Management of Non-Federal Oil and Gas Rights, 79948-79981 [2016-27218]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 81, Number 219 (Monday, November 14, 2016)]
[Rules and Regulations]
[Pages 79948-79981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27218]



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Vol. 81

Monday,

No. 219

November 14, 2016

Part IV





Department of the Interior





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Fish and Wildlife Service





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50 CFR Parts 28 and 29





Management of Non-Federal Oil and Gas Rights; Final Rule

Federal Register / Vol. 81 , No. 219 / Monday, November 14, 2016 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 28 and 29

[Docket No. FWS-HQ-NWRS-2012-0086; FXRS12610900000-156-FF09R24000]
RIN 1018-AX36


Management of Non-Federal Oil and Gas Rights

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
finalizing regulations governing the exercise of non-Federal oil and 
gas rights outside of Alaska in order to improve our ability to protect 
refuge resources, visitors, and the general public's health and safety 
from potential impacts associated with non-Federal oil and gas 
operations located within refuges. The exercise of non-Federal oil and 
gas rights refers to oil and gas activities associated with any 
private, State, or tribally owned mineral interest where the surface 
estate above such rights is administered by the Service as part of the 
Refuge System. The existing non-Federal oil and gas regulations have 
remained unchanged for more than 50 years and provide only vague 
guidance to staff and operators. This rule will make the regulations 
more consistent with existing laws, policies, and industry practices. 
It is designed to provide regulatory clarity and guidance to oil and 
gas operators and refuge staff, provide a simple process for 
compliance, incorporate technological improvements in exploration and 
drilling technology, and ensure that non-Federal oil and gas operations 
are conducted in a manner that avoids or minimizes impacts to refuge 
resources.

DATES: This rule is effective December 14, 2016.

ADDRESSES: Supplementary documents prepared in conjunction with 
preparation of this rule, including an economic analysis and an 
environmental impact statement, and the public comments received on the 
proposed rule are available at www.regulations.gov at Docket No. FWS-
HQ-NWRS-2012-0086.

FOR FURTHER INFORMATION CONTACT: Scott Covington, U.S. Fish and 
Wildlife Service, Division of Natural Resources and Planning, MS: NWRS, 
5275 Leesburg Pike, Falls Church, VA 22041; telephone 703-358-2427.

SUPPLEMENTARY INFORMATION:

Executive Summary

    This rule revises the existing regulations at subpart C, part 29, 
of title 50 of the Code of Federal Regulations (CFR) and adds new 
regulations at subpart D of 50 CFR part 29 to govern the exercise of 
non-Federal oil and gas rights within refuges outside of Alaska. This 
revision improves the effectiveness of the Service to protect refuge 
resources and uses from avoidable, unnecessary impacts by non-Federal 
oil and gas operations. It will also bring consistency and clarity for 
both operators and the Service as to the process by which operators may 
access non-Federal oil and gas on the National Wildlife Refuge System 
(NWRS). The Service defines the National Wildlife Refuge System to 
consist of all lands, waters, and interests therein that it administers 
(25 CFR 25.12) and does not apply its regulations to the non-Federal 
lands found within refuge boundaries (i.e., inholdings).
    The Service promulgated the current regulations at 50 CFR 29.32 to 
govern the exercise of non-Federal mineral rights on the NWRS more than 
50 years ago, and they have not been updated since. The current 
regulations outline a general policy to minimize impacts to refuge 
resources to the extent practicable from all activities associated with 
non-Federal mineral exploration and development where access is on, 
across, or through federally owned or controlled lands or waters of the 
NWRS. However, they have been ineffective at protecting refuge 
resources because they do not provide operators or refuge staff with an 
explicit process or requirements for operating on refuge lands, 
resulting in inconsistency in protections for refuge resources and 
uses.
    Therefore, updating these regulations is a necessary exercise of 
the Service's authority to ensure that we are meeting our 
responsibilities under the National Wildlife Refuge System 
Administration Act (NWRSAA), as amended by the National Wildlife Refuge 
System Improvement Act (NWRSIA) (16 U.S.C. 668dd et seq.), to protect 
refuge resources and uses while ensuring that mineral rights holders 
have reasonable access to develop their non-Federal oil and gas.
    Key components of the rule include:
     A permitting process for new operations;
     A permitting process for well-plugging and reclamation for 
all operations;
     Information requirements for particular types of 
operations;
     Operating standards so that both the Service and the 
operator can readily identify what standards apply to particular 
operations;
     Fees for new access beyond that held as part of the 
operator's oil and gas right;
     Financial assurance (bonding);
     Penalty provisions;
     Exemption of refuges in Alaska from these requirements;
     Codification of some existing Service policies and 
practices.

Background

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

    This rulemaking effort began on February 24, 2014, when we issued 
an advance notice of proposed rulemaking (ANPR) (79 FR 10080) to assist 
us in developing the proposed rule. The ANPR had a 60-day comment 
period, ending April 25, 2014. On June 9, 2014, we reopened the comment 
period for another 30 days, ending July 9, 2014 (79 FR 32903). We 
received comments from unaffiliated private citizens (36), conservation 
organizations (14), State agencies (8), counties (2), Alaska Native 
Corporations (2), a tribal agency, oil and gas owners and operators 
(6), business associations (5), and a Federal agency, along with almost 
80,000 form letter comments from members of two environmental 
organizations. The majority of commenters were in favor of 
strengthening and expanding the regulations to better protect refuge 
resources and values. Some commenters requested that we not revise the 
existing regulations, while others questioned whether the Service had 
the statutory authority to regulate non-Federal oil and gas operations 
on refuges.
    We utilized these comments to prepare the proposed rule, which we 
published on December 11, 2015 (80 FR 77200), and opened, with the 
associated draft Environmental Impact Statement (EIS), a 60-day comment 
period. During this comment period we received approximately 39,600 
responses (mostly form letters) indicating general support regulating 
oil and gas activities on refuges and our proposed rule. However, many 
commented that the proposed rule did not go far enough in regulating 
these activities, with some requesting a ban on any oil and gas 
activity, or at least hydraulic fracturing, in refuges. We also 
received 12 letters from State agencies, oil and gas associations, oil 
companies, and an individual opposing the rulemaking. Primary reasons 
for opposition are that these entities believe that the Service lacks 
authority to regulate private oil and gas and existing State and 
Federal regulations are sufficient to protect refuges. More information 
on the ANPR,

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proposed rule, and public comments is available at https://www.fws.gov/refuges/oil-and-gas/rulemaking.html and also at www.regulations.gov at 
Docket No. FWS-HQ-NWRS-2012-0086.
    A detailed discussion of all changes made after consideration of 
comments on the proposed rule is contained in the Summary of and 
Response to Public Comments section below.

Non-Federal Oil and Gas on the NWRS

    Non-Federal oil and gas rights exist within the NWRS in situations 
where the oil and gas interest has been severed from the estate 
acquired by the United States, either because:
     The United States acquired property from a grantor that 
did not own the oil and gas interest; or
     The United States acquired the property from a grantor 
that reserved the oil and gas interest from the conveyance.
    Non-Federal oil and gas interests can be held by individuals, 
partnerships, for-profit corporations, nonprofit organizations, tribes, 
or States and their political subdivisions. We recognize that interests 
in non-Federal oil and gas are property rights that may be taken for 
public use only with payment of just compensation in accordance with 
the Fifth Amendment of the U.S. Constitution. Application of this rule 
is not intended to result in the taking of a property interest, but 
rather to impose reasonable regulations on activities that involve or 
affect federally owned lands and resources of the NWRS to avoid or 
minimize impacts from such activities to the maximum extent 
practicable.
    These regulations do not apply to the development of the Federal 
mineral estate, including Federal oil and gas, which are administered 
by the Bureau of Land Management (BLM), under the Mineral Leasing Act 
and the Federal Land Policy and Management Act. In areas where oil and 
gas rights are owned by the United States, and leasing is authorized, 
the applicable regulations are found at 43 CFR part 3100 et seq. There 
is a general prohibition to leasing Federal oil and gas on refuge lands 
(43 CFR 3101.5-1). These regulations do not apply to refuges located in 
Alaska.
    Examples of non-Federal oil and gas operations conducted on refuges 
include: Geophysical (seismic) exploration; exploratory well drilling; 
field development well drilling; oil and gas well production 
operations, including installation and operation of well flowlines and 
gathering lines; enhanced recovery operations; well plugging and 
abandonment; and site reclamation.

Impacts of Oil and Gas Activities on Refuge Resources and Uses

    Oil and gas activities have the potential to adversely impact 
refuge resources and uses in some or all of the following manners:
     Surface water quality degradation from spills, storm water 
runoff, erosion, and sedimentation;
     Soil and groundwater contamination from existing drilling 
mud pits, poorly constructed wells, improperly conducted enhanced 
recovery techniques, spills, and leaks;
     Air quality degradation from dust, natural gas flaring, 
hydrogen sulfide gas, and emissions from production operations and 
vehicles;
     Increased noise from seismic operations, blasting, 
construction, oil and gas drilling and production operations;
     Reduction of roadless areas on refuges;
     Noise and human presence effects on wildlife behavior, 
breeding, and habitat use;
     Disruption of wildlife migration routes;
     Adverse effects on sensitive and endangered species;
     Viewshed (an area of land, water, or other environmental 
element that is visible to the human eye from a fixed vantage point) 
intrusion by roads, traffic, drilling equipment, production equipment, 
pipelines, etc.;
     Night sky intrusion from artificial lighting and gas 
flares;
     Disturbance to archaeological and cultural resources 
associated with seismic exploration and road/site preparation, 
associated with maintenance activities, or by spills;
     Visitor safety hazards from equipment, pressurized vessels 
and lines, presence of hydrogen sulfide gas, and leaking oil and gas 
that can create explosion and fire hazards;
     Wildlife mortality from oil spills or entrapment in open-
topped tanks or pits, poaching, and vehicle collisions;
     Fish kills from oil and oilfield brine spills; and
     Vegetation mortality from oilfield brine spills.

Service Authority To Regulate Non-Federal Oil and Gas Activities

    As noted in the preamble to the proposed rule, one of the principal 
recommendations of the 2003 Government Accountability Office report to 
Congress was for the Service to clarify its regulatory authority with 
respect to the exercise of non-Federal oil and gas rights within the 
Refuge System. We provided in the preamble to the proposed rule an 
explanation of the basis for the Service's authority. As further 
discussed below, the Service received opposing public comments on its 
analysis. While some commenters asserted that the Service lacked the 
authority to regulate such private property rights, others agreed that 
we do have this regulatory authority.
    After carefully considering the public comments, as well as 
engaging in further discussions with the Office of the Solicitor of the 
Department of the Interior, the Service concludes that the National 
Wildlife Refuge System Administration Act, as amended in 1997 by the 
National Wildlife Refuge System Improvement Act (NWRSAA) (16 U.S.C. 
668dd et seq.), provides us the statutory authority to promulgate these 
regulations. In turn, Congress's authority to enact the NWRSAA is the 
Property Clause of the United States Constitution, which provides it 
the power ``to dispose of and make all needful Rules and Regulations 
respecting the Territory or other Property belonging to the United 
States.'' U.S. Const. art IV, sec. 3, cl. 2.
    In 1997, Congress declared the Service's mission to be: ``to 
administer a national network of lands and waters for the conservation, 
management, and where appropriate, restoration of the fish, wildlife, 
and plant resources and their habitats within the United States for the 
benefit of present and future generations of Americans.'' (16 U.S.C. 
668dd(a)(2)). The NWRSAA further directs the Secretary of the Interior, 
in administering the System, to:
     Provide for the conservation of fish, wildlife, and 
plants, and their habitats within the NWRS;
     Ensure that the biological integrity, diversity, and 
environmental health of the NWRS are maintained for the benefit of 
present and future generations of Americans;
     Ensure that the mission of the NWRS and the purposes of 
each refuge are carried out;
     Ensure effective coordination, interaction, and 
cooperation with owners of land adjoining refuges and the fish and 
wildlife agency of the States in which the units of the NWRS are 
located;
     Assist in the maintenance of adequate water quantity and 
water quality to fulfill the mission of the NWRS and the purposes of 
each refuge;
     Recognize compatible wildlife-dependent recreational uses 
as the priority general public uses of the NWRS through which the 
American public can develop an appreciation for fish and wildlife;

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     Ensure that opportunities are provided within the NWRS for 
compatible wildlife-dependent recreational uses; and
     Monitor the status and trends of fish, wildlife, and 
plants in each refuge.
    To carry out its mission and these statutory directives to 
administer the Refuge System, Congress provided the Service the 
authority to issue regulations to carry out the NWRSAA (16 U.S.C. 
668dd(b)(5)), as well as to prescribe regulations to ``permit the use 
of any areas within the System for any purpose. . . .'' (16 U.S.C. 
668dd(d)(1)(A)). In this regard, the statutory authority of the Service 
is substantially similar to that of the National Park Service (NPS), 
which since 1979 has regulated the exercise of non-federal oil and gas 
rights within the Park System on the basis of its authority to issue 
regulations ``necessary or proper for the use and management of System 
units'' (54 U.S.C. 100751).
    The rule ``applies to all operators conducting non-Federal oil and 
gas operations outside of Alaska on Service-administered surface 
estates held in fee or less-than fee (excluding coordination areas) or 
Service-administered waters within the boundaries of the refuge to the 
extent necessary to protect those property interests.'' Thus, the 
regulation directly relates to the Service mission ``to administer a 
national network of lands and waters for the conservation, management, 
and where appropriate, restoration of the fish, wildlife, and plant 
resources and their habitats . . .'' and various statutory directives, 
including the conservation of fish and wildlife within the NWRS and 
ensuring their biological integrity. The rule, therefore, falls within 
the Service's authority to issue regulations to carry out the NWRSAA 
(16 U.S.C. 668dd(b)(5)). Regulating the use of Service-administered 
surface estates and waters also falls within the Service's statutory 
authority to issue regulations to ``permit the use of any areas within 
the System for any purpose. . . .''
    Several relatively recent appellate court decisions support our 
interpretation of the NWRSAA. In Burlison v. United States (533 F.3d 
419 (6th Cir. 2008)), the appeals court held that the Service's 
authority to permit the use of roads on refuge lands included the power 
to reasonably regulate a reserved easement within a refuge:

    We do conclude, however, that the Fish and Wildlife Service may 
legitimately exercise the sovereign police power of the Federal 
Government in regulating the easement. Section 668dd(d)(1)(B) 
delegates the power to the Secretary of the Interior (and the Fish 
and Wildlife Service) ``under such regulations as he may 
prescribe,'' to ``permit the use of . . . any areas within the 
System for purposes such as . . . roads.''

Id. at 438. Burlison also relied on the decision of the U.S. Court of 
Appeals Eighth Circuit in Duncan Energy Co. v. United States Forest 
Service, 50 F.3d 584 (8th Cir. 1995), which upheld the Forest Service's 
authority to regulate non-Federal oil and gas rights on the basis of 
statutory authority that is also very similar to that of the NWRSAA:

    Under the Bankhead-Jones Farm Tenant Act, Congress directed the 
Secretary of Agriculture ``to develop a program of land conservation 
and land utilization.'' 7 U.S.C. Sec. 1010 (1988). The Act directs 
the Secretary to make rules as necessary to ``regulate the use and 
occupancy'' of acquired lands and ``to conserve and utilize'' such 
lands. 7 U.S.C. Sec. 1011(f) (Supp.V.1993). The Forest Service, 
acting under the Secretary's direction, manages the surface lands 
here as part of the National Grasslands, which are part of the 
National Forest System. See 16 U.S.C. Sec. 1609(a) (1988). Congress 
has given the Forest Service broad power to regulate Forest System 
land. See, e.g., 7 U.S.C. Sec. 1011 (1988 & Supp.V.1993); 16 U.S.C. 
Sec. 551 (Supp.V.1993).

Id. at 589. Similarly, the U.S. Court of Appeals for the Fifth Circuit 
has interpreted the NWRSAA to authorize the Service to regulate access 
and use of refuge lands by holders of valid interests in land. School 
Board of Avoyelles Parish v. United States Department of the Interior 
(647 F.3d 570 (5th Cir. 2011)). The School Board administered an 
enclosed estate within the refuge and under Louisiana property law was 
entitled to a right of passage over neighboring property to the nearest 
public road. The Service did not dispute that a right to cross refuge 
lands existed, but asserted it could condition such use, and imposed 
permit limits on the times of day and types of vehicles that could use 
the right-of-way to access the enclosed estate. Reversing the district 
court, the Fifth Circuit affirmed the authority under the NWRSAA and 
Service regulations to require a permit and to impose reasonable 
conditions for ``any person entering a national wildlife refuge'' even 
where that person held property rights afforded under the laws of 
Louisiana. Citing Burlison and a series of Supreme Court and circuit 
court cases interpreting the Property Clause, the Fifth Circuit held 
that requiring a permit for entry and use, and imposing reasonable 
restrictions on the exercise of the non-Federal property rights, was 
well within Federal authority under the Property Clause.
    The primary arguments that the Service lacks the necessary 
regulatory authority are based on the analysis contained in a 1986 
memorandum from the Associate Solicitor, Division of Conservation and 
Wildlife (``1986 Opinion'') that concluded the Service then lacked the 
authority from Congress to adopt regulations requiring permits for 
access by holders of mineral interests, unless the authority was 
provided for in the deed by which the United States acquired title to 
the surface estate. That opinion relied in part on Caire v. Fulton, 
1986 U.S. Dist. LEXIS 31049 (W.D. La. 1986), an unpublished district 
court decision, where the United States had explicitly agreed during 
eminent domain proceedings to delete from the proposed deed a provision 
authorizing Service regulation of the oil and gas interests not being 
acquired.
    The 1986 Opinion was also premised on a provision of the Migratory 
Bird Conservation Act (MBCA), originally enacted in 1929 and amended in 
1935, that now provides:

    The Secretary of the Interior may do all things and make all 
expenditures necessary to secure the safe title in the United States 
to the areas which may be acquired under this subchapter, but no 
payment shall be made for any such areas until the title thereto 
shall be satisfactory to the Attorney General or his designee, but 
the acquisition of such areas by the United States shall in no case 
be defeated because of rights-of-way, easements, and reservations 
which from their nature will in the opinion of the Secretary of the 
Interior in no manner interfere with the use of the areas so 
encumbered for the purposes of this subchapter, but such rights-of-
way, easements, and reservations retained by the grantor or lessor 
from whom the United States receives title under this subchapter or 
any other Act for the acquisition by the Secretary of the Interior 
of areas for wildlife refuges shall be subject to rules and 
regulations prescribed by the Secretary of the Interior for the 
occupation, use, operation, protection, and administration of such 
areas as inviolate sanctuaries for migratory birds or as refuges for 
wildlife; and it shall be expressed in the deed or lease that the 
use, occupation, and operation of such rights-of-way, easements, and 
reservations shall be subordinate to and subject to such rules and 
regulations as are set out in such deed or lease or, if deemed 
necessary by the Secretary of the Interior, to such rules and 
regulations as may be prescribed by him from time to time. (16 
U.S.C. 715e)

The Service broadly construes its statutory authority to issue 
regulations ``to permit the use of any area within the System for any 
purpose'' and that the NWRSAA, not the MBCA, is therefore the 
controlling authority with respect to regulating non-federal oil and 
gas rights. While the specific facts of the unreported decision in 
Caire have always suggested that it was of limited precedential value, 
the Fifth Circuit's

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decision in Avoyelles Parish is the controlling juridical authority to 
apply in that circuit. Moreover, even if the MBCA provisions were 
construed to limit the applicability of the NWRSAA authority, which 
clearly it does not, those limits would apply only to lands acquired 
under that Act. As of the end of Fiscal Year 2015, approximately 31.3 
percent of the total 8,100,204.93 acres of Federal lands and interests 
in lands in 252 of the Nation's approximately 560 National Wildlife 
Refuges have been purchased under authority of the MBCA.
    In our review of various deeds used by the Service over the years 
to acquire lands and interests in lands that make up the NWRS, we find 
many variations were used and that it is not possible to review or 
summarize here all such provisions, or ensure that we are familiar with 
the circumstances surrounding each acquisition of NWRS lands that did 
not include oil and gas rights. As part of the pre-application meeting 
with the Service (see Sec.  29.91), and/or the submission of a permit 
application (see Sec.  29.94), we will provide the opportunity to 
receive copies of any deeds and other relevant information that the 
applicant believes would control or otherwise limit the applicability 
of any provision of this rule to the particular applicant's operations. 
We intend this process to ensure on a case-by-case basis that the 
Service fully considers all relevant information concerning the 
particular acquisitions before imposing specific requirements on the 
applicant's operations. The Service will respect applicable deed 
conditions; however, the rule requirements will apply to the extent 
that they do not conflict with such deed conditions, which we believe 
will be the situation in most cases. The Solicitor's Office has 
withdrawn the 1986 Opinion on the basis that the opinion is out of date 
and does not reflect the current state of law with regard to the 
Service's full authorities to manage lands within units of the NWRS. 
The Solicitor will be issuing a new opinion in the near future that 
sets out the supporting legal analysis of the underlying authorities 
upon which the Service is adopting this rule.

Final Rule

Summary of Final Rule

    The rule generally requires that operators receive permits for new 
non-Federal oil and gas activities on the NWRS; provide a regulatory 
framework to achieve the necessary protections for refuge resources; 
and improve regulatory consistency to the benefit of both refuge 
resources and oil and gas operators. The rule contains performance-
based standards that provide flexibility to resource managers and 
operators to use evolving technologies within different environments to 
achieve the standards. It establishes standards for surface use and 
site management, specific resource protections, spill prevention and 
response, waste management, and reclamation. Additionally, the rule 
contains procedures for permit applications and Service review and 
approval. Finally, there are provisions for financial assurance 
(bonding), access fees, mitigation, change of operator, permit 
modification, and prohibitions and penalties. We incorporated public 
input received during the rulemaking process to shape the rule.

Permitting Approach

    The permitting process allows the Service to ensure that refuge 
resources, as well as public health and safety, are protected to the 
greatest extent practicable. Under the rule, the Service requires the 
following:
    a. New operations are by permit only. Operators conducting new 
operations must obtain an operations permit before commencing new or 
modified operations within a refuge (Sec.  29.42). This requirement 
addresses exploration, drilling, production, enhanced recovery 
operations, transportation, plugging, and reclamation operations. We 
encourage operators to contact the Service early in the process so that 
the Service can provide suggestions to improve the application. 
Additionally, an operator will be authorized to begin operations only 
after the operator has received all other required State and Federal 
permits.
    b. Operations under an existing Service permit may continue under 
the terms of that permit, but must comply with existing Federal, State, 
and local laws and regulations and the applicable general terms and 
conditions of this rule (Sec.  29.43). Operators are required to obtain 
a new permit or amend their existing permit if they propose to conduct 
new operations or modify their existing operations (i.e., proposed 
activities outside the scope of their existing approval that will have 
impacts on refuge resources as determined by the Service). At the time 
of reclamation, the Service will review existing permits and modify 
them as necessary to ensure compliance with all Service reclamation 
standards.
    c. Operators with operations not under a Service permit being 
conducted prior to the effective date of this rule, or prior to a 
boundary change or establishment of a new refuge, are considered ``pre-
existing operators'' and may continue to operate as they have been, but 
they must comply with existing Federal, State, and local laws and 
regulations and the applicable general terms and conditions of this 
rule (Sec.  29.44). Additionally, these operators are required to 
obtain an operations permit for any new operations or for any 
modification to their existing operation. Finally, once production 
operations cease, the operator must obtain an operations permit for 
plugging and reclamation, or to maintain their well(s) in extended 
shut-in status.
    d. All operators must have a permit for plugging and reclamation 
and comply with all Service reclamation standards.
    e. When pre-existing operations are transferred, the new operator 
must obtain an operations permit.
    f. Wells drilled from outside refuges or on non-Federal inholdings 
to access non-Federal minerals are exempt from these regulations.
    g. Operations on refuges in Alaska are exempt from these 
regulations. However, the performance-based standards of this rule may 
be used, as appropriate, as guidance in determining how an operator 
would meet the various requirements of ANILCA and ANCSA to protect 
refuge resources and uses.
    The Service finds that this permitting process is the best way to 
manage oil and gas operations and protect refuge resources on the NWRS 
and using time, place, and manner stipulations are the most effective 
way for the Service to avoid or minimize impacts. The ``place'' factor 
in the ``time, place, and manner'' equation is often most important in 
terms of ability to protect an environmental resource. The risks 
created by a poorly selected location cannot easily be overcome with 
even the best operational methods. Conversely, proper site selection 
can do much to mitigate the effects of accidents or environmentally 
unsound practices. The ``time'' factor restricts the timing of 
operations to remove or minimize impacts on resources that are only 
seasonally present. The ``manner'' factor is the method in which oil 
and gas activities are conducted, using best management practices. 
Therefore, requiring a permit that contains such stipulations is the 
most effective way to avoid or minimize impacts of new operations.
    Proper site planning, timing restrictions, and best management 
practices established through the permit process for new operations 
will accomplish great improvements in resource protection. Because 
existing

[[Page 79952]]

operations with a special use permit already have stipulations in those 
permits that have been implemented to protect refuge resources and 
uses, they are allowed to continue their operations under the terms of 
that permit. Furthermore, the Service is not requiring a permit for 
operators with existing operations not currently under a permit (pre-
existing operations) because a majority of the impacts avoided or 
mitigated under the permit have already occurred, and the permit 
process can result in substantial administrative and operational costs 
on both the Service and the operator. These costs (similar to those of 
permitting new operations) could be disproportional to the 
environmental benefits gained where the operator's well has already 
been drilled and the area of operations (access route, well site, 
production facilities, and routes for gathering lines) has already been 
established.
    Our analysis found that the Service could eliminate many of the 
ongoing, unnecessary impacts to refuge resources and uses resulting 
from the production phase of pre-existing operations by enforcing State 
laws and regulations on Service-administered lands and waters. Making 
violation of applicable State laws related to oil and gas a prohibited 
act under the rule allows the Service to enforce these requirements as 
Federal requirements, and so gives us greater enforcement capabilities 
in ensuring that unnecessary impacts from these operations, such as 
leaks and spills, are avoided or minimized. This approach to permitting 
allows the Service to focus its limited time and resources on those new 
operations that create the highest level of incremental impacts. Also, 
by requiring all operators, pre-existing, existing with a Service-
issued permit, and new, to have a permit for plugging and reclamation, 
we can ensure rehabilitation of impacted habitat.
    When a well is drilled on inholdings or non-Federal adjacent lands, 
impacts to refuge resources are avoided or minimized to a great extent. 
Therefore, the Service's approach of exempting downhole aspects of 
these operations that occur within a refuge from the regulations is 
intended to provide an incentive for operators to use drilling from a 
surface location not administered by the Service in order to reach 
their oil and gas rights under the refuge-administered surface estate. 
However, anytime an operator needs to physically cross Service land for 
access, including access to a non-Federal surface location, such as an 
inholding, to conduct operations, then the operator must comply with 
the applicable provisions of this subpart for obtaining approval from 
the Service for such access, including obtaining an operations permit 
covering the new access or modification to the existing access.

Operating Standards

    The Service developed this rule using a suite of performance-based 
standards that establish goals and define a desired level of protection 
for refuge resources and uses. This approach provides flexibility to 
resource managers and operators to best protect refuge resources and 
uses over time and across various environments by uses of varied 
technologies and methods. Resource managers and operators will identify 
and develop specific actions and best management practices that are 
then incorporated into operations permits. In contrast, prescriptive 
regulations define specific requirements of time, place, and manner and 
may not fully consider how these measures achieve the desired level of 
resource protection or how they may apply in different environments. 
The Service examined other Federal and State oil and gas regulations 
and determined that the performance-based standards approach provided 
the most efficient means of successfully avoiding or minimizing the 
effects of oil and gas operations on refuge resources and visitor uses. 
A one-size-fits-all (i.e., prescriptive) approach does not work due to 
the widely differing environments found at the various refuges with 
non-Federal oil and gas rights across the country. A performance-based 
standards model has been successfully used by NPS for more than 35 
years and applied in the context of a permit that contains specific 
actions an operator must take to meet the regulatory standards.
    In developing and analyzing the rule and alternatives, the Service 
found that the preponderance of impacts and risks of impacts to refuge 
resources associated with exploration and development of oil and gas 
emanate from surface activities. However, mishaps below the surface can 
adversely affect the surficial groundwater systems that are important 
to the success of many national wildlife refuges. This finding holds 
true for operations that include the use of hydraulic fracturing. The 
Service found that well drilling and production operations that include 
the use of hydraulic fracturing have similar types of surface 
activities (e.g., road and pad construction, tractor-trailer truck 
traffic, use of water, use of chemicals, use of large diesel-powered 
engines, generation of waste) as operations that do not include 
hydraulic fracturing. Hydraulic fracturing operations, particularly 
those used in combination with horizontal drilling techniques to access 
oil or gas in shale or other ``tight'' formations, usually increase the 
scope, intensity, and duration of activities commonly associated with 
oil and gas well drilling and completion, as well as the pressures to 
which the well casings are subjected.
    In the context of this rule, the term ``hydraulic fracturing'' 
means those operations conducted in an individual wellbore designed to 
increase the flow of hydrocarbons from the rock formation to the 
wellbore through modifying the permeability of reservoir rock by 
applying fluids under pressure to fracture it. It does not include the 
comprehensive list of all oil and gas activities associated with 
development that happens to include hydraulic fracturing. While the 
rule's operating standards are not specific to hydraulic fracturing 
operations, they were developed with the expectation that hydraulic 
fracturing will occur on refuge lands and give the Service the ability 
to effectively manage the additional impacts that hydraulic fracturing 
may have on refuge resources and uses.
    The Service notes that BLM has recently promulgated regulations 
addressing hydraulic fracturing on Federal and Indian lands at 43 CFR 
part 3160 (80 FR 16128, March 26, 2015). We carefully considered the 
recently promulgated BLM oil and gas regulations on hydraulic 
fracturing. (The Service also notes that those regulations have been 
set aside by the U.S. District Court in Wyoming, and that decision is 
on appeal to the United States Court of Appeals for the Tenth Circuit.) 
The Service and BLM take different approaches to operating standards 
because of our differing statutory bases for regulating the exercise of 
oil and gas rights. Specifically, the BLM has regulatory authority over 
the development of the Federal mineral estate, including Federal oil 
and gas resources under Federal and Indian lands. Instead, these 
Service regulations address private property rights within refuges and 
are based on the authorities and directives of the NWRSAA, including 
``to administer a national network of lands and waters for the 
conservation, management, and where appropriate, restoration of the 
fish, wildlife, and plant resources and their habitats within the 
United States for the benefit of present and future generations of 
Americans.'' Therefore, the Service's regulations are focused on 
avoiding or minimizing impacts to federally owned and administered 
lands and resources of the NWRS to the maximum extent

[[Page 79953]]

practicable by using the most technologically feasible, least damaging 
oil and gas development methods to protect refuge resources and uses.
    The rule maintains the non-prescriptive operating standards from 
the proposed rule, which are similar to the existing NPS regulations in 
36 CFR, subpart B (the ``9B'' regulations), and provide operators 
flexibility to design operations while protecting refuge resources, 
uses, and visitor health and safety. The Service's approach is to 
review an operator's submissions to determine if they are avoiding or 
minimizing impacts to the maximum extent practicable, and if not, to 
include in the operating permits the terms and conditions that will 
ensure that they do so.

State Regulations

    The Service's goal in this rule is to provide a regulatory regime 
that complements State regulatory programs to the benefit of the 
surface estate and the resources for which we are entrusted, while not 
compromising the ability of operators to develop their resource. The 
Service and State oil and gas agencies have fundamentally different 
missions. The Service's legal mandate is to conserve fish, wildlife, 
and plant resources and their habitats for the benefit of present and 
future generations. In contrast, State oil and gas regulations 
typically focus on the protection of mineral rights and 
``conservation'' of the oil and gas resources (i.e., minimizing waste 
of oil and gas resources). From a regulatory perspective, management of 
oil and gas operations is necessary in order for the Service to protect 
its surface resources and meet its congressionally mandated mission.
    The Service's intention is to avoid or minimize potential 
procedural and operational duplication of State programs, while working 
cooperatively to achieve common objectives between the Service, States, 
and operators. The Service received several comments from the public on 
the effectiveness of State regulations in protecting refuge resources 
and uses, and that issue is discussed further below in our response to 
comments.
    In the context of enforcing State oil and gas regulations, the 
Service focus is on noncompliance issues that have the potential to 
adversely affect refuge resources and visitor uses. Making violation of 
non-conflicting provisions of State oil and gas law and regulations a 
prohibited act under the rule allows us to enforce on refuges as a 
matter of Federal law, the same requirements already imposed on 
operators by a State. States may not have enough inspectors to ensure 
companies are meeting State standards. Louisiana, the State with the 
most non-Federal oil and gas production on refuge lands, recently 
reported that it lacks an adequate number of inspectors and its 
inspection rate is too low. Under this rule, Refuge Law Enforcement 
will work cooperatively with States to ensure that operators on refuges 
are meeting Service and State regulatory requirements with a minimum of 
duplication.

Summary of and Response to Public Comments

    A summary of substantive comments and Service responses is provided 
below followed by a table that sets out changes we have made to the 
proposed rule based on the analysis of the comments and other 
considerations.

Authority

    1. Comment: We received comments both in opposition to and in 
support of our general authority to manage oil and gas operations on 
Refuge lands. Commenters opposing our authority generally noted that 
they believe the Service has limited authority to regulate oil and gas 
operations based on the authority by which the Service acquired the 
land and specific deed language in the Migratory Bird Conservation Act 
(MBCA; 16 U.S.C. 715e) and the Supreme Court decision in United States 
v. Little Lake Misere Land Co. (412 U.S. 580,597-98 (1973)), which 
interpreted the MBCA to require the Service to express in the deed 
language that non-Federal mineral rights will be subject to regulation. 
Commenters also cited subsequent case law and the legislative history 
of both the National Wildlife Refuge System Administration Act, as 
amended by the National Wildlife Refuge System Improvement Act (16 
U.S.C. 668dd) (NWRSAA and NWRSIA), to contend that the Service has not 
since been granted specific authority to regulate non-Federal mineral 
rights and so, absent specific deed language, the Service is limited to 
common law in protecting refuge resources and uses from impacts 
associated with oil and gas operations.
    Other commenters expressed support for our general authority and 
responsibility to promulgate regulations to manage non-Federal oil and 
gas based on the Property Clause of the Constitution (U.S. Const.) and 
the NWRSIA, as well as subsequent case law that has held that the 
Service does have the authority to reasonably regulate access to 
private rights on the NWRS (see Sch. Bd. of Avoyelles Par. v. U.S. 
Dep't of Interior, 647 F.3d 570, 581, 581 n.4 (5th Cir. 2011); Burlison 
v. United States, 533 F.3d 419, 434-35 (6th Cir. 2008)).
    Service Response: We have carefully considered all the comments, 
and the Service concludes that the NWRSAA, as amended by the NWRSIA, 
provides us the statutory authority pursuant to Congress' Property 
Clause powers to promulgate and implement these regulations as further 
explained in the preamble to the proposed rule. Furthermore, we 
conclude these regulations are also consistent with common law 
principles that a mineral rights holder's access to their minerals 
cannot unreasonably impact the surface estate. These regulations 
respect an operator's right to use the surface estate on refuges while 
protecting and minimizing impacts to refuge resources and uses to 
comply with the unique mission of these public lands ``for the 
conservation, management, and where appropriate, restoration of the 
fish, wildlife, and plant resources and their habitats within the 
United States for the benefit of present and future generations of 
Americans.'' (16 U.S.C. 668dd(a)(2)). For additional information on our 
authorities, see the section on Service Authority to Regulate Non-
Federal Oil and Gas Activities. With regard to the comment citing the 
Supreme Court Case U.S. v. Little Lake Misere Land Co., as we state in 
the Service Authority to Regulate Non-Federal Oil and Gas Activities 
section, the Service will respect applicable deed conditions, however, 
the rule requirements will apply to the extent that they do not 
conflict with such deed conditions.

Acquisition of Minerals Under the NWRS

    2. Comment: The Service received several comments suggesting that 
the Service consider buying all non-Federal mineral rights to ensure 
complete protection of refuge resources and uses from these activities.
    Service Response: The Service has determined that acquisition of 
all mineral rights in refuges is financially infeasible and unnecessary 
to protect refuge resources and uses. While the Service did not 
undertake a costly and time-intensive evaluation of the fair market 
value of the non-Federal oil and gas rights within the NWRS, in the EIS 
associated with this rulemaking we did consider full acquisition of 
such oil and gas rights, but this alternative was dismissed from 
further consideration because it was financially infeasible and 
unnecessary. Relying on our general knowledge of what acquiring a 
mineral right can cost in areas where there is potential for oil and 
gas development,

[[Page 79954]]

we conclude that it would be too costly for the Service to acquire all 
mineral rights that exist within the NWRS.
    Additionally, the Service concludes that it can sufficiently 
protect refuge resources and uses as required by the NWRSAA and provide 
access to operators for developing their non-Federal oil and gas rights 
under this rule, and so acquisition of all mineral rights is 
unnecessary. Under the rule, the Service will determine on a case-by-
case basis, and in collaboration with prospective operators, whether a 
proposed operation meets the operating standards and approval standards 
contained in this rule. If the proposed operation cannot meet Service 
standards for protecting refuge resources and uses, the Service has 
general statutory authority to acquire the mineral right from a willing 
seller in those instances.

Rule's Function With State and Federal Regulations

    3. Comment: Several comments stated that State regulations fully 
accomplish all the necessary protections of NWRS resources and uses, 
and, therefore, the proposed rule is duplicative and unnecessary. 
Commenters contended that many of the operational restrictions of the 
proposed rule were duplicative or in conflict with State regulations, 
although no specific examples were provided. The Service also received 
comments that supported the Service's analysis that State regulations 
are not uniformly designed or intended to fully protect the surface 
owner's interests or, as in this case, mandates of the Service to 
protect NWRS resources and uses.
    Service Response: While developing the proposed rule, the Service 
reviewed the oil and gas regulations of 43 States. Because of the 
differences between the objectives of State regulation and the rule, we 
found that State regulations do not fully address necessary protections 
for the conservation of fish and wildlife resources and public use on 
refuges. The Service's legal mandate is to conserve fish, wildlife, and 
plant resources and their habitats for the benefit of present and 
future generations. In contrast, State oil and gas regulations 
typically focus on the protection of mineral rights and conservation of 
oil and gas resources (i.e., minimizing waste). States do provide for 
protection of surface and groundwater via well design requirements, 
setbacks, and oil pollution control measures. However, State programs 
vary in these areas, and also in regard to protection of many other 
surface resources and surface use conflicts.
    Most States are consistent in deferring to landowners and operators 
to work out many of the details of surface uses, and formal surface use 
agreements between landowner and operator are common. In some States, 
like Oklahoma and New Mexico, oil and gas companies are required by 
statute to enter into these agreements before production begins. A 
surface use agreement may direct the specific locations of access 
routes, drilling sites, and flowlines that are placed on the property. 
Timing considerations may be critical for protections of wildlife that 
may be present only seasonally. The final regulations provide a 
consistent set of procedures and operational standards which when 
incorporated into an operations permit are the functional equivalent of 
a ``surface use agreement'' between the Service and operator.
    Furthermore, the Service has carefully designed this rule to work 
in concert with the State oil and gas regulatory processes. The Service 
has analyzed which aspects of State oil and gas regulatory regimes are 
generally sufficient for protecting refuge resources and uses and which 
are not, and have sought to regulate in this rule only those activities 
where State regulatory regimes are not generally sufficient. Our 
analysis found the preponderance of impacts to refuge resources and 
uses associated with oil and gas activities emanate from surface uses, 
not the downhole aspects of an operation. Our analysis also found that 
there is a possibility of impacts to groundwater from downhole 
operations, so the rule provides the Service with the ability to go 
further than State regulations when necessary to protect groundwater.
    Accordingly, the rule does not regulate most downhole activities 
related to an operation, including well construction and blowout 
prevention. The regulation does include a downhole operating standard 
to prevent the escape of fluids to the surface and for isolation and 
protection of usable water zones throughout the life of a well. 
Otherwise, the Service finds that State regulations are sufficient to 
ensuring that downhole operations are protective of refuge resources 
and uses, as well as public safety. As this example shows, the Service 
regulations avoid unnecessary procedural and operational duplication 
with State programs, and reflect the Service's intention to work 
cooperatively with States and operators to achieve common objectives.
    4. Comment: Additionally, the Service received comments that 
recommended the Service not rely on State regulations to protect refuge 
resources and uses from the impacts associated with pre-existing 
operations, believing that the Service has been somewhat contradictory 
in its analysis that State regulations are not sufficient, but then 
relying on State regulations to protect refuge resources and uses from 
pre-existing operations in the proposed rule.
    Service Response: The Service has considered these comments and 
would like to clarify its prior explanation why relying on existing 
Federal and State regulatory regimes is sufficiently protective. As 
required by Executive Order (E.O.) 12866, the Service analyzed the 
costs and benefits of each regulatory requirement being considered. 
This analysis found that new operations create the greatest additional 
impacts on refuges and that proper site planning, timing restrictions, 
and best management practices (BMPs) through a permit system accomplish 
the greatest improvement in resource protection. The permit process 
focuses on the full suite of time, place, and manner considerations on 
those new operations that create the highest level of incremental 
impacts. By applying a reclamation standard for all operations on 
refuges, including pre-existing operations, the rule also ensures long-
term rehabilitation of habitat damaged by all operations.
    While applying the full regulatory requirements to pre-existing 
operations may provide some incremental protection for refuge resources 
and uses, it would not retroactively eliminate a majority of the 
impacts to refuge resources and uses that have already taken place as a 
result of pre-existing operations. For example, pre-existing wells have 
already been drilled, the area of operations (access route, well site, 
production facilities, and routes for gathering lines) established, and 
impacts to refuge resources, such as to geology and soils, wetlands, 
and wildlife-dependent recreation, have all occurred prior to this rule 
being effective.
    In terms of ongoing impacts from production, our analysis indicates 
that an operator's compliance with State laws will serve to improve 
protection of refuge resources and uses from ongoing impacts from these 
operations, in areas such as removal of waste, storage of chemicals, 
and leak and spill prevention. Where individual States' regulations do 
not specifically address an issue, the Service will continue to work 
cooperatively with operators to reduce impacts, or risks of impacts, to 
refuge resources and uses. This approach enables managers to focus 
limited resources on those operations with the greatest possible 
impacts to refuge resources and uses rather than an

[[Page 79955]]

indiscriminate administration of permits for the approximately 4,000 
pre-existing operations. A general permit requirement would necessitate 
the Service to roughly double its oil and gas management resources from 
current levels, while the administrative costs to operators of pre-
existing wells would be approximated to be initially $1,800 per well 
annually. Our analysis indicates these costs, in general, would be 
inefficiently applied and disproportionately high in general relative 
to the benefits to refuge resources and uses.

Scope: Inholdings

    5. Comment: The Service received comments both expressing a lack of 
authority for the Service in regulating inholdings as well as comments 
asserting that the Service has both the authority and the 
responsibility to regulate operations on private lands, including 
inholdings, under the Property Clause and the NWRSIA, which commenters 
contend granted the Service the authority to regulate outside the 
boundaries of the Refuge to the extent that such activities interfere 
with the designated purpose of Federal lands (citing Minnesota v. 
Block, 660 F.2d 1240, 1249 (8th Cir.1981)). Some commenters also noted 
that the Service has taken a different approach from the NPS and 
suggested the Service adopt the NPS approach to inholdings.
    Service Response: The Service has carefully considered these 
comments; however, the Service has concluded that no change should be 
made in the rule, which appropriately balances refuge protection, 
private property rights, and feasibility of administration. As 
discussed in the Final EIS, there are some potential cross-boundary 
impacts from oil and gas development on refuge resources and uses, such 
as spills or leaks migrating into refuge lands or waters or noise 
disturbance on wildlife and visitor experience. The Service has always 
worked, and will continue to work, with operators on inholdings and 
adjacent lands to mitigate or avoid any potential cross-boundary 
impacts, particularly those that may impact species protected under the 
Endangered Species Act. For instance if an operator were proposing to 
site an operation close to a refuge boundary, we might ask them to set 
the operation back, ensure they have proper spill or leak protection 
methods, and site the operation away from any waterways that flow into 
a refuge. Furthermore, even when exempted from these regulations, 
operators do not have a right to cause unreasonable damage to refuge 
resources and uses and are responsible for any damage done from their 
operations (e.g., leaks or spills). Existing Federal and/or State laws 
provide enforcement remedies for activities on non-Federal lands that 
damage Refuge resources and uses. Additionally, by not imposing 
regulations on inholdings or non-Federal adjacent lands, the Service is 
incentivizing operators to locate such operations off refuges.
    As to the differences between the proposed revisions to the NPS 9B 
regulations (80 FR 65572; October 26, 2015) and this rule, an operator 
working on both NWRS and NPS lands will experience little difference in 
regulatory resource and use protections, regulatory structure based on 
performance standards, operations permit processes and requirements, 
monitoring and compliance, and other terms and conditions. However, 
there are some variations between the two proposed rules necessitated 
by differing authorities and missions and the scope and resources of 
the two agencies' non-Federal oil and gas programs. The existing and 
future potential for operations on inholdings within the NPS is much 
smaller than that of the NWRS, and, therefore, the administrative 
burden is more manageable for NPS's oil and gas program to regulate 
activities on inholdings to the extent necessary to protect park 
resources and uses.
    In designing this rule, the Service has carefully considered the 
environmental benefits of these regulations in light of the Service's 
mission and limited resources and has chosen to prioritize regulation 
of activities on Service lands. As noted above, the Service defines the 
National Wildlife Refuge System to consist of all lands, waters, and 
interests therein that it administers (25 CFR 25.12) and does not apply 
its regulations to the non-Federal lands found within refuge boundaries 
(i.e., inholdings). Furthermore, the Service has concluded that it can 
manage the cross-boundary impacts from inholdings and non-Federal 
adjacent lands through cooperation with operators instead of through 
direct regulation, which places a heavy administrative burden on the 
Service and operators.

Scope: Operations on Non-Federal Land

    6. Comment: The Service received similar comments regarding 
directional drilling operations on non-Federal land as it did for 
inholdings, recommending that the Service extend regulations beyond the 
NWRS to operations on private lands as described in the Modified 
Proposed Rule alternative of the DEIS. We also received comments from 
others that the Service has no authority to do so. Some commenters also 
noted that the Service has taken a different approach from the NPS and 
suggested the Service adopt the NPS approach to directional drilling 
operations.
    Service Response: The Service has considered these comments; 
however, we have not extended the rule to operations on inholdings and 
non-Federal adjacent lands from which there is directional drilling 
under Service-administered surface estate. The Service has a clear 
legal and policy directive to protect refuge lands and resources, and 
having oil and gas operations sited off refuge property is preferable 
to having impacts occur on refuge lands. Our analysis shows avoiding 
the cost and time delay of Service regulation provides an incentive for 
operators to drill from a non-Federal surface location to reach their 
oil and gas rights within a refuge. Exempting downhole operations that 
occur inside a refuge from these regulations will result in fewer wells 
drilled on refuge-administered lands and waters resulting in an overall 
benefit to refuge resources and uses (avoidance or minimization of 
direct impacts).
    If the Service extended its regulation beyond the NWRS as evaluated 
in Alternative C of the EIS, the Service could require actions, such as 
noise abatement or visual screening, which serve to reduce cross-
boundary effects on Service resources and uses. However, these benefits 
to resources and uses could evaporate, and many adverse consequences 
could occur, if just a small percentage of wells that otherwise would 
have been located outside a refuge are drilled in a refuge. Gains in 
resource protection under Alternative C would likely be lost due to 
loss of the incentive to locate operations outside the refuge. Locating 
all operations (surface and downhole) inside the boundary of a refuge 
would subject refuge resources and values to the long-term impacts of 
surface occupancy within the park--impacts that would last years, if 
not decades. Therefore, the Service concludes the best course of action 
is to maintain the incentive in the proposed rule to encourage 
operators to locate operations outside a refuge.
    The Service will continue to work with operators, landowners, and 
other permitting agencies to address issues that may arise from 
operations on non-Federal adjacent lands. For example, the Service 
could advocate for setbacks from the refuge boundary or waterways and 
strong spill control and response measures to reduce the risk of damage 
to refuge resources from accidents. As mentioned above, even where 
exempt

[[Page 79956]]

from these regulations, operators do not have a right to cause 
unreasonable damage to refuge resources and uses and are responsible 
for any damage done from these operations (e.g., leaks or spills).
    Additionally, based on the comments the Service received, it 
appears that some commenters misunderstood the NPS rule as related to 
operations on non-Federal lands outside the park boundary from which 
there is directional drilling underneath a park unit. NPS's regulatory 
authority over directional drilling operations begins at the subsurface 
point where the proposed operations (borehole) cross the park boundary 
and enter federally owned or administered lands or water, and applies 
to all infrastructure and activities within a park unit. Additionally 
the NPS provides an exemption to the operations permit requirement for 
these in-park operations if it determines they ``pose no significant 
threat of damage to park resources.'' In the many decades that the NPS 
has had this exemption in place, it has not made a single finding that 
such operations pose a significant threat. In only a few instances has 
NPS included in its determination suggestions to the operator to modify 
its planned operations in any way.
    The Service has concluded that the risk of any impacts to refuge 
resources by the Service not regulating the portion of a wellbore 
beneath a refuge is exceedingly low. The Service has carefully designed 
this rule to ensure that it is prioritizing its limited resources on 
those oil and gas activities that have the greatest impact to refuge 
resources and uses. Commenters from both industry and non-governmental 
organizations have asked the Service to ensure it has the resources to 
effectively implement this rule. The Service has carefully analyzed its 
resources and capabilities and has specifically tailored this rule to 
ensure maximum refuge protection within the constraints of its 
management capabilities. The Service agrees with commenters that it 
must ensure that it has sufficient resources to implement the rule in 
order for it to be successful. Balancing the low risk of impacts from 
the downhole aspects of these directional-drilling operations on refuge 
resources and uses with the high administrative costs of regulating all 
of these operations, the Service has exempted these operations in the 
rule.

Hydraulic Fracturing and Regulation of Downhole Activities

    7. Comment: Several commenters requested that the Service ban 
hydraulic fracturing completely from the NWRS.
    Service Response: The Service considered these comments, as well as 
other information and studies provided by commenters regarding 
hydraulic fracturing, and we have concluded that the additional 
information provided did not justify a change from the proposed rule's 
approach to hydraulic fracturing. Comments requesting the ban on 
hydraulic fracturing used the term to encompass all the activities and 
impacts that are associated with oil and gas development that happens 
to use hydraulic fracturing. These comments did not provide new 
information to the Service.
    The information provided by commenters was available and considered 
by the Service in developing the proposed rule. The Service has 
determined that the actual process of hydraulic fracturing does not 
create impacts or risks of impacts that are so elevated above those of 
conventional oil and gas operations in general that a hydraulic 
fracturing ban is justified. It is the Service's policy that 
``scientific and scholarly information that we consider in our 
decision-making must be robust, of the highest quality, and the result 
of the most rigorous scientific and scholarly processes as can be 
achieved'' (212 FW 7).
    As the Service has noted in the EIS accompanying the rule, studies 
show that oil and gas operations that include hydraulic fracturing 
stimulation methods can negatively affect surrounding resources and the 
environment and can increase the risks of such impacts where 
appropriate measures are not taken before, during, and after hydraulic 
fracturing operations (e.g., improper cementing of casing and well 
integrity issues or surface mismanagement of fracking and flowback 
fluids). However, studies also show that proper implementation of such 
measures can substantially reduce--to a level close to that of 
conventional well operations--the risks to the surrounding environment 
from hydraulic fracturing operations.
    Based on the Service's review of studies provided during the public 
comment period, we do not find that a ban on hydraulic fracturing 
completion methods in refuges is necessary or appropriate at this time. 
The Service will continue to revisit and update its policy as more 
information on hydraulic fracturing completion methods becomes 
available. Further, the Service notes that well completion programs 
using hydraulic fracturing were not given approval under the proposed 
rule. The rule also does not give such approval, and includes operating 
and approval standards developed with the knowledge that hydraulic 
fracturing operations will likely be proposed by operators and were 
designed to ensure that operators employ technologically feasible 
least-damaging methods that will not impact refuge resources and uses. 
The Service will consider hydraulic fracturing operations on a case-by-
case basis and analyze potential impacts on refuge resources and uses 
under the regulations' approval standards.
    8. Comment: The Service was asked to clarify how the rule would, or 
would not, be impacted by BLM's impending fracking rule and associated 
litigation.
    Service Response: As explained in the proposed rule, we have taken 
different approaches to regulating hydraulic fracturing activities 
based on our different statutory authorities and the specific needs of 
the NWRS. The Service has concluded that our rule is consistent with 
our statutory authorities and, therefore, should not be affected by the 
pending litigation.
    9. Comment: The Service received several comments recommending that 
the Service extend its regulations to more comprehensively cover all 
aspects of downhole operations, particularly with regard to wellbore 
construction standards for operations that include use of hydraulic 
fracturing. Commenters also requested that the Service require baseline 
flowback requirements. On the other hand, the Service received comments 
that that Service regulation will only duplicate existing State and 
Federal requirements that fully address these downhole issues.
    Service Response: The Service analyzed both the costs and benefits 
of further regulating downhole operations on the NWRS through this 
rulemaking and found the increased costs necessary to hire and maintain 
engineering staff to oversee our own separate downhole requirements and 
standards would not likely provide a comparable benefit in reduction of 
impacts or risks of impacts to surface resources. The Service reviewed 
and considered the comments and studies provided by the public on this 
issue, but found they did not change the Service's analysis of the 
benefits. On the other hand, the Service did identify additional costs 
for both the Service and industry if the Service were to regulate 
downhole operations. The Service would need additional specialized 
technical staff to evaluate proposals and subsequently monitor and 
inspect downhole operations for compliance. Industry costs would 
involve providing downhole well construction information such as 
drilling, mud, casing, cementing, and stimulation programs. This 
information

[[Page 79957]]

is developed as a matter of course by industry, so there would be some 
minimal costs to provide copies of these programs.
    Recognizing the public concern regarding impact to water resources 
from these activities and the Service's responsibility to ensure that 
it protects these resources, the rule does include standards for well 
control and isolation and protection of usable water (Sec.  
29.119(a)(3) and (4)). The standard serves to inform the public and the 
operators that the Service retains regulatory control for management 
and protection of all its resources including groundwater. However, as 
discussed above, the Service would have to substantially augment its 
engineering capacity to review, approve, and monitor downhole well 
construction. Comprehensive Service regulation of downhole wellbore 
construction and maintenance for the isolation and protection of usable 
water would duplicate state programs in many areas, and thus provide a 
diminished return in terms of reduction of risks to groundwater. 
Additionally, the rule includes provisions (information requirements, 
operating standards, and reporting requirements) that address the 
management of wastes including flowback fluids. Under the rule, all new 
hydraulic fracturing operations will be conducted under new operations 
permits or modifications to existing Service-approved permits. Thus, 
new operations under the rule are required to provide for management of 
flowback fluids, including tanks to capture and temporarily store 
flowback fluids, no use of earthen pits, and prompt removal of wastes 
from the refuge.

Easements

    10. Comment: Some commenters requested clarity on the applicability 
of these regulations to easements.
    Service Response: The definition of the National Wildlife Refuge 
System includes less than fee interests in land such as easements (50 
CFR 25.12). Therefore, the exercise of non-federally owned oil and gas 
rights underneath the Service's easement estate are subject to these 
regulations to the extent necessary to protect the interests held by 
the United States under the easement (see Sec.  29.40(b)). The Service 
holds many unique and varied easement interests throughout the United 
States. For this reason, it is difficult to generalize how the rule 
applies to any particular easement. To determine the applicability of 
these regulations, the Service will review the terms of the legal 
instrument by which the United States acquired or reserved its easement 
interest to determine what regulation is appropriate in relation to 
that interest. Oil and gas operations will be subject to some and not 
necessarily all, of the requirements and standards of this subpart. 
Depending on the easement interest acquired, the Service may require an 
operator to obtain a permit from the Service to ensure that operations 
minimize the destruction of vegetative cover, control spread of 
invasive species, and/or avoid ecologically sensitive habitats by using 
technologically feasible, least-damaging methods. On the other hand, if 
an operator avoids burning, draining, filling, or dredging wetlands on 
one of the Service's conservation easements acquired for the purpose of 
protecting wetlands, the operator is likely exempt from these 
regulations.
    Ultimately, the Service wants to ensure it is notified of 
operations that may affect the Service's less-than-fee interests and 
work cooperatively with the landholder and mineral rights holder, if 
different, to minimize or avoid impacts to our conservation interest in 
the land. However, the Service will continue to provide reasonable 
access to mineral rights holders for the development of their mineral 
rights, as we do on fee-title lands of the NWRS. The Service will work 
with operators and landowners in determining what is reasonable to 
protecting the Service's property interests under the easement.

Oil and Gas Operations in Alaska

    11. Comment: The Service received several comments on how the 
proposed rule would affect oil and gas operations on refuges in Alaska 
and asking for clarification from the Service on how the rule would 
work in conjunction with the Alaska National Interest Lands 
Conservation Act (94 Stat. 2371; Pub. L. 96-487) and implementing 
regulations (43 CFR part 36). The Service got several comments 
recommending that the Service should clarify and revise the rule to 
fully recognize the controlling role of ANILCA and its implementing 
regulations in Alaska, and to address other issues. For instance, the 
Service received a comment to specifically replace the multiple 
references to ANILCA with the following blanket provision stating that 
ANILCA and implementing regulations at 43 CFR part 36 govern access, 
including but not limited to access to inholdings in Alaska, in lieu of 
the provisions of the non-Federal oil and gas regulations in subpart D: 
``In lieu of the provisions of this subpart, authorization and 
management of access in Alaska, including but not limited to access to 
inholdings, shall be governed by the applicable provisions in 43 CFR 
part 36.'' Additionally, it was recommended that the final regulations 
should clarify that the only operations permit that would be required 
with regard to access across the NWRS associated with oil and gas 
development activities on private inholdings in Alaska would be a 
right-of-way issued pursuant to title XI of ANILCA and the regulations 
at 43 CFR part 36.
    Service Response: We agree with the many comments we received that 
our rule was unclear about how this rule applies to operations in 
Alaska. After careful consideration of comments received on this issue, 
the Service has concluded that the rule does not need to include 
operations in refuges in Alaska as the existing Departmental 
regulations implementing section 1110(a) of ANILCA, access to 
inholdings, provide sufficient protection of refuge resources and use. 
The Service has revised Sec.  29.41 ``When does this subpart apply to 
me?'' to clarify that the rule does not apply to operators in Alaska. 
In addition to this revision, the Service has removed any reference to 
ANILCA in other provisions of this rule. The specific references in 
various parts of the proposed rule were more confusing than helpful.
    Refuges in Alaska will continue to be governed by title XI of the 
Alaska National Interest Lands Conservation Act (ANILCA; 16 U.S.C. 
410hh-410hh-5, 16 U.S.C. 3101 et seq., 43 U.S.C. 1601 et seq.), and the 
Department's implementing regulations and standards found at 43 CFR 
part 36. Additionally, section 22(g) of the Alaska Native Claims 
Settlement Act of 1971 (ANCSA) (43 U.S.C. 1601-1624) and its 
implementing regulations found at 50 CFR 25.21 will continue to apply 
to lands conveyed to Alaska Native Corporations that are within the 
boundaries of a National Wildlife Refuge in existence on the date of 
enactment of ANCSA. However, the performance-based standards outlined 
in this rule may be used, as appropriate, as guidance in determining 
how an operator would meet the various requirements of ANILCA and ANCSA 
to protect refuge resources and uses. ANILCA provides the Service with 
the authority to ensure that operators accessing non-Federal mineral 
rights underneath refuges in Alaska must work cooperatively with the 
Service through a permitting process outlined in section 1110 and 43 
CFR part 36 to avoid or minimize impacts from these operations to 
refuge resources and uses. For example, under the ANILCA regulations, 
the Service may require an operator to: Obtain a permit for

[[Page 79958]]

operations on federally owned surface estate; provide the Service with 
financial assurance; restrict the time, place, and manner of activities 
as necessary to protect refuge resources and uses; and ensure the 
operation is properly plugged and reclaimed after production operations 
are complete.
    12. Comment: The Service also received comments asking to further 
clarify that this rule would not be used to regulate activities 
conducted on Alaska Native Corporation (ANC)-owned or other non-Federal 
lands in Alaska.
    Service Response: The scope of this rule is limited to activities 
on Federal lands within the National Wildlife Refuge System. In the 
case of refuges in Alaska, it does not apply to inholdings or non-
Federal adjacent lands. Commenters generally seemed to be clear about 
the scope of this rule on this point, and, therefore, the Service 
concludes it does not need to clarify this further in the final rule. 
As discussed above, access through refuges to ANC-owned or other non-
Federal lands in Alaska will continue to be governed by ANILCA, ANCSA, 
and their implementing regulations.
    13. Comment: The Service also received comments recommending that 
the Service clarify further how the operations standards outlined in 
the proposed rule would apply to operations under an ANILCA permit. 
Based on concern about how some of the standards would further limit 
landowners' ability to specify route or method of access and, 
therefore, diminish their rights to adequate and feasible access to 
inholdings as authorized under ANILCA, these commenters asked that the 
Service not apply these operation standards to operations in Alaska. On 
the other hand, the Service also received comments asking that the 
final rule avoid citing specific sections of the operating standards 
that may apply to operations under an ANILCA permit, because doing so 
would raise doubts about the application of the rest of the rule to 
these operations (see 80 FR 77206; December 11, 2015).
    Service Response: As discussed above, this rule does not apply to 
oil and gas operations in Alaska. However, the Service has developed 
these operating standards through a thorough analysis of what is needed 
to properly protect refuge resources and uses. Therefore, to the extent 
consistent with these existing ANCSA and ANILCA regulations, the 
Service may use these standards as guidance in approving operations and 
issuing permits under existing regulations applicable to Alaska. The 
standards that will be applicable will be determined on a case-by-case 
basis and will only be used if consistent with the standards outlined 
in ANILCA and its implementing regulations.
    14. Comment: Other commenters recommended that the Service apply 
the rule more comprehensively to operations in Alaska, believing that 
ANILCA is not sufficient at protecting NWRS resources and uses from 
impacts of oil and gas operations.
    Service Response: The Service has concluded that ANILCA provides 
sufficient regulation of oil and gas operations in Alaska where the 
Service has been able to effectively work with operators to minimize or 
avoid impacts to refuge resources and uses while providing operators 
access to their minerals under the existing regulations. As discussed 
above, implementation of the existing ANILCA regulations provides 
stringent protection of refuge resources and uses and provides the 
Service the appropriate tools for regulating non-Federal oil and gas 
operations on refuge-administered surface estate. As one commenter 
suggested, if the Service does, in the future, decide we need different 
tools to effectively manage oil and gas resources in Alaska, we can 
propose revisions to the ANILCA implementing regulations.
    15. Comment: The Service received a comment highlighting the fact 
that the statutory authority and obligation to review and approve 
geological and geophysical exploration plans per section 1002 of ANILCA 
(16 U.S.C. 3142) (and associated regulations at 50 CFR part 37) has 
expired (see Memorandum Decision and Order, U.S. District Court for the 
District of Alaska (State of Alaska v. Jewell, et al. Case No. 
3:14[hyphen]cv-00048-SLG)), and recommending that the final rule should 
clarify that the Service cannot accept further applications for 
geological or geophysical exploration for oil and gas in the coastal 
plain of the Arctic Refuge. The comment also recommended that the final 
rule should also explicitly mention prohibitions on oil and gas 
leasing, development, and production in the Arctic National Wildlife 
Refuge (16 U.S.C. 3143).
    Service Response: The Service agrees that we cannot accept any 
further application for geological or geophysical exploration in the 
coastal plain of the Arctic National Wildlife Refuge and that oil and 
gas leasing is prohibited in the refuge for the reasons stated in the 
comment; however, the recommended revisions are not necessary in the 
final rule because they are outside the scope of this rulemaking.

Existing Production Operations Under a Service Permit

    16. Comment: The Service received comments that the proposed rule 
was unclear as to which provisions of this subpart applied to existing 
operators under a Service-issued permit.
    Service Response: The Service agrees with the commenter that the 
proposed rule was not clear as to which provisions of the rule applied 
to existing operators with a Service-issued permit. For operations 
being conducted under Sec.  29.43, all administrative or operational 
requirements that are specific to obtaining or operating under an 
operations permit issued under this subpart do not apply. The operator 
with an existing permit may continue to operate under the terms and 
conditions of that Service-issued permit, unless the operator proposes 
to modify its operations or propose new operations not covered by the 
existing Service-issued permit, such as plugging and reclamation. If an 
operator wishes to modify their operations or proposes new operations 
outside the scope of their existing Service-issued permit, the permit 
will need to be amended such that any modification or new operation 
meets applicable operating standards of the rule. We have revised Sec.  
29.43 accordingly.
    17. Comment: Several commenters recommended that operators 
conducting production operations under a currently approved special use 
permit should be required to obtain a new permit under the proposed 
rule, as the Service considered in Alternative C of the DEIS, to ensure 
that they are following certain performance-based standards regarding 
waste management and disposal, leaks, spills, and pits.
    Service Response: The Service has been very successful at working 
with operators through these Special Use Permits (SUP) to ensure that 
impacts to refuge resources and uses are avoided and minimized. As 
explained above, the Service has concluded that a new permit 
requirement for these existing operations would bring little to no 
beneficial impacts to refuge resources and uses, and would impose an 
unnecessary administrative burden on the Service and operators by 
requiring a new permit to replace the existing permit. In issuing 
permits to existing operators, the Service considered and included many 
provisions to protect refuge resources and uses, such as waste 
management and disposal, spill prevention, and spill response. Some 
SUPs have authorized the creation of reserve pits, while others have 
prohibited them. Such inconsistency in

[[Page 79959]]

the future has been addressed and eliminated by this rule. The Service 
has decided that requiring these operators to get a new permit is not 
reasonable or appropriate, considering that these operators have been 
cooperative in working with the Service to protect refuge resources and 
uses and have reasonable expectations from their work with us that the 
operations permitted by the Service in their SUP are sufficient. 
However, as discussed above, any modifications to their operations or 
proposals for new operations not covered by the original permit are 
subject to all applicable requirements of part 29.
    Also, the Service has further clarified in Sec.  29.43, as 
discussed above, that an existing operator must comply with the 
Service's plugging provisions at Sec. Sec.  29.180 and 29.181. Some 
commenters stated there should be a clear requirement for operators 
with an approved SUP to provide financial assurance prior to proceeding 
with plugging and reclamation. The Service's intent under Sec.  29.43 
is to allow operators who have cooperated with the Service in 
conducting activities under a Service-issued permit to continue under 
the terms and conditions that have been agreed upon. While financial 
assurance would provide the benefit of ensuring the public does not 
become responsible for plugging and reclamation costs should an 
operator default or abandon their operation, based on the knowledge and 
experiences of current and past refuge managers engaged in oil and gas 
oversight, we were not able to identify any well becoming orphaned by 
an operator within the past 20 years. Therefore, the Service declines 
to add a financial assurance provision at great cost to these operators 
with little benefit to refuge resources and uses. However, if an 
operator's original permit did not include authorization to conduct 
plugging and reclamation, the operator would be required to amend their 
Service-issued permit or obtain a new operations permit, either of 
which requires compliance with the plugging and reclamation provisions 
of this rule, including providing financial assurance.

Pre-Existing Operations

    18. Comment: The Service received several comments suggesting the 
Service clarify how pre-existing operations would be subject to 
provisions of the rule absent a new permit requirement. One commenter 
expressed concern that the proposed rule did not include a mechanism 
for ensuring pre-existing operations are following the requirements of 
the rule. Additionally, commenters wanted more clarity as to what 
general terms and conditions apply to pre-existing operations.
    Service Response: The Service agrees that the rule should further 
clarify which provisions of the subpart would apply to these classes of 
operations. For operations being conducted under Sec.  29.44, all 
administrative or operational requirements that are specific to 
obtaining or operating under an operations permit issued under this 
subpart do not apply unless the operator chooses to obtain a new 
operations permit instead of amending their existing permits under the 
terms and conditions of that permit. We have made this clarification in 
the rule at Sec.  29.44. Additionally, we agree the language needs to 
be clearer as to the plugging and reclamation responsibilities of a 
pre-existing operator. After production operations have been completed, 
a pre-existing operator must obtain an Operations Permit from the 
Service, either to maintain the well in shut-in status or to plug and 
reclaim operations in compliance with this subpart. The Service has 
made this clarification in Sec.  29.63. Finally, the Service has made 
specific revisions to the rule at Sec.  29.64 that identify the 
specific ``General Terms and Conditions'' applicable to pre-existing 
operations.
    The Service has concluded it does not need to impose a permit 
requirement on pre-existing operators in order to notify them of the 
applicable requirements of the rule or to ensure they are in compliance 
with its requirements. The Service has a duty to ensure that all pre-
existing and existing operators are notified of the requirements of the 
rule. The Service is working on guidance documents for all classes of 
operators, including pre-existing operators. Additionally, the Service 
has already developed relationships with many of the pre-existing 
operators. The Service will be in contact with operators to ensure they 
are informed about the requirements of the rule.
    19. Comment: Some commenters agree with the Service's proposed 
approach not to require operations permits for pre-existing operations 
during the production phase. Other commenters believe that pre-existing 
operations should be subject to the same requirements as new operations 
under the rule (as the Service considered in Alternative C of the 
DEIS), specifically requiring a new permit for pre-existing operators 
that would ensure that they are following the applicable performance-
based standards of the proposed rule, including waste management and 
disposal, spill prevention and response, and the general prohibition on 
the use of pits, for example; and/or obtaining financial assurance for 
the full cost of plugging and reclamation during the production phase.
    Service Response: After weighing the comments on both sides of the 
issue, the Service has decided to continue the approach outlined in the 
proposed rule that a pre-existing operator not be required to get a 
permit or post financial assurance during the production phase of its 
operation. In the cost-benefit analysis and environmental impact 
statement, the Service evaluated the range of alternatives related to 
the management of pre-existing operations from no additional regulatory 
oversight to full regulatory oversight. The Service did identify 
unnecessary impacts to refuge resources and uses related to the ongoing 
production phase of pre-existing operations, but also recognized the 
potential to apply a different, more efficient approach to address many 
of the refuge resource and use issues for this class of operation.
    The primary issue with pre-existing operations, as identified by 
refuge managers, is that reclamation has not been typically or 
consistently performed in a way that restores disturbed areas to 
productive habitat. This issue is addressed by the rule. First, in 
accordance with Sec.  29.63 (which has been revised to clarify), after 
production operations have been completed, a pre-existing operator must 
obtain an Operations Permit from the Service, either to maintain the 
well in shut-in status or to plug and reclaim operations in compliance 
with this subpart, including the requirement that an operator obtain 
financial assurance at this time. Second, a pre-existing operator is 
subject to the reclamation standards of Sec.  29.117(d), which provides 
for removing all above-ground structures, equipment, roads, well pads, 
and contaminating substances, reestablishing native vegetation, 
restoring conditions to pre-disturbance hydrologic functions, and 
restoring disturbed areas to productive habitat.
    Our analysis found that the Service could eliminate many of the 
ongoing, unnecessary impacts to refuge resources and uses resulting 
from the production phase of pre-existing operations by making 
violation of non-conflicting State laws and regulations relating to oil 
and gas operations a prohibited act in the rule. Though not required to 
obtain a Service operations permit during production, the Service would 
have greater authority to ensure these operations are in compliance 
with applicable laws because Refuge Law Enforcement would be able to 
enforce

[[Page 79960]]

State law on the NWRS. Any violation of State laws on the NWRS would 
constitute a violation of the law under the rule, and all applicable 
penalties and prohibitions would apply.
    State laws usually address ongoing impacts from these pre-existing 
operations, such as waste disposal and prevention and cleanup of leaks 
and spills. Where an individual State's regulations do not specifically 
address an issue, the Service would continue to work cooperatively with 
State agencies and operators to reduce impacts or risks to refuge 
resources and uses. For example, in an assessment of State regulations 
conducted by the Ground Water Protection Council (GWPC) for the U.S. 
Department of Energy (DOE), the GWPC found that 23 of 27 oil-producing 
States assessed required oil production site storage tanks to have 
secondary containment dikes to contain leaks and spills (GWPC 2014). 
Additionally, the GWPC (2014) reported that 23 of the 27 States require 
reporting and remediation of spills and 13 of the 27 States specify 
cleanup standards for spills. Some States also have siting or setback 
requirements for pits (production skim pits and reserve pits) with some 
States prohibiting the use of pits in 100-year floodplains or in areas 
with shallow aquifers (GWPC 2014). An operator's compliance with these 
types of laws and the Service's ability to assist in the enforcement of 
these laws would provide additional protection to refuge resources and 
uses.
    While full regulation of pre-existing operations during their 
production phase would provide some additional protection to refuge 
resources and uses, it would not be able to remedy a majority of the 
impacts to refuge resources and uses caused when the operators chose 
the time, place, and manner of these pre-existing operations. For 
example, on existing operations, the operator's well has already been 
drilled and the area of operations (access route, well site, production 
facilities, and routes for gathering lines) were established, and 
impacts to refuge resources, such as geology and soils, wetlands, and 
wildlife-dependent recreation, occurred prior to the acquisition of a 
refuge. The Service could require actions not addressed by applicable 
State rules--site maintenance for erosion control, vegetation 
management, noise abatement, housekeeping, for examples--by imposing a 
permit requirement and undergoing the associated administrative 
processes and costs. Our analysis estimated that approximately 4,000 
wells operated by perhaps 400 different operators would fall under the 
operations permit requirement. Many wells could be grouped under a 
single operations permit by an operator, but the volume of operations 
permit applications required would likely exceed 1,000. The Service 
would need to roughly double its oil and gas management resources from 
current levels, while the administrative costs to operators of pre-
existing wells is estimated to be approximately $1,800 per well.
    Based on our analysis, we determined enforcing a pre-existing 
operator's compliance with State laws and regulations best meets the 
purposes and needs of revising the existing rule and will provide the 
maximum protection of refuge resources when balanced with the cost to 
operators and to the Service for administration. This approach enables 
managers to focus limited resources on those operations with the 
greatest possible impacts to refuge resources and uses rather than an 
indiscriminate administration of permits for the approximately 4,000 
pre-existing operations. Comments from the public have not provided us 
with substantial new information that would change our analysis or 
conclusion.
    20. Comment: The Service received a comment requesting that we 
revise the definition of ``modification,'' so that a pre-existing 
operation must obtain a permit when they transfer operators.
    Service Response: After considering this comment, the Service 
agrees that a change in operator should trigger the requirement that 
the new operator obtain an Operations Permit from the Service. However, 
revising the definition of modification is not the best way to 
accomplish this objective. Instead, the Service has revised the rule 
language to replace ``operation'' with ``operator'' in Sec.  29.44 to 
clarify that the exempt status follows an operator not an operation. 
Also, in Sec.  29.171, we have included language that would allow an 
operator to continue operations for 90 days while the operator files 
the permit application and posts bond to ensure continuity of new 
operations. The new operator would need to obtain an Operations Permit 
that meets operating standards and general terms and conditions of the 
rule, including posting of financial assurance. The Service will not 
require a change in the time or place of these operations, but rather 
will ensure that any ongoing unnecessary impacts from these operations 
are avoided or minimized by requiring the new operator to employ 
``technologically feasible, least damaging methods'' moving forward. 
This change in what constitutes loss of pre-existing status ensures 
that more operations on the NWRS will be operating under Service 
standards sooner, and provides greater protection of refuge resources 
and uses from the ongoing unnecessary impacts of pre-existing 
operations.
    21. Comment: We received comments from the public requesting that 
the rule require more than just basic information from pre-existing 
operators on refuge lands (e.g., mitigation, spill control, emergency 
preparedness plans). Commenters stated that the Service should require 
other important information necessary for the proper management and 
conservation of refuge resources from these pre-existing operators. For 
instance, one comment suggested that the Service's requirement in 
proposed Sec.  29.61 for a scaled map that delineates only an ``area of 
operation'' may not be sufficiently detailed to provide refuge managers 
with baseline information to monitor operations, changes in operations, 
and violations, and that the Service should require a scaled map, as 
well as detailed schematics of existing wells and infrastructure.
    Service Response: After further considering these comments, the 
Service has concluded that some additional, basic information from pre-
existing operators would enhance the protection of refuge resources 
through better documentation of the equipment, materials, and 
operational practices being used on location. Additional operational 
information will also help to establish an operator's reclamation 
responsibilities as well as a baseline for determining whether future 
actions constitute a modification as defined under Sec.  29.50. 
Therefore, the Service has amended the rule at Sec.  29.61 to require 
pre-existing operators to also submit to the Service: a brief 
description of the current operations and any anticipated changes to 
the current operations, including documentation of the current 
operating methods, surface equipment, and materials produced or used.
    22. Comment: Some commenters requested that the Service delete the 
phrases ``subject to the provisions of this subpart'' and ``subject to 
applicable requirements of this subpart'' from proposed Sec. Sec.  
29.43 and 29.44, believing that subjecting pre-existing operations and 
existing operations currently under a Service permit retroactively was 
inappropriate.
    Service Response: In developing the rule, the Service identified 
several key objectives that needed to be addressed in considering the 
extent to which to regulate pre-existing operations and operations 
already being conducted

[[Page 79961]]

under Service authorization. These objectives included that: (1) These 
operations not create additional unnecessary impacts on refuge 
resources and uses; and (2) all operations within refuges are 
eventually plugged and reclaimed to Service standards. Pre-existing 
operations and existing operations are subject to specific provisions 
of this rule that ensure that these objectives are met and that future 
activities of these operators do not result in additional, unnecessary 
impacts. Therefore, subjecting these operations to these provisions is 
not inappropriate, as the commenter suggested, because the provisions 
are not focused on retroactively regulating past activities and impacts 
of these operations (i.e., time, place, or manner of operations) but 
rather on regulating new or modified activities and impacts of these 
operations.

Financial Assurance

    23. Comment: Some commenters expressed the desire that the Service 
go beyond what was in the proposed rule and periodically review 
reclamation costs and corresponding requirements for financial 
assurance, and update these estimates as necessary to accurately 
reflect the cost of reclamation upon the decommission of the well.
    Service Response: The concern that financial assurance amounts will 
become outdated and insufficient to ensure reclamation was already 
addressed in proposed Sec.  29.152, which we, therefore, have not 
revised. The Service may require, or the operator may request, an 
adjustment to the financial assurance amount because of any 
circumstance that increases or decreases the estimated costs of 
plugging and reclamation. Cost changes due to inflation would be a 
circumstance that would allow the Service to require an adjustment in 
the amount of financial assurance.
    24. Comment: The Service also received comments that requiring 
financial assurance above and beyond financial assurance already 
required by the State is not necessary because the State bonds are 
sufficient. Commenters stated that this additional financial assurance 
requirement was ``unfair and unreasonable,'' and should only be done on 
a case-by-case basis as necessary to supplement bonds already lodged 
with the State.
    Service Response: The Service's rule does not rely on State bonds 
to ensure timely well plugging and site reclamation to Service 
standards for two primary reasons: (1) Bonds furnished to operators by 
the State are not usually directly available to the Service to plug and 
reclaim that particular site; and (2) State bonding programs do not 
typically require well plugging and reclamation to Service standards. 
State bond amounts are generally insufficient in themselves to cover 
the actual costs of plugging and reclamation. However, States 
administer well plugging funds with money derived from sources other 
than forfeited bonds, e.g., permitting fees, taxes on production, or 
penalties. Most States with regulations overseeing oil and gas 
activities have developed programs for plugging and reclaiming orphaned 
wells, and, theoretically, the State may have sufficient funds to plug 
and reclaim orphaned wells on the NWRS. However, many State programs 
remain backlogged with a number of orphaned wells that need to be 
plugged or reclaimed.
    Orphaned wells on Federally managed lands do not usually rank as 
top priorities on State lists for plugging. (Office of Inspector 
General, Report No. CR-EV-FWS-002-2014: Oil and Gas Development on U.S. 
Fish and Wildlife Service Refuges). So the bond that an operator 
furnishes to the State is often not available to ensure that wells are 
plugged and areas of operation reclaimed in the event of operator 
default or abandonment of the operation. Even where a State may 
expeditiously address plugging of an orphaned well on a refuge, State 
plugging programs typically do not require restoration of a site in a 
manner that meets Service standards in the rule (Sec.  29.117(d)). For 
these reasons, State bonds are typically not sufficient to ensure 
protection of refuge resources in the event that an operator defaults 
or abandons his or her operation.
    However, in the event that a State and the Service were in formal 
agreement that State plugging funds would be used to plug a well 
directly upon its becoming orphaned as well as to conduct site 
reclamation, the Service would consider this to be a condition under 
Sec.  29.152 that would justify reducing the financial assurance 
required by the Service.

Modification of Operations and Permits

    25. Comment: The Service received several comments requesting 
clarity of the proposed rule's definition of ``modification'' (proposed 
Sec.  29.50). Some commenters wanted the Service to clarify the 
definition to ensure it includes certain changes. Specifically, one 
commenter suggested the Service amend the definition to read: 
``Examples of a modification could include, but are not limited to, 
drilling additional wells from the same pad, conducting hydraulic 
fracturing or other well stimulation activities, creating additional 
surface disturbance (expanding the footprint of a well pad, realigning 
a road, constructing new pipelines or gathering lines), or converting a 
natural gas well into a wastewater disposal well so that the resulting 
modification has notable impacts to the refuge resource.''
    Service Response: The Service agrees that many of the examples 
listed by the commenters require a pre-existing operator to obtain a 
new permit or an operator under an existing Service-issued permit to 
obtain an amendment to its permit, including drilling additional wells 
from the same pad, conducting hydraulic fracturing or other well 
stimulation activities, creating additional surface disturbance 
(expanding the footprint of a well pad, realigning a road, constructing 
new pipelines or gathering lines), or converting a natural gas well 
into a wastewater disposal well, will also likely be considered 
``modifying'' an operation. The Service had identified several examples 
in the preamble of the proposed rule, and examples of a modification 
include drilling additional wells from the same pad, creating 
additional surface disturbance (e.g., expanding the footprint of a well 
pad, realigning a road), or converting a natural gas well into a 
wastewater disposal well, as these modifications will have impacts 
beyond the scope, intensity, and/or duration of existing impacts. This 
provision was not intended to apply to minor actions, such as 
repositioning of surface facilities within the current footprint of 
pre-existing operations, minor changes in color schemes, or minor, non-
routine maintenance actions.
    The Service has decided it is not necessary to revise the 
definition of ``modification'' in the rule to include these specific 
examples. Instead, these examples and others the Service develops in 
the future will be included in guidance documents provided to pre-
existing operators and holders of existing Service authorizations as 
well as Service staff who will administer the rule.
    26. Comment: Another commenter recommended two changes to the 
regulations addressing modification of existing operations. First, the 
commenter asked the Service to add the word ``significant'' before 
``additional impacts'' in the definition for ``modifying.'' This change 
would clarify that modified permits are not (and should not be) 
required for minor modifications to operations that do not result in 
significant changes in effects to the environment. Second, proposed

[[Page 79962]]

Sec.  29.160 should be modified to clarify that the Service may amend a 
permit only when there is a ``significant'' or ``substantial'' 
modification to the permitted operation.
    Service Response: The Service considered the addition of the word 
``significant,'' as well as other adjectives to provide more clarity 
for what the Service would consider to be a ``modification.'' However, 
we decided that adding any such language was not useful, because such 
terms themselves remained subject to various interpretations. For 
instance, an operator, the Service, or a non-governmental organization 
or individual may have very different beliefs as to what constitutes a 
``significant'' impact to refuge resources and uses. Therefore, we have 
provided several examples of what would likely constitute a 
modification (see above) to provide some clarification to our 
intentions in regulating modifications, and as previously stated we 
will provide further guidance documents for this purpose. However, 
determining whether a change is a ``modification'' of the operation 
must be done on a case-by-case basis because the details of when, 
where, and how such changes are accomplished will determine whether 
such a change is ``beyond the scope, intensity, and/or duration of 
existing impacts.'' Therefore, the Service did not revise the rule as 
suggested by this comment.

Performance-Based Standards

    27. Comment: The Service received conflicting comments regarding 
our proposed approach of regulating oil and gas operations based on 
performance-based standards. Some commenters requested that the Service 
require prescriptive actions, at least in some instances. For example, 
one commenter suggested the general reclamation standard to ``remove or 
neutralize contaminating substance'' (Sec.  29.117(d)(3)) be modified 
to include a strict prohibition of onsite remediation of contaminants. 
Also, the Service received comments that these performance-based 
standards leave too much discretion to the Service to either be too 
lenient with operators or too strict.
    Service Response: Pursuant to Executive Order 12866 (58 FR 51735), 
``[e]ach agency shall identify and assess alternative forms of 
regulation and shall, to the extent feasible, specify performance 
objectives, rather than specifying the behavior or manner of compliance 
that regulated entities must adopt'' (E.O. 12866(b)(8)). Consistent 
with the direction provided in E.O. 12866, and as stated in the 
proposed rule, the rule is based on performance-based standards rather 
than prescriptive operating standards. A prescriptive standard may seem 
stricter because it ensures that an operator follows a certain practice 
that seems like it would protect refuge resources and uses and allows 
the operator no flexibility to use a less-protective standard. However, 
in implementation, these standards can, in some instances, have the 
unintended consequence of actually being more harmful to refuge 
resources and uses. For example, onsite remediation of a hydrocarbon 
spill may result in less overall impacts or risks of impacts by 
reducing heavy truck traffic than a prescriptive standard of requiring 
offsite removal of soils, which also increases the potential for 
introduction of invasive plant species associated with import of new 
fill material. The flexibility for refuge managers and operators to 
accomplish a desired end allows site-by-site evaluation of alternatives 
that are least damaging overall. Additionally, science and technology 
are constantly advancing, and new methodologies used today are much 
more environmentally protective than those available only a few years 
before. If these trends continue in the future, the performance-based 
standards in the rule easily adapt to those changing methodologies and 
will be at least as effective in the future as they are today.
    In response to comments that using performance-based standards 
leaves too much discretion to the Service, this rule will be 
accompanied by detailed guidance for both operators and Service staff 
on what are current best management practices for meeting these 
standards. This guidance will provide consistency of interpretation and 
application of the standards across the NWRS and decrease the 
possibility that the discretion afforded refuge managers will be 
misapplied. Furthermore, through compliance with the National 
Environmental Policy Act (NEPA) process at the site-specific permit 
level, the public will have the opportunity to review and comment on 
Service proposals.
    28. Comment: Other commenters were generally supportive of the more 
flexible approach, but recommend that the Service remove what they saw 
as more prescriptive standards in the rule in favor of more general 
goals to be achieved. For example, a commenter recommended removing the 
proposed regulations requiring the installation and maintenance of 
secondary containment, applying seasonal restrictions, and specifying 
the location, type, and design of facilities (proposed Sec. Sec.  
29.111-29.119) as unreasonable, burdensome, and unlawfully diminishing 
the value of the mineral estate. The commenter suggested that the 
Service replace these standards with more general goals to be achieved 
to ``the extent technologically and economically feasible, and a 
requirement to use best management practices.''
    Service Response: The Service recognizes that some arguably 
prescriptive management practices are included in the suite of 
performance-based standards. The observation that an operator must 
install and maintain secondary containment is a good example (Sec.  
29.111(b)). In part, the provision is prescriptive, but acknowledges 
the widespread use of the best management practice of secondary 
containment by industry and regulatory agencies to capture spills, 
prevent their spread, and facilitate their cleanup. In this instance, 
the Service does not envision any alternatives that would exclude the 
use of secondary containment and still meet the ``technologically 
feasible, least damaging method'' standard, and so the provision serves 
to inform operators and the public of an aspect of the rule's approach 
to managing contaminating substances. Additionally, the requirement 
still leaves flexibility for the refuge manager and operators to decide 
on the design and operation of the secondary containment system. 
Similarly, in a few other instances the Service has included practices 
that we find to be more informative but which may be seen as somewhat 
prescriptive; however, we have maintained flexibility for site-specific 
implementation. The rule includes the necessary general goals applied 
with the overall standard of technologically feasible, least damaging 
methods. The rule will result in best management practices being 
identified and included in the site-specific operations permit.
    29. Comment: One commenter asked whether what is practical for a 
particular operator would be a consideration in what is 
``technologically feasible, least damaging methods.''
    Service Response: While we do consider economics in determining 
appropriate methods, we look at what is feasible in terms of industry-
wide practice, not what is affordable for a specific operator. The 
Service does not intend to allow operators to use methods that 
unreasonably harm refuge resources and uses just because the operators 
don't have the adequate financial resources to employ

[[Page 79963]]

technologically feasible, least damaging methods.
    30. Comment: The Service also received a comment that it does not 
have the authority to permit only the ``least damaging'' operational 
methods and that the Service's use of the term ``technologically 
feasible, least damaging methods'' is not appropriate and should be 
replaced with ``feasible methods'' that are technologically and 
economically feasible, as determined by the best industry practices 
available. This commenter contended that the Service may only 
recommend, not require, the ``least damaging'' methods, stating that 
the mineral interest owner is not required to conduct its operations in 
a manner that is not economically or technologically feasible in order 
to access its mineral rights.
    Service Response: The Service has considered this comment and does 
not agree. First, we note that NPS has in fact used this standard for 
new operations since January 1979. This term, defined at Sec.  29.50, 
ensures that the Service does not go beyond what is technologically 
feasible in the methods required of an operator and considers the 
industry-wide economics of those methods in making those decisions. It 
also ensures that an operator uses those methods that are least 
damaging of refuge resources and uses, which is a responsibility of the 
Service to maintain under the NWRSAA. Therefore, the Service concludes 
that requiring ``technologically feasible, least damaging methods'' is 
well within the authority of the Service.
    31. Comment: The Service received several comments recommending 
that the Service remove any ambiguous language contained in the 
proposed rule, including the term ``greatest extent practicable'' found 
at proposed Sec.  29.32. Commenters were concerned that such language 
would allow the operators the unnecessary ability to pressure the 
Service into allowing methods that are based more on economic factors 
rather than NWRS resource and use protection.
    Service Response: In response to these comments, the Service went 
back to the regulations to review for any ambiguous language. The 
Service did use these terms quite frequently in the preamble to the 
proposed rule where it outlined the Service's general intent regarding 
the proposed rule. The Service has avoided using such ambiguous terms 
in the preamble to the final rule. When the Service reviewed the 
proposed rule text in consideration of this comment, we found that the 
term ``greatest extent practicable'' only appeared at Sec.  29.32, 
which is a revised version of a general policy statement of the Service 
related to managing all non-Federal mineral rights. This language 
remains from the previous regulations found at Sec.  29.32 and pertains 
to rights other than oil and gas rights, so the Service decided not to 
revise this language at this time. Other than this section, the Service 
found one other instance of ambiguous language in the proposed rule 
(see in proposed Sec.  29.111(g) ``to the extent reasonably 
practicable'') and has removed such language.

Timeline for Approval

    32. Comment: The Service sought comment on whether the 180-day 
timeline for final action is reasonable. The Service received some 
comments stating that this timeline was too long for operators to wait 
to get authorization on their permits. Other commenters suggested that 
this timeline was too short and would hinder the Service's ability to 
fully comply with NEPA requirements.
    Service Response: The Service has considered these comments, but 
has determined that the timeline from the proposed rule should be 
maintained in the final rule. The timeline does provide for hard 
deadlines and limits the Service's discretion to delay the processing 
of Operations Permit applications. For instance, under the rule, the 
Service has 30 days to conduct its ``initial review'' to determine 
whether an operator's application is complete, request more information 
from the operator, or inform the operator that more time is necessary 
and provide written justification for the delay. Once the application 
is deemed complete, the Service must generally take final action within 
180 days. Any additional time after the 180 days may be taken only if 
the operator agrees to additional time, or that time is necessary for 
the Service to comply with applicable laws and regulations. The 
Service's purpose in using the 180-day timeframe is to provide 
operators with greater certainty regarding the permitting process. 
While the Service cannot always guarantee meeting this deadline and 
has, therefore, provided an extension provision in the rule, it is the 
Service's intention to process these permits as quickly as possible and 
not unreasonably impede a private mineral rights owner's right to 
access those minerals.
    33. Comment: One commenter recommended that the Service add a 
provision to the regulations that would provide a Categorical Exclusion 
under NEPA for permits issued under this subpart and additionally 
include a provision that compliance with the terms of the permit is 
``deemed to be not likely to adversely affect any species listed under 
the federal Endangered Species Act.''
    Service Response: The Service declines to adopt the commenter's 
recommendation because it is beyond the scope of this rulemaking and we 
do not currently have the record that we would need to demonstrate to 
the Council on Environmental Quality to establish a new categorical 
exclusion. As the Service gains experience in implementing the rule, we 
may find that it is appropriate to pursue adoption of a new categorical 
exclusion. Similarly, with respect to the inclusion in the rule of a 
provision regarding compliance with the Endangered Species Act (ESA), 
we are unable to accept the recommendation because such determinations 
must be made on a case-by-case basis in compliance with section 7 of 
the ESA (16 U.S.C. 1531 et seq.).

Information Requirements and Public Access to Information

    34. Comment: The Service received some comments that the proposed 
information requirements for permit applications (50 CFR 29.94-29.97) 
were extraordinarily extensive and unduly burdensome. These commenters 
believed that these sections, as well as Sec.  29.121(f), also 
unlawfully require the disclosure of confidential and/or proprietary 
information and requested that any provisions requiring the disclosure 
of such information be removed. These commenters also requested that 
the Service scale down information requirements to only the basic 
information needed for the Service to assess the location and type of 
operations that will be undertaken.
    Service Response: The Service carefully considered what information 
was necessary from operators so that the agency could properly 
administer non-Federal oil and gas activities on the NWRS and ensure 
that operators avoid or minimize impacts to refuge resources and uses. 
We analyzed each of the information requirements in compliance with the 
Regulatory Flexibility Act to ensure that the benefit of these 
information requirements to NWRS resources and uses were appropriate 
based on the administrative costs to the operator and the Service, and 
we concluded that all information requirements in the rule are 
appropriate. Furthermore, we understand that information requirements 
can be burdensome on operators, so in instances where the Service needs 
information gathered in compliance with other Federal or State laws 
under this rule, the Service does not require an

[[Page 79964]]

operator to duplicate that information but rather provide the Service 
copies (see, e.g., Sec. Sec.  29.61(d), 29.121(g)).
    35. Comment: Commenters suggested that the Service information 
requirements are inadequate because they do not require full disclosure 
of chemicals used for hydraulic fracturing prior to obtaining a permit. 
They questioned how the Service could do a full analysis of the 
environmental risks of a hydraulic fracturing operation if they did not 
have all of the information regarding chemical uses by the operator. 
Commenters also stated that proposed Sec.  29.210 would allow operators 
to avoid any obligations to disclose the identity of fracking chemicals 
used simply by submitting nothing more than an affidavit in support of 
their claim that the information is confidential and the Service would 
have no power to disclose the information to the public if the operator 
were to provide it.
    Service Response: While an operator will be able to provide an 
affidavit to support the protection of proprietary or confidential 
information, an operator still must provide the Service any information 
the agency needs to fully assess the environmental impacts of an 
operator's activities, including all chemical uses in the operation. 
Information requirements included under Sec.  29.95(p) include 
identification of contaminating or toxic substances used or expected to 
be encountered during operations, including material safety sheets. In 
the rule, the Service also used the ``including, but not limited to'' 
term in the list of information requirements to reserve the ability to 
require additional information (see Sec.  29.96) if necessary.
    The information requirements of Sec.  29.95(p) provide the Service 
with the necessary information upfront to sufficiently analyze the 
environmental risks of a hydraulic fracturing operation and to ensure 
that operators are following best management practices for storing and 
removing these chemicals. The post-operational chemical disclosure 
information that operators commonly provide via FracFocus is for the 
different purpose of identifying specific sources of contamination and 
responsible parties should contamination occur.
    36. Comment: One commenter requested the Service provide an easy 
way for the public to access information about proposed operations and 
report perceived violations, including the option for anonymity to 
encourage workers and others with sensitive positions to report 
problems.
    Service Response: The Service's approval of any proposed operations 
on the NWRS will be done in compliance with NEPA, and the Service will 
provide the public with information about proposed operations and the 
opportunity to participate as afforded by that Act. As for reporting 
perceived violations, contact information for each refuge is readily 
available and is the fastest and most efficient way of notifying the 
Refuge of any perceived violations. We encourage the public and workers 
to contact that refuge with any concerns they may have regarding 
perceived violations by these operators. Such information can be 
provided to the refuge anonymously through letters, phone calls, or any 
other means that will allow an individual to feel comfortable doing so.

Penalty and Enforcement Provisions

    37. Comment: The Service received several comments recommending 
that the final rule provide for robust enforcement of rule requirements 
and include specific penalties for non-compliance. For instance, 
commenters requested specific provisions regarding notifying and 
working with operators to bring them into immediate compliance; issuing 
formal written notices of non-compliance; specific penalties for non-
compliance; seeking civil penalties for failure to comply with a notice 
of non-compliance; and for more egregious cases, filing a civil action 
in Federal court seeking an injunction or restraining order to stop 
damaging operations. One commenter also suggested that the Service 
adopt NPS current regulations for approval of an operations permit (50 
CFR 9.37(a)) believing that the language contained in that section, if 
adopted by the Service, would provide the Service the ability to deny a 
permit if it is not protective enough of a refuge.
    Service Response: The Service considered these comments, but 
concluded that modifying our enforcement provisions as the commenter 
suggested is not warranted. In speaking with Refuge law enforcement, 
the Department of Justice, and the Solicitor's Office, the Service 
finds these provisions provide sufficient tools for the Service to 
ensure compliance with this subpart on penalty and enforcement. 
Administrative corrective actions are not normally contained within the 
prohibited acts sections of regulations. The Service would adopt the 
recommended progressive enforcement action suggested by the comment 
through Service policy.
    Furthermore, the rule provides the Service the ability to deny a 
permit if the operator does not meet several requirements (Sec.  
29.103). The Service finds that these requirements are both more 
specific and clearer than the language suggested by the commenter. 
These requirements have been carefully crafted to ensure that the 
Service's approval (or denial) process for an Operations Permit meets 
the objectives of the rulemaking to ensure operations avoid or minimize 
impacts to refuge resources and uses.
    38. Comment: Additionally, a commenter requested that the Service 
provide further clarity on how prohibited acts and penalties apply to 
pre-existing operations and recommended that violation of the 
informational requirements, modifications, reclamation, general terms 
and conditions, and other operational requirements in Sec. Sec.  29.60-
29.64 be added to prohibited acts and penalties for pre-existing 
operations at Sec.  29.190.
    Service Response: The Service agrees with the commenter that the 
proposed rule could have been clearer as to which provisions apply to 
pre-existing requirements or not and has revised the rule accordingly 
at Sec.  29.60 through Sec.  29.64 and Sec.  29.190. A violation by a 
pre-existing operator of informational requirements, modifications 
requirements, reclamation requirements, and applicable general terms 
and conditions is considered a prohibited act and subject to applicable 
penalties.

Appeals

    39. Comment: The Service received comments that the two-tiered 
appeals process proposed in the regulations is unreasonable and unduly 
burdensome. There should be a single, expedited administrative appeal 
available for challenges to actions taken by the Service under the 
proposed regulations. This administrative decision should be directly 
appealable in Federal court.
    Service Response: The appeals process outlined at Sec.  25.45 is 
the process by which the Service currently reviews all appeals of the 
Service's permit decisions for public uses on refuge lands. The Service 
will not provide a different appeals process under this subpart, 
because we find that the current process works well and that the 
changes requested would lead to less consistency and efficiency for the 
administration of permits by the Service. The two-tiered appeals 
process provides additional opportunities to resolve disagreements, 
while preserving opportunities for judicial review of final agency 
action under the Administrative Procedure Act. As to the other concern 
raised by the commenter, we revised Sec.  29.200 to clarify that the 
decision of

[[Page 79965]]

the Regional Director will constitute the Service's final agency 
action.
    Finally, in reviewing the appeals process under the proposed rule 
as it would relate to pre-existing operations, the Service realized 
that it needed to revise this section to provide an operator the 
opportunity to appeal decisions made by the Service that do not apply 
to a permit granted by the Service and so has added the following 
provision to Sec.  29.200: ``The process set forth in Sec.  25.45 is to 
be used for any written decision concerning approval, denial, or 
modification of an operation made by the Service under this subpart.''

Access

    40. Comment: The Service received comments requesting the final 
rule contain a provision stating that the Service cannot place 
conditions on operations in a permit that only allows an operator to 
access and traverse Federal lands (i.e., in order to access operations 
on non-Federal lands).
    Service Response: In administering access across Federal lands, the 
Service is required by law to analyze the impacts of authorizing that 
access under NEPA. Through that analysis, the Service may find impacts 
to refuge resources and uses resulting from operations on non-Federal 
land resulting from the authorization of that access. In those cases, 
the Service will work with those requesting access across Federal lands 
to minimize or avoid those impacts, and, if agreeable to both the 
Service and the operator, those avoidance or mitigation measures may be 
included in the access permit. However, as stated in the proposed rule 
and maintained in the rule, the Service has made clear that we are 
permitting the access and not regulating the operations on non-Federal 
land. Accordingly, no change in the regulatory text is required.

Fees

    41. Comment: Some commenters suggested that the Service ensure that 
they are assessing the appropriate and/or additional fees of operators 
in order to ensure that the Service has adequate funding to administer 
these operations. Additionally, the Service received comments stating 
that the agency should have full authority to charge fees to cover 
annual inspections as well as any more frequent inspections needed 
during construction and pre-production activities, as well as for 
repeat violators or higher risk operations. Commenters recommended that 
the Service replace ``may'' with ``will'' at Sec.  29.120(c), not 
understanding why the Service would not charge for the costs of 
processing and administering temporary access permits and operations 
permits, particularly in an era of limited agency budgets. Other 
commenters stated that fees cannot be required for access or 
administering operating permits that are already within the scope of 
the operator's oil and gas right or other right provided by law and 
that there should be no fees for emergency access. Additionally, they 
stated that if an access fee can be applied, then it must be reasonable 
and cannot burden the underlying oil and gas right or otherwise 
diminish the value of the mineral estate.
    Service Response: After considering these comments, the Service did 
not revise the rule with respect to fees charged by the Service for 
either access or administering operations permits. Related to access 
fees, the Service is not charging for access that is pursuant to a 
deeded or statutory right to use the refuge-administered lands without 
payment, but only for access that is granted as a privilege ``outside 
the scope of an operator's oil and gas right'' for which the fees are 
subject to the provisions of the Refuge Revenue Sharing Act (16 U.S.C. 
715s). Such access is a special benefit that warrants a user charge 
commensurate with fees and charges for similar privileges and products 
made by private land owners in the vicinity or in accordance with local 
value (see 50 CFR 29.5). In terms of recovery costs of permit 
administration and operations monitoring allowed under Sec.  29.120(c), 
the Service uses ``may'' instead of ``will'' to provide flexibility to 
refuge managers and foster cooperation with operators. In some 
instances, operators may choose to share the costs with the Service in 
administering permits in order to expedite the process. For example, an 
operator may provide funding for a third-party contractor to prepare an 
environmental assessment for the Service during the permitting process. 
Periodic and annual inspections are aspects of administering a permit, 
and charging fees for such activities fall under that section. With 
flexibility in charging fees, operators and refuge managers may develop 
a mix of self-reporting and refuge monitoring that reduces 
administrative requirements on both parties.

Implementation

    42. Comment: The Service got one comment suggesting that the 
Service have refuge-specific management plans.
    Service Response: The Service appreciated this comment and will 
further consider it in implementing the rule. The Service already has 
developed refuge-specific oil and gas management plans through 
Comprehensive Conservation Plans, Habitat Management Plans, or other 
planning documents created to manage specific refuges. On refuges where 
there is the potential of oil and gas development, they include 
management strategies for these operations. The Service will continue 
to develop and update these plans as necessary to ensure they are 
consistent with this rule.
    43. Comment: Several commenters from industry and non-governmental 
organizations expressed concern that the Service does not have adequate 
staffing to properly implement the rule. In particular, some commenters 
expressed the need to ensure that, along with this rule, the Service 
has the necessary level of funding, staffing, and training to properly 
implement the rule, as highlighted by the 2007 Government 
Accountability Office (GAO) report that assessed the status of oil and 
gas operations on the National Wildlife Refuge System in 2007. Their 
report highlighted the inadequacy of the Service's current regulations 
and, in part, led to the promulgation of these proposed revisions. The 
GAO stated that ``[w]e recommend[ ] that FWS determine the level of 
staffing necessary to adequately oversee oil and gas operations and 
seek the necessary funding to meet those needs through appropriations, 
the authority to assess fees, or other means.'' The report further 
stated, ``we recommend that FWS ensure that staff are adequately 
trained to oversee oil and gas activities'' (GAO-07-829R). One comment 
requested the Service scale back the rule based on its limited 
resources. Another comment suggested that this rule may require 
assessing additional fees on operations, periodically ensuring that 
fees are adequate to cover the costs of monitoring and enforcement.
    Service Response: In crafting the proposed and final rules, the 
Service carefully considered the administrative burden the rule placed 
on operators and Service staff and on the resources required by the 
Service to successfully implement the rule. Therefore, the Service has 
weighed the cost of administration versus the resource benefits gained 
from regulation and decided on several occasions that were discussed in 
the responses to several comments above that the cost-benefit analysis 
did not support a more stringent regulatory regime. As promulgated, the 
rule prioritizes and regulates those activities with the largest 
potential impacts on refuge resources and uses. As discussed above, 
this is

[[Page 79966]]

one of the main reasons the Service for the most part has declined to 
regulate downhole activities associated with operations and to exempt 
inholdings and non-Federal adjacent lands from the rule.
    The Service currently has dedicated staff that manages oil and gas 
development on National Wildlife Refuge System lands. This rule brings 
more consistency and guidance to staff already dedicated to these 
issues. While there are additional responsibilities involved in 
processing operations permit applications and monitoring operations, 
the Service has determined this increase in need can be effectively met 
with the reallocation of refuge staff and resources. Additionally, the 
rule contains cost recovery or cost-sharing provisions that help ensure 
the Service has the necessary resources to implement the rule 
effectively and efficiently.

Section-by-Section Recommendations

    The Service received several other recommendations on specific 
section revisions to the proposed rule. The Service has considered all 
of these recommendations and has made changes, as appropriate, to 
provisions of the rule as discussed below and/or outlined in the table 
in the section Changes from the Proposed Rule.
    44. Comment: The Service received comments requesting that the 
definition of ``access'' (proposed Sec.  29.50) be revised so that 
``access'' does not include use of an aircraft when the aircraft 
doesn't take off of or land on Service-administered lands or waters. On 
the other hand, the Service received other comments recommending that 
the Service carry over the definition of ``access'' to the final rule, 
at least subjecting aircrafts landing on non-Federal lands to timing 
limitations to avoid disturbing wildlife.
    Service Response: The Service has considered these comments and has 
revised Sec.  29.50 to clarify that access does not include aircrafts 
that both take off from and land on inholdings or non-Federal adjacent 
lands, because the Service does not have the authority to condition 
aircraft landings outside of the NWRS.
    45. Comment: The Service received a comment asking that the Service 
further clarify the process for authorizing use of water outside of a 
State right and that it should be done in line with a compatibility 
determination.
    Service Response: The Service has concluded that determining 
sources of water for use in operations is best evaluated using the 
procedures and performance standards of the rule. Absent a 
demonstration by the operator that they have a right to use the water 
(e.g., State-held water right, specific deed language), water use, 
transportation, and storage on a refuge would be evaluated for the 
technologically feasible, least damaging method. Considerations would 
include, among other things, the volume of water needed, capacity of 
water sources to meet those needs and resulting consequences on aquatic 
resources, and transportation and storage methods.
    46. Comment: The Service received a comment suggesting the 
definition for ``usable water'' includes water for wildlife purposes so 
that shallow-water aquifers, seeps, and springs will be protected for 
wildlife on the NWRS.
    Service Response: The definition for usable water does not need to 
be changed in the rule in order for the Service to protect water for 
wildlife purposes. The rule includes hydrologic standards (Sec.  
29.113) and fish and wildlife protection standards (Sec.  29.112), as 
well as other standards, that serve to maintain water quality and 
quantity for use by wildlife. The term ``usable water'' is a specific 
term and definition that has been developed and used by other Federal 
agencies (i.e., the Environmental Protection Agency (EPA) and BLM) to 
ensure protection of specific resources that may be impacted by oil and 
gas operations or other activities. So the Service did not revise this 
definition.
    47. Comment: The Service received a comment requesting that the 
Service remove fuel drums, pipes, oil, contaminated soil, etc., with 
any residue of oil or hazardous chemicals from the definition of 
``waste,'' because they include ``contaminating substances'' and should 
be defined and treated as such.
    Service Response: The Service intends that these terms are not 
mutually exclusive, and something may be both ``waste'' and a 
``contaminating substance.'' An operator must comply with the 
applicable rule requirements for dealing with each.
    48. Comment: We received comments requesting that the Service 
increase the distance an operator is required to place operations away 
from surface waters from 500 feet to 2 miles based on BLM's 
determination that ``surface and groundwater contamination, due to oil 
and gas development . . . occurred between 1,000 to 1,800 feet from . . 
. drilling'' in Colorado (BLM Grand Junction Resource Management Plan 
FEIS at 6[hyphen]271).
    Service Response: The Service is aware of this BLM finding, but has 
concluded that a revision of the rule is not necessary to protect 
surface and groundwater resources from contamination. The establishment 
of setbacks of operations from sensitive resources such as surface 
waters or wetlands is based on common knowledge that providing time and 
space to react to incidents such as spills or poor operating practices 
is key to minimizing risks. However, there is no single setback 
distance that is appropriate for all conditions of proposed activities 
and environmental conditions. Environmental conditions may provide 
natural or human-made barriers that would justify a reduced setback. On 
the other hand, site conditions such as steep slopes or annually high 
precipitation can enhance pathways between the activity and resource, 
and thus justify greater setbacks.
    Regulatory establishment of a ``good offset'' that considers both 
the activities and the average environmental conditions provides a 
beginning point for site location considerations. Additionally, having 
a regulatory process for adjusting site-specific setbacks--either lower 
or higher--based on project and environmental conditions is the key to 
successful use of setbacks. Through the Service's own analysis in the 
associated EIS, we continue to believe that 500 feet provides the 
necessary time and space in the majority of circumstances. However, the 
rule (Sec.  29.113) appropriately gives the ability to the Service to 
require an even greater setback if conditions, such as those 
highlighted by the comment, would justify a greater setback distance. 
We also recognize that exceptions to the setback are sometimes 
essential to balancing overall impacts of an operation. A prime example 
occurs in coastal environments where the practice of locating drilling 
operations in open water has been demonstrated to be least damaging by 
avoiding the impacts of cutting and dredging drilling slips and canals 
into sensitive marshland. Therefore, the Service believes that 
flexibility in this standard is appropriate and gives the Service the 
ability not only to ensure the least damaging methods to refuge 
resources and uses, but also to ensure that an operator has reasonable 
access to their minerals based on a case-by-case determination.
    49. Comment: The Service received comments recommending that we 
include provisions in the final rule that require an operator to 
collect additional information, such as water and soil samples and 
wildlife surveys, prior to beginning operations.

[[Page 79967]]

    Service Response: In response to these comments, it is our 
intention that reconnaissance surveys will be used to collect this type 
of information and any other necessary natural and cultural resource 
conditions the Service deems necessary to ensure protection of refuge 
resources and uses. We acknowledged above that proposed Sec.  29.94 was 
not clear, and we have revised the rule to clarify that reconnaissance 
surveys will be used to collect this type of baseline information.
    50. Comment: The Service received comments stating that the Service 
does not have the authority to require mitigation for impacts by 
mandating that operators provide for ``habitat creation, habitat 
restoration, land purchase, or other compensation'' and recommending 
that proposed Sec.  29.120(g) be eliminated from the regulations as it 
amounts to an access fee that unreasonably and unlawfully restricts 
access to mineral rights.
    Service Response: After considering these comments, the Service has 
revised proposed Sec.  29.120(g), redesignated as Sec.  29.120(f) in 
the final rule, to clarify that mitigation tools must be mutually 
agreed upon by the Service and the operator. The Service believes this 
provision is within the scope of the Service's authority under the 
NWRSAA to protect refuge resources and uses, and may in some 
circumstances be appropriately used by an operator to offset impacts to 
refuge resources and lost use.
    51. Comment: The Service received comments recommending that the 
Service expand the monitoring and reporting requirements. For instance, 
some commenters recommended that the Service decrease the reporting 
time from 90 days to 30 days and include explanations of what happened, 
why it happened, who was involved, the results, and how the company 
intends to prevent similar incidents in the future.
    Service Response: The Service finds that these recommendations are 
not warranted. This provision in the rule is intended to provide the 
Service with information about occurrences on the NWRS. Due to the 
nature of accident investigations and the time it may take to get the 
official report, we concluded that 90 days is an appropriate timeframe. 
There are also existing State and Federal laws governing various 
accident occurrences, and we have determined that additional regulatory 
provisions are not needed at this time to better enable the Service to 
protect Refuge resources and uses.

Changes From the Proposed Rule

    After taking the public comments into consideration and after 
additional review, the Service made the following substantive changes 
in the rule:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Sec.   29.40..........................  Revised to clarify the scope of
                                         this rule as related to Alaska
                                         inholdings and waters within
                                         NWRS boundaries.
Sec.   29.41..........................  Revised to clarify that this
                                         rule does not apply to
                                         operations in Alaska.
Sec.   29.42..........................  Revised to remove provisions
                                         related to operations in
                                         Alaska.
Sec.   29.43..........................  Revised to clarify which
                                         provisions of the rule apply to
                                         existing operators with a
                                         Service-issued permit and to
                                         clarify requirements in regards
                                         to plugging and reclamation.
Sec.   29.44..........................  Revised to clarify requirements
                                         for pre-existing operators in
                                         regard to plugging and
                                         reclamation. Also, replaced
                                         ``operation'' with ``operator''
                                         to clarify that exemption from
                                         a permit requirement applies to
                                         a pre-existing operator, not
                                         the operation.
Sec.   29.50..........................  Revised to: (1) clarify that
                                         access does not include
                                         aircrafts that both take off
                                         from and land on inholdings or
                                         non-Federal adjacent lands; (2)
                                         clarify that the term ``area of
                                         operations'' can include pre-
                                         existing, proposed, and
                                         approved areas; (3) clarify
                                         that ``modifying'' applies to a
                                         changes in existing operations;
                                         (4) remove the definition of
                                         right-of-way (ROW) permits as
                                         it was only applicable to
                                         operations in Alaska.
Sec.   29.61..........................  Revised to require additional
                                         information from pre-existing
                                         operators, including a brief
                                         description of the current
                                         operations and any anticipated
                                         changes to the current
                                         operations; and documentation
                                         of the current operating
                                         methods, surface equipment, and
                                         materials produced or used.
Sec.   29.62..........................  Revised to clarify that the
                                         requirement to obtain an
                                         operations permit for a new
                                         operation or a modification
                                         will be limited to that new
                                         operation or modification, not
                                         the entire existing operation.
Sec.   29.63..........................  Revised to clarify that pre-
                                         existing operators must plug
                                         and reclaim their operations in
                                         compliance with this rule.
Sec.   29.64..........................  Revised to clarify which
                                         additional provisions of the
                                         rule would apply to the various
                                         classes of operations.
Sec.   29.70..........................  Removed language regarding
                                         operations in Alaska.
Sec.   29.90..........................  Removed language regarding
                                         operations in Alaska.
Sec.   29.92..........................  Revised to clarify that if an
                                         operator is using previously
                                         submitted information, they
                                         should reference it in the
                                         permit application.
Sec.   29.94..........................  Revised to remove language
                                         regarding an unnecessary ROW
                                         form; also revised to clarify
                                         the Service's authority to
                                         require an operator to collect
                                         certain natural and cultural
                                         resource information if
                                         necessary and other minor
                                         changes to and deletions of
                                         unnecessary language for
                                         clarity.
Sec.   29.101.........................  Removed language regarding
                                         operations in Alaska.
Sec.   29.111.........................  Revised to remove ambiguous and
                                         repetitive language and be
                                         consistent with the NPS 9B
                                         regulations; also added
                                         paragraph (h) related to
                                         operation setbacks from surface
                                         water locations previously
                                         found in the hydrological
                                         standards section.
Sec.   29.112.........................  Revised to clarify our standards
                                         for protecting wildlife.
Sec.   29.113(a)......................  Combined the provision related
                                         to operation setbacks from
                                         surface water locations with
                                         the general facility design and
                                         management standard for
                                         setbacks from refuge structures
                                         or facilities in Sec.
                                         29.111(h).
Sec.   29.117(d)(5)...................  Revised to clarify the objective
                                         of grading requirements during
                                         reclamation.
Sec.   29.118.........................  Deleted provisions related to
                                         geophysical operations in
                                         Alaska; and revised paragraph
                                         (d)(3) to clarify that an
                                         operator must not leave a site
                                         in a condition that poses
                                         hazards to wildlife.
Sec.   29.119(b)(5)...................  Revised to clarify that an
                                         operator must not leave a site
                                         in a condition that poses
                                         hazards to wildlife.
Sec.   29.120(d)......................  Revised to clarify that any use
                                         of Federal water on the NWRS
                                         absent a demonstrated right
                                         must be approved by the Service
                                         as the technologically
                                         feasible, least damaging
                                         method.
Sec.   29.120(e)......................  Moved to Sec.   29.103(b)(3) to
                                         clarify that providing a
                                         statement under penalty of
                                         perjury that an operator is in
                                         compliance with applicable
                                         State and Federal laws is part
                                         of the permit approval process.
Sec.   29.120(g)......................  Revised to clarify that
                                         mitigation must be mutually
                                         agreed upon and that it may be
                                         required to offset impacts to
                                         refuge resources or lost uses.
                                         Redesignated as Sec.
                                         29.120(f).
Sec.   29.121(e)......................  Revised to clarify that an
                                         operator would need to provide
                                         the Service with information
                                         only to the extent necessary to
                                         demonstrate compliance with a
                                         Service-issued permit.
Sec.   29.140.........................  Removed language regarding
                                         operations in Alaska.
Sec.   29.141.........................  Removed (c) as the Service does
                                         not currently have the
                                         authority to accept in-kind
                                         services to offset fees.

[[Page 79968]]

 
Sec.   29.151.........................  Revised to clarify that operator
                                         is responsible for reclaiming
                                         any disturbances inside or
                                         outside of their area of
                                         operation and that an operator
                                         is liable for the full cost of
                                         reclamation.
Sec.   29.160.........................  Revised to clarify that an
                                         operator will be given a chance
                                         to respond to the Service's
                                         notice of a proposed
                                         modification to their
                                         operations.
Sec.   29.171.........................  Revised to include the
                                         requirement that, when a pre-
                                         existing operator transfers
                                         operations, the new operator
                                         must obtain an Operations
                                         Permit from the Service. Also
                                         revised to allow continuity of
                                         operations while they file the
                                         permit application.
Sec.   29.180.........................  Revised to clarify that this
                                         section applies to any Service-
                                         issued permit (i.e., existing
                                         operators under a Service-
                                         issued permit) not just an
                                         Operations Permit granted under
                                         this rule for new operations;
                                         and revised language from
                                         ``continuously inactive for a
                                         period of 1 year'' to ``has no
                                         measurable production
                                         quantities for 12 consecutive
                                         months'' to provide further
                                         clarity on when an operator
                                         must plug a well.
Sec.   29.190.........................  Deleted provisions related to
                                         operations in Alaska.
Sec.   29.190(e)......................  Revised to separate violations
                                         of Federal and State law into
                                         two different prohibited acts,
                                         (e) and (f), and to make
                                         wording consistent with other
                                         Service regulations.
Sec.   29.192.........................  Revised to clarify that a
                                         violation will not affect your
                                         ability to get a permit for
                                         plugging and reclamation.
Sec.   29.200.........................  Revised to clarify that an
                                         operator must administratively
                                         appeal under Sec.   25.45
                                         before going to Federal court.
                                         Also, revised to clarify that
                                         this process would be used to
                                         appeal all written decisions
                                         made under this subpart, not
                                         just those made under a permit.
                                         Finally, removed language
                                         regarding operations in Alaska.
Sec.   29.210(g)......................  Revised to clarify that for
                                         information provided under both
                                         Sec.   29.210(d) and Sec.
                                         29.210(e), after reviewing an
                                         operator's affidavit or a third
                                         party's affidavit claiming
                                         exemption from public
                                         disclosure, the Service may
                                         find that information is not
                                         exempt from public disclosure
                                         and make that information
                                         available 10 business days
                                         after providing notice.
------------------------------------------------------------------------

Compliance With Other Laws, Executive Orders, and Department Policies

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is 
significant, because it may raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in the executive order.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. This rule is consistent 
with these requirements.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the RFA to require Federal agencies to provide a statement of the 
factual basis for certifying that the rule will not have a significant 
economic impact on a substantial number of small entities.
    We certify that this rule would not have a significant economic 
effect on a substantial number of small entities under the RFA (5 
U.S.C. 601 et seq.). This certification is based on the cost-benefit 
and regulatory flexibility analysis found in the report entitled Non-
Federal Oil and Gas Rulemaking Economic Analysis, which can be viewed 
at https://www.fws.gov/refuges/oil-and-gas/rulemaking.html, by clicking 
on the link entitled Non-Federal Oil and Gas Rulemaking Economic 
Analysis or at www.regulations.gov in Docket No. FWS-HQ-NWRS-2012-0086.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2). This rule:
    (a) Would not have an annual effect on the economy of $100 million 
or more;
    (b) Would not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions; and
    (c) Would not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
    These conclusions are based on the cost-benefit and regulatory 
flexibility analysis found in the report entitled Non-Federal Oil and 
Gas Rulemaking Economic Analysis, which can be viewed at https://www.fws.gov/refuges/oil-and-gas/rulemaking.html, by clicking on the 
link entitled Non-Federal Oil and Gas Rulemaking Economic Analysis or 
at www.regulations.gov in Docket No. FWS-HQ-NWRS-2012-0086.

Unfunded Mandates Reform Act (UMRA)

    This rule would not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule would not have a significant or unique effect on State, 
local, or tribal governments or the private sector. It addresses use of 
refuge lands, and would impose no requirements on other agencies or 
governments. A statement containing the information required by the 
UMRA (2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    This rule is not intended to result in the taking of private 
property or otherwise have takings implications under Executive Order 
12630. The provisions of this rule would afford access to operators 
exercising non-Federal mineral rights under reasonable regulation. No 
other private property is affected. A takings implication assessment is 
not required.

Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, the rule 
does not have sufficient Federalism

[[Page 79969]]

implications to warrant the preparation of a federalism summary impact 
statement. It addresses use of refuge lands, and would impose no 
requirements on other agencies or governments. A federalism summary 
impact statement is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (Executive Order 13175 and Department 
Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self-governance and tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Indian tribes, but we offered 
consultation under the Department's tribal consultation policy with all 
interested tribes. On January 25, 2016, during the public comment 
period, we consulted with Doyon Limited, an Alaska Native Corporation, 
at their request.

Paperwork Reduction Act of 1995 (PRA)

    This rule contains a collection of information that we have 
submitted to OMB for approval under the PRA (44 U.S.C. 3501 et seq.). 
We may not conduct or sponsor and you are not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.
    As part of our continuing efforts to reduce paperwork and 
respondent burdens, we invited the public and other Federal agencies to 
comment on any aspect of the reporting burden associated with this 
information collection. While we received no comments that were 
specific to the information collection portion of the rule, we did 
receive several comments that relate to the information collection 
portion of the rule. These comments and our responses can be found in 
Information Requirements and Public Access to Information in the 
Summary of and Response to Public Comments portion of the preamble. We 
made no changes to the information collection portion of the rule based 
on these comments. However, we have made two changes to the rule that 
impact information collection.
    The first change expands the information an operator of pre-
existing wells is required to submit to the refuge manager. In addition 
to requiring operators of pre-existing wells to submit right-to-operate 
documentation, company contact information, a plat of existing area of 
operations, and copies of plans and permits required by local, State, 
and Federal agencies, operators must also submit to the Service: A 
brief description of the current operations and any anticipated changes 
to the current operations; as well as documentation of the current 
operating methods, surface equipment, and materials produced or used. 
These new information collection requirements are, as follows: Pre-
existing Operations (Sec.  29.61). Within 90 days after the effective 
date of these regulations, or after a boundary change or establishment 
of a new refuge, pre-existing operators without a Service-issued permit 
must submit:
     Documentation of the right to operate within the refuge.
     Contact information (names, phone numbers, and addresses) 
of the primary company representative; the representative responsible 
for field supervision; and the representative responsible for emergency 
response.
     A brief description of the current operations, and any 
anticipated changes to the current operations.
     Scaled map clearly delineating the existing area of 
operations.
     Documentation of the current operating methods, surface 
equipment, materials produced or used, and monitoring methods.
     Copies of all plans and permits required by local, State, 
and Federal agencies.
    The second change to the final rule that impacts information 
collection is that if an operator transfers their operations to another 
operator this results in the loss of pre-existing status for that 
operation, and the new operator will need to obtain an Operations 
Permit. As a result, this operator must provide all applicable 
information required by this rule for obtaining an Operations Permit. 
These new information collection requirements are as follows:

Change of Operator (Sec.  29.171)

    Section 29.171(a). When operations conducted under Sec.  29.44 are 
transferred, the transferee must apply for an operations permit and 
include the information requested in FWS Form 3-2469 within 90 days of 
the transfer. The new operator may continue operating, but must provide 
to the Service within 30 calendar days from the date of the transfer:
     Documentation demonstrating that the operator holds the 
right to operate within the refuge.
     Names, phone numbers, and addresses of the primary company 
representative, the representative responsible for field supervision, 
and the representative responsible for emergency response.
    Section 29.171(b). If operations conducted under Sec.  29.43 or an 
operations permit are transferred, the transferee must provide the 
following within 30 days of commencing operations:
     Right-to-operate and contact information required under 
Sec.  29.171(a).
     Written agreement to conduct operations in accordance with 
all terms and conditions of the previous operator's permit.
     Financial assurance that is acceptable to the Service and 
made payable to the Service.
    For further information on these changes, see the ``Response to 
Comments'' section.
    Below is a summary of the information collection associated with 
non-Federal oil and gas operations on National Wildlife Refuge System 
lands. Operators do not need to resubmit information that is already on 
file with the Service, provided the information is still current and 
accurate. Documents and materials submitted to other Federal and State 
agencies may be submitted, if they meet the specific requirements of 
the Service.
    OMB Control No: 1018-0162.
    Title: Management of Non-Federal Oil and Gas Rights on National 
Wildlife Refuge System Lands, 50 CFR part 29, subpart D.
    Service Form Number(s): 3-2469.
    Description of Respondents: Businesses that conduct oil and gas 
exploration on national wildlife refuges.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.
    Total Annual Nonhour Cost Burden: None.

[[Page 79970]]



----------------------------------------------------------------------------------------------------------------
                                                                     Estimated      Completion
                                                                     number of       time per        Estimated
                      Activity/requirement                            annual         response      total annual
                                                                     responses        (hours)      burden hours
----------------------------------------------------------------------------------------------------------------
Preexisting Operations (Sec.   29.61)...........................              40              50           2,000
Temporary Access Permit Application (Sec.   29.71)..............              35              17             595
Accessing Oil and Gas Rights from Non-Federal Surface Location                 5               1               5
 (Sec.   29.80).................................................
Pre-application Meeting for Operations Permit (Sec.   29.91)....              45               2              90
Operations Permit Application (Sec.  Sec.   29.94-29.97)........              45             140           6,300
Financial Assurance (Sec.  Sec.   29.103(b), 29.150)............              45               1              45
Identification of Wells and Related Facilities (Sec.                          45               2              90
 29.119(b)).....................................................
Reporting (Sec.   29.121):
    Third-Party Monitor Report (Sec.   29.121(b))...............             300              17           5,100
    Notification--Injuries/Mortality to Fish and Wildlife and                 20               1              20
     Threatened/Endangered Plants (Sec.   29.121(c))............
    Notification--Accidents involving Serious Injuries/Death and              20               1              20
     Fires/Spills (Sec.   29.121(d))............................
    Written Report--Accidents Involving Serious Injuries/Deaths               20              16             320
     and Fires/Spills (Sec.   29.121(d))........................
    Report--Verify Compliance with Permits (Sec.   29.121(e))...             240               4             960
    Notification--Chemical Disclosure of Hydraulic Fracturing                  5               1               5
     Fluids uploaded to FracFocus (Sec.   29.121(f))............
    Permit Modifications (Sec.   29.160(a)).....................              10              16             160
Change of Operator:
    Transferring Operator Notification (Sec.   29.170)..........              20               8             160
    Acquiring Operator's Requirements for Wells Not Under a                   19              40             760
     Service Permit (Sec.   29.171(a))..........................
    Acquiring Operator's Acceptance of an Existing Permit (Sec.                1               8               8
      29.171(b))................................................
Extension to Well Plugging (Sec.   29.181(a)):
    Application for Permit......................................              10             140           1,400
    Modification................................................               5              16              80
Public Information (Sec.   29.210):
    Affidavit in Support of Claim of Confidentiality (Sec.                     1               1               1
     29.210(c) and (d)).........................................
    Confidential Information (Sec.   29.210(e) and (f)).........               1               1               1
    Maintenance of Confidential Information (Sec.   29.210(h))..               1               1               1
    Generic Chemical Name Disclosure (Sec.   29.210(i)).........               1               1               1
                                                                 -----------------------------------------------
        Total...................................................             934  ..............          18,122
----------------------------------------------------------------------------------------------------------------

National Environmental Policy Act (NEPA)

    This rule constitutes a major Federal action with the potential to 
significantly affect the quality of the human environment. We have 
prepared the final environmental impact statement (FEIS) under the 
requirements of the NEPA of 1969 (42 U.S.C. 4321 et seq.). The FEIS is 
available at https://www.fws.gov/refuges/oil-and-gas/rulemaking.html, by 
clicking on the link entitled ``Non-Federal Oil and Gas FEIS'' and at 
www.regulations.gov at Docket No. FWS-HQ-NWRS-2012-0086.
    In addition, EPA published a notice announcing the final EIS, as 
required under section 309 of the Clean Air Act (42 U.S.C. 7401 et 
seq.), on August 19, 2016, at 81 FR 55456. The EPA is charged under 
section 309 of the Clean Air Act to review all Federal agencies' 
environmental impact statements (EISs) and to comment on the adequacy 
and the acceptability of the environmental impacts of proposed actions 
in the EISs. On February 9, 2016, the Service received a ``no 
objection'' finding from the EPA that concluded that the draft EIS did 
not identify any potential environmental impacts requiring substantive 
changes to the proposal. Elsewhere in today's Federal Register is a 
notice announcing the availability of the record of decision.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A statement of Energy Effects is not 
required.

Drafting Information

    This final rule reflects the collective efforts of Service staff in 
the NWRS, Division of Natural Resource and Conservation Planning, 
Branch of Wildlife Resources, refuges, and field offices, with 
assistance from the Department of the Interior, Office of the 
Solicitor.

List of Subjects

50 CFR Part 28

    Law enforcement, Penalties, Wildlife refuges.

50 CFR Part 29

    Oil and gas exploration, Public lands--mineral resources, Public 
lands--rights-of-way, Reporting and recordkeeping requirements, 
Wildlife refuges.

Final Regulation Promulgation

    In consideration of the foregoing, the Service amends 50 CFR parts 
28 and 29 as follows:

PART 28--ENFORCEMENT, PENALTY, AND PROCEDURAL REQUIREMENTS FOR 
VIOLATIONS OF SUBCHAPTER C

0
1. The authority citation for part 28 is revised to read as follows:

    Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, 685, 690d, 
715i, 725; 43 U.S.C. 315a.


0
2. Revise the heading of part 28 to read as set forth above.


0
3. Revise Sec.  28.11 to read as follows:


Sec.  28.11  Purpose of regulations.

    The regulations in this part govern enforcement, penalty, and 
procedural requirements for violations of subchapter C of this chapter.

PART 29--LAND USE MANAGEMENT

0
4. The authority citation for part 29 is revised to read as follows:

    Authority: 5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, 685, 690d, 
715i, 725, 3161; 30 U.S.C. 185; 31 U.S.C. 3711, 9701; 40 U.S.C. 319; 
43 U.S.C. 315a; 113 Stat. 1501A-140.

[[Page 79971]]

Subpart C--Mineral Operations

0
5. Revise Sec.  29.32 to read as follows:


Sec.  29.32  Non-Federal mineral rights.

    (a) Non-Federal mineral rights owners within the National Wildlife 
Refuge System, not including coordination areas, must, to the greatest 
extent practicable, conduct all exploration, development, and 
production operations in such a manner as to prevent damage, erosion, 
pollution, or contamination to Service-administered lands, waters, 
facilities, and to wildlife thereon. So far as is practicable, such 
operations must also be conducted without interference to the operation 
of the refuge and disturbance to the wildlife thereon.
    (1) Physical occupancy must be kept to the minimum space necessary 
to conduct efficient mineral operations.
    (2) Persons conducting mineral operations on Service-administered 
lands and waters must comply with all applicable Federal and State laws 
and regulations for the protection of wildlife and the administration 
of the area.
    (3) All waste and contaminating substances must be kept in the 
smallest practicable area, confined so as to prevent escape as a result 
of rains and high water or otherwise, and removed from Service-
administered lands and waters as quickly as practicable in such a 
manner as to prevent contamination, pollution, damage, or injury to 
Service-administered lands, waters, or facilities, or to wildlife 
thereon.
    (4) Structures and equipment must be removed when the need for them 
has ended, and, upon the cessation of operations, the habitat in the 
area of operations must be restored to the extent possible to pre-
operation conditions.
    (b) Nothing in this section will be applied so as to contravene or 
nullify rights vested in holders of mineral interests on refuge lands.

0
6. Add subpart D to read as set forth below:
Subpart D--Management of Non-Federal Oil and Gas Rights

Purpose and Scope

Sec.
29.40 What are the purpose and scope of the regulations in this 
subpart?
29.41 When does this subpart apply to me?
29.42 What authorization do I need to conduct operations?
29.43 If I am already operating under Service authorization, what do 
I need to do?
29.44 If I am operating without prior Service authorization, what do 
I need to do?

Definitions

29.50 What do the terms used in this subpart mean?

Pre-Existing Operations

29.60 Do I need an operations permit for my pre-existing operation?
29.61 What information must I provide to the Service?
29.62 What if I intend to conduct new operations or modify my pre-
existing operations?
29.63 What plugging and reclamation requirements apply to my pre-
existing operations?
29.64 What other provisions apply to my operations?

Temporary Access Permits

29.70 When do I need a temporary access permit?
29.71 How do I apply for a temporary access permit?
29.72 When will the Service grant a temporary access permit?
29.73 How much time will I have to conduct my reconnaissance 
surveys?

Accessing Oil and Gas Rights From a Non-Federal Surface Location

29.80 Do I need a permit for accessing oil and gas rights from a 
non-Federal location?

Operations Permit: Application

29.90 Who must apply for an operations permit?
29.91 What should I do before filing an application?
29.92 May I use previously submitted information?
29.93 Do I need to submit information for all possible future 
operations?
29.94 What information must be included in all applications?
29.95 What additional information must be included if I am proposing 
geophysical exploration?
29.96 What additional information must be included if I am proposing 
drilling operations?
29.97 What additional information must be included if I am proposing 
production operations?

Operations Permit: Application Review and Approval

29.100 How will the Service process my application?
29.101 How will the Service conduct an initial review?
29.102 How will the Service conduct a formal review?
29.103 What standards must be met to approve my application?
29.104 What actions may the Service take on my operations permit 
application?

Operating Standards

29.110 What are the purposes of the Service's operating standards?
29.111 What general facility design and management standards must I 
meet?
29.112 What fish and wildlife protection standards must I meet?
29.113 What hydrologic standards must I meet?
29.114 What safety standards must I meet?
29.115 What lighting and visual standards must I meet?
29.116 What noise reduction standards must I meet?
29.117 What reclamation and protection standards must I meet?
29.118 What additional operating standards apply to geophysical 
operations?
29.119 What additional operating standards apply to drilling and 
production operations?

General Terms and Conditions

29.120 What terms and conditions apply to all operators?
29.121 What monitoring and reporting is required for all operators?
29.122 For how long is my operations permit valid?

Access Fees

29.140 May I cross Federal property to reach the boundary of my oil 
and gas right?
29.141 Will the Service charge me a fee for access?
29.142 Will I be charged a fee for emergency access to my 
operations?

Financial Assurance

29.150 When do I have to provide financial assurance to the Service?
29.151 How does the Service establish the amount of financial 
assurance?
29.152 Will the Service adjust the amount required for my financial 
assurance?
29.153 When will the Service release my financial assurance?
29.154 Under what circumstances will I forfeit my financial 
assurance?

Modification to an Operation

29.160 Can I modify operations under an approved permit?

Change of Operator

29.170 What are my responsibilities if I transfer my right to 
operate?
29.171 What must I do if operations are transferred to me?

Well Plugging

29.180 When must I plug my well?
29.181 Can I get an extension to the well plugging requirement?

Prohibited Acts and Penalties

29.190 What acts are prohibited under this subpart?
29.191 What enforcement actions can the Service take?
29.192 How do violations affect my ability to obtain a permit?

Appeals

29.200 Can I, as operator, appeal Service decisions?

Public Information

29.210 How can the public learn about oil and gas activities on 
refuge lands?

Information Collection

29.220 Has the Office of Management and Budget approved the 
collection of information?

[[Page 79972]]

Subpart D--Management of Non-Federal Oil and Gas Rights

Purpose and Scope


Sec.  29.40  What are the purpose and scope of the regulations in this 
subpart?

    (a) The purpose of this subpart is to ensure that operators 
exercising non-Federal oil and gas rights within the National Wildlife 
Refuge System (NWRS) outside of Alaska use technologically feasible, 
least damaging methods to:
    (1) Protect Service-administered lands and waters, and resources of 
refuges;
    (2) Protect refuge wildlife-dependent recreational uses and 
experiences and visitor or employee health and safety; and
    (3) Conserve refuges for the benefit of present and future 
generations of Americans.
    (b) This subpart applies to all operators conducting non-Federal 
oil and gas operations outside of Alaska on Service-administered lands 
held in fee or less-than fee (excluding coordination areas) or Service-
administered waters to the extent necessary to protect those property 
interests. These regulations do not apply to non-Federal surface 
locations within the boundaries of a refuge (i.e., inholdings), except 
to the extent that activities associated with those operations, 
including access to an inholding, occur on Service-administered lands 
or waters.
    (c) This subpart is not intended to result in a taking of any 
property interest. The purpose of this subpart is to reasonably 
regulate operations to protect Service-administered lands and waters, 
resources of refuges, visitor uses and experiences, and visitor or 
employee health and safety.


Sec.  29.41  When does this subpart apply to me?

    This subpart applies to you if you are an operator who conducts or 
proposes to conduct non-Federal oil or gas operations on Service-
administered lands or waters outside of Alaska.


Sec.  29.42  What authorization do I need to conduct operations?

    (a) You must demonstrate to the Service that you have the right to 
operate in order to conduct operations on Service-administered lands or 
waters.
    (b) Except as provided in Sec. Sec.  29.43 or 29.44, before 
starting operations, you must obtain a temporary access permit under 
Sec. Sec.  29.70 through 29.73 for reconnaissance surveys and/or an 
operations permit under Sec. Sec.  29.90 through 29.97.


Sec.  29.43  If I am already operating under Service authorization, 
what do I need to do?

    If you already have a Service-issued permit, you may continue to 
operate according to the terms and conditions of that approval, subject 
to the provisions of this subpart. If you propose to conduct new 
operations, modify your existing operations, conduct well plugging or 
reclamation operations, or obtain an extension of the well plugging 
requirement to maintain your well in shut-in status, you must either 
amend your current authorization or obtain an operations permit in 
accordance with Sec. Sec.  29.90 through 29.97, Operations Permit: 
Application, and such new operations or modifications will be subject 
to the applicable provisions of this subpart. Additionally, your 
existing operations are subject to the following regulations:
    (a) Sec.  29.120(b) and (d)-(g) and Sec.  29.121(a) and (c)-(f);
    (b) Sec.  29.170(a);
    (c) Sec. Sec.  29.180 and 29.181;
    (d) Sec.  29.190; and
    (e) Sec.  29.200.


Sec.  29.44  If I am operating without prior Service authorization, 
what do I need to do?

    Any operator that has commenced operations prior to December 14, 
2016 in accordance with applicable local, State, and Federal laws and 
regulations may continue without an operations permit. However, your 
operation is subject to the requirements of Sec. Sec.  29.60 through 
29.64, Pre-Existing Operations, and the requirements that when you 
propose to conduct new operations, modify your pre-existing operations, 
conduct well plugging and reclamation operations, or obtain an 
extension of the well plugging requirement to maintain your well in 
shut-in status, you must obtain an operations permit in accordance with 
Sec. Sec.  29.90 through 29.97, Operations Permit: Application, and all 
applicable requirements of this subpart.

Definitions


Sec.  29.50  What do the terms used in this subpart mean?

    In addition to the definitions in Sec. Sec.  25.12, 29.21, and 36.2 
of this subchapter, the following definitions apply to this subpart:
    Access means any method of entering or traversing on or across 
Service-administered lands or waters, including but not limited to: 
Vehicle, watercraft, fixed-wing aircraft, helicopter, unmanned aerial 
vehicle, off-road vehicle, mobile heavy equipment, snowmobile, pack 
animal, and foot. Access does not include the use of aircraft, 
including, but not limited to, airplanes, helicopters, and unmanned 
aircraft vehicles, that do not land on, or are not launched from, 
Service-administered lands or waters.
    Area of operations means the area of Service-administered lands or 
waters on which operations are carried out, including roads or other 
areas that you are authorized to use related to the exercise of your 
oil and gas rights.
    Contaminating substance means any toxic or hazardous substance that 
is used in or results from the conduct of operations and is listed 
under the Clean Air Act (42 U.S.C. 7401 et seq.), Clean Water Act 
regulations at 40 CFR parts 112 and 116, the Resource Conservation and 
Recovery Act regulations at 40 CFR part 261, or the Hazardous Materials 
Transportation Act regulations at 49 CFR part 172. This includes, but 
is not limited to, explosives, radioactive materials, brine waters, 
formation waters, petroleum products, petroleum byproducts, and 
chemical compounds used for drilling, production, processing, well 
testing, well completion, and well servicing.
    Gas means any fluid, either combustible or noncombustible, that is 
produced in a natural state from the earth and that maintains a gaseous 
or rarefied state at ordinary temperature and pressure conditions.
    Oil means any viscous combustible liquid hydrocarbon or solid 
hydrocarbon substance that occurs naturally in the earth and is easily 
liquefiable on warming.
    Modifying means changing operations in a manner that will result in 
additional impacts on refuge resources, visitor uses, refuge 
administration, or human health and safety beyond the scope, intensity, 
and/or duration of existing impacts. In order to determine if 
activities would have additional impacts, you must consult with the 
Service.
    Operations means all existing and proposed functions, work, and 
activities in connection with the exercise of oil or gas rights not 
owned by the United States and located on Service-administered lands or 
waters.
    (1) Operations include, but are not limited to: Access by any means 
to or from an area of operations; construction; geological and 
geophysical exploration; drilling, well servicing, workover, or 
recompletion; production; hydraulic fracturing, well simulation, and 
injection wells; gathering (including installation and maintenance of 
flowlines and gathering lines); storage, transport, or processing of 
petroleum products; earth moving; excavation; hauling; disposal; 
surveillance, inspection, monitoring, or maintenance of wells, 
facilities, and equipment;

[[Page 79973]]

reclamation; road and pad building or improvement; shot hole and well 
plugging and abandonment, and reclamation; and all other activities 
incident to any of the foregoing.
    (2) Operations do not include reconnaissance surveys as defined in 
this subpart or oil and gas pipelines that are located within a refuge 
under authority of a deeded or other right-of-way.
    Operations permit means a permit issued by the Service under this 
subpart authorizing an operator to conduct operations on Service-
administered lands or waters.
    Operator means any person or entity, agent, assignee, designee, 
lessee, or representative thereof exercising or proposing to exercise 
non-Federal oil and gas rights on Service-administered lands or waters.
    Reconnaissance survey means an inspection or survey conducted by 
qualified specialists for the purpose of preparing a permit 
application. A reconnaissance survey:
    (1) Includes identification of the area of operations and 
collection of natural and cultural resource information within and 
adjacent to the proposed area of operations.
    (2) Does not include surface disturbance activities except for 
minimal disturbance necessary to perform cultural resource surveys, 
natural resource surveys, and location surveys required under this 
subpart.
    Right to operate means a deed, lease, memorandum of lease, 
designation of operator, assignment of right, or other documentation 
demonstrating that you hold a legal right to conduct the operations you 
are proposing on Service-administered lands or waters.
    Service, we, us and our means the U.S. Fish and Wildlife Service.
    Technologically feasible, least damaging methods are those that we 
determine, on a case-by-case basis, to be most protective of refuge 
resources and uses while ensuring human health and safety, taking into 
consideration all relevant factors, including environmental, economic, 
and technological factors and the requirements of applicable law.
    Temporary access permit means a permit issued by the Service 
authorizing an operator to access that operator's proposed area of 
operations to conduct reconnaissance surveys to collect basic 
information necessary to prepare an operations permit application.
    Third-party monitor means a qualified specialist, who is not an 
employee, agent, or representative of the operator, nor has any 
conflicts of interest that could preclude objectivity in monitoring an 
operator's compliance, and who has the relevant expertise to monitor 
operations for compliance with applicable laws, regulations, and permit 
requirements.
    Usable water means an aquifer or its portion that:
    (1)(i) Supplies any public water system; or
    (ii) Contains a sufficient quantity of ground water to supply a 
public water system and either:
    (A) Currently supplies drinking water for human consumption; or
    (B) Contains fewer than 10,000 mg/l total dissolved solids; and
    (2) Is not an exempted aquifer.
    Waste means any material that is discarded. It includes, but is not 
limited to: Drilling fluids and cuttings; produced fluids not under 
regulation as a toxic or hazardous substance; human waste; garbage; 
fuel drums; pipes; oil; refined oil and other hydrocarbons; 
contaminated soil; synthetic materials; manmade structures or 
equipment; or native and nonnative materials.
    You means the operator, unless otherwise specified or indicated by 
the context.

Pre-Existing Operations


Sec.  29.60  Do I need an operations permit for my pre-existing 
operation?

    No. Pre-existing operations are those conducted as of December 14, 
2016 without an approved permit from the Service or prior to a boundary 
change or establishment of a new refuge. Your pre-existing operations 
may be continued without an operations permit, but you are required to 
operate in accordance with applicable local, State, and Federal laws 
and regulations, and are subject to applicable provisions of this 
subpart, including requirements for a permit when you propose to 
conduct new operations or to modify pre-existing operations.


Sec.  29.61  What information must I provide to the Service?

    You must submit the following information to the Service where your 
pre-existing operation is occurring by February 13, 2017 or 90 days 
after a boundary change or establishment of a new refuge:
    (a) Documentation demonstrating that you hold the right to operate 
on Service-administered lands or waters.
    (b) The names, phone numbers, and addresses of your:
    (1) Primary company representative;
    (2) Representative responsible for field supervision; and
    (3) Representative responsible for emergency response.
    (c) A brief description of your current operations, and any 
anticipated changes to current operations, including:
    (1) A scaled map clearly delineating your existing area of 
operations;
    (2) Documentation of the current operating methods, surface 
equipment, materials produced or used, and monitoring methods; and
    (3) Copies of all plans and permits required by local, State, and 
Federal agencies, including a Spill Prevention Control and 
Countermeasure Plan if required by Environmental Protection Agency 
regulations at 40 CFR part 112.


Sec.  29.62  What if I intend to conduct new operations or modify my 
pre-existing operations?

    (a) You must obtain an operations permit before conducting 
operations that are begun after December 14, 2016 for those new 
operations in accordance with Sec. Sec.  29.90 through 29.97, 
Operations Permit: Application, and all applicable requirements of this 
subpart.
    (b) You must obtain an operations permit prior to modifying your 
pre-existing operations for that modification in accordance with 
Sec. Sec.  29.90 through 29.97, Operations Permit: Application, and all 
applicable requirements of this subpart.


Sec.  29.63  What plugging and reclamation requirements apply to my 
pre-existing operations?

    Upon completion of your production operation, you are subject to 
the reclamation standards in Sec.  29.117(d). You must obtain an 
operations permit in accordance with Sec. Sec.  29.90 through 29.97, 
Operations Permit: Application, and all applicable requirements of this 
subpart, prior to plugging your well and conducting site reclamation.


Sec.  29.64  What other provisions apply to my operations?

    Your pre-existing operations are also subject to the following 
regulations in this part 29:
    (a) Sec.  29.120(b), (d), (f), and (g) and Sec.  29.121(a) and (c)-
(f);
    (b) Sec.  29.170(a);
    (c) Sec. Sec.  29.180 and 29.181;
    (d) Sec.  29.190; and
    (e) Sec.  29.200.

Temporary Access Permits


Sec.  29.70  When do I need a temporary access permit?

    You must apply to the Service and obtain a temporary access permit 
to access your proposed area of operations in order to conduct 
reconnaissance surveys within a refuge. This permit will describe the 
means, routes, timing, and other terms and conditions of your access 
determined by the Service to

[[Page 79974]]

result in only the minimum disturbance necessary to perform surveys.


Sec.  29.71  How do I apply for a temporary access permit?

    You must submit the information requested in FWS Form 3-2469 (Oil 
and Gas Operations Special Use Permit Application) to the refuge in 
which you propose to conduct operations. Information includes, but is 
not limited to:
    (a) The name, legal address, and telephone number of the operator, 
employee, agent, or contractor responsible for overall management of 
the proposed operations;
    (b) Documentation demonstrating that you hold the right to operate 
on Service-administered lands or waters;
    (c) The name, legal address, telephone number, and qualifications 
of all specialists responsible for conducting the reconnaissance 
surveys (only required if the assistants/subcontractors/subpermittees 
will be operating on Service-administered lands or waters without the 
permittee being present);
    (d) A brief description of the intended operation so that we can 
determine reconnaissance survey needs;
    (e) A description of the survey methods you intend to use to 
identify the natural and cultural resources;
    (f) A map (to-scale and determined by us to be acceptable) 
delineating the proposed reconnaissance survey area in relation to the 
refuge boundary and the proposed area of operations; and
    (g) A description of proposed means of access and routes for 
conducting the reconnaissance surveys.


Sec.  29.72  When will the Service grant a temporary access permit?

    Within 30 calendar days of receipt of the application for a 
reconnaissance survey, we will advise you whether the application 
fulfills the requirements of Sec. Sec.  29.70 through 29.71 and issue 
you a temporary access permit or provide you with a statement of 
additional information that is needed for us to conduct review of your 
application.


Sec.  29.73  How much time will I have to conduct my reconnaissance 
surveys?

    Your temporary access permit will be in effect for a maximum of 60 
calendar days from the date of issuance, unless a longer term is 
approved in the permit. We may extend the term of the permit for a 
reasonable period of time, based upon your written request that 
explains why an extension is necessary.

Accessing Oil and Gas Rights From a Non-Federal Surface Location


Sec.  29.80  Do I need a permit for accessing oil and gas rights from a 
non-Federal location?

    No. Using directional drilling from a non-Federal surface location 
to reach your oil and gas rights within a refuge is exempt from these 
regulations. However, you are encouraged to provide the Service the 
names, phone numbers, and addresses of your primary company 
representative, representative responsible for field supervision, and 
representative responsible for emergency response at least 60 calendar 
days prior to conducting your operation. If you require access across 
Service-administered lands or waters, that access is subject to 
applicable provisions of this subpart, including obtaining an 
operations permit for any new access or modification of existing 
access.

Operations Permit: Application


Sec.  29.90  Who must apply for an operations permit?

    Except as otherwise provided in Sec. Sec.  29.43, 29.44, 29.70, and 
29.80, if you are proposing to conduct operations on Service-
administered lands or waters outside of Alaska, you must submit an 
application (FWS Form 3-2469) for an operations permit to the Service.


Sec.  29.91  What should I do before filing an application?

    You should participate in a pre-application meeting with the 
Service to allow for an early exchange of information between you and 
the Service with the intent of avoiding delays in your application 
process.
    (a) For the meeting, you should provide:
    (1) Documentation demonstrating that you hold the legal right to 
operate on Service-administered lands or waters; and
    (2) An overview of your proposed operation and timing.
    (b) The Service will provide guidance on the permitting process and 
information on available resource data, and identify additional data 
needs.


Sec.  29.92  May I use previously submitted information?

    Yes.
    (a) You do not need to resubmit information that is already on file 
with the Service, provided that such information is still current and 
accurate. You should reference this information in your oil and gas 
operations permit application.
    (b) You may submit documents and materials submitted to other 
Federal and State agencies noting how the information meets the 
specific requirements of Sec. Sec.  29.93 through 29.97.


Sec.  29.93  Do I need to submit information for all possible future 
operations?

    No. You need only provide information for those operations for 
which you are seeking immediate approval. Approval of activities beyond 
the scope of your application may be subject to a new application and 
approval process.


Sec.  29.94  What information must be included in all applications?

    All applications must include the information requested on FWS Form 
3-2469, including, but not limited to:
    (a) The name, legal address, and telephone number of the operator, 
employee, agent, or contractor responsible for overall management of 
the proposed operations.
    (b) Documentation demonstrating that you hold the legal right to 
operate within the refuge.
    (c) A description of the natural features of your proposed area of 
operations, such as: Streams, lakes, ponds, wetlands, estimated depths 
to the top and bottom of zones of usable water and topographic relief.
    (d) The location of existing roads, trails, railroad tracks, 
pipeline rights-of-way, pads, and other disturbed areas.
    (e) The location of existing structures that your operations could 
affect, including buildings, pipelines, oil and gas wells including 
both producing and plugged and abandoned wells, injection wells, 
freshwater wells, underground and overhead electrical lines, and other 
utility lines.
    (f) Descriptions of the natural and cultural resource conditions 
from your reconnaissance survey reports or other sources collected for 
your proposed area of operations, including any baseline testing of 
soils and surface and near-surface ground waters within your area of 
operations that reasonably may be impacted by your surface operations.
    (g) Locations map(s) (to-scale and determined by us to be 
acceptable) that clearly identifies:
    (1) Proposed area of operations, existing conditions, and proposed 
new surface uses, including the boundaries of each of your oil and gas 
tracts in relation to your proposed operations and the relevant refuge 
boundary.
    (2) Proposed access routes of new surface disturbances as 
determined by a location survey.
    (3) Proposed location of all support facilities, including those 
for transportation (e.g., vehicle parking areas, helicopter pads, 
etc.), sanitation,

[[Page 79975]]

occupation, staging areas, fuel storage areas, refueling areas, loading 
docks, water supplies, and disposal facilities.
    (h) The method and diagrams, including cross-sections, of any 
proposed pad construction, road construction, cut-and-fill areas, and 
surface maintenance, including erosion control.
    (i) The number and types of equipment and vehicles, including an 
estimate of vehicular round trips associated with your operation.
    (j) An estimated timetable for the proposed operations, including 
any operational timing constraints.
    (k) The type and extent of security measures proposed at your area 
of operations.
    (l) The power sources and their transmission systems for the 
proposed operations.
    (m) The types and quantities of all solid and liquid waste 
generated and the proposed methods of storage, handling, and disposal.
    (n) The source, quantity, access route, and transportation/
conveyance method for all water to be used in operations, including 
hydraulic fracturing, and estimations of any anticipated wastewater 
volumes generated, including flowback fluids from hydraulic fracturing, 
and the proposed methods of storage, handling, and recycling or 
disposal.
    (o) The following information regarding mitigation actions and 
alternatives considered:
    (1) A description of the steps you propose to take to mitigate 
anticipated adverse environmental impacts on refuge resources and uses, 
including, but not limited to, the refuge's land features, land uses, 
fish and wildlife, vegetation, soils, surface and subsurface water 
resources, air quality, noise, lightscapes, viewsheds, cultural 
resources, and economic environment.
    (2) A description of any anticipated impacts that you cannot 
mitigate.
    (3) A description of alternatives considered that meet the criteria 
of technologically feasible, least damaging methods of operations, as 
well as the costs and environmental effects of such alternatives.
    (p) You must submit the following information about your spill 
control and emergency preparedness plan. You may use a spill prevention 
control and countermeasure plan prepared under 40 CFR part 112 if the 
plan includes all of the information required by this section. You must 
submit:
    (1) The names, addresses, and telephone numbers of the people whom 
the Service can contact in the event of a spill, fire, or accident, 
including the order in which the individuals should be contacted.
    (2) The notification procedures and steps taken to minimize damage 
in the event of a spill, fire, or accident.
    (3) Identification of contaminating substances used within your 
area of operations or expected to be encountered during operations.
    (4) Trajectory analysis for potential spills that are not contained 
on location.
    (5) Identification of abnormal pressure, temperature, toxic gases 
or substances, or other hazardous conditions at your area of operations 
or expected to be encountered during operations.
    (6) Measures (e.g., procedures, facility design, equipment) to 
minimize risks to human health and safety, and the environment.
    (7) Steps to prevent accumulations of oil or other materials deemed 
to be fire hazards from occurring in the vicinity of well locations and 
lease tanks.
    (8) The equipment and methods for containment and cleanup of 
contaminating substances, including a description of the equipment 
available at your area of operations and equipment available from local 
contractors.
    (9) A stormwater drainage plan and actions intended to mitigate 
stormwater runoff.
    (10) Material safety data sheets for each material you will use or 
encounter during operations, including expected quantities maintained 
at your area of operations.
    (11) A description of the emergency actions you will take in the 
event of injury or death to fish and wildlife or vegetation.
    (12) A description of the emergency actions you will take in the 
event of accidents causing human injury.
    (13) Contingency plans for conditions and emergencies other than 
spills, such as if your area of operations is located in areas prone to 
hurricanes, flooding, tornadoes, fires, or earthquakes.
    (q) A description of the specific equipment, materials, methods, 
and schedule that will be used to meet the operating standards for 
reclamation at Sec.  29.117.
    (r) An itemized list of the estimated costs that a third party 
would charge to complete reclamation.


Sec.  29.95  What additional information must be included if I am 
proposing geophysical exploration?

    If you propose to conduct geophysical exploration, you must submit 
the information requested on FWS Form 3-2469, including, but not 
limited to:
    (a) A map showing the positions of each survey line including all 
source and receiver locations as determined by a locational survey, and 
including shot point offset distances from wells, buildings, other 
infrastructure, cultural resources, and environmentally sensitive 
areas;
    (b) The number of crews and numbers of workers in each crew;
    (c) A description of the acquisition methods, including the 
procedures and specific equipment you will use, and energy sources 
(e.g., explosives, vibroseis trucks);
    (d) A description of the methods of access along each survey line 
for personnel, materials, and equipment; and
    (e) A list of all explosives, blasting equipment, chemicals, and 
fuels you will use in the proposed operations, including a description 
of proposed disposal methods, transportation methods, safety measures, 
and storage facilities.


Sec.  29.96  What additional information must be included if I am 
proposing drilling operations?

    If you are proposing to drill a well, you must submit the 
information requested on FWS Form 3-2469, including, but not limited 
to:
    (a) A description of the well pad construction, including 
dimensions and cross sections of cut-and-fill areas and excavations for 
ditches, sumps, and spill control equipment or structures, including 
lined areas;
    (b) A description of the drill rig and equipment layout, including 
rig components, fuel tanks, testing equipment, support facilities, 
storage areas, and all other well-site equipment and facilities;
    (c) A description of the type and characteristics of the proposed 
drilling mud systems; and
    (d) A description of the equipment, materials, and methods of 
surface operations associated with your drilling, well casing and 
cementing, well control, well evaluation and testing, well completion, 
hydraulic fracturing or other well stimulation, and well plugging 
programs.


Sec.  29.97  What additional information must be included if I am 
proposing production operations?

    If you are proposing to produce a well, you must submit the 
information requested on FWS Form 3-2469, including, but not limited 
to:
    (a) The dimensions and the to-scale layout of the well pad, clearly 
identifying well locations, noting partial reclamation areas; 
gathering, separation, metering, and storage equipment; electrical 
lines; fences; spill control

[[Page 79976]]

equipment or structures, including lined areas, artificial lift 
equipment, tank batteries, treating and separating vessels, secondary 
or enhanced recovery facilities, water disposal facilities, gas 
compression and/or injection facilities; metering points; sales point 
(if on lease); tanker pickup points; gas compressor, including size and 
type (if applicable); and any other well site equipment.
    (b) A general description of anticipated stimulations, servicing, 
and workovers.
    (c) A description of the procedures and equipment used to maintain 
well control.
    (d) A description of the method and means used to transport 
produced oil and gas, including vehicular transport; flowline and 
gathering line construction and operation, pipe size, and operating 
pressure; cathodic protection methods; surface equipment use; surface 
equipment location; maintenance procedures; maintenance schedules; 
pressure detection methods; and shutdown procedures.
    (e) A road and well pad maintenance plan, including equipment and 
materials to maintain the road surface and control erosion.
    (f) A vegetation management plan on well sites, roads, pipeline 
corridors, and other disturbed surface areas, including control of 
noxious and invasive species.
    (g) A stormwater management plan on the well site.
    (h) A produced water storage and disposal plan.
    (i) A description of the equipment, materials, and procedures 
proposed for well plugging.

Operations Permit: Application Review and Approval


Sec.  29.100  How will the Service process my application?

    We will conduct initial review of your application to determine if 
all information is complete. Once your information is complete, we will 
begin formal review.


Sec.  29.101  How will the Service conduct an initial review?

    (a) Within 30 calendar days of receipt of your application, the 
Service will notify you in writing that one of the following situations 
exists:
    (1) Your application is complete, and the Service will begin formal 
review;
    (2) Your application does not meet the information requirements, in 
which case we will identify the additional information required to be 
submitted before the Service will be able to conduct formal review of 
your application; or
    (3) More time is necessary to complete the review, in which case 
the Service will provide the amount of additional time reasonably 
needed along with a justification.
    (b) If you submit additional information as requested under 
paragraph (a)(2) of this section, and the Service determines that you 
have met all applicable information requirements, the Service will 
notify you within 30 calendar days from receipt of the additional 
information that either:
    (1) Your application is complete, and the Service will begin formal 
review; or
    (2) More time is necessary to complete the initial review, in which 
case the Service will provide the amount of additional time reasonably 
needed along with a justification.


Sec.  29.102  How will the Service conduct a formal review?

    For those applications for which the Service determines that the 
applicant holds a valid property right, the Service will conduct a 
formal review of your application by:
    (a) Evaluating the potential impacts of your proposal on Service-
administered lands and waters, or resources of refuges; visitor uses or 
experiences; or visitor or employee health and safety in compliance 
with applicable Federal laws; and
    (b) Identifying any additional operating conditions that would 
apply to your approved application.


Sec.  29.103  What standards must be met to approve my application?

    (a) In order to approve your operations permit application, the 
Service must determine that your operations will:
    (1) Use technologically feasible, least damaging methods; and
    (2) Meet all applicable operating standards.
    (b) Before operations begin, you must submit to the Service:
    (1) Financial assurance in the amount specified by the Service and 
in accordance with the requirements of Sec. Sec.  29.150 through 
29.154, Financial Assurance;
    (2) Proof of liability insurance with limits sufficient to cover 
injuries to persons or property caused by your operations; and
    (3) A statement under penalty of perjury, signed by an official who 
is authorized to legally bind the company, stating that proposed 
operations are in compliance with any applicable Federal law or 
regulation or any applicable State law or regulation related to non-
Federal oil and gas operations and that all information submitted to 
the Service is true and correct.


Sec.  29.104  What actions may the Service take on my operations permit 
application?

    (a) We will make a decision on your application within 180 days 
from the date we deem your application complete unless:
    (1) We and you agree that such decision will occur within a shorter 
or longer period of time; or
    (2) We determine that an additional period of time is required to 
ensure that we have, in reviewing the permit application, complied with 
all applicable legal requirements.
    (b) We will notify you in writing that your permit application is:
    (1) Approved, with or without operating conditions; or
    (2) Denied, and provide justification for the denial. Any such 
denial must be consistent with Sec.  29.40(c).

Operating Standards


Sec.  29.110  What are the purposes of the Service's operating 
standards?

    The purposes are to:
    (a) Protect Service-administered lands and waters, and refuge 
resources; wildlife-dependent visitor uses and experiences; and visitor 
and employee health and safety; and
    (b) Ensure use of technologically feasible, least damaging methods. 
The operating standards give us and the operator flexibility to 
consider using alternative methods, equipment, materials design, and 
conduct of operations.


Sec.  29.111  What general facility design and management standards 
must I meet?

    As a permittee, you must:
    (a) Design, construct, operate, and maintain access to your 
operational site to cause the minimum amount of surface disturbance 
needed to safely conduct operations and to avoid areas we have 
identified as containing sensitive resources.
    (b) Install and maintain secondary containment materials and 
structures for all equipment and facilities using or storing 
contaminating substances. The containment system must be sufficiently 
impervious to prevent discharge and must have sufficient storage 
capacity to contain, at a minimum, the largest potential spill 
incident.
    (c) Keep temporarily stored waste in the smallest area feasible, 
and confine the waste to prevent escape as a result of percolation, 
rain, high water, or other causes. You must regularly remove waste from 
the refuge and lawfully dispose of the waste in a direct and workable 
timeframe. You may not establish a solid waste disposal site on a 
refuge.

[[Page 79977]]

    (d) Use engines that adhere to applicable Federal and State 
emission standards.
    (e) Construct, maintain, and use roads in a manner to minimize 
fugitive dust emissions.
    (f) Design, operate, and maintain your operations and equipment in 
a manner consistent with good air pollution control practices so as to 
minimize emissions and leaks of air pollutants and hydrocarbons, 
including intentional releases or flaring of gases.
    (g) Control the invasion of noxious and invasive plant and animal 
species in your area of operations from the beginning through final 
reclamation.
    (h) Avoid conducting ground-disturbing operations within 500 feet 
of any surface water, including an intermittent or ephemeral 
watercourse, or wetland, or any refuge structure or facility used by 
refuges for interpretation, public recreation, or administration. We 
may increase or decrease this distance consistent with the need to 
protect Service-administered structures or facilities, visitor uses or 
experiences, or visitor or employee health and safety; or to ensure 
that you have reasonable access to your non-Federal oil and gas. 
Measurements for purposes of this paragraph are by map distance.


Sec.  29.112  What fish and wildlife protection standards must I meet?

    To protect fish and wildlife resources on the refuge, you must:
    (a) Along with your employees and contractors, adhere to all refuge 
regulations for the protection of fish, wildlife, and plants;
    (b) Ensure that you, your employees, and contractors have been 
informed and educated by the refuge staff on the appropriate protection 
practices for wildlife conservation;
    (c) Conduct operations in a manner that does not create an unsafe 
environment for fish and wildlife by avoiding or minimizing exposure to 
physical and chemical hazards; and
    (d) Conduct operations in a manner that avoids or minimizes impacts 
to sensitive wildlife, including timing and location of operations.


Sec.  29.113  What hydrologic standards must I meet?

    You must:
    (a) Construct facilities in a manner that maintains hydrologic 
movement and function.
    (b) Not cause measurable degradation of surface water or 
groundwater beyond that of existing conditions.
    (c) Conduct operations in a manner that maintains natural processes 
of erosion and sedimentation.


Sec.  29.114  What safety standards must I meet?

    To ensure the safety of your operations, you must:
    (a) Maintain your area of operations in a manner that avoids or 
minimizes the cause or spread of fire and does not intensify fire 
originating outside your operations area;
    (b) Maintain structures, facilities, improvements, and equipment in 
a safe and professional manner in order not to create an unsafe 
environment for refuge resources, visitors, and employees, by avoiding 
or minimizing exposure to physical and chemical hazards; and
    (c) Provide site-security measures to protect visitors from 
hazardous conditions resulting from your operations.


Sec.  29.115  What lighting and visual standards must I meet?

    (a) You must design, shield, and focus lighting to minimize the 
effects of spill light on the night sky or adjacent areas; and
    (b) You must reduce visual contrast in the landscape in selecting 
the area of operations, avoiding unnecessary disturbance, choosing 
appropriate colors and materials for roads and permanent structures, 
and other means.


Sec.  29.116  What noise reduction standards must I meet?

    You must prevent or minimize all noise that:
    (a) Adversely affects refuge resources or uses, taking into account 
frequency, magnitude, or duration; or
    (b) Exceeds levels that have been identified through monitoring as 
being acceptable to or appropriate for uses at the sites being 
monitored.


Sec.  29.117  What reclamation and protection standards must I meet?

    (a) You must promptly clean up and remove from the refuge any 
released contaminating substances in accordance with all applicable 
Federal, State, and local laws.
    (b) You must perform partial reclamation of areas that are no 
longer necessary to conduct operations. You must begin final 
reclamation within 6 months after you complete your authorized 
operations unless we authorize a different reclamation period in 
writing.
    (c) You must protect all survey markers (e.g., monuments, witness 
corners, reference monuments, and bearing trees) against destruction, 
obliteration, or damage from operations. You are responsible for 
reestablishment, restoration, and referencing of any monuments, 
corners, and bearing trees that are destroyed, obliterated, or damaged 
by your operations.
    (d) You must complete reclamation by:
    (1) Plugging all wells;
    (2) Removing all above-ground structures, equipment, roads, and all 
other manmade material and debris resulting from operations;
    (3) Removing or neutralizing any contaminating substances;
    (4) Reestablishing native vegetative communities, or providing for 
conditions where ecological processes typical of the ecological zone 
(e.g., plant or wildlife succession) will reestablish themselves;
    (5) Grading to conform the contours to pre-existing elevations as 
necessary to maximize ecological function;
    (6) Restoring conditions to pre-disturbance hydrologic movement and 
functionality;
    (7) Restoring natural systems using native soil material that is 
similar in character to the adjacent undisturbed soil profiles;
    (8) Ensuring that reclamation does not interfere with visitor use 
or with administration of the refuge;
    (9) Attaining conditions that are consistent with the management 
objectives of the refuge, designed to meet the purposes for which the 
refuge was established; and
    (10) Coordinating with us or with other operators who may be using 
a portion of your area of operations to ensure proper and equitable 
apportionment of reclamation responsibilities.


Sec.  29.118  What additional operating standards apply to geophysical 
operations?

    If you conduct geophysical operations, you must do all of the 
following:
    (a) Use surveying methods that minimize the need for vegetative 
trimming and removal.
    (b) Locate source points using industry-accepted minimum safe-
offset distances from pipelines, telephone lines, railroad tracks, 
roads, power lines, water wells, oil and gas wells, oil- and gas-
production facilities, and buildings.
    (c) Use equipment and methods that, based upon the specific 
environment, will minimize impacts to Service-administered lands and 
waters, and resources of refuges; visitor uses and experiences; and 
visitor and employee health and safety.
    (d) If you use shot holes, you must:
    (1) Use biodegradable charges;
    (2) Plug all shot holes to prevent a pathway for migration for 
fluids along any portion of the bore; and
    (3) Leave the site in a clean and safe condition that will not 
impede surface

[[Page 79978]]

reclamation or pose a hazard to wildlife or human health and safety.


Sec.  29.119  What additional operating standards apply to drilling and 
production operations?

    If you conduct drilling and production operations, you must meet 
all of the following standards:
    (a) To conduct drilling operations, you must:
    (1) Use containerized mud circulation systems for operations;
    (2) Not create or use earthen pits;
    (3) Take all necessary precautions to keep your wells under control 
at all times, using only employees, contractors, or subcontractors 
trained and competent in well control procedures and equipment 
operation, and using industry-accepted well control equipment and 
practices; and
    (4) Design, implement, and maintain integrated casing, cementing, 
drilling fluid, completion, stimulation, and blowout prevention 
programs to prevent escape of fluids to the surface and to isolate and 
protect usable water zones throughout the life of the well, taking into 
account all relevant geologic and engineering factors.
    (b) To conduct production operations, in addition to meeting the 
standards of paragraphs (a)(1) through (a)(4) of this section, you must 
do all of the following:
    (1) Monitor producing conditions for early indications that could 
lead to loss of mechanical integrity of producing equipment.
    (2) Maintain all surface equipment and the wellhead to prevent 
leaks or releases of any fluids or air pollutants.
    (3) Identify wells and related facilities with appropriate signage. 
Signs must remain in place until the well is plugged and abandoned and 
the related facilities are removed. Signs must be of durable 
construction, and the lettering must be legible and large enough to be 
read under normal conditions at a distance of at least 50 feet. Each 
sign must show the name of the well, name of the operator, and the 
emergency contact phone number.
    (4) Remove all equipment and materials when not needed for the 
current phase of your operation.
    (5) Plug all wells, leaving the surface in a clean and safe 
condition that will not impede surface reclamation or pose a hazard to 
wildlife or human health and safety, in accordance with Sec.  29.117.

General Terms and Conditions


Sec.  29.120  What terms and conditions apply to all operators?

    The following terms and conditions apply to all operators, 
regardless of whether these terms and conditions are expressly included 
in the permit:
    (a) You must comply with all applicable operating standards in 
Sec. Sec.  29.111 through 29.119; these operating standards will be 
incorporated in the terms and conditions of your operations permit. 
Violation of these operating standards, unless otherwise provided in 
your operations permit, will subject you to the Prohibited Acts and 
Penalties provisions of Sec. Sec.  29.190 through 29.192.
    (b) You are responsible for ensuring that all of your employees, 
agents, contractors, and subcontractors comply fully with the 
requirements of this subpart.
    (c) You may be required to reimburse the Service for the costs of 
processing and administering temporary access permits and operations 
permits.
    (d) You may not use any surface water or groundwater from a source 
located on a refuge unless you have demonstrated a right to use that 
water or the use has been approved by the Service as the 
technologically feasible, least damaging method.
    (e) You agree to indemnify and hold harmless the United States and 
its officers and employees from and against any and all liability of 
any kind whatsoever arising out of or resulting from the acts or 
omissions of you and your employees, agents, representatives, 
contractors, and subcontractors in the conduct of activities under a 
Service-issued permit.
    (f) You will be required to take all reasonable precautions to 
avoid, minimize, rectify, or reduce the overall impacts of your 
proposed oil and gas activities to the refuge. You may be required to 
mitigate for impacts to refuge resources and lost uses. Mutually agreed 
to mitigation tools for this purpose may include providing alternative 
habitat creation or restoration, land purchase, or other resource 
compensation.
    (g) You are responsible for unanticipated and unauthorized damages 
as a direct or indirect result of your operations. You will be 
responsible for the actions and consequences of your employees and 
subcontractors. You will also be responsible for any reclamation of 
damages to refuge resources directly or indirectly caused by your 
operations through the occurrence of severe weather, fire, earthquakes, 
or the like thereof.


Sec.  29.121  What monitoring and reporting is required for all 
operators?

    (a) The Service may access your area of operations at any time to 
monitor the effects of your operations to ensure compliance with the 
regulations in this subpart.
    (b) The Service may determine that third-party monitors are 
necessary to ensure compliance with your operations permit and to 
protect Service-administered lands and waters, or the resources of 
refuges, visitor uses and experiences, and visitor or employee health 
and safety.
    (1) The Service's determination will be based on the scope and 
complexity of the proposed operation, reports that you are required to 
submit under paragraph (e) of this section, and whether the refuge has 
the staff and technical ability to ensure compliance with the 
operations permit and any provision of this subpart.
    (2) A third-party monitor will report directly to the Service at 
intervals determined by the Service. We will make the information 
reported available to you upon your request.
    (3) You will be responsible for the cost of the third-party 
monitor.
    (c) You must notify the Service within 24 hours of any injuries to 
or mortality of fish, wildlife, or endangered or threatened plants 
resulting from your operations.
    (d) You must notify the Service of any accidents involving serious 
personal injury or death and of any fires or spills on the site 
immediately after the accident occurs. You must submit a full written 
report on the accident to the Service within 90 days after the accident 
occurs.
    (e) Upon our request, you must submit reports or other information 
necessary to verify compliance with your permit or with any provision 
of this subpart. To fulfill this request, you may submit to us reports 
that you have submitted to the State under State regulations, or that 
you have submitted to any other Federal agency to the extent they are 
sufficient to verify compliance with permits or this subpart.
    (f) If your operations include hydraulic fracturing, you must 
provide the Service with a report including the true vertical depth of 
the well, total water volume used, and a description of the base fluid 
and each additive in the hydraulic fracturing fluid, including the 
trade name, supplier, purpose, ingredients, Chemical Abstract Service 
Number (CAS), maximum ingredient concentration in additive (percent by 
mass), and maximum ingredient concentration in hydraulic fracturing 
fluid (percent by mass). The report must be either submitted through 
FracFocus or another Service-designated database.

[[Page 79979]]

Sec.  29.122  For how long is my operations permit valid?

    Operations permits remain valid for the duration of the operation. 
Provisions of Sec.  29.160 apply.

Access Fees


Sec.  29.140  May I cross Federal property to reach the boundary of my 
oil and gas right?

    The Service may grant you the privilege of access on, across, or 
through Service-administered lands or waters to reach the boundary of 
your oil and gas right. You should contact the Service to determine if 
additional permits are necessary for access.


Sec.  29.141  Will the Service charge me a fee for access?

    (a) The Service will charge you a fee if you require use of 
Service-administered lands or waters outside the boundary or scope of 
your oil and gas right:
    (1) If you require new use of Service-administered lands or waters, 
we will charge you a fee based on the fair market value of that use.
    (2) Fees under this section will not be charged for access within 
the scope of your oil and gas right or access to your right that is 
otherwise provided for by law.
    (b) If access to your oil and gas right is across an existing 
refuge road, we may charge a fee according to a posted fee schedule.


Sec.  29.142  Will I be charged a fee for emergency access to my 
operations?

    No.
    (a) The Service will not charge a fee for access across Service-
administered lands or waters beyond the scope of your oil and gas right 
as necessary to respond to an emergency situation at your area of 
operations if we determine after the fact that the circumstances 
required an immediate response to either:
    (1) Prevent or minimize injury to refuge resources; or
    (2) Ensure public health and safety.
    (b) You will remain liable for any damage caused to refuge 
resources as a result of such emergency access.

Financial Assurance


Sec.  29.150  When do I have to provide financial assurance to the 
Service?

    You will need to provide financial assurance as a condition of 
approval for your operations permit when you submit your application. 
You must file financial assurance with us in a form acceptable to the 
Service and payable upon demand. This financial assurance is in 
addition to any financial assurance required by any other Federal or 
State regulatory authority.


Sec.  29.151  How does the Service establish the amount of financial 
assurance?

    (a) You are responsible for completing reclamation of your 
disturbances, whether within or outside your permit area, in accordance 
with this subpart and the terms of your permit. If you fail to properly 
complete reclamation, you will be liable for the full costs of 
completing the reclamation. We will base the financial assurance amount 
upon the estimated cost that a third-party contractor would charge to 
complete reclamation in accordance with this subpart. If the cost of 
reclamation exceeds the amount of your financial assurance, you will 
remain liable for all costs of reclamation in excess of the financial 
assurance.
    (b) The Service will reduce the required amount of your financial 
assurance during the pendency of operations by the amount we determine 
is represented by in-kind reclamation you complete during your 
operations.


Sec.  29.152  Will the Service adjust the amount required for my 
financial assurance?

    The Service may require, or you may request, an adjustment to the 
financial assurance amount because of any circumstances that increase 
or decrease the estimated costs established under Sec.  29.151.


Sec.  29.153  When will the Service release my financial assurance?

    (a) Your responsibility under the financial assurance will continue 
until either:
    (1) The Service determines that you have met all applicable 
reclamation operating standards and any additional reclamation 
requirements that may be included in your operations permit; or
    (2) A new operator assumes your operations, as provided in Sec.  
29.170(b).
    (b) You will be notified by the Service within 30 calendar days of 
our determination that your financial assurance has been released.


Sec.  29.154  Under what circumstances will I forfeit my financial 
assurance?

    (a) You may forfeit all or part of your financial assurance if we 
cannot secure your compliance with the provisions of your operations 
permit or a provision of this subpart. The part of your financial 
assurance forfeited is based on costs to the Service to remedy your 
noncompliance.
    (b) In addition to forfeited financial assurance, we may 
temporarily:
    (1) Prohibit you from removing all structures, equipment, or other 
materials from your area of operations;
    (2) Require you to secure the operations site and take any 
necessary actions to protect Service-administered lands and waters, and 
resources of the refuge; visitor uses; and visitor or employee health 
and safety; and
    (3) Suspend review of any permit applications you have submitted 
until we determine that all violations of permit provisions or of any 
provision of this subpart are resolved.
    (4) Seek recovery as provided in Sec.  29.151 for all costs of 
reclamation in excess of the posted financial assurance.

Modification to an Operation


Sec.  29.160  Can I modify operations under an approved permit?

    The Service may amend an approved temporary access permit or an 
operations permit to adjust to changed conditions or to address 
unanticipated conditions, either upon our own action or at your 
request.
    (a) To request a modification to your operation, you must provide, 
in writing, to the Service, your assigned permit number, a description 
of the proposed modification, and an explanation of why the 
modification is needed. We will review your request for modification 
under the approval standards at Sec. Sec.  29.72 or 29.103. You may not 
implement any modification until you have received the Service's 
written approval.
    (b) If the Service needs to amend your temporary access permit or 
operations permit, you will receive a written notice that:
    (1) Describes the modification required and justification;
    (2) Specifies the time within which you must notify the Service 
that you either accept the modifications to your permit or explain any 
concerns you may have; and
    (3) Absent any concerns, specifies the time within which you must 
incorporate the modification into your operations.

Change of Operator


Sec.  29.170  What are my responsibilities if I transfer my right to 
operate?

    (a) If your operations are being conducted under Sec.  29.44, you 
must notify the Service in writing within 30 calendar days from the 
date the new operator acquires the rights to conduct operations. Your 
written notification must include:
    (1) The names and addresses of the person or entity conveying the 
right and of the person or entity acquiring the right;

[[Page 79980]]

    (2) The effective date of transfer;
    (3) The description of the rights, assets, and liabilities being 
transferred and which ones, if any, are being reserved by the previous 
operator; and
    (4) A written acknowledgement from the new operator that the 
contents of the notification are true and correct.
    (b) If your operations are being conducted under Sec.  29.43 or an 
operations permit:
    (1) You must provide notice under paragraph (a) of this section.
    (2) You remain responsible for compliance with your operations 
permit, and we will retain your financial assurance until the new 
operator:
    (i) Adopts and agrees in writing to conduct operations in 
accordance with all terms and conditions of your operations permit;
    (ii) Provides financial assurance with us that is acceptable to the 
Service and made payable to the Service; and
    (iii) Receives written notification from the Service that transfer 
of the operations permit has been approved.


Sec.  29.171  What must I do if operations are transferred to me?

    (a) If another operator transfers operations conducted under Sec.  
29.44, as the transferee you may continue operating under the 
requirements of that section, but:
    (1) Within 30 calendar days from the date of the transfer, you must 
provide to the Service:
    (i) Documentation demonstrating that you hold the right to operate; 
and
    (ii) The names, phone numbers, and addresses of your:
    (A) Primary company representative;
    (B) Representative responsible for field supervision; and
    (C) Representative responsible for emergency response.
    (2) Within 90 days, or as otherwise agreed to by the Service, 
submit an operations permit application in compliance with Sec. Sec.  
29.90-29.97, Operations Permit: Application, that must be approved in 
compliance with applicable provisions of this subpart and under the 
timelines outlined in Sec. Sec.  29.100-29.103, Operations Permit: 
Application Review and Approval.
    (b) If another operator transfers operations conducted under Sec.  
29.43 or an operations permit, you must within 30 days of commencing 
transferred operations:
    (1) Provide documentation demonstrating that you hold the right to 
operate.
    (2) Provide the names, phone numbers, and addresses of your:
    (i) Primary company representative;
    (ii) Representative responsible for field supervision; and
    (iii) Representative responsible for emergency response.
    (3) Agree in writing to conduct operations in accordance with all 
terms and conditions of the previous operator's permit.
    (4) File financial assurance with us that is acceptable to the 
Service and made payable to the Service.
    (5) Receive written approval from the Service for the transfer of 
the operation's permit.
    (c) You may modify operations transferred to you in accordance with 
Sec.  29.160.

Well Plugging


Sec.  29.180  When must I plug my well?

    Except as provided in Sec.  29.181, you must plug your well, in 
accordance with the standards and procedures outlined in this subpart, 
when any of the following occurs:
    (a) Your drilling operations have ended and you have taken no 
further action on your well within 60 calendar days;
    (b) Your well, which has been completed for production operations, 
has no measurable production quantities for 12 consecutive months; or
    (c) The period approved in your permit to maintain your well in 
shut-in status has expired.


Sec.  29.181  Can I get an extension to the well plugging requirement?

    (a) You may apply for either an operations permit or a modification 
to your approved operations permit to maintain your well in a shut-in 
status for up to 5 years. Provide the information requested on FWS Form 
3-2469, including, but not limited to:
    (1) An explanation of why the well is shut-in or temporarily 
abandoned and your future plans for utilization;
    (2) A demonstration of the mechanical integrity of the well; and
    (3) A description of the manner in which your well, equipment, and 
area of operations will be maintained in accordance with the standards 
in the subpart.
    (b) Based on the information provided under this section, we may 
approve your application to maintain your well in shut-in status for a 
period up to 5 years. We may condition an extension on an adjustment of 
your financial assurance.
    (c) You may apply for additional extensions by submitting a new 
application under paragraph (a) of this section.

Prohibited Acts and Penalties


Sec.  29.190  What acts are prohibited under this subpart?

    The following acts are prohibited:
    (a) Operating in violation of the terms or conditions of a 
temporary access permit, an operations permit, a permit under Sec.  
29.43, or any applicable provision of this subpart, including 
Sec. Sec.  29.60-29.64 for pre-existing operations.
    (b) Damaging Service-administered lands or waters, or resources of 
a refuge, as a result of failure to comply with the terms or conditions 
of a temporary access permit, an operations permit, operations being 
conducted under Sec. Sec.  29.43 or 29.44, or any provision of this 
subpart.
    (c) Conducting operations without a temporary access permit or an 
operations permit, unless conducting operations under Sec. Sec.  29.43 
or 29.44.
    (d) Failure to comply with any suspension or revocation order 
issued under this subpart.
    (e) Failure to comply with the applicable provisions of Federal law 
or regulation including this subchapter.
    (f) Failure to comply with the applicable provisions of the laws 
and regulations of the State wherein any operation is located unless 
further restricted by Federal law or regulation including this 
subchapter.


Sec.  29.191  What enforcement actions can the Service take?

    If you engage in a prohibited act:
    (a) The Service may suspend and/or revoke your approved operations 
permit and your authorization for operations as set forth at Sec.  
29.43 and Sec.  29.44; and/or
    (b) All prohibited acts are subject to the penalty provisions set 
forth at Sec.  28.31 of this subchapter.


Sec.  29.192  How do violations affect my ability to obtain a permit?

    Until you comply with the regulations in this subpart, we will not 
consider a request to conduct any new operations, except plugging and 
reclamation operations, on Service-administered lands or waters.

Appeals


Sec.  29.200  Can I, as operator, appeal Service decisions?

    Yes. If you disagree with a decision made by the Service under this 
subpart, you may use the appeals process in Sec.  25.45 of this 
subchapter. The process set forth in Sec.  25.45 will be used for 
appeal of any written decision concerning approval, denial, or 
modification of an operation made by the Service under this subpart. No

[[Page 79981]]

Service decision under this subpart that is subject to appeal to the 
Regional Director or the Director shall be considered final agency 
action subject to judicial review under 5 U.S.C. 704 until the Regional 
Director has rendered his or her decision on the matter. The decision 
of the Regional Director will constitute the Service's final agency 
action, and no further appeal will lie in the Department from that 
decision.

Public Information


Sec.  29.210  How can the public learn about oil and gas activities on 
refuge lands?

    (a) Interested parties may view publicly available documents at the 
refuge's office during normal business hours or by other means 
prescribed by the refuge. The availability for public inspection of 
information about the nature, location, character, or ownership of 
refuge resources will conform to all applicable laws and implementing 
regulations, standards, and guidelines.
    (b) The refuge will make available for public inspection any 
documents that an operator submits to the Service under this subpart 
except those that the operator has identified as proprietary or 
confidential.
    (c) For the information required in Sec.  29.121(f), the operator 
and the owner of the information will be deemed to have waived any 
right to protect from public disclosure information submitted through 
FracFocus or another Service-designated database.
    (d) For information required under this subpart that the owner of 
the information claims to be exempt from public disclosure and is 
withheld from the Service, a corporate officer, managing partner, or 
sole proprietor of the operator must sign and the operator must submit 
to the authorized officer an affidavit that:
    (1) Identifies the owner of the withheld information and provides 
the name, address, and contact information for a corporate officer, 
managing partner, or sole proprietor of the owner of the information;
    (2) Identifies the Federal statute or regulation that would 
prohibit the Service from publicly disclosing the information if it 
were in the Service's possession;
    (3) Affirms that the operator has been provided the withheld 
information from the owner of the information and is maintaining 
records of the withheld information, or that the operator has access 
and will maintain access to the withheld information held by the owner 
of the information;
    (4) Affirms that the information is not publicly available;
    (5) Affirms that the information is not required to be publicly 
disclosed under any applicable local, State, tribal, or Federal law;
    (6) Affirms that the owner of the information is in actual 
competition and identifies competitors or others that could use the 
withheld information to cause the owner of the information substantial 
competitive harm;
    (7) Affirms that the release of the information would likely cause 
substantial competitive harm to the owner of the information and 
provides the factual basis for that affirmation; and
    (8) Affirms that the information is not readily apparent through 
reverse engineering with publicly available information.
    (e) If the operator relies upon information from third parties, 
such as the owner of the withheld information, to make the affirmations 
in paragraphs (d)(6) through (d)(8) of this section, the operator must 
provide a written affidavit from the third party that sets forth the 
relied-upon information.
    (f) The Service may require any operator to submit to the Service 
any withheld information, and any information relevant to a claim that 
withheld information is exempt from public disclosure.
    (g) If the Service determines that the information submitted under 
paragraphs (d) or (e) of this section is not exempt from disclosure, 
the Service will make the information available to the public after 
providing the operator and owner of the information with no fewer than 
10 business days' notice of the Service's determination.
    (h) The operator must maintain records of the withheld information 
until the later of the Service's release of the operator's financial 
assurance or 7 years after completion of operations on refuge lands. 
Any subsequent operator will be responsible for maintaining access to 
records required by this paragraph during its operation of the well. 
The operator will be deemed to be maintaining the records if it can 
promptly provide the complete and accurate information to the Service, 
even if the information is in the custody of its owner.
    (i) If any of the chemical identity information required in this 
subpart is withheld, the operator must provide the generic chemical 
name in the submission required. The generic chemical name must be only 
as nonspecific as is necessary to protect the confidential chemical 
identity, and should be the same as or no less descriptive than the 
generic chemical name provided to the Environmental Protection Agency.

Information Collection


Sec.  29.220  Has the Office of Management and Budget approved the 
collection of information?

    The Office of Management and Budget reviewed and approved the 
information collection requirements contained in this subpart and 
assigned OMB Control No. 1018-0162. We use the information collected 
under this subpart to manage non-Federal oil and gas operations on 
Service-administered lands or waters for the purpose of protecting 
wildlife and habitat, water quality and quantity, wildlife-dependent 
recreational opportunities, and the health and safety of employees and 
visitors on the NWRS. We may not conduct or sponsor and you are not 
required to respond to a collection of information unless it displays a 
currently valid OMB control number.

Karen Hyun,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-27218 Filed 11-10-16; 8:45 am]
 BILLING CODE 4333-15-P