005, contain a provision stating that BLM may require commitment of the lease to a unit agreement, and may prescribe the unit agreement to which such lease must commit to protect the rights of all parties in interest, including the United States.
§ 3280.5 May BLM require the modification of lease requirements in connection with the creation and operation of a unit agreement?
(a) BLM may, with the consent of the lessees involved, establish, alter, change, or revoke rates of operations (including drilling, operations, production, and other requirements) of the leases, and make conditions with respect to the leases, in connection with the creation and operation of any such unit agreement as BLM may consider necessary or advisable to secure the protection of the public interest.
(b) If leases to be included in a unit have unlike lease terms, such leases need not be modified to be in the same unit.
§ 3280.6 When may BLM require a unit operator to modify the rate of exploration, development, or production?
BLM may require a unit agreement applying to lands owned by the United States to contain a provision under which BLM or an entity designated in the unit agreement may alter or modify, from time-to-time, the rate of resource exploration or development, or production quantity or rate, under the unit agreement.
§ 3280.7 Can BLM require an owner or lessee of lands not under Federal administration to unitize their lands or leases?
BLM cannot require the commitment of lands or leases not under Federal administration or jurisdiction to a Federal unit.
Subpart 3281 – Application, Review, and Approval of a Unit Agreement
§ 3281.1 What steps must I follow for BLM to approve my unit agreement?
Before a unit agreement becomes effective, BLM must designate the unit area and approve the unit agreement. Procedures for designating the unit area are set forth in §§ 3281.2 through 3281.6. Procedures for approving the unit agreement are set forth in §§ 3281.7 through 3281.17.
§ 3281.2 What documents must the unit operator submit to BLM before we may designate a unit area?
(a) The unit operator must submit the following documents before BLM may designate a proposed unit area:
(1) A report detailing the geologic information and interpretation that indicates, to the satisfaction of BLM, the proposed area is geologically appropriate for unitization;
(2) A map showing:
(i) The proposed unit area;
(ii) All leases (including Federal, state, or private) and tracts (unleased privately owned land or mineral rights);
(iii) The Federal lease number and lessee; and
(iv) An individual unit tract number;
(3) A list which includes the following information as to each Federal, state, and private lease, and tracts of unleased land, to be included in the unit:
(i) The lease number;
(ii) The legal land description of each lease and tract;
(iii) The acreage of each lease or tract;
(iv) The lessor and lessee of each lease;
(v) The mineral rights owner of any unleased tract; and
(vi) The total number of acres:
(A) In the unit area;
(B) Under Federal administration; and
(C) In private or other (such as state) ownership; and
(4) Any other information BLM may require.
(b) Before submitting any documents, ask BLM how many copies are required.
§ 3281.3 What geologic information may a unit operator use in proposing a unit area?
(a) A unit operator may use any reasonable geologic information necessary to justify its proposed unit area. The information must document that the proposed unit area is:
(1) Geologically contiguous; and
(2) Suitable for resource exploration, development and production under a unit agreement.
(b) BLM will decide which information and interpretations are acceptable. BLM’s acceptance of the information and interpretations may vary depending on the types and level of geologic information available for the area.
§ 3281.4 What are the size and shape requirements for a unit area?
There are no specific size or shape requirements for a unit area, except that it must meet the requirements of § 3281.3. The size of the unit area may affect the minimum initial unit obligation requirements (see § 3281.15(b)).
§ 3281.5 What happens if BLM receives applications that include overlapping unit areas?
(a) If BLM receives unit area applications that include overlapping lands, we will request that each prospective unit operator resolve the issue with the other operator(s). If the prospective operators cannot reach a resolution, BLM may:
(1) Return all unit applications and request all applicants to revise their proposed unit areas;
(2) Designate any unit area proposal that is geologically appropriate for unitization and best meets public interest requirements; or
(3) Designate a different area for unitization when doing so is in the public interest.
(b) BLM will reject either an application or a portion of an application that includes lands already in an approved unit area.
§ 3281.6 What action will BLM take after reviewing a proposed unit area designation?
(a) BLM will approve the unit area designation in writing and notify the prospective unit operator once we determine that:
(1) We have received the information required at § 3281.2;
(2) Information available to BLM documents that the area is geologically appropriate for unitization; and
(3) Unitization is appropriate to conserve the natural resources of a geothermal reservoir, field, or like area, or part thereof.
(b) BLM will notify a prospective unit operator in writing if we do not designate a proposed unit area.
§ 3281.7 What documents must a unit operator submit to BLM before we will approve a unit agreement?
After BLM approves a unit area designation, a unit operator must submit the following information in order for BLM to approve a unit agreement:
(a) Documentation of tract commitment (see §§ 3281.8 and 3281.9);
(b) The unit agreement (see § 3281.15);
(c) The map required by § 3281.2(a)(2), if any modifications have occurred since the unit area was designated;
(d) The list required by § 3281.2(a)(3) indicating whether each lease or tract is committed to the unit agreement; and
(e) The plan of development.
§ 3281.8 Must a unit operator provide working interests within the designated unit area the opportunity to join the unit?
After BLM designates a unit area, the unit operator must invite all owners of mineral rights (leased or unleased) and lease interests (record title and operating rights) in the designated unit area to join the unit. The unit operator must provide the lease interests and mineral rights owners 30 days to respond. If an interest or owner does not respond, the unit operator must provide BLM with written evidence that all the interests or owners were invited to join the unit. BLM will not approve a unit agreement proposal if this evidence is not submitted.
§ 3281.9 How does a unit operator provide documentation to BLM of lease and tract commitment status?
(a) The unit operator must provide documentation to BLM of the commitment status of each lease and tract in the designated unit area. The documentation must include a joinder or other comparable document signed by the lessee or mineral rights owner, or evidence that an opportunity to join was offered and no response was received (see § 3281.8).
(b) A majority interest of owners of any single Federal lease has authority to commit the lease to a unit agreement.
§ 3281.10 How will BLM determine that I have sufficient control of the proposed unit area?
(a) BLM will determine whether:
(1) A unit operator has sufficient control of the proposed unit area by reviewing the number and location of leases and tracts committed and their geologic potential for development in relation to the entire proposed unit area; and
(2) The committed tracts provide the unit operator with sufficient control of the unit area to conduct resource exploration and development in the public interest.
(b) If BLM determines that the unit operator does not have sufficient control of the unit area, we will not approve the unit agreement.
§ 3281.11 What are the unit operator qualifications?
(a) Before BLM will approve a unit agreement, the unit operator must:
(1) Meet the same qualifications as a lessee (see § 3202.10 of this chapter); and
(2) Demonstrate sufficient control of the unit area (see § 3281.10).
(b) A unit operator is not required to have an interest in any lease committed to the unit agreement.
§ 3281.12 Who designates the unit operator?
The owners of geothermal rights and lease interests committed to the unit agreement will nominate a unit operator. Before designating the unit operator, BLM must also determine whether the prospective unit operator meets the requirements of § 3281.11.
§ 3281.13 Is there a format or model a unit operator must use when proposing a unit agreement?
When proposing a unit agreement, submit to BLM:
(a) The model unit agreement (see § 3286.1);
(b) The model unit agreement with variances noted; or
(c) Any unit agreement format that contains all the terms and conditions BLM requires (see §§ 3281.14 and 3281.15).
§ 3281.14 What minimum requirements and terms must be incorporated into the unit agreement?
(a) The unit agreement must, at a minimum:
(1) State who the unit operator is, and that the unit operator and participating lessees accept the unit terms and obligations set forth in the agreement and applicable BLM regulations;
(2) State the size and general location of the unit area;
(3) Include procedures for revising the unit area or participating area(s);
(4) Include procedures for amending the unit agreement;
(5) State the effective date and term of the unit, as provided in paragraph (b) of this section;
(6) Incorporate the minimum initial unit obligations, as specified in § 3281.15;
(7) State that BLM may require a modification of the rate of resource exploration or development, or the production quantity or rate, within the unit area;
(8) State that the agreement is subject to periodic BLM review;
(9) State that BLM will deem the unit agreement as void as if it were never in effect if the minimum initial unit obligations are not met;
(10) Include a plan of development; and
(11) Include a unit contraction provision.
(b) The unit agreement must provide that it terminates 5 years after its effective date unless:
(1) BLM extends such date of expiration;
(2) Unitized substances are produced or utilized in commercial quantities in which event the agreement continues for so long as unitized substances are produced or utilized in commercial quantities; or
(3) BLM terminates the agreement under subpart 3285 of this part before the end of the 5 year period.
(c) The agreement may include any other provisions or terms that BLM and the unit operator agree are necessary for proper resource exploration and development, and management of the unit area.
§ 3281.15 What is the minimum initial unit obligation a unit agreement must contain?
(a) The unit agreement must:
(1) Require the unit operator to drill, within the timeframe specified in the unit agreement, at least one unit well on a tract committed to the unit agreement;
(2) Specify the location and the minimum depth and/or geologic structure to which the initial unit well will be drilled; and
(3) Require the unit operator, upon completing a unit well, to provide to BLM in a timely manner the information required at § 3264.10 of this chapter.
(b) Depending on the size of the proposed unit area, BLM may require the minimum initial unit agreement obligation to include the drilling of more than one unit well.
(c) If necessary to aid in the evaluation of drilling locations, BLM and the unit operator may agree to include types of exploration operations as part of the initial unit obligation. An example of such work is drilling temperature gradient wells.
(d) BLM will not consider any work done prior to unit approval for the purpose of meeting initial unit obligations.
§ 3281.16 When must a Plan of Development be submitted to BLM?
(a) The prospective unit operator must submit an initial Plan of Development at the time the unit area is proposed for designation.
(b) Subsequent Plans of Development that were not already provided must be submitted to address future unit activities to be conducted throughout the term of the unit agreement. For example, if the Plan only addressed activities until a unit well is completed, the subsequent Plan must address activities including the drilling of additional unit wells until a producible well is completed. Once a producible well is completed, the Plan or subsequent Plan must address those activities related to utilizing the resource.
(c) There is no requirement to submit a Plan of Development once unitized resources begin commercial operation.
§ 3281.17 What information must be provided in the Plan of Development?
(a) The Plan of Development must state the types of and timeframes for activities the unit operator will conduct in diligent pursuit of unit exploration and development. The Plan may address those activities that will be conducted until the minimum initial unit obligation is met, or it may address all activities that will occur through the term of the unit agreement.
(b) The Plan of Development may specify that the activities will be conducted in phases during the term of the unit agreement. For example, the number, location, and depth of temperature gradient wells, and the timeframe for the completion of these wells, may be the first phase. A second phase may include drilling of observation or slim-hole wells to a greater depth than that specified in the first phase. Completion of the unit well may be the third phase. In all cases, the Plan of Development must include the completion of at least one unit well.
§ 3281.18 What action will BLM take in reviewing the Plan of Development?
BLM will review the Plan of Development to ensure that the types of activities and the timeframes for their completion meet public interest requirements. If BLM determines that the Plan of Development does not meet these requirements, BLM will negotiate with the prospective unit operator to revise the proposed activities. BLM will not designate a unit area until the Plan of Development meets applicable requirements.
§ 3281.19 What action will BLM take on a proposed unit agreement?
BLM will:
(a) Review the proposed unit agreement to ensure that the public interest is protected and that the agreement conforms to applicable laws and regulations;
(b) Coordinate the review of a proposed unit agreement with appropriate state agencies, and other Federal surface management agencies, if applicable;
(c) Approve the unit agreement and provide the unit operator with signed copies of the agreement, if we determine:
(1) That the unit operator has submitted all required information;
(2) That the unit agreement and the unit operator satisfy all required terms and conditions, including the requirements specified at §§ 3281.14 and 3281.15, and conform with all applicable laws and regulations; and
(3) That the unit agreement is necessary or advisable to meet the public interest;
(d) Notify the unit operator in writing if we reject the unit agreement proposal; and
(e) Reject any unit application that includes lands already committed to an approved unit agreement.
§ 3281.20 When is a unit agreement effective?
The effective date of the unit agreement approval is the first day of the month following the date BLM approves and signs it. The unit operator may request that the effective date be the first day of the month in which the agreement is signed by BLM, or a more appropriate date agreed to by BLM.
Subpart 3282 – Participating Area
§ 3282.1 What is a participating area?
(a) A participating area is the combined portion of the unitized area which BLM determines:
(1) Is reasonably proven to produce geothermal resources; or
(2) Supports production in commercial quantities, such as pressure support from injection wells.
(b) The size and configuration of all participating areas and revisions are not effective until BLM approves them.
§ 3282.2 When must the unit operator have a participating area approved?
You must have an established BLM-approved participating area to allocate production and royalties before beginning commercial operations under a unit agreement to allocate production within the unit.
§ 3282.3 When must the unit operator submit an application for BLM approval of a proposed initial participating area?
The unit operator must submit an application for BLM approval of a proposed participating area no later than:
(a) 60 days after receiving BLM’s determination identified in § 3281.15(a)(3) that a unit well will produce or utilize in commercial quantities; or
(b) 30 days before the initiation of commercial operations, whichever occurs earlier.
§ 3282.4 What general information must the unit operator submit with a proposed participating area application?
The unit operator must submit the following information with a participating area application:
(a) Technical information supporting its application (see § 3282.5);
(b) The information required in § 3281.2(a)(2) and (3) for the lands in the proposed participating area; and
(c) Any other information BLM may require.
§ 3282.5 What technical information must the unit operator submit with a proposed participating area application?
At a minimum, the unit operator must submit the following technical information with a proposed participating area application:
(a) Documentation that the participating area includes:
(1) The production and injection wells necessary for unit operations;
(2) Unit wells that are capable of being produced or utilized in commercial quantities; and
(3) The area each well drains or supplies pressure communication.
(b) Data, including logs, from production and injection well testing, if not previously submitted under § 3264.10 of this chapter;
(c) Interpretations of well performance, and reservoir geology and structure, that document that the lands are reasonably proven to produce; and
(d) Any other information BLM may require.
§ 3282.6 When must the unit operator propose to revise a participating area boundary?
(a) The unit operator must submit a written application to BLM to revise a participating area boundary no later than 60 days after receipt of the BLM determination described herein, when either:
(1) A well is completed that BLM has determined will produce or utilize in commercial quantities, and such well:
(i) Is located outside of an existing participating area; or
(ii) Drains an area outside the existing participating area; or
(2) An injection well located outside of an existing participating area is put into use that BLM has determined provides reservoir pressure support to production.
(b) The unit operator may submit a written application for a revision of a participating area when new or additional technical information or revised interpretations of any information provides a basis for revising the boundary.
(c) The unit operator may submit a written request to BLM to delay a participation area revision decision when drilling multiple wells in the unit is actively pursued or the drilling is providing additional technical information. A delay will not affect the effective date of any participation area revision (see § 3282.7). The request must include:
(1) The well locations;
(2) Anticipated spud and completion dates of each well;
(3) The timing of well testing and analyses of technical information; and
(4) The anticipated date BLM will receive the participation area revision for review.
(d) BLM will provide the unit operator with a written decision on the application to revise a participating area or the request to delay a participating area revision decision by BLM.
§ 3282.7 What is the effective date of an initial participating area or revision of an existing participating area?
(a) BLM will establish the appropriate effective date of an initial participating area or any revision to a participating area. The effective date may be, but is not limited to, the first day of the month in which:
(1) A well is completed that causes the participating area to be formed or revised;
(2) Commercial operations start; or
(3) New or additional technical information becomes known that provides a basis for revising the boundary (such as when production from, or injection to, an area outside the participating area first became known).
(b) The unit operator may request BLM to approve a specific effective date for the participating area or revision, but the date may not be earlier than the effective date of the unit.
§ 3282.8 What are the reasons BLM would not approve a revision of the participating area boundary?
BLM will not approve a revision of the participating area boundary:
(a) If the unit operator does not submit the required information;
(b) If BLM determines that the new or additional technical information does not support a boundary revision; or
(c) If it reduces the size of a participating area because of depletion of the resource.
§ 3282.9 How is production allocated within a participating area?
Allocation of production to each committed lease or tract within a participating area is in the same proportion as that lease’s or tract’s surface acreage within the participating area.
§ 3282.10 When will unleased Federal lands in a participating area receive a production allocation?
Unleased Federal lands within a participating area are treated as follows:
(a) For royalty purposes only, you must allocate production to unleased Federal lands in the participating area as if the acreage were committed to the participating area.
(b) The unit operator is primarily liable for paying and must pay royalty to the United States for such allocated production based on a rate not less than the highest royalty rate for any Federal lease in the participating area. In the event the unit operator does not pay any royalties owed under this paragraph, each lessee of lands committed to the participating area is responsible for paying such royalties in the same proportion as that lessee’s percentage of surface acreage within the participating area, excluding the unleased acreage.
§ 3282.11 May a participating area continue if there is intermittent unit production?
A participating area may continue if there is intermittent unit production only if BLM determines that intermittent production is in the public interest. For example, a direct use facility may only require production to occur during winter months.
§ 3282.12 When does a participating area terminate?
A participating area terminates when either:
(a) The unit operator permanently stops operations in or affecting the participating area; or
(b) Sixty (60) days after BLM notifies the unit operator in writing that we have determined that operations in the participating area are not being conducted in accordance with the unit agreement, the participating area approval, or the public interest. If before the expiration of the 60 days, the unit operator demonstrates to BLM’s satisfaction that the basis for BLM’s determination is erroneous or has been rectified, BLM will not terminate the participating area.
Subpart 3283 – Modifications to the Unit Agreement
§ 3283.1 When may the unit operator modify the unit agreement?
(a) The unit operator may propose to modify a unit agreement by submitting an application to BLM that:
(1) Identifies the proposed change and the reason for the change; and
(2) Certifies that all necessary unit interests have agreed to the change.
(b) BLM will send the unit operator written notification of BLM’s decision regarding the application. Proposed modifications to a unit agreement will not become effective until BLM approves them. BLM’s approval may be made effective retroactively to the date the application was complete. BLM may approve a different effective date, including a date the unit operator requests and for which the unit operator provides acceptable justification.
§ 3283.2 When may the unit operator revise the unit contraction provision of a unit agreement?
(a) The unit operator may submit to BLM a request to revise the unit contraction provision of a unit agreement, if the unit operator has either:
(1) Commenced commercial operations of unitized resources; or
(2) Completed a unit well that produces or utilizes geothermal resources in commercial quantities.
(b) The request may propose an extension of the unit contraction date and/or a partial contraction of the unit area, and must include the following information:
(1) The period for which the revision is requested; and
(2) Whether an extension of the unit contraction date and/or a partial contraction of the unit area is requested.
(c) The request should address the following factors when applicable:
(1) Economic constraints that limit the opportunity to drill and utilize the resource from additional wells;
(2) Reservoir monitoring or injection wells that BLM determines are necessary for unit operations are not located in the participating area;
(3) An inability to drill additional wells is due to circumstances beyond the unit operator’s control, and a unit well that has produced or utilized in commercial quantities already is located in the unit;
(4) The types and intensity of unit operations already conducted in the unit area;
(5) The availability of viable electrical or resource sales contracts;
(6) The opportunity to utilize the resource economically; or
(7) Any other information that supports revision of the unit contraction provision.
(d) BLM will consider the factors discussed along with any other information submitted, and will approve the request if we determine that the revision is in the public interest. The approval may be subject to conditions such as requiring an annual renewal, or setting the timing and conditions for when phased contractions or termination of the revision may occur.
§ 3283.3 How will the unit operator know the status of a unit contraction revision request?
BLM will notify the unit operator in writing of our decision. If we approve the request, we:
(a) Will specify the term of the contraction extension and/or which lands will remain in the unit agreement;
(b) May require the unit operator to update the informational requirements of subpart 3282; and
(c) May terminate the participating area contraction revision if we find termination is necessary in the public interest.
§ 3283.4 When may the unit operator add lands to or remove lands from a unit agreement?
(a) The unit operator may request BLM to designate the addition or removal of lands to or from a unit agreement.
(b) In order for BLM to complete a review of the unit area revision request, the unit operator must submit to BLM the information required in §§ 3281.2, 3281.3, and 3281.7.
(c) BLM will:
(1) Review the request;
(2) Determine whether the information provided is sufficient and whether the new or additional geologic information or interpretation provides an acceptable basis for the unit boundary change; and
(3) Notify the unit operator in writing of our decision.
(d) If BLM approves the revision, the unit operator must notify all owners of lease interests or mineral rights of the unit area revision.
§ 3283.5 When will BLM periodically review unit agreements?
BLM will periodically review all unit agreements to determine compliance with § 3283.6 in accordance with the following schedule:
(a) Not later than 5 years after the approval of each unit agreement; and
(b) At least every 5 years following the initial unit review.
§ 3283.6 What is the purpose of BLM’s periodic review?
(a) BLM must review all unit agreements to determine whether any leases, or portions of leases, committed to any unit are no longer reasonably necessary for unit operations, and eliminate from inclusion in the unit agreement any such lands it determines not reasonably necessary for unit operations.
(b) The elimination will be based on scientific evidence, and occur only for the purpose of conserving and properly managing the geothermal resources.
(c) BLM will not eliminate any lands from a unit until BLM provides the unit operator, the lessee, and any other person with a legal interest in such lands, with reasonable notice and an opportunity to comment.
(d) Any lands eliminated from a unit under this section are eligible for a lease extension under subpart 3207 of part 3200 of this chapter if the lands meet the requirements for the extension.
§ 3283.7 When may unit operators be changed?
Unit operators may be changed only with BLM’s written approval.
§ 3283.8 What must be filed with BLM to change the unit operator?
To change the unit operator, the new operator must:
(a) Meet the qualification requirements of § 3281.11;
(b) Submit to BLM evidence of acceptable bonding under § 3214.13 of this chapter; and
(c) File with BLM written acceptance of the unit terms and obligations.
§ 3283.9 When is a change of unit operator effective?
The change is effective when BLM approves the new unit operator in writing.
§ 3283.10 If there is a change in the unit operator, when does the previous operator’s liability end?
(a) The previous unit operator remains responsible for all duties and obligations of the unit agreement until BLM approves a new unit operator. The change of the unit operator does not release the previous unit operator from any liability for any obligations that accrued before the effective date of the change (see § 3215.14 of this chapter).
(b) The new unit operator is responsible for all unit duties and obligations after BLM approves the change.
§ 3283.11 Do the terms and conditions of a unit agreement modify Federal lease stipulations?
Nothing in a unit agreement modifies stipulations included in any Federal lease.
§ 3283.12 Are transferees and successors in interest of Federal geothermal leases bound by the terms and conditions of the unit agreement?
The terms and conditions of the unit agreement are binding on transferees and successors in interest to Federal geothermal leases committed to a unit agreement.
Subpart 3284 – Unit Operations
§ 3284.1 What general standards apply to operations within a unit?
All unit operations must comply with:
(a) The terms and conditions of the unit agreement; and
(b) The standards and orders listed in the following chart:
| Type of operation | Regulations on Operational Standards (43 CFR) | Regulations on Orders or Instructions (43 CFR) |
|---|---|---|
| Exploration | § 3250.12 | § 3250.13 |
| Drilling | § 3260.11 | § 3260.12 |
| Production or Utilization | § 3270.11 | § 3270.12 |
§ 3284.2 What are the principal operational responsibilities of the unit operator?
The unit operator is responsible for:
(a) Diligently drilling for and developing in the public interest the geothermal resource occurring in the unit area. Only the unit operator is authorized to conduct:
(1) Any phase of drilling authorized under subpart 3260 of this chapter, unless another person is specifically authorized by BLM to conduct drilling (see § 3284.3);
(2) Resource development activities such as production and injection; and
(3) Delivery of the resource for commercial operation. An entity other than the unit operator, such as a facility operator, may purchase or utilize the resource produced from the unit.
(b) Providing written notification to BLM within 30 days after any changes to the commitment status of any lease or tract in the unit area (see §§ 3281.9 and 3284.12); and
(c) Insuring that the Federal Government receives all royalties, direct use fees, and rents for activities within the participating area.
§ 3284.3 What happens if the minimum initial unit obligations are not met?
(a) If the unit operator does not drill a well designed to produce or utilize geothermal resources in commercial quantities within the timeframe specified in the unit agreement, or the unit operator relinquishes the unit agreement before meeting the minimum initial unit obligations:
(1) BLM will deem the unit agreement void as though it was never in effect;
(2) BLM will deem any lease extension based upon the existence of the unit as void retroactive to the date the unit was effective; and
(3) Any lease segregations based on the unit become invalid.
(b) BLM will send the unit operator a written decision confirming that the unit agreement is void.
§ 3284.4 How are unit agreement terms affected after completion of the initial unit well?
(a) Upon completion of a unit well that BLM determines will produce or utilize geothermal resources in commercial quantities, the unit operator must submit a proposed participating area application under § 3282.3, and no additional drilling to meet unit obligations is required. If no additional drilling in the unit occurs, the unit area will contract to the participating area as specified in the unit agreement.
(b) If a unit operator drills a well designed to produce or utilize geothermal resources in commercial quantities, but the well will not produce commercially or is not producible, the unit operator must continue drilling additional wells within the timeframes specified in the unit agreement until a unit well is completed that BLM determines will produce or utilize geothermal resources in commercial quantities. BLM may terminate a unit if additional wells are not drilled within the timeframes specified in the unit agreement.
(c) The unit agreement will expire if no well that BLM determines will produce or utilize geothermal resources in commercial quantities is completed within the timeframes specified in the unit agreement.
(d) BLM will send the unit operator a written decision confirming that the unit agreement has been terminated or has expired.
§ 3284.5 How do unit operations affect lease extensions?
(a) Once the minimum initial unit obligation is met, lease extensions approved under § 3207.17 of this chapter based upon unit commitment will remain in effect until the unit is relinquished, expires, terminates, or the lease on which the initial unit obligation was met is eliminated from the unit.
(b) As long as there are commercial operations within the unit or there exists a unit well that BLM has determined is producing or utilizing geothermal resources in commercial quantities, lease extensions for any leases or portions of leases within the participating area will remain in effect as long as operations meet the requirements of § 3207.15 of this chapter.
(a) BLM may authorize a working interest owner to drill a well on the interest owner’s lease only if it is located outside of an established participating area. However, BLM will only do so upon determining that:
(1) The unit operator is not diligently pursuing unit development; and
(2) Drilling the well is in the public interest.
(b) If BLM determines that a working interest has completed a well that will produce or utilize geothermal resources in commercial quantities, the unit operator must:
(1) Apply to revise the participating area to include the well; and
(2) Operate the well.
BLM may authorize a lessee/operator to conduct operations on an uncommitted Federal lease located within a unit if the lessee/operator demonstrates to our satisfaction that operations on the lease are:
(a) In the public interest; and
(b) Will not unnecessarily affect unit operations.
§ 3284.8 May a unit have multiple operators?
A unit may have only one operator.
§ 3284.9 May BLM set or modify production or injection rates?
BLM may set or modify the quantity, rate, or location of production or injection occurring under a unit agreement to ensure protection of Federal resources.
§ 3284.10 What must a unit operator do to prevent or compensate for drainage?
The unit operator must take all necessary measures to prevent or compensate for drainage of geothermal resources from unitized land by wells on land not subject to the unit agreement (see §§ 3210.16 and 3210.17 of this chapter).
§ 3284.11 Must the unit operator develop and operate on every lease or tract in the unit to comply with the obligations in the underlying leases or agreements?
The unit operator is not required to develop and operate on every lease or tract in the unit agreement to comply with the obligations in the underlying leases or agreement. The development and operation on any lands subject to a unit agreement is considered full performance of all obligations for development and operation for every separately owned lease or tract in the unit, regardless of whether there is development of any particular tract of the unit area.
§ 3284.12 When must the unit operator notify BLM of any changes of lease and tract commitment status?
The unit operator must provide updated documentation of commitment status (see §§ 3281.8 through 3281.10) of all leases and tracts to BLM whenever a change in commitment, such as the expiration of a private lease, occurs. The unit operator must submit the documentation to BLM within 30 days after the change occurs. The unit operator must also notify all lessees and mineral interest owners of these changes.
Subpart 3285 – Unit Termination
§ 3285.1 When may BLM terminate a unit agreement?
BLM may terminate a unit agreement if the unit operator does not comply with any term or condition of the unit agreement.
§ 3285.2 When may BLM approve a voluntary termination of a unit agreement?
BLM may approve the voluntary termination of a unit agreement at any time:
(a) After receiving a signed certification agreeing to the termination from a sufficient number of the working interest owners specified in the unit agreement who together represent a majority interest in the unit agreement; and
(b)(1) After the completion of the initial unit obligation well but before the establishment of a participating area; or
(2) After a participating area is established, upon receipt of information providing adequate assurance that:
(i) Diligent development and production of known commercial geothermal resources will occur; and
(ii) The public interest is protected.
Subpart 3286 – Model Unit Agreement
§ 3286.1 Model Unit Agreement.
A unit agreement may use the following language:
Unit Agreement for the Development and Operation of the ______ Unit Area, County of ______, State of ______.
This Agreement entered into as of the ______ day of ______, 20 ______, by and between the parties subscribing, ratifying, or consenting hereto, and herein referred to as the “parties hereto”. Whereas the parties hereto are the owners of working, royalty, or other geothermal resources interests in land subject to this Agreement; and
Whereas the Geothermal Steam Act of 1970 (84 Stat. 1566), as amended, hereinafter referred to as the “Act” authorizes Federal lessees and their representatives to unite with each other, or jointly or separately with others, in collectively adopting and operating under a unit agreement for the purpose of more properly conserving the natural resources of any geothermal resources reservoir, field, or like area, or any part thereof, whenever determined and certified by the Secretary of the Interior to be necessary or advisable in the public interest; and
Whereas the parties hereto hold sufficient interest in the ______ Unit Area covering the land herein described to effectively control operations therein; and
Whereas, it is the purpose of the parties hereto to conserve natural resources, prevent waste, and secure other benefits obtainable through development and operations of the area subject to this Agreement under the terms, conditions, and limitations herein set forth;
Now, therefore, in consideration of the premises and the promises herein contained, the parties hereto commit to this agreement their respective interests in the below-defined Unit Area, and agree severally among themselves as follows:
1.1 The Act and all valid pertinent U.S. Department of the Interior regulations, including operating and unit plan regulations, heretofore or hereafter issued thereunder are accepted and made a part of this agreement as to Federal lands.
1.2 As to non-Federal lands, the Bureau of Land Management (“BLM”) geothermal resources operating regulations in effect as of the effective date hereof governing drilling and producing operations, not inconsistent with the laws of the State in which the non-Federal land is located, are hereby accepted and made a part of this agreement.
2.1 The following terms shall have the meanings here indicated:
(a) Geothermal Lease. A lease issued under the act of December 24, 1970 (84 Stat. 1566), as amended, pursuant to the leasing regulations contained in 43 CFR Group 3200 and, unless the context indicates otherwise, “lease” shall mean a geothermal lease.
(b) Unit Area. The area described in Article III of this Agreement.
(c) Unit Operator. The person, association, partnership, corporation, or other business entity designated under this Agreement to conduct operations on Unitized Land as specified herein.
(d) Participating Area. That area of the Unit deemed to be productive as described in Article 12.1 herein and areas committed to the Unit by the Authorized Officer needed for support of operations of the Unit Area. The production allocated for lands used for support of operations shall be approved by the Authorized Officer pursuant to Articles 12.1 and 13.1 herein.
(e) Working Interest. The interest held in geothermal resources or in lands containing the same by virtue of a lease, operating agreement, fee title, or otherwise, under which, except as otherwise provided in this Agreement, the owner of such interest is vested with the right to explore for, develop, produce and utilize such resources. The right delegated to the Unit Operator as such by this Agreement is not to be regarded as a Working Interest.
(f) Secretary. The Secretary of the Interior or any person duly authorized to exercise powers vested in that officer.
(g) Director. The Director of the Bureau of Land Management or any person duly authorized to exercise powers vested in that officer.
(h) Authorized Officer. Any person authorized by law or by lawful delegation of authority in the Bureau of Land Management to perform the duties described.
3.1 The area specified on the map attached hereto marked “Exhibit A” is hereby designated and recognized as constituting the Unit Area, containing ______ acres, more or less. The above-described Unit Area shall be expanded, when practicable, to include therein any additional lands or shall be contracted to exclude lands whenever such expansion or contraction is deemed to be necessary or advisable to conform with the purposes of this Agreement.
3.2 Exhibit A attached hereto and made a part hereof is a map showing the boundary of the Unit Area, the boundaries and identity of tracts and leases in said area to the extent known to the Unit Operator.
3.3 Exhibit B attached hereto and made a part thereof is a schedule showing to the extent known to the Unit Operator the acreage, percentage, and kind of ownership of geothermal resources interests in all lands in the Unit Area.
3.4 Exhibits A and B shall be revised by the Unit Operator whenever changes in the Unit Area render such revision necessary, or when requested by the authorized officer, and not less than five copies of the revised Exhibits shall be filed with the authorized officer.
4.1 Unless otherwise specified herein, the expansion and/or contraction of the Unit Area contemplated in Article 3.1 hereof shall be effected in the following manner:
(a) The Unit Operator, either on demand of the authorized officer or on its own motion and after prior concurrence by the authorized officer, shall prepare a notice of proposed expansion or contraction describing the contemplated changes in the boundaries of the Unit Area, the reasons therefore, and the proposed effective date thereof, preferably the first day of a month subsequent to the date of notice.
(b) Said notice shall be delivered to the authorized officer, and copies thereof mailed to the last known address of each Working Interest Owner, Lessee, and Lessor whose interests are affected, advising that 30 days will be allowed to submit any objections to the Unit Operator.
(c) Upon expiration of the 30-day period provided in the preceding item 4.1(b), Unit Operator shall file with the authorized officer evidence of mailing of the notice of expansion or contraction and a copy of any objections thereto that have been filed with the Unit Operator, together with an application in sufficient number, for approval of such expansion or contraction and with appropriate joinders.
(d) After due consideration of all pertinent information, the expansion or contraction shall, upon approval by the authorized officer, become effective as of the date prescribed in the notice thereof.
4.2 Unitized Leases, insofar as they cover any lands excluded from the Unit Area under any of the provisions of this Article IV, may be maintained and continued in force and effect in accordance with the terms, provisions, and conditions contained in the Act, and the lease or leases and amendments thereto, except that operations and/or production under this Unit Agreement shall not serve to maintain or continue the excluded portion of any lease.
4.3 All legal subdivisions of unitized lands (i.e., 40 acres by Governmental survey or its nearest lot or tract equivalent in instances of irregular surveys), no part of which is entitled to be within a Participating Area on the 5th anniversary of the effective date of the initial Participating Area established under this Agreement, shall be eliminated automatically from this Agreement effective as of said 5th anniversary. Such lands shall no longer be a part of the Unit Area and shall no longer be subject to this Agreement, unless diligent drilling operations are in progress on an exploratory well on said 5th anniversary, in which event such lands shall not be eliminated from the Unit Area for as long as exploratory drilling operations are continued diligently with not more than six (6) months time elapsing between the completion of one exploratory well and the commencement of the next exploratory well.
4.4 An exploratory well, for the purposes of this Article IV, is defined as any well, regardless of surface location, projected for completion:
(a) In a zone or deposit below any zone or deposit for which a Participating Area has been established and is in effect; or
(b) At a subsurface location under Unitized Lands not entitled to be within a Participating Area.
4.5 In the event an exploratory well is completed during the six (6) months immediately preceding the 5th anniversary of the initial Participating Area established under this Agreement, lands not entitled to be within a Participating Area shall not be eliminated from this Agreement on said 5th anniversary, provided the drilling of another exploratory well is commenced under an approved Plan of Development within six (6) months after the completion of said well. In such event, the land not entitled to be in participation shall not be eliminated from the Unit Area so long as exploratory drilling operations are continued diligently with not more than six (6) months time elapsing between the completion of one exploratory well and the commencement of the next exploratory well.
4.6 With prior approval of the authorized officer, a specified period of time in excess of six (6) months may be allowed to elapse between the completion of one well and the commencement of the next well without the automatic elimination of nonparticipating acreage.
4.7 Unitized lands proved productive by drilling operations that serve to delay automatic elimination of lands under this Article IV shall be incorporated into a Participating Area (or Areas) in the same manner as such lands would have been incorporated in such areas had such lands been proven productive during the year preceding said 5th anniversary.
4.8 In the event nonparticipating lands are retained under this Agreement after the 5th anniversary of the initial Participating Area as a result of exploratory drilling operations, all legal subdivisions of unitized land (i.e., 40 acres by Government survey or its nearest lot or tract equivalent in instances of irregular Surveys), no part of which is entitled to be within a Participating Area, shall be eliminated automatically as of the 183rd day, or such later date as may be established by the authorized officer, following the completion of the last well recognized as delaying such automatic elimination beyond the 5th anniversary of the initial Participating Area established under this Agreement.
5.1 All land committed to this Agreement shall constitute land referred to herein as “Unitized Land.” All geothermal resources in and produced from any and all formations of the Unitized Land are unitized under the terms of this agreement and herein are called “Unitized Substances.”
6.1 ______ is hereby designated as Unit Operator, and by signature hereto as Unit Operator agrees and consents to accept the duties and obligations of Unit Operator for the discovery, development, production, distribution, and utilization of Unitized Substances as herein provided. Whenever reference is made herein to the Unit Operator, such reference means the Unit Operator acting in that capacity and not as an owner of interest in Unitized Substances, and the term “Working Interest Owner,” when used herein, shall include or refer to Unit Operator as the owner of a Working Interest when such an interest is owned by it.
7.1 The Unit Operator shall have the right to resign. Such resignation shall not become effective so as to release Unit Operator from the duties and obligations of Unit Operator or terminate Unit Operators rights, as such, for a period of six (6) months after notice of its intention to resign has been served by Unit Operator on all Working Interest Owners and the authorized officer, nor until all wells then drilled hereunder are placed in a satisfactory condition for suspension or abandonment, whichever is required by the authorized officer, unless a new Unit Operator shall have been selected and approved and shall have taken over and assumed the duties and obligations of Unit Operator prior to the expiration of said period.
7.2 The Unit Operator may, upon default or failure in the performance of its duties or obligations hereunder, be subject to removal by the same percentage vote of the owners of Working Interests as herein provided for the selection of a new Unit Operator. Such removal shall be effective upon notice thereof to the authorized officer.
7.3 The resignation or removal of Unit Operator under this Agreement shall not terminate its right, title, or interest as the owner of a Working Interest or other interest in Unitized Substances, but upon the resignation or removal of Unit Operator becoming effective, such Unit Operator shall deliver possession of all wells, equipment, material, and appurtenances used in conducting the unit operations to the new duly qualified successor Unit Operator or, if no such new unit operator is elected, to the common agent appointed to represent the Working Interest Owners in any action taken hereunder, to be used for the purpose of conducting operations hereunder.
7.4 In all instances of resignation or removal, until a successor Unit Operator is selected and approved as hereinafter provided, the Working Interest Owners shall be jointly responsible for performance of the duties and obligations of Unit Operator, and shall not later than 30 days before such resignation or removal becomes effective appoint a common agent to represent them in any action to be taken hereunder.
7.5 The resignation or removal of Unit Operator shall not release Unit Operator from any liability for any default by it hereunder occurring prior to the effective date of its resignation or removal.
8.1 If, prior to the establishment of a Participating Area hereunder, the Unit Operator shall resign as Operator, or shall be removed as provided in Article VII, a successor Unit Operator may be selected by vote of the more than one-half of the owners of the Working Interests in Unitized Substances, based on their respective shares, on an acreage basis, in the Unitized Land.
8.2 If, after the establishment of a Participating Area hereunder, the Unit Operator shall resign as Unit Operator, or shall be removed as provided in Article VII, a successor Unit Operator may be selected by a vote of more than one-half of the owners of the Working Interests in Unitized Substances, based on their respective shares, on a participating acreage basis; provided that, if a majority but less than 60 percent of the Working Interest in the Participating Lands is owned by a party to this agreement, a concurring vote of one or more additional Working Interest Owners owning 10 percent or more of the Working Interest in the participating land shall be required to select a new Unit Operator.
8.3 The selection of a successor Unit Operator shall not become effective until:
(a) The Unit Operator so selected shall accept in writing the duties, obligations, and responsibilities of the Unit Operator; and
(b) The selection shall have been approved by the authorized officer.
8.4 If no successor Unit Operator is selected and qualified as herein provided, the authorized officer at his or her election may declare this Agreement terminated.
9.1 Costs and expenses incurred by Unit Operator in conducting unit operations hereunder shall be paid and apportioned among and borne by the owners of Working Interests; all in accordance with the agreement or agreements entered into by and between the Unit Operator and the owners of Working Interests, whether one or more, separately or collectively.
9.2 Any agreement or agreements entered into between the Working Interest Owners and the Unit Operator as provided in this Article, whether one or more, are herein referred to as the “Unit Operating Agreement.”
9.3 The Unit Operating Agreement shall provide the manner in which the Working Interest Owners shall be entitled to receive their respective share of the benefits accruing hereto in conformity with their underlying operating agreements, leases, or other contracts, and such other rights and obligations, as between Unit Operator and the Working Interest Owners.
9.4 Neither the Unit Operating Agreement nor any amendment thereto shall be deemed either to modify any of the terms and conditions of this Agreement or to relieve the Unit Operator of any right or obligation established under this Agreement.
9.5 In case of any inconsistency or conflict between this Agreement and the Unit Operating Agreement, this Agreement shall govern.
9.6 Three true copies of any Unit Operating Agreement executed pursuant to this Article IX shall be filed with the authorized officer prior to approval of this Agreement.
10.1 The right, privilege, and duty of exercising any and all rights of the parties hereto that are necessary or convenient for exploring, producing, distributing, or utilizing Unitized Substances are hereby delegated to and shall be exercised by the Unit Operator as provided in this Agreement in accordance with a Plan of Development approved by the authorized officer.
10.2 Upon request by Unit Operator, acceptable evidence of title to geothermal resources interests in the Unitized Land shall be deposited with the Unit Operator and together with this Agreement shall constitute and define the rights, privileges, and obligations of Unit Operator.
10.3 Nothing in this Agreement shall be construed to transfer title to any land or to any lease or operating agreement, it being understood that the Unit Operator, in its capacity as Unit Operator, shall exercise the rights of possession and use vested in the parties hereto only for the purposes specified in this Agreement.
10.4 The Unit Operator shall take such measures as the authorized officer deems appropriate and adequate to prevent drainage of Unitized Substances from Unitized Land by wells on land not subject to this Agreement.
10.5 The authorized officer is hereby vested with authority to alter or modify, from time to time, in the authorized officer’s discretion, the rate of prospecting and development and the quantity and rate of production under this Agreement.
11.1 Concurrently with the submission of this Agreement to BLM for approval, the Unit Operator shall submit to BLM an acceptable initial Plan of Development. Said plan shall be as complete and adequate as the authorized officer may determine to be necessary for timely exploration and/or development, and to insure proper protection of the environment and conservation of the natural resources of the Unit Area.
11.2 Prior to the expiration of the initial Plan of Development, or any subsequent Plan of Development, Unit Operator shall submit for approval of the authorized officer an acceptable subsequent Plan of Development for the Unit Area which, when approved by the authorized officer, shall constitute the exploratory and/or development drilling and operating obligations of Unit Operator under this Agreement for the period specified therein.
11.3 Any Plan of Development submitted hereunder shall:
(a) Specify the number and locations of any exploration operations to be conducted or wells to be drilled, and the proposed order and time for such operations or drilling; and
(b) To the extent practicable, specify the operating practices regarded as necessary and advisable for proper conservation of natural resources and protection of the environment in compliance with section 1.1 of this Agreement.
11.4 The Plan of Development submitted concurrently with this Agreement for approval shall prescribe that the Unit Operator shall begin to drill a unit well identified in the Plan of Development approved by the authorized officer, unless on such effective date a well is being drilled conformably with the terms hereof, and thereafter continue such drilling diligently until the ______ formation has been tested or until at a lesser depth unitized substances shall be discovered that can be produced in commercial quantities (i.e., quantities sufficient to repay the costs of drilling, completing, and producing operations, with a reasonable profit) or the Unit Operator shall at any time establish to the satisfaction of the authorized officer that further drilling of said well would be unwarranted or impracticable; provided, however, that the Unit Operator shall not in any event be required to drill said well to a depth in excess of ______ feet.
11.5 The initial Plan of Development and/or subsequent Plan of Development submitted under this Article shall provide that the Unit Operator shall initiate a continuous drilling program providing for drilling of no less than one well at a time, and allowing no more than six (6) months time to elapse between completion and testing of one well and the beginning of the next well, until a well capable of producing or utilizing Unitized Substances in commercial quantities is completed to the satisfaction of the authorized officer, or until it is reasonably proven that the Unitized Land is incapable of producing Unitized Substances in commercial quantities in the formations drilled under this Agreement.
11.6 The authorized officer may modify the exploration operation or drilling requirements of the initial or subsequent Plans of Development by granting reasonable extensions of time when, in his or her opinion, such action is warranted and in the public interest.
11.7 Until a well capable of producing or utilizing Unitized Substances in commercial quantities is completed, the failure of Unit Operator in a timely manner to conduct any exploration operations or drill any of the wells provided for in Plans of Development required under this Article XI or to submit a timely and acceptable subsequent Plan of Development, shall, after notice of default or notice of prospective default to Unit Operator by the authorized officer, and after failure of Unit Operator to remedy any actual default within a reasonable time (as determined by the authorized officer), result in automatic termination of this Agreement effective as of the date of the default, as determined by the authorized officer.
11.8 Separate Plans of Development may be submitted for separate productive zones, subject to the approval of the authorized officer. Also subject to the approval of the authorized officer, Plans of Development shall be modified or supplemented when necessary to meet changes in conditions or to protect the interest of all parties to this Agreement.
12.1 Prior to the commencement of production of Unitized Substances, the Unit Operator shall submit for approval by the authorized officer a schedule (or schedules) of all land then regarded as reasonably proven to be productive from a pool or deposit discovered or developed; all lands in said schedule (or schedules), on approval of the authorized officer, will constitute a Participating Area (or Areas), effective as of the date production commences or the effective date of this Unit Agreement, whichever is later. Said schedule (or schedules) shall also set forth the percentage of Unitized Substances to be allocated, as herein provided, to each tract in the Participating Area (or Areas), and shall govern the allocation of production, commencing with the effective date of the Participating Area.
12.2 A separate Participating Area shall be established for each separate pool or deposit of Unitized Substances or for any group thereof that is produced as a single pool or deposit, and any two or more Participating Areas so established may be combined into one, on approval of the authorized officer. The effective date of any Participating Area established after the commencement of actual production of Unitized Substances shall be the first of the month in which is obtained the knowledge or information on which the establishment of said Participating Area is based, unless a more appropriate effective date is proposed by the Unit Operator and approved by the authorized officer.
12.3 Any Participating Area (or Areas) established under 12.1 or 12.2 above shall, subject to the approval of the authorized officer, be revised from time to time to:
(a) Include additional land then regarded as reasonably proved to be productive from the pool or deposit for which the Participating Area was established;
(b) Include lands necessary to unit operations;
(c) Exclude land then regarded as reasonably proved not to be productive from the pool or deposit for which the Participating Area was established; or
(d) Exclude land not necessary to unit operations; and
(e) Revise the schedule (or schedules) of allocation percentages accordingly.
12.4 Subject to the limitation cited in 12.1 hereof, the effective date of any revision of a Participating Area established under Articles 12.1 or 12.2 shall be the first of the month in which is obtained the knowledge or information on which such revision is predicated; provided, however, that a more appropriate effective date may be used if justified by the Unit Operator and approved by the authorized officer.
12.5 No land shall be excluded from a Participating Area on account of depletion of the Unitized Substances, except that any Participating Area established under the provisions of this Article XII shall terminate automatically whenever all operations are abandoned in the pool or deposit for which the Participating Area was established.
12.6 Nothing herein contained shall be construed as requiring any retroactive adjustment for production obtained prior to the effective date of the revision of a Participating Area.
13.1 All Unitized Substances produced from a Participating Area established under this Agreement shall be deemed to be produced equally, on an acreage basis, from the several tracts of Unitized Land within the Participating Area established for such production.
13.2 For the purpose of determining any benefits accruing under this Agreement, each Tract of Unitized Land shall have allocated to it such percentage of said production as the number of acres in the Tract included in the Participating Area bears to the total number of acres of Unitized Land in said Participating Area.
13.3 Allocation of production hereunder for purposes other than settlement of the royalty obligations of the respective Working Interest Owners shall be on the basis prescribed in the Unit Operating Agreement, whether in conformity with the basis of allocation set forth above or otherwise.
13.4 The Unitized Substances produced from a Participating Area shall be allocated as provided herein, regardless of whether any wells are drilled on any particular part or tract of said Participating Area.
14.1 Pursuant to the provisions of the Federal leases and 43 CFR subpart 3213, a lessee of record shall, subject to the provisions of the Unit Operating Agreement, have the right to relinquish any of its interests in leases committed hereto, in whole or in part; provided, that no relinquishment shall be made of interests in land within a Participating Area without the prior approval of the authorized officer.
14.2 A Working Interest Owner may exercise the right to surrender, when such right is vested in it by any non-Federal lease, sublease, or operating agreement, provided that each party who will or might acquire the Working Interest in such lease by such surrender or by forfeiture is bound by the terms of this Agreement, and further provided that no relinquishment shall be made of such land within a Participating Area without the prior written consent of the non-Federal Lessor.
14.3 If, as the result of relinquishment, surrender, or forfeiture, the Working Interests become vested in the fee owner or lessor of the Unitized Substances, such owner may:
(a) Accept those Working Interest rights and obligations subject to this Agreement and the Unit Operating Agreement, or
(b) Lease the portion of such land as is included in a Participating Area established hereunder, subject to this Agreement and the Unit Operating Agreement, and provide for the independent operation of any part of such land that is not then included within a Participating Area established hereunder.
14.4 If the fee owner or lessor of the Unitized Substances does not, (1) accept the Working Interest rights and obligations subject to this Agreement and the Unit Operating Agreement, or (2) lease such lands as provided in 14.3 above within six (6) months after the relinquished, surrendered, or forfeited Working Interest becomes vested in said fee owner or lessor, the Working Interest benefits and obligations accruing to such land under this Agreement and the Unit Operating Agreement shall be shared by the owners of the remaining unitized Working Interests in accordance with their respective Working Interest ownerships, and such owners of Working Interests shall compensate the fee owner or lessor of Unitized Substances in such l