[Federal Register Volume 81, Number 214 (Friday, November 4, 2016)]
[Rules and Regulations]
[Pages 77972-78005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26489]



[[Page 77971]]

Vol. 81

Friday,

No. 214

November 4, 2016

Part IV





Department of the Interior





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National Park Service





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36 CFR Parts 1 and 9





General Provisions and Non-Federal Oil and Gas Rights; Final Rule

  Federal Register / Vol. 81 , No. 214 / Friday, November 4, 2016 / 
Rules and Regulations  

[[Page 77972]]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Parts 1 and 9

[NPS-WASO-NRSS-21688; GPO Deposit Account 4311H2]
RIN 1024-AD78


General Provisions and Non-Federal Oil and Gas Rights

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: We are updating our service-wide regulations governing the 
exercise of non-federal oil and gas rights, to improve our ability to 
protect park resources, values, and visitors from potential impacts 
associated with nonfederal oil and gas operations located within 
National Park Service units outside Alaska. The rule also makes the 
regulations consistent with existing policies and practices, and 
updates the format to improve clarity and simplify application and 
compliance for oil and gas operators and our employees.

DATES: This rule is effective December 5, 2016.

FOR FURTHER INFORMATION CONTACT: Edward O. Kassman, Jr., Geologic 
Resources Division, National Park Service, P.O. Box 25287, Denver, 
Colorado 80225; [email protected]; (303) 969-2146.

SUPPLEMENTARY INFORMATION: 

Background

Proposed Rule and Public Comment Period

    On October 26, 2015, the National Park Service (NPS) published the 
proposed rule in the Federal Register (80 FR 65572). The rule was open 
for public comment for 60 days, until December 28, 2015. The NPS 
invited comments via mail and the Federal eRulemaking Portal at http://www.regulations.gov.
    At the start of the comment period, the NPS distributed over 1,000 
newsletters to non-governmental organizations, individuals, industry 
groups, Alaska native corporations, and state agencies, primarily the 
oil and gas regulatory agencies from multiple states (Alaska, Alabama, 
California, Colorado, Florida, Indiana, Kentucky, Kansas, Louisiana, 
Mississippi, Montana, New Mexico, North Dakota, Ohio, Oklahoma, 
Pennsylvania, Tennessee, Texas, Utah, Virginia, West Virginia, 
Wyoming). These newsletters summarized the proposed rule, alternatives 
considered in the related draft environmental impact statement (DEIS), 
and how the public could comment on the proposed rule and DEIS. In an 
effort to reach an even broader audience, the NPS hosted a pre-recorded 
webinar describing the proposed rulemaking. This online webinar 
soliciting public comment on the DEIS and the proposed rule and was 
open to any member of the public.
    The NPS received 20 comment letters on the proposed rule during the 
comment period. These included unique comment letters and form letters. 
Some comment letters received were submitted improperly and not 
considered. Additionally, many comments were signed by more than one 
person. NPS counted a letter as a single set of comments, regardless of 
the number of signatories. A summary of comments and NPS responses is 
provided below in the section entitled ``Summary of and Responses to 
Public Comments.''
    After considering the public comments and additional review, the 
NPS made changes in the final rule. These changes are summarized below 
in the section entitled ``Changes in the Final Rule.''

1978 Regulations

    On December 8, 1978, the NPS promulgated the regulations at 36 CFR 
part 9, subpart B (43 FR 57825) (1978 Regulations), governing the 
exercise of non-federal oil and gas rights in units of the National 
Park System (System units).
    The 1978 Regulations applied to all activities associated with non-
federal oil and gas exploration and development inside System unit 
boundaries where access is on, across, or through federally owned or 
controlled lands or waters (36 CFR 9.30(a)). Under the 1978 
Regulations, an operator utilizing such access must obtain our approval 
of a plan of operations before commencing non-federal oil and gas 
operations in a System unit (36 CFR 9.32(b)). This requirement covered 
exploration, drilling, production, transportation, plugging, and 
reclamation operations.
    The proposed plan of operations was an operator's blueprint of all 
intended activities and was our primary means for evaluating the 
operation's potential adverse impacts on park resources and values. The 
operator must demonstrate that it is exercising a bona fide property 
right to non-federal oil and gas located within a System unit (36 CFR 
9.36(a)(2)). Generally, the proposed plan of operations must also 
describe:
     The proposed operation, including the equipment, methods, 
and materials to be used in the operation;
     Access to the site;
     Mitigation measures that will be implemented to protect 
NPS resources and values;
     Environmental conditions in the vicinity of the site;
     Alternatives to the proposal; and
     The environmental impacts of the proposed operation (36 
CFR 9.36(a)).
    In addition to the proposed plan of operations, and prior to 
approval, the operator must submit a performance bond to ensure that 
funds are available to reclaim a site if the operator defaults on its 
obligations under an approved plan (36 CFR 9.48). In order to make the 
regulatory process as efficient and transparent as possible, we work 
collaboratively with operators early in their planning process to 
provide guidance on information requirements, alternative area of 
operations locations, and potential mitigation and avoidance measures.
    During our approval process, we coordinate and consult with a 
variety of state and other federal regulatory agencies to ensure that 
approval complies with applicable laws, such as the National 
Environmental Policy Act of 1969, the Endangered Species Act, the 
National Historic Preservation Act, and the Clean Water Act.
    The 1978 Regulations required that operators conducting non-federal 
oil and gas operations in System units provide an affidavit that 
operations planned are in compliance with all applicable state and 
local laws (36 CFR 9.36(a)(15)). Although state oil and gas regulations 
may contain provisions designed to protect natural resources (e.g., 
surface and groundwater), their primary focus is on oil and gas 
production and protection of associated ownership interests. The 
purpose and focus of the NPS's regulation of non-federal oil and gas 
operations is to protect the National Park System's natural and 
cultural resources and visitor values and safety.
    When the NPS Regional Director has determined that the proposal 
meets the requirements contained in the regulations and the NPS has 
completed the required environmental compliance, the Regional Director 
will approve the plan (36 CFR 9.37). The approved plan is the 
operator's authorization to conduct its operation in a System unit (36 
CFR 9.32(a)).
    During the life of an oil or gas operation in a park, the park 
manager has the authority to monitor and ensure compliance with the 
approved plan of operations (36 CFR 9.37(f)). If there is a change in 
circumstances, the NPS or the operator can make a request to supplement 
or modify the plan (36 CFR

[[Page 77973]]

9.40). The 1978 Regulations authorize us to enforce the terms of the 
plan, as may be necessary, including suspending operations or revoking 
plan approval (36 CFR 9.51). The operator may appeal a Regional 
Director's decision (36 CFR 9.49).

Authority To Promulgate the Regulations

    The authority to promulgate these regulations is the statute 
commonly known as the NPS Organic Act (54 U.S.C. 100101 et seq.) as 
well as other statutes governing the administration of the National 
Park System. The Organic Act directs the Secretary of the Interior, 
acting through the NPS, to ``promote and regulate the use of the 
National Park System by means and measures that conform to the 
fundamental purpose of the System units, which purpose is to conserve 
the scenery, natural and historic objects, and wild life in the System 
units and to provide for the enjoyment of the scenery, natural and 
historic objects, and wild life in such manner and by such means as 
will leave them unimpaired for the enjoyment of future generations.'' 
The Organic Act also grants the NPS the authority to promulgate 
regulations ``necessary or proper for the use and management of System 
units.'' (54 U.S.C. 100751). This includes the authority to regulate 
the exercise of non-federal oil and gas rights within park boundaries 
for the purpose of protecting the resources and values administered by 
the NPS.
    In addition, the enabling acts for several System units contain 
specific provisions directing or authorizing us to regulate the 
exercise of non-federal oil and gas rights. In the authority section of 
the rule, we list the individual enabling statutes that address non-
federal oil and gas rights in those System units.
    Our authority to promulgate regulations that govern the exercise of 
non-federal oil and gas operations has been recognized as a valid 
exercise of NPS's Organic Act authority by a U.S. District Court and 
the United States Court of Appeals for the Fifth Circuit. See Dunn-
McCampbell Royalty Interest v. National Park Service, 964 F. Supp. 1125 
(S.D. Tex. 1995), and Dunn-McCampbell Royalty Interest v. National Park 
Service, 630 F.3d 431 (5th Cir. 2011). Courts have also recognized 
NPS's authority to regulate other non-federal property interests within 
units of the National Park System. See, e.g., United States v. Vogler, 
859 F.2d 638 (9th Cir. 1988), cert. denied, 488 U.S. 1006 (1989); 
United States v. Garfield County, 122 F. Supp. 2d 1201 (D. Utah 2000). 
See also Southern Utah Wilderness Alliance v. Bureau of Land 
Management, 425 F. 3d 735, 746-47 (10th Cir. 2005).
    System units in Alaska would have been subject to the regulations 
in the proposed rule. As explained in the preamble to the proposal, we 
relied upon Sturgeon v. Masica, 768 F.3d 1066, 1077-78 (9th Cir. 2014), 
for the proposition that ``because these regulations are generally 
applicable to System units nationwide and to non-federal interests in 
those units, they are not `applicable solely to public lands within 
[units established under ANILCA],' and thus are not affected by section 
103(c) of ANILCA.'' This Ninth Circuit opinion recently was vacated by 
the Supreme Court and remanded for further consideration. Sturgeon v. 
Frost, 136 S.Ct. 1061 (2016). NPS also received several comments 
stating that application of the proposed rule to nonfederal oil and gas 
activities on private land would be contrary to section 103(c) of 
ANILCA. In light of the pending litigation, the applicability of the 
ANILCA Title XI regulations in 43 CFR part 36, and the lack of current 
oil and gas development proposals and resource threats, NPS has decided 
to apply this rule only to operations within System units outside of 
Alaska. NPS may reconsider this exemption upon receipt of a final 
decision in the Sturgeon litigation, and if appropriate, to consider 
Alaska specific special regulations which could be included along with 
the other NPS Alaska regulations in 36 CFR part 13.
    The rule has no effect on the above-referenced regulations at 43 
CFR part 36, promulgated by the Department of the Interior in 1986 to 
implement section 1110(b) of ANILCA, which apply to persons who use 
lands and waters administered by NPS to conduct activities on, or for 
access to, non-federal inholdings within Alaska parks.
    A unique provision exists under section 8 of the Big Cypress 
National Preserve Addition Act of 1988 (Addition Act), codified at 16 
U.S.C. 698m-4. In addition to authorizing the Secretary to promulgate 
rules and regulations specifically for Big Cypress National Preserve, 
the Addition Act authorized the Secretary to enter into interim 
agreements with owners of non-Federal oil and gas interests governing 
the conduct of oil and gas exploration, development, or production 
activities within the boundary of the Addition. 16 U.S.C. 698m-4(e). 
Such agreements had been interpreted to obviate the need for operators 
to propose a plan of operations under the 1978 Regulations for their 
operations on the Addition lands.
    Consistent with the statute, the present oil and gas operations 
within the Addition Area had been controlled under the terms of the 
Agreement Governing The Exercise Of Reserved Oil And Gas Rights Of 
Collier Enterprises And Barron Collier Company, which is Appendix 6 to 
the Agreement Among the United States of America, Collier Enterprises, 
Collier Development Corporation, and Barron Collier Company (May 12, 
1988). This rule supersedes Appendix 6.

Non-Federal Oil and Gas Rights in System Units

    Non-federal oil and gas rights exist within System units in 
situations where the United States does not own the oil and gas 
interest, either because:
     The United States acquired the 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; 
nonprofit organizations; corporations; or state and local governments. 
Interests in non-federal oil and gas are property rights that may only 
be taken for public use with payment of just compensation in accordance 
with the Fifth Amendment of the U.S. Constitution.
    Accordingly, from their initial promulgation, the 1978 Regulations 
at 36 CFR 9.30(a) have stated that they are ``not intended to result in 
the taking of a property interest, but rather to impose reasonable 
regulations on activities that involve and affect federally owned 
lands.'' This rule includes this same provision.
    There are currently 534 non-federal oil and gas operations in a 
total of 12 System units. These units are: Alibates Flint Quarries 
National Monument, Texas (5 operations); Aztec Ruins National Monument, 
New Mexico (4 operations); Big Cypress National Preserve, Florida (20 
operations); Big Thicket National Preserve, Texas (39 operations); Big 
South Fork National River and Recreation Area, Tennessee/Kentucky (152 
operations); Cumberland Gap National Historical Park, Tennessee (2 
operations); Cuyahoga Valley National Park, Ohio (90 operations); 
Gauley River National Recreation Area, West Virginia (28 operations); 
Lake Meredith National Recreation Area, Texas (174 operations); New 
River Gorge National River, West Virginia (1 operation; Obed Wild and 
Scenic River, Tennessee (5 operations); and Padre Island National 
Seashore, Texas (14 operations).

[[Page 77974]]

    Based on the presence of split estates, exploration and production 
occurring on adjacent or nearby lands, and likely increases in energy 
prices, NPS expects that future non-federal oil and gas operations 
within park boundaries could occur in up to 30 additional System units.

Summary of Potential Impacts From Oil and Gas Operations on NPS 
Resources and Values

    Examples of non-federal oil and gas activities conducted in System 
units 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; well plugging and abandonment; and site reclamation.
    Such oil and gas activities may adversely impact System unit 
resources in various ways:
     Surface water quality degradation from spills, storm water 
runoff, erosion, and sedimentation. Through site inspections the NPS 
has documented 26 instances of in-park operation sites with surface 
contamination;
     Soil and ground water contamination from existing drilling 
mud pits, poorly constructed wells, spills, and leaks. Through site 
inspections the NPS has documented 47 instances of sites with wellhead 
leaks, pump jack leaks, tank battery leaks, and operations and 
maintenance spills;
     Air quality degradation from dust, natural gas flaring, 
hydrogen sulfide gas, and emissions from production operations and 
vehicles. Through site inspections the NPS has documented 14 instances 
of notable odors emanating from the wellhead;
     Noise from seismic operations, blasting, construction, oil 
and gas drilling and production operations. Through site inspections 
the NPS has documented 6 instances of excess noise issues from well pad 
equipment;
     Noise and human presence effects on wildlife behavior, 
breeding, and habitat utilization;
     Disruption of wildlife migration routes;
     Adverse effects on sensitive and endangered species. 
Through site inspections the NPS has documented 15 sites with sensitive 
species or habitat;
     Viewshed intrusion by roads, traffic, drilling equipment, 
production equipment, pipelines, etc.;
     Night sky intrusion from artificial lighting and gas 
flares;
     Disturbance to archeological and cultural resources from 
blasting associated with seismic exploration and road/site preparation, 
maintenance activities, or by spills. Through site inspections the NPS 
has documented 6 sites with associated cultural resources; and
     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. Through site inspections 
the NPS has documented 62 instances of visitor safety hazards.
    Examples of documented impacts can be found in many parks. For 
example, at Big South Fork natural-gas-fired pump jack engines can be 
heard at visitor overlooks that are 2 to 3 miles away. Simple 
mitigation such as a corrugated steel fence around the operations would 
abate this impact; however, due to the well's grandfathered status, the 
NPS has been unable to require this mitigation and is therefore forced 
to accept this adverse impact.
    Another example of avoidable impacts was found at Aztec Ruins 
National Monument where an operation exempt from the 1978 Regulations 
due to the grandfathered exemption contained a road that traversed an 
unexcavated archeological site. Only when this well lost its 
grandfathered status due to a change of operator was the NPS able to 
require the new operator to conduct a cultural resource survey to 
determine the impacts to the site. As mitigation the operator installed 
a layer of dirt between the archeological site and the road base to 
protect the resources.

Final Rule

Summary of Final Rule

    The summary below details the significant differences between the 
1978 Regulations and this final rule. As appropriate, this summary also 
briefly describes the reasons changes were made to this rule as a 
result of public comments received.

Purpose and Scope of the Regulation

Interests Protected Under These Regulations
    After careful review we have found that the 1978 Regulations were 
inconsistent in their description of the interests that the regulations 
were designed to protect. This rule at Sec.  9.30(a) and throughout 
consistently states that the purpose of the regulations is to protect 
federally owned or administered lands, waters, or resources of System 
units, visitor uses or experiences, and visitor or employee health and 
safety. The NPS evaluates operators' proposals on a case-by-case basis 
and applies avoidance and mitigation measures and requires financial 
assurance amounts to the extent necessary to protect the interests 
described above. Depending on the type of activity proposed, 
environmental factors, visitor use patterns, and land ownership status 
(activity either on federal or non-federal lands), the NPS will adjust 
its avoidance and mitigation measures and financial assurance amounts 
accordingly.
    This rule replaces the phrase ``federally owned or controlled'' 
with the phrase ``federally owned or administered'' to be consistent 
with the terminology we use in our general regulations, at 36 CFR 1.2, 
and 36 CFR 1.4(a) (definition of ``National Park System'').
Operators Subject to the Regulation
    Under Sec.  9.30(a) of the 1978 Regulations, application of the 
rule was predicated on ``access on, across, or through federally owned 
or controlled lands or waters.'' This rule at 9.30(b) applies to all 
operators conducting non-federal oil or gas operations on lands or 
waters within a System unit, regardless of the ownership or legislative 
jurisdictional status of those lands or waters.
Reasonable Regulation of Non-Federal Oil and Gas Rights
    Section 9.30(c) of this rule retains language from Sec.  9.30(a) of 
the 1978 Regulations stating that the intention of this subpart is to 
reasonably regulate non-federal oil and gas activities in a System 
unit, but not to result in a taking of private property. Although the 
NPS has required mitigation measures on proposed operations, we have 
never, in the more than 37 years of applying this subpart, failed to 
approve a plan of operations. We will continue to work with operators 
to ensure they have reasonable access to their oil and gas rights while 
protecting park resources and values without resulting in a taking in 
violation of the Fifth Amendment of the United States Constitution.
Scope of the Regulations
    Section 9.31(a) of this rule changes the scope to cover all 
nonfederal oil and gas operations within the boundary of a System unit 
outside of Alaska. Section 9.31(b) of this rule also covers those 
operations that become located within a System unit either by statutory 
boundary expansion or establishment of a new System unit. Section 
9.31(c) of this rule covers those operations that access oil and gas 
rights from a surface location outside the park boundary but due to a 
boundary expansion or

[[Page 77975]]

establishment of a new unit, the surface location is now within a 
System unit. Under Sec.  9.31(b) and (c) such operations follow the 
same requirements and procedures as those for previously exempt 
operations at Sec. Sec.  9.50 through 9.53 of this rule.
Type of Authorization Required
    Section 9.32(a) of this rule provides that an operator must have 
either a temporary access permit before conducting reconnaissance 
surveys on NPS administered lands or an operations permit for 
operations in a System unit.
Demonstration of Valid Existing Right
    The 1978 Regulations contained a requirement that operators 
demonstrate that they hold valid rights to conduct activities under the 
plan of operations information requirements. This rule moves this 
requirement to Sec.  9.32(b) to clarify that all operators must 
demonstrate up front that they hold a valid existing right to conduct 
operations in a System unit. Until an operator can demonstrate a valid 
existing right to conduct all operations described in its operation 
permit application, we will not undertake formal review of an 
operator's operations permit application.
Definitions
    This rule deletes several redundant definitions because the terms 
are defined at 36 CFR 1.4. The definitions being deleted from the 1978 
Regulation are: ``Secretary'' (former Sec.  9.31(a)), ``Director'' 
(former Sec.  9.31(b)), ``Person'' (former Sec.  9.31(e)), and 
``Superintendent'' (former Sec.  9.31(f)). This rule also deletes two 
definitions that are no longer used: ``Commercial Vehicle'' (former 
Sec.  9.31(g)) and ``Statement for Management'' (former Sec.  9.31(o)).
    This rule adds a new term, ``Area of Operations,'' to replace the 
term ``Site,'' at former Sec.  9.31(m). The new term means all areas 
where an operator is authorized to conduct its activities, including 
access to the operations site.
    This rule expands the definition of ``Contaminating Substances,'' 
at former Sec.  9.31(n), to include other toxic or hazardous 
substances. This definition no longer uses the term ``waste,'' and the 
rule includes a separate definition of ``waste.''
    This rule deletes the term ``Unit'' and instead the text of the 
rule uses the statutory term ``System unit,'' which is defined at 54 
U.S.C. 100102(6).
    This rule changes the definition of ``Operations'' at Sec.  9.31(c) 
of the 1978 Regulation, to clarify that ``access'' includes ``any means 
of ingress to or egress from an area of operations.'' This change 
covers any and all types of access, including access via aircraft 
(time, place, and manner of aircraft landing on or taking off) to an 
area of operations. Accordingly, the NPS removed former Sec.  9.32(c), 
which regulated 9B aircraft access.
    The definition of ``Operations'' under this rule also clarifies 
that the operation of a flowline or a gathering line is included within 
this definition, but not the installation, operation, or maintenance of 
trans-park oil and gas pipelines that are under authority of a deeded 
easement or other right-of-way and which are not covered by this 
regulation.
    This rule adds a new term ``Operations permit'' as the permitting 
instrument for all operations. An operations permit is a special use 
permit subject to cost recovery under 54 U.S.C. 103104, which 
authorizes the NPS to recover all costs associated with providing 
necessary services associated with special use permits.
    This rule updates the definition of ``Operator'' at Sec.  9.31(d) 
of the 1978 Regulations by clarifying that responsibilities and 
liability under this subpart can attach to the operator or the 
operator's agents, assignees, designees, lessees, or representatives.
    This rule defines ``owner'' as a ``person'' (the definition of 
``person'' is found at 36 CFR 1.4).
    This rule adds a new definition of ``Previously exempt operation'' 
to clarify which types of operations are covered under Sec. Sec.  9.50 
through 9.53. This definition does not include those operations where 
the operator was granted an exemption under Sec.  9.32(e) of the 1978 
Regulations to the plan of operations requirement by the NPS because it 
accessed oil and gas rights inside the park boundary from a surface 
location outside the park boundary (which are covered by Sec.  9.33(b) 
of this rule).
    This rule adds a new term ``Reconnaissance survey'' to clarify that 
reconnaissance surveys do not include surface disturbance activities, 
except the minimal disturbance necessary to perform the surveys.
    This rule adds a new term ``Right to operate'' that incorporates 
much of the language in Sec.  9.36(a)(2) of the 1978 Regulations (right 
to operate description for a Plan of Operations). This new definition 
clarifies that an operator's documentation must demonstrate that all 
proposed activities are within the scope of that right.
    This rule adds a new term ``Technologically feasible, least 
damaging methods'' to describe the general standard that all operators 
must satisfy when meeting applicable operating standards.
    This rule adds a new term ``Temporary access permit'' to clarify 
that the NPS grants temporary access only for reconnaissance surveys 
and to collect basic information necessary to prepare a permit 
application.
    This rule adds a new term ``Third-party monitor'' to identify a 
third-party monitor's necessary qualifications.
    This rule adds a new term ``Usable water'' to describe the criteria 
that the NPS uses to identify protected sources of groundwater.
    This rule adds a new term ``Waste'' to differentiate between 
``waste'' and ``contaminating substances.'' Further, the NPS changed 
the definition of Waste from the proposed rule by replacing the term 
``toxic or hazardous substance'' with the phrase ``contaminating 
substance'' to more clearly explain the differences between wastes and 
contaminating substances.
    This rule adds a new set of terms ``We and us'' to refer to the 
National Park Service.
    This rule adds a definition of ``You'' to be consistent with the 
plain language format of this subpart.
Commercial Vehicles
    This rule deletes former Sec.  9.32(d). This access is controlled 
by NPS commercial vehicle regulations at 36 CFR 5.6(c).
Previously Exempt Operations
    This rule creates a new section ``Previously Exempt Operations'' to 
describe the process for bringing exempt operations under the 1978 
Regulations into compliance with the requirements of this rule. These 
include operations that do not require access on, across, or through 
federal lands (former Sec.  9.30) and grandfathered operations (former 
Sec.  9.33).
    The 1978 Regulations applied only when an operator's ``access [was] 
on, across, or through federally owned or controlled lands or waters.'' 
Seventy-eight current operations (15% of all oil and gas operations in 
System units) did not require access on, across, or through federally 
owned or controlled lands or waters and thus were not covered by the 
1978 Regulations. These operators were not required to obtain an 
approved NPS plan of operations, post financial assurance, or otherwise 
comply with this subpart to protect park resources and values. However, 
our experience over the past three decades has demonstrated that these 
operations have the potential to adversely affect NPS resources, 
values, and visitor health and

[[Page 77976]]

safety. The NPS identified at least 10 instances of previously exempt 
sites with oil spills or leaks resulting in contamination of soils and 
water.
    Under this rule at Sec. Sec.  9.30 through 9.33, all operators 
conducting operations within NPS boundaries are subject to permit 
requirements. The permitting process includes an evaluation to 
determine whether, and the extent to which, such operations would have 
an adverse effect on federally owned or administered lands, waters, or 
resources of System units, visitor uses or experiences, or visitor or 
employee health and safety. These operations are also subject to 
measures to mitigate such adverse effects, as well as to the financial 
assurance and reclamation requirements.
    Under Sec.  9.33 of the 1978 Regulations, operators who were 
conducting operations at the time the regulations became effective 
(January 8, 1979) and who had already obtained any valid federal or 
state permit were ``grandfathered.'' These operators were not required 
to obtain an approved plan of operations; comply with NPS operating 
standards, including reclamation of their area of operations to NPS 
standards; or post a reclamation bond. The Superintendent had authority 
under Sec.  9.33(c) of the 1978 Regulations to suspend grandfathered 
operations if there was an ``immediate threat of significant injury to 
federally owned or controlled lands or waters.'' Under Sec.  9.33(a)(1) 
of the 1978 Regulations, when the existing federal or state permit 
expired and was replaced with a new permit, a plan of operations would 
then be required.
    In 1978, the NPS had expected that over time the permits associated 
with these operations would expire and that the operators would then be 
required to come into compliance with the 1978 Regulations. However, 
the rate of permit expiration has been much slower than anticipated. 
This has resulted in approximately 45% of operations (241 wells 
service-wide) remaining exempt from the regulations despite the passage 
of over thirty-seven years. As discussed above, this has resulted in 
readily avoidable impacts to NPS-administered resources and values. The 
grandfather exemption was intended to provide for a ``smooth and fair 
phase in of [the 1978] regulations.'' (43 FR 57822) This rulemaking is 
intended to ensure that all operations within System units are 
conducted in a manner that protects park resources and values. This 
rule in Sec. Sec.  9.50 through 9.53 sets forth the procedure for 
bringing previously exempt operations into compliance.
Temporary Access
    This rule requires an operator to obtain a temporary access permit 
in order to conduct reconnaissance surveys on NPS administered lands 
and waters and removes provisions from the 1978 Regulations that 
allowed the NPS to authorize temporary access for existing operations 
and for new operations. Those provisions are no longer necessary 
because operations within the boundary of a System unit are required to 
obtain an Operations Permit. This rule identifies at Sec. Sec.  9.60 
through 9.63 the procedure for obtaining a temporary access permit and 
what information is necessary for the NPS to evaluate an operator's 
proposal. No comments were received on this provision of the proposed 
rule.
Accessing Oil and Gas Rights From a Surface Location Outside The Park 
Boundary
    Section 9.32(e) of the 1978 Regulations allowed operators to apply 
for an exemption from the regulations if they directionally drilled 
from a surface location outside a System unit to reach a bottom hole 
located within NPS boundaries and the drillbore passed under any land 
or water the surface of which was owned by the United States. This 
exemption was available if operations within the park boundary posed no 
significant threat of damage to NPS resources, both surface and 
subsurface, resulting from surface subsidence, fracture of geological 
formations with resultant fresh water aquifer contamination, or natural 
gas escape. Surface activities located outside the NPS boundary were 
not within the scope of the 1978 Regulations. Under this regulation, 
regulatory authority over these operations is exercised beginning at 
the subsurface point where the proposed operation (borehole) crosses 
the park boundary, and applies to all infrastructure and activities 
within the System unit regardless of the ownership of the surface 
estate. NPS will review your proposed operations and provide an 
exemption from the operations permit requirement whenever it determines 
that your downhole operations within the park boundary do not pose a 
significant threat to park resources or park visitors. For further 
guidance on applying for an exemption for such operations, please see 
the 9B Operator's Handbook.
    The availability of the exemption is intended to continue to 
provide an incentive for operators to locate surface facilities outside 
a System unit. Location of operations outside a System unit generally 
avoids direct impacts to NPS resources and visitors. Therefore, this 
rule at Sec.  9.70 is consistent with the concepts that underlay the 
former rule exemption, but operators are subject to the General Terms 
and Conditions and the Prohibitions and Penalties provisions for 
operations located within the boundary of a System unit.
Operations Permit Application
    This rule details the information requirements that an operator 
must satisfy when submitting a complete Operations Permit application. 
These requirements are separated into the following categories: Sec.  
9.83, information that must be included in all applications; Sec.  
9.87, additional information that must be included for a proposed 
geophysical exploration; Sec.  9.88, additional information that must 
be included for a proposed drilling operations; Sec.  9.89 additional 
information must be included for a proposed well stimulation 
operations, including hydraulic fracturing; and, Sec.  9.90 additional 
information that must be included for a proposed production operations.
Additions to and Clarification of Existing Information Requirements
    This rule contains the following new or updated information 
requirements from the 1978 Regulations for all operations permit 
applications:
     Contact Information--Section 9.83 of the 1978 Regulations 
limited identification of an operation's key personnel to the operator, 
owners, and lessees. To ensure that the NPS has all appropriate contact 
information, Sec.  9.83(b) of this rule requires that operators also 
identify agents, assignees, designees, contractors, and other 
representatives.
     Use of Water--Section 9.83(e) of this rule clarifies and 
expands upon Sec.  9.36(a)(5) of the 1978 Regulations. Section 9.83(e) 
requires information regarding the source, transportation method and 
quantity of water to be used in addition to how the operator will 
manage waste water.
     New Surface Disturbance and Construction--Section 9.84 of 
this rule requires an operator to specify site security measures and an 
operation's power sources and transmission systems.
     The NPS has updated language from the proposed rule at 
Sec.  9.84(a)(2) to add ``wetlands, seepage areas, springs, shallow 
water aquifers, . . .'' to the example list of natural features.
     Environmental Conditions and Mitigation Actions--Section 
9.85(a) of this rule has been updated from the

[[Page 77977]]

proposed rule to clarify that natural resource conditions include 
baseline soil and water testing (e.g., use of photoionization 
detectors, conductivity meters, or titration strips) within an 
operator's area of operation. Further, Sec.  9.85(b) of this rule 
requires an operator to describe steps proposed to mitigate adverse 
environmental impacts and list and discuss the impacts that cannot be 
mitigated. Operators are required to consider and describe all 
alternative technologically feasible, least damaging methods. 
Technologically feasible, least damaging alternatives are defined in 
Sec.  9.31 as those alternatives that are viable (based on economic, 
environmental, and technological considerations) and conform to 
federal, state, and local laws and regulations.
     Cultural Resources--In this rule, the NPS eliminates Sec.  
9.47(a) of the 1978 Regulations, ``Cultural Resource Protection,'' 
because the section merely summarized the requirements of the 
Antiquities Act (54 U.S.C. 320301 et seq.). Restating those statutory 
requirements in this rule is unnecessary, and the 1978 Regulations 
reference failed to include other statutes that also applied to such 
resources.
     Spill Control and Emergency Preparedness Plan--Section 
9.86 of this rule consolidates various provisions of the 1978 
Regulations, includes a requirement that an operator must submit a 
Spill Control and Emergency Preparedness Plan (SCEPP) plan to the NPS, 
and identifies the information necessary for a SCEPP. The NPS has made 
nonsubstantive changes to the proposed rule so the term ``Spill control 
and emergency preparedness plan'' is used consistently throughout the 
final rule.
    This rule at Sec.  9.87 clarifies the additional information a 
geophysical operator must submit to the NPS. Furthermore, this rule at 
Sec. Sec.  9.88 through 9.90 clarifies the additional information an 
operator must submit if it is proposing to drill, stimulate, or produce 
a well. The final rule adds language to Sec. Sec.  9.88 and 9.89 of the 
proposed rule to include any proposed stimulation technique including 
hydraulic fracturing.
    This rule also contains, Sec.  9.89, a new set of information 
requirements for well stimulation, including hydraulic fracturing 
operations. Information requirements include identifying the geologic 
barriers between the target zone and the deepest usable water zone, 
verifying mechanical integrity of the wellbore, and describing water 
use and disposal management of flowback fluids. The NPS rule is similar 
to BLM's hydraulic fracturing information requirements at 43 CFR 
3162.3-3(d)(1) through (7), which BLM recently promulgated under 
various authorities, including the Mineral Leasing Act, 30 U.S.C. 189, 
the Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq. As 
previously discussed, that rule has not gone into effect, and is the 
subject of litigation. Regardless of BLM's authorities under the 
statutes it implements, we have determined, as discussed below, that 
the limited information and reporting requirements and performance 
standards for well stimulation activities under this rule are 
consistent with the Secretary's regulatory authority under the Organic 
Act. Additionally, since 2006 NPS has provided specific guidance on 
means to ensure that well integrity standards are met in its 9B 
Operator's Handbook.
Operations Permit: Application Review Process
    Section 9.37(a)(1) of the 1978 Regulations required that, before 
approving a plan of operations, the Regional Director determine that 
the operator uses technologically feasible, least damaging methods that 
provide for protection of the park's resources and public health and 
safety.
    The 1978 Regulations had two different approval standards, 
depending on whether the operation was proposed on non-federally or 
federally owned surface. For operations proposed on non-federally owned 
surface a Regional Director could not approve an operation that would 
constitute a nuisance to federal lands or waters in the vicinity of the 
operations, or would significantly injure federally owned or controlled 
lands or waters. For operations proposed on federally owned surface a 
Regional Director could not approve an operation that would 
substantially interfere with management of the unit to ensure the 
preservation of its natural and ecological integrity in perpetuity, or 
would significantly injure federally owned or controlled lands or 
waters. If applying the standard for operations proposed on federally 
owned lands would constitute a taking of a property interest, the NPS 
could have either approved the operations if the operator used 
technologically feasible, least damaging methods or acquire the mineral 
interest.
    Section 9.37(b) and (c) of the 1978 Regulations required the NPS to 
make a decision on the plan of operations within 60 days after the date 
that the NPS determines that the materials submitted under the plan are 
adequate. Within 60 days, the Regional Director was required to make 
one of six final decisions in writing. The final decisions were: 
approval or rejection; conditional approval; modification to the plan 
or additional information is required; more time is necessary to 
complete review; environmental statement is required before approval; 
or more time is necessary for public participation and analysis of 
public comments.
    Section 9.37(c) of the 1978 Regulations provided that failure of 
the NPS to make a final decision within 60 days constituted a rejection 
of the plan for which the operator had the option of appealing 
immediately to the Regional Director under former Sec.  9.49.
    This rule establishes a two-stage permit application review 
process, eliminates the dual approval standards, provides more 
realistic timeframes to provide notice back to an operator, and 
consolidates the final decisions the NPS can make on an operator's 
permit application.
Stage One: Initial Review
    Section 9.101 of this rule describes the NPS's initial review of an 
operator's permit application. During initial review the NPS determines 
whether the applicant has supplied all information necessary for the 
NPS to evaluate the operation's potential impacts on federally owned or 
administered lands, waters, or resources of System units, visitor uses 
or experiences, or visitor or employee health and safety. The NPS will 
respond to applicants in writing within 30 days and notify them whether 
the information contained in their permit applications is complete. If 
the NPS needs more time to complete the initial review, the NPS will 
provide the applicant with an estimate of the amount of additional time 
reasonably needed and an explanation for the delay. Once a permit 
application is complete the NPS conducts a formal review.
Stage Two: Formal Review
    During formal review under Sec.  9.102, the NPS evaluates whether 
the proposed operation meets the NPS approval standards (Sec.  9.103) 
and complies with applicable federal statutes (e.g. National 
Environmental Policy Act (NEPA), Endangered Species Act (ESA), and 
National Historic Preservation Act (NHPA)).
Timeframe for Final Action
    In light of NPS experience over the past 37 years in implementing 
the 1978 Regulations, the 60-day period for reaching a final decision 
on a permit application has proven to be unrealistic. These decisions 
require time to adequately analyze an operator's proposal, work with 
the operator on a

[[Page 77978]]

design that incorporates acceptable avoidance and mitigation measures, 
and comply with the associated statutory responsibilities such as NEPA, 
ESA, and NHPA. These regulations provide operators with realistic 
expectations of the timeframe necessary to process operations permits. 
Similarly, the NPS has taken into account time frames for its 
coordination with other federal and state agencies. Thus, Sec.  9.104 
allows the NPS to complete its legal compliance responsibilities and 
then take final action on the operations permit within 30 days. This 
rule allows for a longer period of time, if the parties agree to it, or 
if the NPS determines that it needs more time to comply with applicable 
legal requirements.
    This rule removes Sec.  9.37(c) of the 1978 Regulations, which 
allowed an operator to immediately appeal the failure to reach a 
decision within 60 days. This rule, at Sec.  9.104, authorizes the 
Superintendent to notify the operator in writing that additional time 
is necessary to make a final decision.
Elimination of Dual Approval Standards
    Section 9.103 replaces the dual approval standards under the 1978 
Regulations with a single three-part approval standard that applies to 
all operations, regardless of surface ownership. Oil and gas operations 
located on non-federally owned surface have the potential to impact 
federally owned or administered lands, waters, or resources of System 
units, visitor uses or experiences, or visitor or employee health and 
safety to the same degree as operations sited on federally owned 
surface.
    Section 9.103(a) of the proposed rule has been changed in two ways. 
First, in response to comment the NPS changed the introductory language 
to expressly provide that if an operator meets the approval standards, 
the Regional Director will approve the operation permit. Second, this 
section lists two (rather than three) determinations that the Regional 
Director must make in order to approve an operations permit. The NPS 
clarified the language in Sec.  9.103(a)(1) to include statutes that 
may apply to operations in particular System units. The NPS also 
removed language in paragraph (b)(3) in the proposed rule that required 
the Regional Director to make a ``determination'' that an operator was 
in compliance with all other applicable federal, state, and local laws. 
Rather, as a prerequisite to approval of an operations permit, the 
modified language requires that the operator provide the Regional 
Director with an affidavit stating that it is in compliance with all 
applicable federal, state, and local laws.
    Thus, revised Sec.  9.103(b) requires three prerequisites for final 
approval: (1) Submittal of adequate financial assurance, (2) proof of 
adequate liability insurance, and (3) an affidavit stating that the 
operations planned are in compliance with all applicable Federal, 
State, and local laws and regulations.
Final Actions
    Section 9.104 of this rule establishes two final actions: (1) 
Approved, with or without conditions, or (2) denial, and the 
justification for the denial. The Regional Director will notify the 
operator in writing of the final action. If approved, this written 
notification constitutes the NPS's authorization to conduct activities. 
The NPS has simplified the language at Sec.  9.104(a)(2) to read ``all 
applicable legal requirements.''
    The NPS has eliminated the proviso in the approval standard in 
current Sec.  9.37(a)(3) of the 1978 Regulations, which allows for 
approval using only the ``technologically feasible, least damaging 
methods'' standard of Sec.  9.37(a)(1) if application of the more 
stringent Sec.  9.37(a)(3) standard would cause a taking of a property 
interest. Over the past 37 years of implementing the 1978 Regulations, 
the NPS has never invoked this exception. In every instance, the NPS 
been able to authorize operators' access while protecting park 
resources and values. Section 9.30(c) continues the 1978 regulatory 
statement that application of the regulations are not intended to 
result in a taking of mineral rights and Sec.  9.104(b)(2) requires 
that any denial of an operations permit must be consistent with that 
provision. This change from the 1978 Regulations is not intended or 
expected to authorize any taking of property rights, and is intended 
solely to simplify the approval standards and avoid redundancy and 
confusion. The NPS will continue to work with operators to help plan 
and design their operations in a way that meets NPS operating standards 
and other applicable provisions of these regulations.
Compliance With Big Cypress National Preserve Addition Act
    The Addition Act, 16 U.S.C. 698m-4, directs the NPS to promulgate 
rules and regulations governing the exploration for and development and 
production of nonfederal oil and gas interests within the Big Cypress 
National Preserve and Addition Area.
    Accordingly, Sec.  9.105 of this rule describes the procedure for 
initial review of a proposed operation in Big Cypress National 
Preserve. This procedure differs slightly from the service-wide 
procedure described in Sec. Sec.  9.101 and 9.102. The NPS's service-
wide rule incorporates the 30-day initial review period from the 
Addition Act. However, the Addition Act at 16 U.S.C. 698m-4(b)(2)(C) 
places a limit on the amount of collaboration that can occur between 
the NPS and the operator. Under this provision, there is no mechanism 
for the NPS to require further information from an operator after the 
NPS has made its initial request for additional information. After 
making such a request, the NPS's only options are to approve or deny 
the application. This procedure could conceivably result in denial of 
applications that would have been approved if the NPS had the 
regulatory authority to again request the additional information 
necessary to fully evaluate a proposed operation. In practice, the NPS 
will continue to collaborate with prospective operators in Big Cypress 
National Preserve early in their planning process and as much as 
possible during initial review, in order to reduce such theoretical 
problems. The NPS is not using the Big Cypress procedure in its 
service-wide regulations, because it does not want to constrain its 
ability to have more robust collaboration with operators.
    The Addition Act also differs slightly from the proposed service-
wide rule in that under the Addition Act the 90-day time period for 
final action begins upon submission of the permit application to the 
NPS. For the service-wide rule, the NPS has chosen not to adopt 
submission of the permit application as the triggering event for final 
action. Rather, the NPS service-wide rule provides that final action 
must occur within 30 days after the completion of NPS legal compliance 
responsibilities (such as NEPA, ESA, and NHPA). For proposals within 
Big Cypress National Preserve, the NPS will strive to meet the 
applicable timeframe for final action while otherwise complying with 
applicable laws including NEPA, ESA, and NHPA.
    The NPS has decided it is more appropriate to include these Big 
Cypress-specific provisions in this regulation instead of in a new 
park-specific regulation in part 7, because other provisions of this 
regulation still apply to oil and gas operations in Big Cypress 
National Preserve. It will be easier for operators to have all 
applicable provisions in one rule.
Operating Standards
    Section 9.110 of this rule clarifies the purpose and function of 
operating

[[Page 77979]]

standards. The NPS will maintain the current practice under the 1978 
Regulations of setting non-prescriptive operating standards to allow 
operators the flexibility to design their proposed operation using the 
latest technological innovations that will best protect park system 
resources, values, and visitor health and safety.
    Section 9.110(a) of this rule clarifies the practice under the 1978 
Regulations that applicable operating standards will be incorporated 
into an approved operations permit so that the operating standards 
become enforceable terms and conditions of an approved permit.
    Section 9.110(c) of this rule requires all operators to use 
technologically feasible, least damaging methods to protect NPS 
resources and values while assuring human health and safety. In the 
1978 Regulations, ``technologically feasible, least damaging methods'' 
was part of an overall plan of operations approval standard at 36 CFR 
9.37(a)(1).
Reorganization of Operating Standards
    This rule organizes all operating standards into one section and 
separates the standards into the following categories: Sec. Sec.  9.111 
through 9.116, are operating standards that apply to all operations; 
Sec.  9.117, additional operating standards that apply to geophysical 
operations; and Sec.  9.118, additional operating standards that apply 
to drilling, stimulation, and production operations. Organizing the 
standards in this manner will allow the NPS and operators to readily 
understand which operating standards are applicable to the particular 
type of operation proposed.
Clarification of and Additions to Former Operating Standards
    Some of the operating standards in the 1978 Regulations were 
minimally described. Additional operating standards were included in 
the NPS's 2006 9B Operator's Handbook. This rule now contains all 
operating standards. To the extent this rule incorporates operating 
standards from the 1978 Regulations without substantive change; those 
standards are not further discussed below. The operating standards 
summarized below are either clarifications to the 1978 Regulations, are 
new standards that the NPS has added, or are revisions to those 
included in the proposed rule.
Operating Standards That Apply to All Operations
    This rule modifies language from Sec.  9.112(a) of the proposed 
rule to remove the phrase ``ground disturbing'' because no activities 
incident to oil and gas operations, whether or not they disturb the 
ground, may be conducted within 500 feet of any structure or facility 
used by the NPS for interpretation, public recreation, or 
administration. The NPS moved Sec.  9.112(a) of the proposed rule to 
Sec.  9.111(a) of this rule. Section 9.111(a) of this rule modifies 
language from Sec.  9.112(a) of the proposed rule to clarify that 
Superintendents may increase or decrease the 500 foot setback 
consistent with the need to protect federally owned or administered 
lands, water, or resources of System units, visitor uses or 
experiences, or visitor or employee health and safety. The NPS also 
added the phrase ``within 500 feet of the mean high tide line'' to 
Sec.  9.111(a) of this rule to provide notice to operators that the 
general 500 foot setback also applies to tidal areas.
    This rule includes a new standard at Sec.  9.111(b) to require that 
either existing or newly created surface disturbance is kept to the 
minimum necessary for safe conduct of operations.
    This rule modifies language from Sec.  9.111(d) of the proposed 
rule to clarify how waste must be handled.
    This rule modifies language from Sec.  9.111(g) of the proposed 
rule to clarify that hydrocarbon and air pollutant releases are to be 
minimized along with minimizing the flaring of gas.
    This rule adds new standards at Sec. Sec.  9.114 and 9.115 that 
limit the visual and sound impacts of oil and gas operations on park 
visitor use and experience.
    This rule adds a new standard at Sec.  9.111(h) that requires 
operators to control the introduction of exotic species.
    This rule adds new standards at Sec.  9.112 that address hydrologic 
connectivity.
Reclamation Operating Standards
    Section 9.116 of this rule describes the standards for reclamation.
Operating Standards That Apply to Geophysical Operations
    Section 9.117 of this rule describes standards for geophysical 
surveying methods including source points, use of equipment and 
methods, and shot holes.
Operating Standards That Apply to Drilling, Stimulation, and Production 
Operations
    Section 9.118(a)(1) of this rule requires all operators to use 
containerized mud systems during drilling, stimulation, and production 
operations.
    Section 9.118(a)(2) of this rule prohibits the establishment of new 
earthen pits for any use. Use of existing earthen pits may continue, 
however, the Superintendent may require the pits be lined or removed 
depending on site specific conditions.
    Section 9.118(b) of this rule establishes standards for well 
stimulation, including standards that address hydraulic fracturing 
operations, such as ensuring the mechanical integrity of the wellbore, 
water use and disposal, and management of flowback fluids.
    NPS's approach is to review an operator's submissions to determine 
if they meet the overall operating standard of using the most 
``technologically feasible, least damaging methods'' that protect park 
resources and values, and any other applicable operation standards. If 
not, the NPS will add terms and conditions in the permits to address 
specific deficiencies. In light of our previous experience under the 
1978 Regulations addressing downhole operations, we expect that 
application of these requirements will result in little or no change to 
well stimulation activities proposed by an operator and approved by the 
state. We also expect that in most cases the information needed to be 
reviewed by NPS will be that already submitted to the state for its 
approval. Guidance on specific means to meet NPS operating standards is 
found in NPS's 2006 9B Operator's Handbook, which is distributed to 
every operator and available electronically.
General Terms and Conditions
    This rule contains a new ``General Terms and Conditions'' section 
listing terms and conditions that apply to all operations. This section 
consolidates the following sections from the 1978 Regulations: 
Sec. Sec.  9.35, 9.36(a)(15), 9.37(f), 9.41(g), 9.42, 9.46, 9.47(b), 
and 9.51(a) and (b). Described below are either clarifications to the 
1978 Regulations, new terms and conditions that the NPS has added, or 
revisions to those included in the proposed rule.
    The water use section at Sec.  9.35 of the 1978 Regulations did not 
address all state water law systems under which water rights are 
established or decided. Section 9.120(b) of this rule requires that an 
operator may not use any surface water or groundwater owned or 
administered by the United States that has been diverted or withdrawn 
from a source located within the boundaries of a System unit unless the 
use has been approved in accordance with NPS policy.
    Because monitoring and reporting requirements are necessary for all 
operations, the NPS includes monitoring and reporting requirements 
under General Terms and Conditions.

[[Page 77980]]

Section 9.121(a) authorizes the NPS to access an operator's area of 
operations at any time to monitor operations and to ensure compliance 
with the regulations. To the extent such operations are located on non-
federally administered lands and waters, the NPS will provide the 
operator reasonable notice in advance of such access, other than in 
emergencies. Section 9.121(b) of this rule allows the NPS to require 
that operators hire third party monitors when they are necessary to 
ensure compliance and protection of park resources and values. The NPS 
had previously required in some operations plans the use of third party 
monitors to help ensure that it received unbiased, reliable, and timely 
monitoring information demonstrating an operator's compliance with its 
plan of operations. See, 2006 9B Operator's Handbook, Chapter 3 
(Geophysical Exploration). Over the past fifteen years, operators at 
Big Thicket National Preserve, Padre Island National Seashore, Jean 
Lafitte National Historic Site, and Big Cypress National Preserve were 
required to use third party monitors for certain geographically 
extensive and logistically complex 3D seismic operations. The use of 
third party monitors allowed the NPS to augment monitoring by park 
staff while ensuring plan compliance and enabling operators to 
simultaneously engage in multiple operations at different locations. 
This provision also more closely conforms the NPS's requirements with 
practices of other federal agencies (BLM, the U.S. Forest Service, and 
the U.S. Fish and Wildlife Service have each in some instances required 
third party monitoring for oil and gas operations on lands they 
administer), as well as state oil and gas regulatory agencies. This 
section describes criteria that the NPS will consider when making the 
decision to require a third party monitor. The third party monitor will 
report directly to the NPS to ensure oversight and accountability.
    The NPS has modified language from Sec.  9.121(c) and (d) of the 
proposed rule to clarify the timing for reporting of incidents 
occurring on an operations site and for reporting requirements for 
cultural or scientific resources encountered on an operations site, 
respectively.
    Section 9.121(e) broadens the reporting requirement from the 1978 
Regulations to require that the operator submit any information 
requested by the Superintendent that is necessary to verify compliance 
with either a provision of the operations permit or this subpart. To 
ease this burden, the rule allows an operator to submit the same 
reports it submits to a state or other federal agency as long as those 
reports meet the information requirements of this subsection. This is 
similar to Sec.  9.42 of the 1978 Regulations.
    Section 9.122 requires reporting related to the hydraulic 
fracturing process, including the disclosure of chemicals used in the 
hydraulic fracturing process and the volume of recovered fluids. In 
Sec.  9.122, NPS has used BLM's post-hydraulic fracturing reporting 
requirements, but did not include two provisions (requirement for 
affidavit of compliance and general supporting documentation), as those 
requirements are addressed in other sections of this rule.
Access to Oil and Gas Rights
    This rule contains a new section that addresses access across 
federally owned or administered lands or waters to reach the boundary 
of an operator's oil and gas right. Section 9.50 of the 1978 
Regulations authorized the NPS to charge a fee for commercial vehicles 
using NPS administered roads. Despite this longstanding authority, we 
are not aware that such fees had actually been collected. This new 
section expands upon former Sec.  9.50.
    Section 9.131(a)(1) of this rule allows the NPS to charge an 
operator a fee based on fair market value for access (e.g., use of 
existing roads as well as constructing new roads, or running gathering 
lines) across federal lands outside the scope of an operator's oil and 
gas right. The NPS will set fees consistent with NPS part 14 rights-of-
way guidance (NPS Reference Manual 53, Special Park Uses, Appendix 5, 
Exhibit 2). Section 9.131(b) provides that NPS will not charge a fee 
for access that is within the scope of the operator's oil and gas 
right, or access that is otherwise provided for by law. Section 9.132 
addresses access across federally owned or administered lands or waters 
necessary to respond to an emergency.
Financial Assurance
    The NPS renamed this section of the rule ``Financial Assurance'' 
(titled ``Performance Bond'' under the 1978 Regulations) to better 
reflect the variety of instruments that operators can provide to the 
NPS to meet their obligation under this section.
    Section 9.48(a) of the 1978 Regulations required an operator to 
file a performance bond, or other acceptable method of financial 
assurance, for all types of non-federal oil and gas operations and all 
phases of the operations. The performance bond requirement ensured that 
in the event an operator becomes insolvent or defaults on its 
obligations under an approved plan of operations, the defaulted funds 
would be paid to the United States.
    Section 9.48(d)(3) of the 1978 Regulations limited the performance 
bond amount to $200,000 per operator, per System unit. Therefore, if 
one operator had multiple wells in an System unit, the NPS could only 
require up to $200,000 financial assurance from that operator. The 
$200,000 limit was established in 1979 and in most cases did not 
reflect the potential costs of reclamation. In the event of a default 
by the operator, reclamation costs exceeding the limit could have 
required the NPS to bring a civil action in federal court to recover 
the additional costs.
    Section 9.140 of this rule requires the operator to file with the 
NPS financial assurance in a form acceptable to the Regional Director. 
The current 9B Operator's Handbook identifies acceptable forms of 
financial assurance as including: corporate surety bonds, US Treasury 
bonds, irrevocable letters of credit, cash. The NPS will update the 
Handbook as additional guidance is provided.
    Section 9.141 of this rule makes the financial assurance amount 
equal to the estimated cost of reclamation. This substantially reduces 
the risk of the American taxpayers being left to assume reclamation 
costs in the event of operator default.
    Section 9.142 of this rule outlines the process for adjusting the 
amount of financial assurance due to changed conditions. Section 9.143 
describes the conditions under which the NPS will release the financial 
assurance. Section 9.144 describes those circumstances that will result 
in forfeiture.
    Section 9.144(b)(3) of this rule allows the NPS to suspend review 
of an operator's pending permit applications, if that operator has 
forfeited its financial assurance in any System unit. Suspension would 
last until the Superintendent determines that all violations have been 
resolved.
Modification to an Operation
    Section 9.150 of this rule renames the ``Supplementation or 
Revision of Plan of Operations'' section as ``Modification to an 
Operation'' to characterize any change to an approved operations 
permit. This section clarifies that either the NPS or the operator can 
request modification of the operator's permit, and describes the 
modification procedures. Approval of any modification to an approved 
permit must meet the relevant criteria applicable to Temporary Access 
Permits (Sec. Sec.  9.60 through 9.63) or Operations

[[Page 77981]]

Permit: Application Review Process (Sec. Sec.  9.100 through 9.105).
    Section 9.150(c) of this rule prohibits an operator from 
implementing a modification until the NPS has provided written approval 
of the modification. No comments were received on this provision of the 
proposed rule.
Change of Operator
    This section renames Sec.  9.34 ``Transfer of Interest'' of the 
1978 Regulations to ``Change of Operator.''
    Section 9.34(a) of the 1978 Regulations provided that a previous 
operator remained liable on its financial assurance until it informed 
the NPS that the rights had been transferred to another party. A new 
operator could not operate until it posted financial assurance and 
ratified the existing plan of operations. Once the previous operator 
provided notice to the Superintendent, the previous owner could request 
release of its financial assurance before the new owner posted its own 
financial assurance with the NPS. Therefore, if the new operator 
abandoned operations before posting financial assurance with the NPS, 
the burden of reclaiming the site would fall on the taxpayers.
    Section 9.160(a) requires the previous operator to notify the NPS 
of a transfer of operations and provide contact information. Section 
9.160(b) holds the previous operator responsible to the NPS until the 
new operator adopts and agrees to the terms and conditions of the 
previous operator's permit; and provides financial assurance; provides 
proof of liability insurance; and an affidavit demonstrating compliance 
with applicable federal, state, or local laws. Section 9.160(c) 
addresses a transfer of operation where the previous operator did not 
have an operations permit.
    Section 9.161(a) of this rule requires the new operator who 
acquires an operation that was under an operations permit to adopt the 
previous permit. Section 9.161(b) addresses the transfer of an 
operation where an exemption has been granted under Sec.  9.72 of this 
rule. Section 9.161(c) addresses transfer of an operation where the 
previous operator did not have an operations permit. No comments were 
received on this provision of the proposed rule.
Well Plugging
    This section replaces, in part, Sec.  9.39(a)(2)(iv) of the 1978 
Regulations and creates a new section entitled ``Well Plugging.''
    Section 9.39(a)(2)(iv) of the 1978 Regulations required operators 
to plug and cap all non-productive wells and to fill dump holes, 
ditches, reserve pits, and other excavations. Section 9.116(d)(1) 
(Operating Standards) retains the requirement that an operator conduct 
reclamation by plugging all wells. However, the 1978 Regulations did 
not directly address whether NPS could require an operator to plug 
wells that have been in an extended shut-in status. As a result, 
inactive wells have remained unplugged for years and, in some 
instances, decades. Such unplugged wells have caused adverse impacts to 
park resources and presented risks to park visitors.
    Section 9.170(a) of this rule requires operators to plug a well 
within 60 days after cessation of drilling, or 1 year after completion 
of production operations, or upon the expiration of NPS approved shut-
in status. Under Sec.  9.171, an operator may obtain an extension to 
the plugging requirement if the operator demonstrates mechanical 
integrity, a plan for future use of the well, and that the operator 
will follow maintenance requirements.
    These procedures are consistent with the way many states approach 
the issue of inactive wells, and recognize that certain economical or 
logistical reasons exist to justify maintenance of wells in shut-in 
status for extended periods of time. Rather than a ``produce or plug'' 
policy, the rule is intended to ensure that shut-in wells are 
maintained in an environmentally sound and safe manner.
Prohibitions and Penalties
    Section 9.51(c) of the 1978 Regulations provided two different 
compliance procedures for suspending an operation, depending on whether 
or not the violation posed an ``immediate threat of significant injury 
to federally owned lands or waters.''
    Section 9.181 of this rule authorizes the Superintendent to suspend 
an operation regardless of whether an operator's violation poses an 
``immediate threat of significant injury.'' Whether the threat is 
immediate or not, any violation that results in a threat of damage to 
park resources and values should be addressed by the Superintendent.
Prohibited Acts
    Section 9.180 lists prohibited acts to provide operators with 
notice of the acts that constitute a violation of these regulations. 
The prohibited acts in this rule include violations of the terms and 
conditions of an Operations Permit, as well as violations of other 
provisions of these regulations.
Incorporation of 36 CFR 1.3 Penalties
    Section 9.51 of the 1978 Regulation authorized the NPS to suspend 
an operation for non-compliance, and if the violation or damage was not 
corrected, revoke an operator's plan of operations. The process to 
suspend an operation required coordination between park staff and other 
NPS offices, during which time damage to park system resources and 
values may continue. Additionally, suspension and revocation were not 
necessarily the most appropriate means to correct minor acts of non-
compliance (minor leaks and spills, improper road maintenance, or not 
maintaining proper site security). Therefore, we are incorporating our 
existing penalties provision at 36 CFR 1.3, which allows NPS law 
enforcement rangers and special agents to issue citations, which result 
in fines for minor acts of non-compliance, while treating serious acts 
as ones that may be subject to a fine or imprisonment, or both.
No New Authorization Unless Operator Is in Compliance
    Under Sec.  9.182 of this rule, NPS will not review any new 
operating permit applications or continue review of any pending permit 
applications in any System unit until an operator comes into compliance 
with this subpart or the terms or conditions of an operations permit. 
No comments were received on this provision of the proposed rule.
Reconsideration and Appeals
    Most of the procedures outlined in Sec.  9.49 of the 1978 
Regulations remain the same. The operator continues to have the right 
to appeal a decision made by either the Superintendent or the Regional 
Director. The operator now must exhaust these remedies before the NPS 
decision is a final agency action that is subject to review under the 
Administrative Procedure Act (APA).
    This rule renames the first step of the process as a request for 
``reconsideration,'' rather than an appeal, since it is directed to the 
same official who issued the original decision. The rule also includes 
other clarifications of the existing language, makes editorial 
corrections, and reorganizes the sequence of some of the paragraphs.
    Consistent with the APA, Sec.  9.193(a) of this rule provides that 
during the reconsideration and appeals process the NPS's decision will 
be suspended and the decision will not become effective until the 
completion of the appeals process. Section 9.193(b) addresses 
suspension of operations due to

[[Page 77982]]

emergencies that pose an immediate threat of injury to injury to 
federally owned or administered lands or waters.
    Under section 9.194, if the Superintendent has the authority to 
make the original decision, requests for reconsideration and appeals 
are to be filed in the manner provided under Sec. Sec.  9.190 through 
9.193, except that requests for reconsideration are directed to the 
Superintendent, and appeals are directed to the Regional Director.
    No comments were received on these provisions of the proposed rule.
Public Participation
    The rule renames the ``Public Inspection of Documents'' section to 
``Public Participation.'' Section 9.52(a) of the 1978 Regulation 
required a Superintendent to publish a notice in a local newspaper of a 
request to conduct non-federal oil and gas operations whether or not a 
complete plan of operations was ever submitted by an operator. Section 
9.52(b) of the 1978 Regulation further required a Superintendent to 
publish a notice in the Federal Register of receipt of a plan of 
operations. This rule eliminates the public notice steps currently 
required under Sec.  9.52(a) and (b) of the 1978 Regulation and 
replaces them with a more efficient public involvement and review 
process.
    The rule retains the ability for an operator to protect proprietary 
or confidential information from disclosure to the public. Operators 
need to clearly mark those documents that they wish to protect from 
public disclosure as ``proprietary or confidential information'' such 
that these documents are readily identifiable by the NPS decision 
maker. The NPS has also included provisions that allow an operator 
engaged in hydraulic fracturing operations to withhold chemical 
formulations that are deemed to be a trade secret. The NPS has updated 
Sec.  9.200(c) from the proposed rule to include reference to 
Sec. Sec.  9.88 and 9.89 to allow operators to maintain proprietary 
information for stimulation techniques. The NPS has also removed 
language from Sec.  9.200(g) of the proposed rule regarding record 
retention for operations on Indian and Federal lands to make this 
provision conform to the scope of this regulation.
Information Collection
    See Paperwork Reduction Act discussion below.

Summary of and Responses to Public Comments

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

NPS Authority To Regulate Non-Federal Oil and Gas Rights

    1. Comment: Commenters noted that additional regulation of private 
oil and gas rights on NPS land could infringe on private property 
rights or could represent a taking.
    NPS Response: Based on its long experience implementing the 1978 
Regulation, NPS disagrees with the commenter's conclusion that 
application of this rule is likely to result in an actual taking of 
private property. This is discussed in further detail in the takings 
analysis above.
    2. Comment: Commenters stated that the NPS does not have authority 
to regulate oil and gas operations taking place on lands outside of a 
System unit boundary or on non-federally owned lands within the 
boundaries of System units.
    NPS Response: This rule states that the regulations only apply to 
operations that are conducted within the boundaries of System units. 
See Sec.  9.30(a) and (b), the definition of ``Operations'' at Sec.  
9.40, and Sec.  9.70.
    Although the NPS does not generally assert regulatory authority 
over activities on non-federal lands, see 36 CFR 1.2(b), the NPS has 
long regulated three types of activities on non-federal lands that have 
a high potential to harm park resources and values--the operation of 
solid waste disposal sites, 1872 Mining Law claims and operations, and 
non-federal oil and gas operations. As stated above, courts have 
consistently recognized NPS's authority to regulate non-federal 
interests within units of the National Park System. Courts have also 
recognized that on split estate lands. Where the federal government 
owns the surface estate and the mineral estate is privately held, the 
subsurface is within the boundary of a National Park System unit.
    This rule applies to all operations conducted within the boundary 
of a System unit, with the exception of System units in the State of 
Alaska, where this rule does not apply. As explained in the preamble to 
the proposed rule: `` [NPS's] experience over the past three decades 
has demonstrated that [operations conducted on non-federal lands] have 
the potential to have adverse effects on NPS resources, values, and 
visitor health and safety. Through site inspections, the NPS has found 
at least 10 instances of sites [on non-federal lands] with oil spills 
or leaks resulting in contamination of soils and water.'' (80 FR 
65575). That an operation is located on non-federal lands within a 
System unit does not mean that the operation has no potential to affect 
NPS administered resources and values.
    3. Comment: One commenter suggested the NPS require the mineral 
owner and the operator to assume joint and several liability arising 
from oil and gas operations.
    NPS Response: The NPS included joint and several liability as an 
alternative in the DEIS because it could encourage owners to emphasize 
to their lessees requirements for strict compliance with applicable 
laws and regulations, including the responsibility to plug and reclaim 
their operations. Because we have included in this rule a bonding 
requirement that covers the full estimated cost of reclamation, we have 
concluded that the joint and several liability provision is 
unnecessary.

State Oil and Gas Regulation

    4. Comment: One commenter opposed the rule, stating that existing 
state oil and gas laws and regulations already provide sufficient 
oversight.
    NPS Response: In reviewing the state oil and gas regulations for 
the 8 states where non-federal oil and gas operations are currently 
undertaken in System units, the NPS found that the focus of these state 
regulations is primarily limited to the protection of mineral rights, 
maximization of production of oil and gas resources, protection of 
water resources, and managing waste by-products of oil and gas 
operations. While these states have general provisions that address 
protection of the environment and public health, they do not adequately 
protect NPS administered resources to the standards developed under 
this rule.
    Congress mandated that System units be managed ``for the benefit 
and inspiration of all the people of the United States.'' In the 
context of these regulations, the NPS fulfills its mandate by applying 
a consistent set of Servicewide standards to govern oil and gas 
activities in all System units. These regulations are designed to 
protect the unique and nationally significant natural and cultural 
resources that constitute each System unit, including: Geological 
resources, air quality, water quality and quantity, vegetation, fish 
and wildlife and their habitat, floodplains and wetlands, archeological 
resources, paleontological resources, soundscapes, night skies, 
viewsheds, cultural landscapes, and ethnographic resources. These 
regulations are also

[[Page 77983]]

designed to protect visitor health and safety.
    5. Comment: One commenter expressed concern that the rule 
duplicates requirements in state regulations.
    NPS Response: To fulfill the NPS's mission to protect park 
resources and values, the NPS must have sufficient information from an 
applicant to adequately evaluate an operator's proposed operations. 
When applying for an operations permit, Sec.  9.81(b) allows an 
operator to submit the same reports it submits to a state or other 
federal agency as long as those reports meet the information 
requirements of this subsection. This is similar to Sec.  9.42 of the 
1978 Regulations. The NPS will review this information and determine if 
it meets NPS information requirements and operating standards. This 
reduces the potential burden on applicants who have already applied for 
a state permit.

Big Cypress National Preserve

    6. Comment: Commenters requested the NPS clarify how these 
regulations will apply to oil and gas activities in Big Cypress 
National Preserve in light of existing statutory provisions included in 
the Big Cypress enabling legislation.
    NPS Response: The relationship between this rule and Appendix 6 (to 
the Agreement Among the United States of America, Collier Enterprises, 
Collier Development Corporation, and Barron Collier Company (May 12, 
1988)) is explained in the Summary of Final Rule section above. The 
Addition Act states that such ``agreements shall be superseded by the 
rules and regulations promulgated by the Secretary, when applicable . . 
.'' 16 U.S.C. 698m-4(e). This rule applies to operations in both the 
original preserve and the Addition Area.

National Environmental Policy Act

    7. Comment: One commenter suggested that operators should be able 
to submit Environmental Assessments for agency use, and that the 
regulations should be updated to allow an operations permit application 
to function as a draft Environmental Assessment.
    NPS Response: The NPS will comply with Council on Environmental 
Quality and DOI NEPA regulations, and NPS NEPA guidance documents. This 
rule does not alter those requirements. An operations permit 
application generally does not contain all of the required elements of 
an Environmental Assessment. The NPS will continue its existing 
practice of allowing applicants to prepare the draft of the appropriate 
NEPA document. NPS will update its guidance manual to reflect this 
practice.

Purpose and Scope

    8. Comment: One commenter suggested that 9B Rules be expanded to 
govern other non-federal mineral rights such as sand, gravel, and coal.
    NPS Response: Regulating the extraction of sand, gravel, and coal 
is beyond the scope of this rulemaking, which was to revise the former 
rules applicable to the exercise of non-federal oil and gas rights. 
Coal extraction is generally prohibited within System units under the 
Surface Mining Control and Reclamation Act. There are no current coal 
operations in any System units. The NPS generally is able to regulate 
non-federal sand and gravel extraction through the use of special use 
permits and applicable provisions of regulations set forth at 36 CFR 
part 6.
    9. Comment: Commenters suggested that the NPS consider buying out 
nonfederal mineral rights.
    NPS Response: The NPS has determined that acquisition of all 
mineral rights in System units is economically inefficient, financially 
infeasible, and unnecessary to protect park system resources and 
values.
    NPS will continue to determine, on a case by case basis and in 
collaboration with prospective operators, whether a proposed operation 
meets the operating standards and approval standards of these 
regulations. If the proposed operation does not meet 9B approval 
standards, the NPS has the authority to seek to acquire the mineral 
right from the operator.
    10. Comment: One commenter stated that the NPS has not demonstrated 
that there are systemic problems with the 1978 Regulations, or that 
existing regulatory schemes (including the 1978 Regulations) are 
inadequate.
    NPS Response: As described above in the ``Summary of Potential 
Impacts from Oil and Gas Operations on NPS Resources and Values,'' the 
NPS concluded the problems that necessitated this rule were systemic 
and that existing laws or regulatory schemes were inadequate to address 
protection of the nationally significant resources administered by the 
NPS.

Demonstration of Right To Conduct Operations

    11. Comment: One commenter suggested that the rule clarify that an 
operator does not need to demonstrate a right to conduct oil and gas 
operations beneath the operator's access route, in cases where an 
operator needs to traverse some other area of the unit to access its 
operations area.
    NPS Response: As addressed by Sec.  9.130--Access to Oil and Gas 
Rights, the NPS may have the discretion to grant access rights outside 
the boundary of an operator's oil and gas right when the operator does 
not hold a statutory or deeded right of access. In such cases, the 
operator does not need to demonstrate a right to conduct operations.
    12. Comment: One commenter suggested that the rule should better 
define the type of information that operators may submit to demonstrate 
the right to conduct operations. This commenter proposed other types of 
documents that could demonstrate a right to operate.
    NPS Response: The definition of ``right to operate'' in Sec.  9.40 
of the rule lists specific examples of documents--deed, lease, 
memorandum of lease, designation of operator, assignment of right--that 
would meet the requirement. The NPS has included the phrase ``other 
documentation'' in the rule because there may be documentation that is 
not listed that would demonstrate a legal right to conduct the 
operations in a System unit. This provides greater flexibility to the 
applicant. What the NPS deems an acceptable demonstration of a legal 
right to conduct operations is evaluated on a case by case basis.
    13. Comment: One commenter stated that the NPS should implement a 
conditional approval process that would allow the operator to access a 
mineral right over NPS land, subject to later demonstrating that the 
operator has acquired access to that mineral right.
    NPS Response: The NPS has long required the operator to demonstrate 
a right to operate prior to formally analyzing a proposal. This 
requirement ensures the NPS does not expend taxpayer funds on proposals 
that are ultimately not viable because an operator lacks sufficient 
rights. A parallel or contingent approval process would further 
complicate the regulations, and any time and cost savings for certain 
viable proposals would be outweighed by the unnecessary time and cost 
spent reviewing proposals that are not viable. However, an operator who 
has acquired only a portion of the rights it expects to eventually hold 
may, under Sec.  9.82(b), submit its application in phases covering 
only those rights it holds at the time of the application.
    14. Comment: One commenter suggested that the permit review and 
approval process run parallel to the NPS's review of the operator's 
right to operate documentation.
    NPS Response: As explained in the previous response, NPS requires

[[Page 77984]]

complete demonstration of a right to operate prior to formally 
analyzing a proposal, which includes the permit review and approval 
process. This provision is meant to ensure that the agency does not 
expend taxpayer money unnecessarily on proposals that may not be 
possible because of the lack of complete acquisition of the right to 
operate. For example, an operator proposing a 3D seismic survey 
covering many acres within a park may not ultimately be able to acquire 
all rights within the proposed operations area.

Definitions

    15. Comment: One commenter suggested that the definition of 
``Waste'' should not include items such as fuel drums, pipes, oil, or 
contaminated soil that have any residue of oil, which contains benzene, 
toluene, xylene, and other hazardous chemicals. This commenter said 
these items should instead be included under the definition of 
``Contaminating Substances.''
    NPS Response: The items described by the commenter fall under the 
definitions of both ``waste'' and ``contaminating substances.'' Any 
``waste'' that contains a ``contaminating substance'' is required to be 
properly discarded from an operations site, but also handled in a 
manner that ensures proper containment and clean-up of the 
contaminating substance.
    16. Comment: One commenter suggested that the definition of 
``usable water'' should not just refer to whether the water is usable 
for humans but also should include whether the water is usable for 
wildlife, ecosystems, and people's wells.
    NPS Response: The definition of the term ``usable water'' is the 
same as the definition of the term ``underground source of drinking 
water'' that is used by the Environmental Protection Agency (EPA) in 
the Underground Injection Control Program. A similar definition is used 
by several states with NPS units that have non-federal oil and gas 
operations (Texas, New Mexico, Florida). The EPA and these states use 
these definitions to regulate specific downhole activities of oil and 
gas operations and ensure protection of zones of groundwater. Water 
that is used by wildlife, ecosystems, and people's wells is addressed 
by other standards and requirements of the rule. See, hydrologic 
operating standards at Sec.  9.112, and water use requirements at Sec.  
9.120. The definition for usable water does not need to be changed.

Previously Exempt Operations

    17. Comment: One commenter expressed concern that elimination of 
the access and grandfathered exemptions would negatively impact 
individuals who rely on mineral resources located within the National 
Park System.
    NPS Response: The NPS has analyzed the effects of this rulemaking 
on the regulated public and found that the updates to the 1978 
Regulations will not have a significant economic impact on a 
substantial number of 9B operators. The cost-benefit and regulatory 
flexibility analysis, Cost-Benefit and Regulatory Flexibility Analyses: 
U.S. Department of the Interior, National Park Service for Proposed 
Revisions to 36 CFR part 9, subpart B, can be viewed at https://parkplanning.nps.gov/CBA_9B.
    18. Comment: One commenter stated that the rule should phase out 
previously exempt ``grandfathered'' operations over a period of time, 
rather than requiring these operations to comply with the rule 
immediately.
    NPS Response: While not all previously exempt operations present an 
immediate threat to park resources and values, there are a significant 
number of operations exhibiting operating conditions not consistent 
with current NPS standards that the NPS concludes are necessary to 
address as soon as possible. These operations qualified for the 
regulatory exemption under the 1978 Regulations because they were in 
operation as of January 8, 1979, and the operators held a valid state 
or federal permit at that time. More than 37 years have passed during 
which these operations have not been subject to NPS regulation. The NPS 
is promulgating this rule to bring these operations up to NPS operating 
standards, including NPS reclamation and financial assurance standards, 
in order to protect park resources and values.

Accessing Oil and Gas Rights From a Surface Location Outside the Park 
Boundary

    19. Comment: Some commenters opposed the provision in the rule that 
would authorize the NPS to exempt directional drilling operations 
outside the park boundary from the operations permit requirement. 
Commenters also sought clarification regarding what aspects of a 
directional drilling operation are covered by these regulations.
    NPS Response: As stated in the preamble to the proposed rule: ``The 
availability of the exemption [for directional drilling operations] 
provides an incentive for operators to locate surface facilities 
outside a System unit. Location of operations outside a System unit 
generally avoids direct impacts to NPS resources and values.'' (80 FR 
65578). Regulating surface activities outside the boundary of the park 
would eliminate this incentive. Such surface activities are not 
themselves located on NPS-administered land. While there might be some 
benefits to the neighboring or nearby NPS-administered property, based 
on our years of experience, on the whole any such benefits would be 
outweighed by the loss of the incentive to place such operations 
outside the boundary, resulting in more direct impacts to park 
resources and values. Although law review articles and the Office of 
the Solicitor have indicated that the Organic Act could be interpreted 
to authorize NPS to regulate activities occurring outside park 
boundaries, to date NPS has not promulgated any such regulations.
    Regulatory authority over directional drilling operations begins at 
the subsurface point where the proposed operation (borehole) crosses 
the park boundary and enters federally owned or administered lands or 
water, and applies to all infrastructure and activities within the 
System unit. Section 9.70 of this rule states that ``downhole 
activities inside an NPS unit are subject to these regulations.''
    The NPS does not require financial assurance from directional 
drilling operators because, although the operation is drilling to a 
bottom hole location within the System unit, the surface operation is 
located outside the park boundary on lands not administered by the NPS. 
Each state has requirements for plugging, abandonment, surface 
reclamation, and financial assurance from the operator.
    The NPS examines each exemption application to ensure that the 
downhole portion of the operation that is inside the park boundary 
meets the NPS approval standard. If the NPS finds, through monitoring 
of the operation, that the operation inside the park is causing damage 
to park administered resources or values, the NPS may require the 
operator to rectify the violation. The NPS has additional guidance 
describing the process for applying for such an exemption in the 9B 
Operator's Handbook.
    20. Comment: One commenter questioned whether the NPS has the 
authority to apply the General Terms and Conditions and Prohibitions 
and Penalties to directional drilling operations that cross beneath 
privately owned surface estate inside the System unit boundary.
    NPS Response: The General Terms and Conditions and the Prohibitions

[[Page 77985]]

and Penalties provisions in the rule apply to operations located inside 
the boundaries of the System unit. The authority to apply these 
provisions to operations inside the unit on non-federal lands is 
summarized in the preamble to the proposed rule at 80 FR 65573.
    21. Comment: One commenter suggested that the rule require 
operators to comply with mitigation measures required by other natural 
resource agencies for directional drilling operations where the surface 
location is located outside the boundaries of System units.
    NPS Response: NPS has concluded that it does not need to separately 
enforce the requirements of other natural resource agencies or 
determine whether operators are in compliance with those authorities. 
NPS does generally coordinate and share information with other federal 
and state agencies, but it does not need to provide for duplicative 
enforcement of mitigation measures required by other authorities. 
Nothing in this rule relieves the permittee from compliance with other 
applicable, Federal, State, and local laws and regulations.
    22. Comment: One commenter suggested that the rule require 
mandatory rather than voluntary mitigation requirements for directional 
drilling operations located outside the boundary of the System unit.
    NPS Response: This rule requires mandatory rather than voluntary 
mitigation requirements for directional drilling operations Therefore, 
these operating standards are mandatory for operations conducted inside 
the park boundary. To maintain the incentive to have operators locate 
surface facilities outside the System unit, mandatory operating 
standards only apply to operations located with the boundary of the 
System unit. The NPS will not apply mandatory mitigation measures to 
operations outside System units.

Operations Permit Requirement

    23. Comment: One commenter suggested that the rule should not 
require oil and gas operations to carry out mitigation and reclamation 
that are not required for other commercial activities.
    NPS Response: Exploration and development of non-federal oil and 
gas resources are high-impact industrial activities that can generally 
be expected to have some adverse effects on park resources. The 
mitigation and reclamation requirements contained in the final rule are 
similar to those required for other high impact industrial activities 
occurring within System units, e.g., mining activities under the part 
9A regulations but do differ from those that may apply to other types 
of commercial activities, e.g., park concessions.
    24. Comment: One commenter requested that well permitting standards 
should require a baseline assessment of environmental conditions, 
including groundwater testing, before construction and operations 
commence.
    NPS Response: The proposed rule was intended to allow NPS to 
require the applicant to undertake specified testing and submit 
baseline data for evaluation. Section 9.85(a) of this rule has been 
updated from the proposed rule to clarify that the NPS may require any 
information it needs about natural and cultural resources, including 
groundwater resources that may reasonably be impacted by surface 
operations. This information may include data from baseline testing of 
soils and surface waters within the area of operations.
    25. Comment: One commenter suggested the examples listed for 
natural features should also include wetlands, seepage areas, springs, 
and shallow water aquifers.
    NPS Response: The NPS has included these as additional examples of 
natural features in the final rule.
    26. Comment: One commenter noted that the phrase spill control 
environmental preparedness plan was not referred to consistently 
throughout the proposed regulation.
    NPS Response: NPS has made nonsubstantive changes to address this 
in the final rule.
    27. Comment: One commenter suggested that maps of surface and 
subsurface operations be recorded in land records so that future oil 
and gas operations do not damage existing or closed wells.
    NPS Response: Operators proposing new operations within System 
units must submit a state drilling permit as part of an operations 
permit application. As part of the state permitting process, the state 
conducts an evaluation of the proposed well path in relation to 
existing (including plugged and abandoned) wells. Records of surface 
and subsurface operations, including maps and permit applications, are 
kept by the state oil and gas permitting agency and are used by the 
state to evaluate subsequent applications.

Operations Permit Approval

    28. Comment: Commenters suggested that the permit approval 
standards could be interpreted to give the NPS the authority to 
determine whether an operator has complied with state and local law.
    NPS Response: NPS did not intend to make such determinations. As a 
result, we have clarified this rule so that it simply requires at Sec.  
9.120(c) that an operator provide an affidavit to the NPS stating that 
it is in compliance with all applicable Federal, state, and local laws. 
The Regional Director will review affidavits submitted by an operator 
prior to approval of an operations permit.
    29. Comment: The NPS sought comments on whether the 180 day 
timeline for final action is reasonable and on any resulting 
incremental impacts on operators. Commenters expressed concern that the 
rule gives the NPS too much time to review a permit application, and 
that the NPS could take more time in order to comply with applicable 
laws without a hard deadline for taking a final action. One commenter 
suggested that the NPS review all operations permit applications within 
90 days, with an automatic 60-day extension if needed as well as 
additional time as the applicant agrees. The commenter modeled that 
recommendation on the time frame for reviewing biological opinions in 
the Endangered Species Act, which allows for a total of 185 days for 
review. One commenter recommended that the NPS add a provision that 
would allow for automatic approval of an operations permit if the NPS 
did not reach a deadline.
    NPS Response: In response to comments and upon further review, the 
NPS has decided to change the timeframe for final action in this rule 
to ``within 30 days of completing all required legal compliance, 
including compliance with the National Environmental Policy Act . . .'' 
The NPS is making this change because it more accurately reflects the 
timeframe for the process that the NPS must follow before taking final 
action on an Operations Permit. Under this rule, the NPS 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 written 
justification for the delay. Once an application is deemed complete the 
NPS must complete its legal compliance responsibilities, which include, 
but are not limited to, compliance with NEPA (for example, preparing an 
Environmental Assessment and a Finding of No Significant Impact), 
compliance with the ESA (for example, consulting with the U.S. Fish & 
Wildlife Service under Section 7), and consultation with Indian tribes. 
Once the legal compliance is completed, the NPS will take final action 
within 30

[[Page 77986]]

days. The NPS may only take more time if the operator agrees, or if it 
is necessary for the NPS to comply with unanticipated legal 
requirements.
    Providing for automatic approval of a permit application if the NPS 
does not meet a deadline would most likely violate procedural and 
substantive legal requirements for agency actions.
    30. Comment: One commenter recommended that the rule: (1) State the 
criteria on which the NPS will deny operation permit applications; (2) 
state that the NPS shall approve a plan of operations if the plan 
complies with existing law and applicable operating standards; and (3) 
include a reference to the enabling statutes for System units and any 
standards that may be contained therein.
    NPS Response: Operations permits would be approved or denied based 
on whether the plan meets the approval standards. Therefore this rule 
only needs one set of standards. Accordingly, the NPS has clarified the 
language in this rule. The final rule states that the Regional Director 
will approve an operations permit if the NPS determines that the 
operations meet the approval standards.
    Section 9.103(a)(1) of this rule has been updated from the proposed 
rule to reflect that the Regional Director must determine that the 
operations will not impair park resources and values under the NPS 
Organic Act, or violate other statutes governing administration of 
specific units of the National Park System. Enabling statutes are 
mentioned because NPS is required to comply with requirements imposed 
by Congress for individual System units.

Operating Standards

    31. Comment: One commenter requested that the rule exempt certain 
operations from specific operating standards on a case by case basis.
    NPS Response: To the extent that certain operating standards are 
not applicable to a particular proposal, those standards would not be 
applied by the NPS. Accordingly, there is no need for an exemption. The 
NPS does not find it necessary or advisable to allow for exemptions to 
otherwise applicable operating standards.
    32. Comment: One commenter suggested the rule clarify the: (1) 
Applicability of the technologically feasible, least damaging methods 
standard to site specific conditions regarding environmental and 
operating methods that are presented by an operator's proposal; and (2) 
prohibition of ``ground disturbing operations'' within 500 feet of any 
structure or facility used by the NPS for interpretation, public 
recreation, or administration.
    NPS Response: Section 9.110(c) of this rule requires operators, 
when applying standards to a particular operation, to use 
technologically feasible, least damaging methods to protect federally 
owned or administered lands, waters, and resources of System units, 
visitor uses and experiences, and visitor and employee health and 
safety. The NPS applies the ``technologically feasible, least damaging 
methods'' standard consistently to all aspects of an operation. The NPS 
included the phrase ``to a particular operation'' in this section, 
however, to recognize that the methods used to meet the technologically 
feasible, least damaging methods standard may vary depending on the 
individual operation and the environmental conditions of the proposed 
operation.
    The NPS has removed the phrase ``ground disturbing'' from this rule 
because generally no activities incident to oil and gas operations, 
whether or not they disturb the ground, may be conducted within 500 
feet of any structure or facility used by the NPS for interpretation, 
public recreation, or administration. We have clarified the language in 
this rule regarding the Superintendent's discretion to increase or 
decrease this distance consistent with the need to protect federally 
owned or administered lands, waters, or resources of System units, 
visitor uses or experiences, or visitor or employee health and safety.
    33. Comment: Commenters suggested that the rule should require the 
use of best management practices and specific, prescriptive performance 
standards.
    NPS Response: Executive Order 12866 requires federal agencies, to 
the extent feasible, to specify performance objectives, rather than 
specifying the behavior or manner of compliance that regulated entities 
must adopt. Consistent with this direction, and because this approach 
has worked well under the 1978 Regulations, this rule maintains the 
current practice of setting non-prescriptive operating standards that 
provide operators the flexibility to design their proposed operation 
using the latest technological innovations that best protect park 
system resources, values, and visitor health and safety.

Wildlife and Habitat Protection

    34. Comment: One commenter suggested that the proposed rule address 
how listed species under the Endangered Species Act (ESA) will be 
conserved in areas impacted by oil and gas activities, including those 
using hydraulic fracturing completion methods.
    NPS Response: NPS will consult with FWS and NOAA in accordance with 
the requirements of Section 7 of the ESA. It is not necessary to repeat 
or separately incorporate those requirements in this regulation.
    35. Comment: One commenter suggested that the rule identify 
habitats and implement seasonal closures and other time limitations to 
protect wildlife and other resources.
    NPS Response: Through interdisciplinary review of each site-
specific proposal under the regulation, the NPS identifies potential 
effects from oil and gas operations on species and habitat. The NPS 
applies mitigation and avoidance measures, which may include seasonal 
closures, to protect these resources, and also implements requirements 
imposed or recommended by FWS and NOAA through the Section 7 process.

Hydraulic Fracturing Completion Methods

    36. Comment: One commenter expressed concern that the rules for 
hydraulic fracturing are premature due to ongoing litigation concerning 
the Bureau of Land Management (BLM) final rule to manage hydraulic 
fracturing on federal and tribal lands (80 FR 16128).
    NPS Response: The U.S. District Court for the District of Wyoming, 
in State of Wyoming v. U.S. Department of the Interior, Case No. 2:15-
CV-043-SWS, issued an order on June 21, 2016, setting aside the BLM 
regulations. That order is under appeal in the U.S. Court of Appeals 
for the Tenth Circuit. That case concerns different statutory 
authorities that do not apply to the NPS, and is unlikely to set any 
precedent that is applicable to regulations issued under NPS's 
authorities, which require NPS to conserve park resources and protect 
against their impairment, and which do not generally provide for any 
development of federally owned oil and gas in System units.
    37. Comment: One commenter opposed the rule because it would allow 
operators to withhold disclosure of fracking chemicals.
    NPS Response: The NPS supports and through this rule requires the 
disclosure of all chemicals used in any hydraulic fracturing operation. 
Operators may provide this information to the NPS through FracFocus or 
another existing database available to the public. Because Federal law 
provides for the protection of trade secrets, the NPS will allow that 
information to be withheld if the operator and any other owner of the

[[Page 77987]]

trade secret submits to the NPS an affidavit containing specific 
information explaining the reasons for the claim for protection. If the 
NPS has questions about the validity of the claim for protection, the 
NPS may require the operator to provide the withheld information to the 
NPS, and the NPS will then determine whether the data must be disclosed 
to the public.
    38. Comment: One commenter recommended that the rule be revised to 
require disclosure of chemicals for all types of well stimulation 
operations, not just hydraulic fracturing operations.
    NPS Response: NPS has added language in Sec. Sec.  9.88 and 9.89 of 
the rule to clarify that operators must disclose all chemicals used for 
well stimulation activities in a System unit. These disclosures are 
subject to any lawful trade secret protections that may be demonstrated 
by an operator.
    39. Comment: One commenter suggested that the rule ban hydraulic 
fracturing or set specific standards to protect park resources from the 
potential effects of hydraulic fracturing.
    NPS Response: Congress has directed the NPS to ``ensure that 
management of System units is enhanced by the availability and 
utilization of a broad program of the highest quality science and 
information.'' 54 U.S.C. 100702. Some 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 NPS's research and review of studies provided 
during the public comment period, a blanket ban on hydraulic fracturing 
completion methods in System units is not necessary at this time. The 
NPS will continue to review information on hydraulic fracturing 
completion methods as it becomes available. Proposed well completion 
programs using hydraulic fracturing are not given blanket approval. The 
rule includes operating standards and approval standards that are 
designed to ensure that operators employ the least damaging methods 
that are technologically feasible, and that such methods do not impair 
park system resources or values. The NPS will consider hydraulic 
fracturing operations on a case by case basis and analyze potential 
impacts on park resources and values according to the approval 
standards in the rule.
    40. Comment: One commenter expressed concern that operators are not 
required to retain records long enough to provide adequate protections 
from hydraulic fracturing operations.
    NPS Response: The rule requires the operator (and any subsequent 
operators) to maintain records until the later of when the NPS releases 
the operator's financial assurance or 7 years after completion of 
hydraulic fracturing operations. The rule does not allow the operator 
to destroy withheld information before the NPS releases the operator's 
financial assurance. The NPS does not release the operator's financial 
assurance until the operator has completed operations, including site 
reclamation. These timeframes provide for an adequate length of time to 
require an operator to retain records, and are consistent with other 
federal agency requirements for record retention, see BLM Oil and Gas; 
Hydraulic Fracturing on Federal and Indian Lands (80 FR 16128). The NPS 
has determined that a perpetual retention requirement is not necessary.

General Terms and Conditions

    41. Comment: One commenter suggested that the rule contain language 
that would ensure that third party monitors have no conflict of 
interest.
    NPS Response: Although the third party monitor, if required by the 
NPS, is hired by the operator, the monitor reports directly to the NPS. 
Additionally, this rule requires that the monitor demonstrate its 
qualifications to the NPS. These requirements are sufficient to avoid 
conflicts of interest.
    42. Comment: One commenter suggested shortening the notification 
and reporting timeframe for equipment failure (including loss of 
mechanical integrity), accident, injury to persons or resources, or 
notification of change of operator.
    NPS Response: The reporting and notification timeframes are 
appropriate to protect park resources and values. The NPS is declining 
to shorten the time frames because we conclude that the proposed 
timeframes sufficiently address both protection of park resources and 
the practical needs of the operator for time to prepare appropriate 
notices to NPS. For loss of mechanical integrity, the rule requires the 
operator to immediately cease the operation and notify the 
Superintendent as soon as feasible, but no later than 24 hours after 
the incident. For accidents and injury to persons and resources, Sec.  
9.121(c) and (d) of this rule has been updated from the proposed rule 
to require notification as soon as feasible, but no later than 24 
hours. For change of operator, the rule reduces the seller's 
notification time from 60 in existing regulations to 30 days. This 30 
day period is sufficient because the rule holds the previous owner 
responsible until the Regional Director accepts the new operator's 
financial assurance.

Access Fees

    43. Comment: One commenter questioned the legal authority of the 
NPS to charge access fees to parties who own subsurface oil and gas 
rights underneath the access route leading to the boundary of the oil 
and gas right being developed and the legal basis for charging access 
fees for oil and gas operators in excess of those it charges for other 
recreational users.
    NPS Response: Federal law states that charges should be assessed 
against each identifiable recipient for special benefits beyond those 
received by the general public from Federally-permitted activities. 31 
U.S.C. 9701. This statute authorizes the NPS to impose a user charge 
for the value of the facilities or lands used, or the services 
provided. The NPS does not charge oil and gas operators for access that 
is pursuant to a right (e.g., access within the boundary of the oil and 
gas right that is being developed) or via a deeded or statutory right 
to use the park-administered lands. NPS is only charging for access 
that is granted as a privilege ``outside the scope of an operator's oil 
and gas right.'' This sort of access is a special benefit that warrants 
such a user charge. Unless otherwise authorized by law, such funds 
collected are deposited in the general fund of the Treasury as 
miscellaneous receipts.
    44. Comment: One commenter suggested the rule should contain 
criteria that would be used to determine how the NPS would authorize an 
operator to undertake compensatory mitigation in lieu of paying a fee 
to access oil and gas rights.
    NPS Response: At this time, the NPS is unable to identify the 
necessary statutory authority to promulgate a regulatory provision 
authorizing use of compensatory mitigation in lieu of payment of fees 
for access. However, if such authority becomes available in the future, 
the NPS intends to re-evaluate whether it can then authorize the 
substitution of compensatory mitigation projects.

[[Page 77988]]

Financial Assurance

    45. Comment: One commenter stated that the removal of the bond cap 
and the mechanism for calculating a bond amount for non-federal lands 
is not adequately explained in the rule.
    NPS Response: The NPS applies the financial assurance provisions on 
a case by case basis, including the calculation of the amount of 
financial assurance necessary to reclaim and restore the federally 
owned surface estate. To calculate the amount of financial assurance, 
the NPS considers the following costs: Plugging wells (if applicable), 
removing all equipment and debris, restoring topographic grade, 
replacing topsoil, vegetation planting/seeding, exotic species control, 
and monitoring the success of reclamation. For proposed operations that 
are located on non-federal surface estate within a System unit, the NPS 
will consider whether that operation requires any reclamation of 
adjacent federal lands (e.g., reclamation of temporary access road 
across NPS administered lands). If a particular operation located on 
non-federal land has no potential to require reclamation of federal 
land, the NPS will not require financial assurance from that operator.
    46. Comment: One commenter suggested that the amount of financial 
assurance required for oil and gas operations should incorporate the 
amount of financial assurance already required under state law, such 
that the total amount of financial assurance provided to all government 
entities be considered when determining if the amount of financial 
assurance meets the total potential cost of reclamation. The commenter 
gave an example that if the total cost of reclamation by a third party 
would be $500,000, and the state is requiring a $200,000 reclamation 
bond, then the NPS should only require an additional $300,000 financial 
assurance ($500,000-$200,000) for the project. This would protect 
taxpayers in the event of a default, and would not require an operator 
to pledge financial assurance that is in excess of the required amount.
    NPS Response: The NPS is responsible for ensuring that an operator 
fulfills its reclamation responsibilities after operations cease 
protecting park resources and values and ensuring that there is 
adequate bonding to do so is a high priority. In many states, the 
required reclamation bond is a blanket bond. In the commenter's 
example, the state-required $200,000 reclamation bond is likely not for 
a single well, but would cover multiple wells. For example, the State 
of Texas allows operators to post a blanket bond of $250,000 to cover 
one hundred or more wells. (Texas Statewide Rule 78). In this scenario, 
should an operator become insolvent and not meet its reclamation 
requirements, the state required blanket bond is likely not an adequate 
amount to reclaim each of the operator's 100-plus well sites. Further, 
the State could not ensure the NPS that the bonded funds would be 
available to reclaim the operator's sites within a System unit. In many 
states, funds collected from insolvent operators go into a plugging 
fund, and funds are assigned to oil and gas sites based on a 
prioritized list established by the State. We are not aware of any 
state assurance programs, where the amount paid to the State would with 
certainty be available to NPS. For these reasons, the rule requires the 
full estimated amount of assurance be provided to NPS.

Well Plugging

    47. Comment: One commenter suggested the NPS shorten the approval 
period for a shut-in well so that public lands are not left in a 
degraded condition any longer than necessary.
    NPS Response: Five years is a reasonable amount of time to allow an 
operator to meet the criteria it needs to obtain authorization to shut 
in its well. All applicable laws and regulation related to well-bore 
integrity and testing will still apply during the shut-in period, which 
will protect park resources and values until the operator obtains the 
shut-in authorization.

Public Participation

    48. Comment: One commenter expressed concern about the removal of 
specific public notice requirements under the proposed rule.
    NPS Response: Sections 9.52(a) and (b) of the 1978 Regulations are 
removed by this rule because these provisions created an inefficient 
method of public involvement. Section 9.52(a) of the 1978 Regulations 
required the Superintendent to publish a notice of access requests in a 
newspaper of general circulation in the county(s) where the lands were 
situated, or in publications deemed appropriate by the Superintendent. 
At that point in the operator's planning process, the scope and methods 
of the proposed operation were not finalized. Further, after initial 
scoping and planning, an operator may sometimes abandon its proposal. 
Notice to the public at such a preliminary stage of the operator's 
planning was premature for meaningful public engagement.
    Section 9.52(b) of the 1978 Regulations required the Superintendent 
to publish a notice in the Federal Register advising the public that 
the plan of operations was available for public review and comment. 
Under this rule, the NPS will provide the opportunity for public review 
and comment (on both the complete permit application and draft 
environmental review documents) in accordance with NEPA and other 
applicable legal requirements. See Sec.  9.200(a). In general, public 
notice includes a 30-day public comment period.
    49. Comment: One commenter requested that the NPS issue guidance 
materials for public review and comment prior to finalizing the rule.
    NPS Response: The NPS will follow its standard procedures for 
review and issuance of guidance documents. See NPS Management Policies 
(2006), Introduction (Law, Policy, and Other Guidance), page 5. Because 
any new guidance documents must be consistent with these regulations, 
these regulations must be issued first.

Alaska

    50. Comment: Commenters expressed concerns regarding the conflict 
between the rule and the access provision found in ANILCA section 
1110(b), including the possible imposition of access fees or 
compensatory mitigation on those interests subject to the ANILCA access 
provision. Other commenters stated that NPS lacked the authority to 
regulate such activities on park inholdings section 103(c) of ANILCA.
    NPS Response: As stated above, the NPS has chosen to limit the rule 
to System units outside of Alaska. We have also clarified above that 
the Departmental regulations at 43 CFR part 36 are unaffected by this 
rule. This addresses or moots the concerns raised in these comments and 
will allow NPS to address concerns expressed in a future rulemaking if 
appropriate, once the Sturgeon litigation is resolved.

Changes in the Final Rule.

    After taking the public comments into consideration and after 
additional review, the NPS made the following substantive changes in 
the final rule as described in the table below. The NPS also made 
numerous non-substantive changes to the regulatory language and 
formatting in the final rule. These non-substantive changes are not 
included in the table below.

[[Page 77989]]



------------------------------------------------------------------------
 
------------------------------------------------------------------------
Sec.  Sec.   9.30(a) and (b)......  Added ``. . . within System units
                                     outside of Alaska, . . .''
Sec.   9.31(a)....................  Added ``. . . proposes to conduct
                                     non-federal oil or gas operations
                                     outside of Alaska.''
Sec.   9.40.......................  Definition of Waste--changed ``toxic
                                     or hazardous substance'' to
                                     ``contaminating substance.''
                                    Definition of Unit--deleted the term
                                     ``Unit.'' The text of this rule
                                     uses the statutory term ``System
                                     unit,'' which is found at 54 U.S.C.
                                     100102(6).
                                    Definition of Operations--changed to
                                     ``. . . occurring within a System
                                     unit outside of Alaska.''
                                    Definition of Operator--changed to
                                     ``. . . within the boundaries of a
                                     System unit outside of Alaska.''
                                    Definition of Technologically
                                     Feasible Least Damaging Methods--
                                     removed ``on a case-by-case basis,
                                     . . .''
                                    Definition of Third Party Monitor--
                                     removed ``demonstrated to the NPS .
                                     . .''
Sec.   9.63.......................  Removed 60 day maximum time for
                                     reconnaissance survey permit and
                                     replaced it with ``based upon the
                                     scope of the reconnaissance surveys
                                     needed.''
Sec.   9.70.......................  Modified language to clarify when an
                                     operations permit is required for
                                     operations that access oil and gas
                                     rights located inside a System unit
                                     from a surface location outside the
                                     unit.
Sec.   9.84(a)(2).................  Added ``wetlands, seepage areas,
                                     springs, shallow water aquifers, .
                                     . .'' to the list of examples of
                                     natural features.
Sec.   9.85(a)....................  Modified language to clarify that
                                     the NPS may require an operator to
                                     conduct baseline testing.
Sec.   9.88(j)....................  Added ``any proposed stimulation
                                     techniques'' to the list of
                                     completion reporting requirements.
Sec.   9.89(a)....................  Modified language to clarify what
                                     geologic information is required in
                                     an operations permit application
                                     that proposes well stimulation
                                     activities.
Sec.   9.89(e)(1).................  Modified language to clarify the
                                     stimulation fluid information
                                     requirement in an operations permit
                                     application.
Sec.   9.103(a)...................  Modified language to clarify the
                                     criteria under which the Regional
                                     Director will approve operations
                                     permits.
Sec.   9.103(a)(1)................  Modified language to clarify the NPS
                                     laws that apply to the approval of
                                     operations permits.
Sec.   9.103(b)(3)................  Changed the approval section to
                                     reflect that the Regional Director
                                     will review affidavits that the
                                     operator submits showing that the
                                     operations proposed are in
                                     compliance with all applicable
                                     federal, state, and local laws and
                                     regulations.
Sec.   9.104(a)...................  Modified language to clarify the
                                     timeframe for a Regional Director
                                     to take final action on an
                                     operations permit application.
Sec.   9.104(a)(2)................  Removed ``Executive Orders'' from
                                     the list of requirements with which
                                     the Regional Director must ensure
                                     consistency to approve an
                                     operations permit and changed to
                                     read ``all applicable legal
                                     requirements.''
Sec.   9.111(a)...................  Section 9.112(a) of the proposed
                                     rule moved to Sec.   9.111(a).
                                     Section 9.111(a) was modified to
                                     clarify the required setbacks from
                                     surface water; wetlands the mean
                                     high tide line; or structures or
                                     facilities.
Sec.   9.111(d)...................  Changed to read ``confine in a
                                     manner appropriate to prevent
                                     escape''
Sec.   9.111(g)...................  Modified to clarify the operating
                                     standard for minimizing the release
                                     of air pollutants and hydrocarbons,
                                     and flaring of gas.
Sec.   9.111(i)...................  Inserted new operating standard for
                                     the protection of sensitive
                                     wildlife.
Sec.   9.112......................  Paragraphs changed to reflect
                                     movement of Sec.   9.112(a) of the
                                     proposed rule to Sec.   9.111(a) of
                                     this rule
Sec.   9.120(a)...................  Modified to clarify that operators
                                     are responsible for ensuring that
                                     all employees, contractors, and
                                     subcontractors comply with NPS
                                     requirements.
Sec.   9.121(b)(3)................  Added paragraph (b)(3) to clarify
                                     that third party monitors must
                                     disclose any potential conflicts of
                                     interest to the NPS.
Sec.   9.130......................  Added ``. . . in any System unit
                                     outside of Alaska . . .''
Sec.   9.150......................  We added language to this section to
                                     provide more clarity on the
                                     processes to modify an operations
                                     permit.
Sec.   9.160......................  We added language to this section to
                                     provide more clarity on the
                                     processes for an operator to
                                     transfer operations.
Sec.   9.161......................  We added language to this section to
                                     provide more clarity on the
                                     processes for a new operator to
                                     acquire operations.
Sec.   9.170(b)...................  Changed from ``continuously inactive
                                     for a period of 1 year'' to ``has
                                     no measureable production
                                     quantities for 12 consecutive
                                     months.''
Sec.   9.200(c)...................  We added reference to Sec.   9.88(j)
                                     to clarify that proprietary
                                     information submitted pursuant to
                                     Sec.   9.88 can be withheld from
                                     disclosure.
Sec.   9.200(g)...................  Modified language to clarify the
                                     record retention requirements after
                                     completion of hydraulic fracturing
                                     operations.
------------------------------------------------------------------------

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Order 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget will review 
all significant rules. The Office of Information and Regulatory Affairs 
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. We have developed this 
rule in a manner consistent with these requirements.

Regulatory Flexibility Act (RFA)

    This rule does 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

[[Page 77990]]

Cost-Benefit and Regulatory Flexibility Analyses: U. S. Department of 
the Interior, National Park Service for Proposed Revisions to 36 CFR 
part 9, subpart B, which can be viewed at https://parkplanning.nps.gov/CBA_9B.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2) of the SBREFA. 
This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more;
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, state, or local government 
agencies, or geographic regions; and
    (c) Does 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 upon the cost-benefit and regulatory 
flexibility analysis found in the report entitled Cost-Benefit and 
Regulatory Flexibility Analyses: U. S. Department of the Interior, 
National Park Service for Proposed Revisions to 36 CFR part 9, subpart 
B, which can be viewed at https://parkplanning.nps.gov/CBA_9B.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. It addresses use of 
national park lands, and imposes 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)

    The NPS received public comment that additional regulation of 
private oil and gas rights on NPS land could infringe on private 
property rights or could represent a taking. The rule does not take 
private property or authorize the taking of private property. Moreover, 
implementation of the rule is not likely to result in a taking of 
private property.
    The rule updates regulations that have been in effect since 1979. 
It updates various provisions of the existing regulations in a manner 
that is consistent with current industry standards and technological 
capabilities, prevailing industry and investor expectations, and the 
most recent developments in regulatory and takings law. It authorizes 
NPS to recover its legitimate permit-processing and monitoring costs 
and to charge operators for privileged access across federal lands 
(i.e., access that is not a legal right incident to the mineral 
estate). Although it may potentially increase the amount of financial 
assurance that operators must post, it will do so only to a level 
commensurate with the cost of restoring the federally owned surface 
estate.
    The rule extends the applicability of these regulations to most 
currently exempt operations located within park boundaries. During the 
36 years that the existing regulations have been in place, however, NPS 
has never disapproved a submitted plan of operations and no mineral 
owner or operator has ever filed a claim asserting that implementation 
of the regulations has resulted in a taking of private property. 
Moreover, as described above, the rule updates the existing regulations 
in a manner consistent with current industry standards and 
technological capabilities. Accordingly, the application of the rule to 
currently exempt operations is not likely to result in a taking. The 
rule continues to allow operators reasonable access across federally 
owned surface to develop non-federal mineral rights. No other private 
property is affected. The rule brings outdated provisions into line 
with modern regulatory practice and is a reasonable exercise of its 
regulatory authority.
    Finally, the regulatory text will continue to state (as do the 
existing regulations) that it is not intended to result in a taking. 
The existing regulations also contain a second provision that expressly 
applies the lower of the two standards of review in the event of a 
possible taking. Because this rule contains only one standard of review 
(in an effort to simplify the rule), such a provision no longer appears 
appropriate. NPS has never actually needed to invoke that second 
provision, nor has it ever failed to provide final approval for a plan 
of operations that has been sought. Under the rule, NPS retains 
discretion to make individual permit decisions that will avoid a taking 
if an unexpected problem should arise.

Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, the rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism summary impact statement. It addresses use 
of national park lands, and imposes 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 (E.O. 13175 and Department policy) and 
ANCSA Native Corporations

    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 evaluated this rule 
under the Department's consultation policy and under the criteria in 
Executive Order 13175 and determined that it has no substantial direct 
effects on federally recognized Indian tribes and that consultation 
under the Department's tribal consultation policy is not required. 
Nonetheless, NPS consulted with all federal tribes traditionally 
associated with System units that have current oil and gas operations, 
and System units that do not have active operations, but have potential 
for future operations. The NPS initially consulted with federal tribes 
during scoping for the DEIS. Upon initial consultation, the NPS 
received letters back from the Choctaw Nation of Oklahoma, the Hopi 
Tribe, the Navajo Nation, and the San Carlos Apache Tribe of the San 
Carlos Reservation requesting consultation and review of the DEIS, once 
available. The NPS again consulted with all federal tribes 
traditionally associated with System units that have current oil and 
gas operations, and System units that do not have active operations, 
but have potential for future operations when the DEIS and proposed 
rule were released for the 60 day public comment period. The NPS 
received letters/emails back from the Choctaw Nation of Oklahoma, 
Pueblo of Santa Ana and Pueblo of Santa Clara on its second 
consultations letters. These letters are available in the appendix to 
the FEIS. In recognition of its relationship with tribal affiliates, 
the NPS Alaska Regional office reached out directly to Alaska tribes. 
NPS received no follow up comments from the Alaska tribal affiliates.

[[Page 77991]]

Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

    This rule contains information collection requirements that have 
been approved by the Office of Management and Budget (OMB) under the 
PRA (44 U.S.C. 3501 et seq.). OMB has reviewed and approved the current 
information collection requirements associated with non-Federal oil and 
gas rights in national parks and assigned OMB Control Number 1024-0064, 
which expires June 30, 2019. OMB has assigned OMB Control Number 1024-
0274 (expires XX/XX/2019) for information collection associated with 36 
CFR part 9, subpart B, contained in this rule. We plan to transfer the 
corresponding burden for the subpart B requirements to OMB Control No. 
1024-0064 after the final rule goes into effect and will then 
discontinue the new number. 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.
    Title: Non-Federal Oil and Gas Rights, 36 CFR part 9, subpart B.
    OMB Control Number: 1024-0274.
    Service Form Number: None.
    Type of Request: New.
    Description of Respondents: Businesses.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.

----------------------------------------------------------------------------------------------------------------
                                                                     Estimated      Completion
                                                                     number of       time per        Estimated
                      Activity/requirement                            annual         response      total annual
                                                                     responses        (hours)      burden hours
----------------------------------------------------------------------------------------------------------------
Previously Exempt Operations (Sec.  Sec.   9.50-9.53)...........             106              10           1,060
Application for Temporary Access Permit (Sec.  Sec.   9.60-9.63)               5              15              75
Extension of Temporary Access Permit............................               1               1               1
Accessing Oil and Gas Rights From a Surface Location Outside the               3              80             240
 Park Boundary--Application for Exemption (Sec.  Sec.   9.70-
 9.73)..........................................................
Accessing Oil and Gas Rights From a Surface Location Outside the               1               2               2
 Park Boundary--Notice of change (Sec.  Sec.   9.70-9.73).......
Operations Permit Operations Permit (New Operations):
    Application Contents--(Sec.  Sec.   9.80-9.90)..............               5             140             700
Operating Standards--Stimulation Operations (Sec.   9.118(b)):
    Demonstrate mechanical integrity............................               5               4              20
    Record treating pressures and all annular pressures.........               5               4              20
    Notify Superintendent if mechanical integrity is lost.......               1               1               1
    Report of accident..........................................               2               1               2
Operating Standards--Production (Sec.   9.118(c)):
    Document maintenance of mechanical integrity................             534               2            1068
    Signage to identify wells...................................               5               4              20
General Terms and Conditions (Sec.  Sec.   9.120-9.122):
    Affidavit that proposed operations are in compliance with                111               1             111
     all laws and that information submitted to NPS is accurate.
    Third-Party Monitor Report..................................              60              17           1,020
    Notification--Accidents involving Serious Personal Injuries/               2               1               2
     Death and Fires/Spills.....................................
    Written Report--Accidents Involving Serious Injuries/Deaths                2              16              32
     and Fires/Spills...........................................
    Notification--Discovery of any cultural or scientific                      1               1               1
     resources..................................................
    Report--Verify Compliance with Permits......................             534               4           2,136
    Reporting for Hydraulic Fracturing..........................               1               2               2
Financial Assurance (Sec.  Sec.   9.140-9.144)..................               5               1               5
Modification to an Operation (Sec.   9.150).....................               1              16              16
Change of Operator (Sec.  Sec.   9.160-9.161)...................               5               8              40
Well Plugging (Sec.  Sec.   9.170-9.171)........................              33              14             462
Reconsideration and Appeals (Sec.  Sec.   9.190-9.194)..........               1              16              16
Public Participation (Sec.   9.200).............................               1               4               4
                                                                 -----------------------------------------------
    Total.......................................................           1,430  ..............           7,056
----------------------------------------------------------------------------------------------------------------

    Currently, there are oil and gas operations in 12 of the 410 parks 
in the National Park System, and about 60 percent of those operations 
are exempt from NPS regulations. This rule would apply NPS regulations 
to operations that are currently exempt and any future oil and gas 
operations in the National Park System. We will use the information 
collected to: (1) Evaluate proposed operations, (2) ensure that all 
necessary mitigation measures are employed to protect park resources 
and values, and (3) ensure compliance with all applicable laws and 
regulations. We will collect information associated with non-Federal 
oil and gas operations within units of the National Park System under 
the below listed sections of 36 CFR part 9, subpart B:

Previously Exempt Operations (Sec. Sec.  9.50 through 9.53)
Temporary Access Permits (9.60 through 9.63)
Accessing Oil and Gas Rights from a Surface Location Outside the Park 
Boundary (9.70 through 9.73)
Operations Permit: Application Contents (Sec. Sec.  9.80 through 9.90)
Operating Standards (Sec. Sec.  9.110-9.118)
Financial Assurance (Sec. Sec.  9.140 through 9.144)
Modification to an Operation (Sec.  9.150)
Change of Operator (Sec. Sec.  9.160 and 9.161)
Well Plugging (Sec. Sec.  9.170 and 9.171)
Reconsideration and Appeals (Sec. Sec.  9.190 through 9.194)
Public Participation (Sec.  9.200)

    During the proposed rule stage, we received one comment which 
addressed the issue of the information requested under this rule. The 
commenter suggested that the NPS collect baseline and historical data 
on groundwater levels, water quality, aquifer conditions, groundwater 
discharge, natural features, and aquatic and wildlife habitats that 
could be used to evaluate potential effects and actual impacts of 
mineral development on habitats, communities,

[[Page 77992]]

homeowners, farms and ranches within and surrounding national parks.
    NPS Response: This rule contains information requirements that will 
allow the NPS to collect and evaluate the information that the 
commenter is suggesting. For instance, the rule allows the NPS to 
request that the operator provide baseline water quality data in its 
permit application. See, Sec.  9.85(a). Further, each permit 
application will be evaluated under the requirements of the National 
Environmental Policy Act for impacts to the human environment.
    The public may comment, at any time, on the accuracy of the 
information collection burden in this rule and may submit any comments 
to the Information Collection Clearance Officer, National Park Service, 
12201 Sunrise Valley Drive (Mail Stop 242), Reston, VA 20192.

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 FEIS under the requirements of NEPA. On October 20, 2016, 
the Director of the National Park Service signed the Record of Decision 
identifying Alternative B in the FEIS as the selected action. The FEIS 
and ROD are available online at https://parkplanning.nps.gov/FEIS9B and 
https://parkplanning.nps.gov/ROD_9B.

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 rule reflects the collective efforts of NPS staff in the 
Geologic Resources Division, parks, and field offices, with assistance 
from the Regulations, Jurisdiction, and Special Park Uses Division.

List of Subjects

36 CFR Part 1

    National parks, Penalties, Reporting and recordkeeping requirements

36 CFR Part 9

    National parks, Oil and gas exploration, Reporting and 
recordkeeping requirements.

    In consideration of the foregoing, the National Park Service amends 
36 CFR parts 1 and 9 as follows:

PART 1--GENERAL PROVISIONS

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

    Authority:  54 U.S.C. 100101, 100751, 320102.

0
2. Revise Sec.  1.3 to read as follows:


Sec.  1.3  Penalties.

    (a) A person convicted of violating a provision of the regulations 
contained in parts 1 through 7, part 9 subpart B, and parts 12 and 13 
of this chapter, within a park area not covered in paragraph (b) or (c) 
of this section, shall be punished by a fine as provided by law, or by 
imprisonment not exceeding 6 months, or both, and shall be adjudged to 
pay all costs of the proceedings.
    (b) A person who knowingly and willfully violates any provision of 
the regulations contained in parts 1 through 5, 7, part 9 subpart B, 
and part 12 of this chapter, within any national military park, 
battlefield site, national monument, or miscellaneous memorial 
transferred to the jurisdiction of the Secretary of the Interior from 
that of the Secretary of War by Executive Order No. 6166, June 10, 
1933, and enumerated in Executive Order No. 6228, July 28, 1933, shall 
be punished by a fine as provided by law, or by imprisonment for not 
more than 3 months, or by both.

    Note to paragraph (b): These park areas are enumerated in a note 
under 5 U.S.C. 901.

    (c) A person convicted of violating any provision of the 
regulations contained in parts 1 through 7 and part 9 subpart B of this 
chapter, within a park area established pursuant to the Act of August 
21, 1935, 49 Stat. 666, shall be punished by a fine as provided by law 
and shall be adjudged to pay all costs of the proceedings. 54 U.S.C. 
320105.
    (d) Notwithstanding the provisions of paragraphs (a), (b), and (c) 
of this section, a person convicted of violating Sec.  2.23 of this 
chapter shall be punished by a fine as provided by law. 16 U.S.C. 6811.

PART 9--MINERALS MANAGEMENT

Subpart D--Alaska Mineral Resource Assessment Program

0
3. The authority citation for part 9, subpart D, is revised to read as 
follows:

    Authority:  16 U.S.C. 410hh; 16 U.S.C. 3101, et seq.; 16 U.S.C. 
347; 16 U.S.C. 410bb; 16 U.S.C. 1131 et seq.; 54 U.S.C. 320301; 54 
U.S.C. 100101, et seq.

Subpart D--[Redesignated as Subpart C]

0
4. Redesignate subpart D, consisting of Sec. Sec.  9.80 through 9.89, 
as subpart C, consisting of Sec. Sec.  9.300 through 9.309.

0
5. Revise subpart B to read as follows:
Subpart B--Non-federal Oil and Gas Rights

Purpose And Scope

Sec.
9.30 What is the purpose and scope of this subpart?
9.31 When does this subpart apply to me?
9.32 What authorization do I need to conduct operations?
9.33 If am already operating under an NPS authorization, what do I 
need to do?

Definitions

9.40 What do the terms used in this subpart mean?

Previously Exempt Operations

9.50 Do I need an operations permit for my previously exempt 
operations?
9.51 How do I apply for my operations permit?
9.52 What will the NPS do with my application?
9.53 May I continue to operate while the NPS reviews my application?

Temporary Access Permits

9.60 When do I need a temporary access permit?
9.61 How do I apply for a temporary access permit?
9.62 When will the NPS grant a temporary access permit?
9.63 How long will I have to conduct my reconnaissance surveys?

Accessing Oil and Gas Rights From a Surface Location Outside the System 
Unit Boundary

9.70 Do I need an operations permit for accessing oil and gas rights 
from outside the System unit boundary?
9.71 What information must I submit to the NPS?
9.72 How will the NPS act on my submission?
9.73 If I don't need an operations permit, are there still 
requirements that I must meet?

Operations Permit: Application Contents

9.80 Who must apply for an operations permit?
9.81 May I use previously submitted information?
9.82 What must I include in my application?
9.83 What information must be included in all applications?
9.84 Existing conditions and proposed area of operations.
9.85 Environmental conditions and mitigation actions.
9.86 Spill control and emergency preparedness plan.
9.87 What additional information must be included if I am proposing 
geophysical exploration?
9.88 What additional information must be included if I am proposing 
drilling operations?

[[Page 77993]]

9.89 What additional information must be included if I am proposing 
well stimulation operations, including hydraulic fracturing?
9.90 What additional information must be included if I am proposing 
production operations?

Operations Permit: Application Review Process

9.100 How will NPS process my application?
9.101 How will the NPS conduct initial review?
9.102 How will the NPS conduct formal review?
9.103 What standards must be met to approve my operations permit?
9.104 What final actions may the Regional Director take on my 
operations permit?
9.105 What is the approval process for operations in Big Cypress 
National Preserve?

Operating Standards

9.110 What are the purposes and functions of NPS operating 
standards?
9.111 What general facility design and management standards must I 
meet?
9.112 What hydrologic standards must I meet?
9.113 What safety standards must I meet?
9.114 What lighting and visual standards must I meet?
9.115 What noise reduction standards must I meet?
9.116 What reclamation and protection standards must I meet?
9.117 What additional operating standards apply to geophysical 
operations?
9.118 What additional operating standards apply to drilling, 
stimulation, and production operations?

General Terms And Conditions

9.120 What terms and conditions apply to all operators?
9.121 What monitoring and reporting is required for all operators?
9.122 What additional reports must I submit if my operation includes 
hydraulic fracturing?

Access to Oil and Gas Rights

9.130 May I cross Federal property to reach the boundary of my oil 
and gas right?
9.131 Will the NPS charge me a fee for access?
9.132 Will I be charged a fee for emergency access to my operations?

Financial Assurance

9.140 Do I have to provide financial assurance to the NPS?
9.141 How does the NPS establish the amount of financial assurance?
9.142 Will the NPS adjust my financial assurance?
9.143 When will the NPS release my financial assurance?
9.144 Under what circumstances will the NPS retain my financial 
assurance?

Modification to an Operation

9.150 How can an approved permit be modified?

Change of Operator

9.160 What are my responsibilities if I transfer my operations?
9.161 What must I do if operations are transferred to me?

Well Plugging

9.170 When must I plug my well?
9.171 Can I get an extension to the well plugging requirement?

Prohibitions and Penalties

9.180 What acts are prohibited under this subpart?
9.181 What enforcement actions can the NPS take?
9.182 How do violations affect my ability to obtain a permit?

Reconsideration and Appeals

9.190 Can I, as operator, request reconsideration of NPS decisions?
9.191 How does the NPS process my request for reconsideration?
9.192 Can I appeal the Regional Director's decision?
9.193 Will filing a request for reconsideration or appeal stop the 
NPS from taking action under this subpart?
9.194 What if the original decision was made by the Superintendent?

Public Participation

9.200 How can the public participate in the approval process?

Information Collection

9.210 Has the Office of Management and Budget approved the 
information collection requirements?

Subpart B--Non-Federal Oil and Gas Rights

    Authority:  16 U.S.C. 230a(a)(4), 459d-3, 460cc-2(i), 
460ee(c)(4), 698c(b)(2), 698i(b)(2), and 698m-4; 18 U.S.C. 3571 and 
3581; 31 U.S.C. 9701; 54 U.S.C. 100101, 100751, and 103104.

Purpose and Scope


Sec.  9.30  What is the purpose and scope of this subpart?

    (a) The purpose of this subpart is to ensure that operators 
exercising non-federal oil and gas rights within a System unit outside 
of Alaska use technologically feasible, least damaging methods to:
    (1) Protect federally owned or administered lands, waters, or 
resources of System units;
    (2) Protect NPS visitor uses or experiences, or visitor or employee 
health and safety; and
    (3) Protect park resources and values under the statute commonly 
known as the NPS Organic Act;
    (b) This subpart applies to all operators conducting non-federal 
oil or gas operations on lands or waters within System units outside of 
Alaska, regardless of the ownership or legislative jurisdiction status 
of those lands or waters.
    (c) We do not intend for this subpart to result in a taking of a 
property interest. Application of this subpart is intended to 
reasonably regulate operations within System units that may affect 
federally owned or administered lands, waters, and resources, visitor 
uses and experiences, and visitor and employee health and safety.


Sec.  9.31  When does this subpart apply to me?

    (a) This subpart applies to you if you are an operator who conducts 
or proposes to conduct non-federal oil or gas operations outside of 
Alaska.
    (b) If you were operating outside of a System unit and your 
operation has been included within an existing System unit as a result 
of a change to the boundary, or included within a newly established 
System unit, you are subject to Sec. Sec.  9.50 through 9.53.
    (c) If you were operating under an exemption because your operation 
accessed oil and gas rights inside the System unit boundary from a 
surface location outside the boundary, and your surface location has 
been included within an existing System unit as a result of a change to 
the boundary, or included within a newly established System unit, you 
are subject to Sec. Sec.  9.50 through 9.53.


Sec.  9.32  What authorization do I need to conduct operations?

    (a) Except as provided in Sec. Sec.  9.70 through 9.73, you must 
obtain a temporary access permit under Sec. Sec.  9.60 through 9.63 or 
an operations permit under Sec. Sec.  9.80 through 9.90 before 
conducting operations.
    (b) You must demonstrate that you have the right to operate in 
order to conduct activities within a System unit.


Sec.  9.33  If I am already operating under an NPS authorization, what 
do I need to do?

    (a) If you already have an NPS-approved plan of operations, you may 
continue to operate according to the terms and conditions of that 
approval, subject to the provisions of this subpart. For purposes of 
this subpart, we consider your approved plan of operations to be either 
a temporary access permit or operations permit.
    (b) This section applies to you if we have granted you an exemption 
to the plan of operations requirement because your operation accesses 
oil and gas rights inside a System unit boundary from a surface 
location outside the boundary. You may continue to operate under the 
exemption provided that your operations comply with the general terms 
and conditions of Sec. Sec.  9.120 through 9.122. You are also subject 
to

[[Page 77994]]

the prohibitions and penalties in Sec. Sec.  9.180 through 9.182.

Definitions


Sec.  9.40  What do the terms used in this subpart mean?

    In addition to the definitions in 36 CFR 1.4, the following 
definitions apply to this subpart:
    Area of operations means lands or waters within a System unit on 
which your operations are approved to be carried out, including roads 
or other areas where you are authorized to exercise the oil and gas 
rights.
    Contaminating substance means any toxic or hazardous substance 
which is used in or results from the conduct of operations and is 
listed under the Clean Water Act at 40 CFR part 116, the Resource 
Conservation and Recovery Act at 40 CFR part 261, or the Hazardous 
Materials Transportation Act at 49 CFR part 172. This includes, but is 
not limited to, explosives, radioactive materials, brine waters, 
formation waters, petroleum products, petroleum by-products, and 
chemical compounds used for drilling, production, processing, well 
testing, well completion, and well servicing.
    Gas means any fluid, either combustible or noncombustible, which is 
produced in a natural state from the earth and which maintains a 
gaseous or rarefied state at ordinary temperature and pressure 
conditions.
    Oil means any viscous combustible liquid hydrocarbon or solid 
hydrocarbon substance easily liquefiable on warming that occurs 
naturally in the earth, including drip gasoline or other natural 
condensates recovered from gas without resort to manufacturing process.
    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 or occurring within a System 
unit outside of Alaska.
    (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; 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; 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 the 
System unit under authority of a deeded or other right-of-way.
    Operations permit means an NPS special use permit authorizing an 
operator to conduct operations in a System unit.
    Operator means any person or entity, agent, assignee, designee, 
lessee, or representative thereof who is conducting operations or 
proposing to exercise non-federal oil and gas rights within the 
boundaries of a System unit outside of Alaska.
    Owner means the person that holds title to non-federal oil or gas 
rights.
    Previously exempt operations means those operations being conducted 
in a System unit without an approved permit from the NPS as of December 
5, 2016, except operations for which the NPS had granted the operator 
an exemption to the plan of operations requirement before such date, 
because the operator accessed oil and gas rights inside the System unit 
from a surface location outside the System unit.
    Reconnaissance survey means an inspection or survey conducted by 
qualified specialists for the purpose of preparing a permit 
application.
    (1) A reconnaissance survey 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) Except for the minimal surface disturbance necessary to perform 
cultural resource surveys, natural resource surveys, and location 
surveys required under this subpart, surface disturbance activities are 
beyond the scope of a reconnaissance survey.
    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 within a System unit.
    Technologically feasible, least damaging methods are those that we 
determine to be most protective of park resources and values 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 an NPS special use permit authorizing 
an operator to access the proposed area of operations to conduct 
reconnaissance surveys necessary 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 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 under state law.
    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 contaminating substance; human waste; garbage; fuel 
drums; pipes; oil; contaminated soil; synthetic materials; man-made 
structures or equipment; or native and nonnative materials.
    We and us mean the National Park Service.
    You and I mean the operator, unless otherwise specified or 
indicated by the context.

Previously Exempt Operations


Sec.  9.50  Do I need an operations permit for my previously exempt 
operations?

    Yes. You must obtain an NPS operations permit.


Sec.  9.51  How do I apply for my operations permit?

    Within 90 days after December 5, 2016 or within 90 days after the 
effective date of a boundary change, or establishment of a new System 
unit, as applicable, you must submit the following to the 
Superintendent of the System unit in which you propose to continue to 
conduct operations:
    (a) The names and contact information of the operator, the owner, 
and the individuals responsible for overall management, field 
supervision, and emergency response of the proposed operations;
    (b) Documentation demonstrating that you hold a right, and the 
extent of such right, to operate within the System unit;
    (c) A brief description of the current operations and any 
anticipated changes to the current operations;
    (d) The American Petroleum Institute (API) well number or State 
well-identification permit number;
    (e) Maps to scale that clearly delineate your current area of 
operations as of

[[Page 77995]]

December 5, 2016 or the effective date of a boundary change, or 
establishment of a new System unit, as applicable, and that identify 
the area of surface disturbance and equipment layout within your 
proposed area of operations;
    (f) The results of any reconnaissance surveys you have conducted to 
be used by the Superintendent to identify resource protection measures 
in your operations permit.
    (g) A spill control and emergency preparedness plan as required by 
Sec.  9.86;
    (h) Documentation of the current operating methods, surface 
equipment, downhole well construction and completion, materials 
produced or used, and monitoring methods;
    (i) A description of how your proposed operation will meet each 
applicable operating standard at Sec. Sec.  9.110 through 9.116 and 
9.118; and
    (j) A description of the procedures to be used and cost estimates 
for well plugging and surface reclamation.


Sec.  9.52  What will the NPS do with my application?

    The NPS will review your application and take action under 
Sec. Sec.  9.100 through 9.104.


Sec.  9.53  May I continue to operate while the NPS reviews my 
application?

    During this interim period, you may continue to conduct operations 
subject to the following conditions:
    (a) Continuation of operations is limited to those methods and the 
area of disturbance that existed on December 5, 2016 or the effective 
date of a boundary change, or establishment of a new System unit, as 
applicable.
    (b) Your operation is subject to the general terms and conditions 
in Sec. Sec.  9.120 through 9.122 and the prohibitions and penalties in 
Sec. Sec.  9.180 through 9.182.
    (c) Except in an emergency, we will not take any steps to directly 
regulate your operation before 90 days after December 5, 2016 or 90 
days after the effective date of a boundary change, or establishment of 
a new System unit, as applicable.

Temporary Access Permits


Sec.  9.60  When do I need a temporary access permit?

    (a) You must apply to the Regional Director for a temporary access 
permit to access your proposed area of operations that is on NPS 
administered lands or waters in order to conduct reconnaissance 
surveys. This permit will describe the means, routes, timing, and other 
terms and conditions of your access as determined by the Regional 
Director.
    (b) A temporary access permit is subject to cost recovery under 54 
U.S.C. 103104.


Sec.  9.61  How do I apply for a temporary access permit?

    To apply for a temporary access permit, you must submit the 
following information to the Superintendent of the System unit in which 
you propose to conduct operations:
    (a) Documentation demonstrating that you hold a right, and the 
extent of such right, to operate within the System unit;
    (b) A map delineating the proposed reconnaissance survey areas in 
relation to the System unit boundary and the proposed area of 
operations at a minimum scale of 1:24,000, or a scale specified by the 
Superintendent as acceptable;
    (c) A brief description of the intended operation so that we can 
determine the scope of the reconnaissance surveys needed;
    (d) The name and contact information of the operator, employee, 
agent, or contractor responsible for overall management of the proposed 
reconnaissance surveys;
    (e) The name, legal address, telephone number, and qualifications 
of all specialists responsible for conducting the reconnaissance 
surveys;
    (f) A description of proposed means of access and routes proposed 
for conducting the reconnaissance surveys; and
    (g) A description of the survey methods you intend to use to 
identify the natural and cultural resources.


Sec.  9.62  When will the NPS grant a temporary access permit?

    If the Regional Director determines that your proposed 
reconnaissance surveys will not result in surface disturbance, except 
for minimal disturbance necessary to perform required surveys, the 
Regional Director will issue you a temporary access permit within 30 
days after receipt of a complete application, unless the Regional 
Director notifies you that additional time is necessary to evaluate or 
process your application.


Sec.  9.63  How long will I have to conduct my reconnaissance surveys?

    The duration of your temporary access permit will be stated in the 
permit, based upon the scope of the reconnaissance surveys needed. The 
Regional Director may, upon written request, extend the term of the 
temporary access permit.

Accessing Oil and Gas Rights From a Surface Location Outside the System 
Unit Boundary


Sec.  9.70  Do I need an operations permit for accessing oil and gas 
rights from outside the System unit boundary?

    Your downhole operations inside a System unit are subject to these 
regulations. If you wish to access your oil and gas rights located 
inside a System unit from a surface location outside the unit, you must 
submit the information required by Sec.  9.71. We will evaluate this 
information and may request that you apply for an operations permit. We 
will require an operations permit for such operations only if we 
determine that downhole permit requirements are needed to protect 
against a significant threat of damage to:
    (a) Federally owned or administered lands, waters, or resources 
within System units;
    (b) NPS visitor uses or experiences; or
    (c) Visitor or employee health or safety.


Sec.  9.71  What information must I submit to the NPS?

    You must provide the information required by this section to the 
Superintendent of the System unit. You must provide all of the 
following.
    (a) The names and contact information of:
    (1) The operator;
    (2) The owner; and
    (3) The individuals responsible for overall management, field 
supervision, and emergency response of the proposed operations.
    (b) Documentation demonstrating that you hold a right, and the 
extent of such right, to operate within the System unit.
    (c) Maps and plats to scale showing the boundaries of each of the 
oil or gas rights that are relevant to your proposed operations within 
the System unit boundary.
    (d) Maps and plats to scale showing all proposed surface uses (well 
site, access route, flowlines, production facilities) that occur 
outside the System unit.
    (e) Information regarding downhole operations and conditions, 
including:
    (1) Description, including depths, thicknesses, and properties of 
geologic horizons between the target zone and the base of the deepest 
aquifer;
    (2) Drilling plan, including directional-drilling program, 
horizontal distance along the wellbore's path from well's surface 
location to the System unit boundary, depth at which wellbore crosses 
the boundary, and timeline for operations;
    (3) Casing, cementing, and mud programs;

[[Page 77996]]

    (4) Stimulation programs; and
    (5) Well plugging and abandonment program.
    (f) If you propose hydraulic fracturing, then you must also provide 
the information required by Sec.  9.89.


Sec.  9.72  How will the NPS act on my submission?

    (a) Within 30 days after receiving your submission under Sec.  
9.71, the Superintendent will notify you in writing that your 
information is complete, you need to submit more information, or we 
need more time to review your submission.
    (b) After NPS receives your complete submission, and completes 
compliance with applicable federal laws, including the National 
Environmental Policy Act, the Superintendent will notify you in writing 
within 30 days that either:
    (1) No further action is required by the NPS and you are exempt 
from the operations permit requirement; or
    (2) You must obtain an operations permit.
    (c) If you need an operations permit, the information provided 
under Sec.  9.71 is your permit application and the NPS will review 
your application under Sec. Sec.  9.100 through 9.104.


Sec.  9.73  If I don't need an operations permit, are there still 
requirements that I must meet?

    If the NPS notifies you under Sec.  9.72 that you do not need an 
operations permit, your operations are still subject to the general 
terms and conditions in Sec. Sec.  9.120 through 9.122, the 
prohibitions and penalties in Sec. Sec.  9.180 through 9.182, and the 
requirements in this section.
    (a) You must notify the NPS within 30 days if the methods or the 
environmental conditions of your downhole operations materially change.
    (b) The Regional Director may notify you in writing that you are no 
longer exempt from the operations permit requirement after determining 
that downhole operational requirements are needed to protect against a 
significant threat of damage to any of the following:
    (1) Federally owned or administered lands, waters, or resources of 
System units;
    (2) NPS visitor uses or experiences; or
    (3) Visitor or employee health or safety.
    (c) Within 30 days after receiving this notification, you must file 
your operations permit application with the Superintendent.

Operations Permit: Application Contents


Sec.  9.80  Who must apply for an operations permit?

    (a) Except as otherwise provided in Sec. Sec.  9.70 through 9.73, 
an operator proposing to conduct operations within the boundary of a 
System unit must submit an application for an operations permit to the 
Superintendent.
    (b) An operations permit is subject to cost recovery under 54 
U.S.C. 103104.


Sec.  9.81  May I use previously submitted information?

    (a) In satisfying the requirements of Sec. Sec.  9.82 through 9.90, 
you do not need to resubmit information that is already on file with 
the NPS. Instead, you may reference the previously submitted 
information in your permit application.
    (b) You may submit documents and materials containing the 
information required by Sec. Sec.  9.82 through 9.90 that you submit to 
other Federal and State agencies. If you do this, you must clearly 
identify the information required by Sec. Sec.  9.82 through 9.90.


Sec.  9.82  What must I include in my application?

    (a) Your application for an operations permit must include all of 
the information required by Sec.  9.83 and, to the extent applicable, 
the information required by Sec. Sec.  9.87 through 9.90, as well as 
any additional information that the Superintendent may require by 
written request.
    (b) You may provide information for only the phase of operations 
you propose. Each permit application is only required to describe those 
activities for which you request approval. Approval of an operations 
permit covering one phase of operations does not assure future approval 
of, or the terms of future approval for, an operations permit covering 
a subsequent phase.


Sec.  9.83  What information must be included in all applications?

    All applications must include the information required by this 
section.

------------------------------------------------------------------------
All operations permit applications
 must include information on . . .     and must include the following
                                         detailed information . . .
------------------------------------------------------------------------
(a) Ownership.....................  documentation demonstrating that you
                                     hold a right, and the extent of
                                     such right, to operate within the
                                     System unit.
(b) The owner/operator............  names, addresses, and other contact
                                     information for:
                                    (1) The operator;
                                    (2) The owner;
                                    (3) Any agents, assignees,
                                     designees, contractors, or other
                                     representatives of the operator
                                     including those responsible for
                                     overall management, field
                                     supervision, and emergency response
                                     of the proposed operations.
(c) Existing conditions and         all the information required by Sec.
 proposed area of operations.          9.84.
(d) Reclamation plan..............  (1) A description of the equipment
                                     and methods used to meet the
                                     operating standards for reclamation
                                     at Sec.   9.116; and
                                    (2) A breakdown of the estimated
                                     costs that a third party would
                                     charge to complete reclamation as
                                     proposed in your reclamation plan.
(e) Use of water..................  (1) The source (including
                                     documentation verifying a water
                                     right), quantity, access route, and
                                     transportation/conveyance method
                                     for all water to be used in access
                                     road and pad construction, well
                                     drilling, stimulation, and
                                     production; and
                                    (2) Estimations of any anticipated
                                     waste water volumes generated and
                                     how they will be managed (i.e.
                                     handled, temporary stored,
                                     disposed, recycled, reused)
                                     throughout stages of the operation.
(f) Environmental conditions and    all the information required by Sec.
 mitigation actions.                   9.85.
(g) The spill control and           all the information required by Sec.
 emergency preparedness plan.          9.86.
------------------------------------------------------------------------


[[Page 77997]]

Sec.  9.84  Existing conditions and proposed area of operations.

    (a) You must submit to-scale maps that clearly depict:
    (1) The boundaries of your oil or gas rights in relation to your 
proposed operations and the relevant System unit boundary;
    (2) The natural features, including, but not limited, to streams, 
lakes, ponds, wetlands, seepage areas, springs, shallow water aquifers, 
topographic relief, and areas we have indicated to you as 
environmentally sensitive;
    (3) The locations of existing roads, trails, railroad tracks, pads, 
and other disturbed areas; and
    (4) The locations of existing structures that your operations could 
affect, including but not limited to: Buildings, pipelines, existing or 
permitted oil or gas wells, freshwater wells, underground and overhead 
electrical lines, and other utility lines.
    (b) You must submit the following information about geologic 
conditions in their natural state and under the proposed operating 
conditions:
    (1) Estimated depths and names of known zones of usable water, 
brine, hydrocarbon, geothermal, or other mineral-bearing zones based on 
the best available information;
    (2) Potential hazards to persons and the environment such as known 
abnormal pressure zones, lost circulation zones, hydrogen sulfide gas, 
or karst formations; and
    (3) Nature, extent, and depth (if known) of near-surface bedrock 
fracturing or jointing relative to proposed cemented surface casing-
seat depth and any open annular interval proposed in the well design.
    (c) You must submit the following information for any new surface 
disturbances or construction:
    (1) Maps depicting the proposed area of operations, boundaries of 
new surface disturbances and proposed access routes;
    (2) Maps depicting the proposed location of all support facilities, 
including those for transportation (e.g., vehicle parking areas, 
airstrips, helicopter pads), sanitation, occupation, staging areas, 
fuel dumps, refueling areas, loading docks, water supplies, and 
disposal facilities;
    (3) The methods and diagrams, including cross-sections, of any 
proposed pad construction, road construction, cut-and-fill areas, and 
surface maintenance, including erosion control;
    (4) The number and types of equipment and vehicles, including an 
estimate of vehicular trips, associated with each phase of your 
operation;
    (5) An estimated time to complete each phase of the proposed 
operations, including any operational timing constraints;
    (6) The type and extent of security measures proposed within your 
area of operations;
    (7) The power sources and their transmission systems for the 
proposed operations; and
    (8) The types and quantities of all solid and liquid waste 
generation and the proposed methods of storage, handling, and off-site 
disposal.


Sec.  9.85  Environmental conditions and mitigation actions.

    You must submit the following information about environmental 
conditions and mitigation actions:
    (a) Description of the natural and cultural resource conditions 
from your reconnaissance surveys or other sources collected for your 
proposed area of operations. The Superintendent may require, on a case 
by case basis, baseline field testing of soils and field or laboratory 
testing of surface, or near-surface, waters within your area of 
operations, as well as any groundwater resources that may reasonably 
may be impacted by your surface operations;
    (b) Description of the steps you propose to take to mitigate any 
adverse environmental impacts on park resources and values, including 
but not limited to, the System unit'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; and
    (c) Discussion of:
    (1) Any anticipated impacts that you cannot mitigate; and
    (2) All alternative technologically feasible, least damaging 
methods of operations, their costs, and their environmental effects.


Sec.  9.86  Spill control and emergency preparedness plan.

    You must submit the following information about your spill control 
and emergency preparedness plan. You may use a spill prevention control 
and countermeasure (SPCC) plan prepared under 40 CFR part 112 if the 
plan includes all of the information required by this section. You must 
submit:
    (a) A list of names, addresses, and telephone numbers of persons 
that the Superintendent can contact in the event of a spill, fire, or 
accident, including the order in which the persons should be contacted;
    (b) Your reporting procedures in the event of a spill, fire, or 
accident;
    (c) Identification of contaminating or toxic substances expected to 
be used within your area of operations;
    (d) Identification of abnormal pressure, temperature, toxic gases 
or substances, or other hazardous conditions expected to be encountered 
during operations;
    (e) Measures (e.g., procedures, facility design, equipment) to 
minimize risks to human health and safety and the environment;
    (f) Steps to prevent conditions creating fire hazards in the 
vicinity of well locations and lease tanks;
    (g) List of equipment and methods for containment and cleanup of 
contaminating substances, including a list of the equipment to be 
maintained on site as well as a list of equipment to be available from 
local contractors;
    (h) A storm water drainage plan and actions intended to mitigate 
storm water runoff;
    (i) Safety data sheets for each material expected to be used or 
encountered during operations, including quantities expected to be 
maintained at your area of operations;
    (j) A description of the emergency actions you will take in the 
event of accidents causing human injury; and
    (k) Contingency plans for relevant conditions and emergencies other 
than spills, based on the particular geographic area, such as 
hurricanes, flooding, tornadoes, or earthquakes.


Sec.  9.87  What additional information must be included if I am 
proposing geophysical exploration?

    If you propose to conduct geophysical exploration, you must submit 
the following additional information:
    (a) The number of crews and expected numbers of workers in each 
crew;
    (b) Names and depths of geologic zones targeted for imaging;
    (c) A description of the acquisition methods, including the 
procedures, specific equipment you will use, and energy sources (e.g., 
explosives or vibroseis trucks);
    (d) The methods of access along each survey line for personnel, 
materials, and equipment;
    (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; and
    (f) A map showing the positions of each survey line including all 
source and receiver locations as determined by a locational survey, and 
including shotpoint offset distances from wells, buildings, other 
infrastructure, and

[[Page 77998]]

areas the NPS has indicated to you as environmentally sensitive areas.


Sec.  9.88  What additional information must be included if I am 
proposing drilling operations?

    If you are proposing to drill a well, you must submit the following 
additional information:
    (a) Well-pad construction plans, 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) Drill-rig and equipment layout plans, including rig components, 
fuel tanks, testing equipment, support facilities, storage areas, and 
all other well-site equipment and facilities;
    (c) The drilling program, including hole size for each section and 
the directional program, if applicable;
    (d) Proposed drilling depth and the estimated depths and names of 
usable water, brine, hydrocarbon, geothermal, or other mineral-bearing 
zones;
    (e) The type and characteristics of the proposed mud systems;
    (f) The casing program, including the size, grade, weight, and 
setting depth of each string;
    (g) The cementing program, including downhole location of any stage 
equipment, cement types, volumes, and additives to be used, and a 
description of pressure tests and cement verification techniques used 
that will be run to evaluate cement placement and integrity;
    (h) The minimum specifications for pressure control equipment 
function, and pressure testing frequency, and the blowout preventer 
stack arrangement;
    (i) The proposed logging, coring, and testing programs;
    (j) The completion program, including completion type (open-hole, 
perforated, slotted liner, etc.), any proposed stimulation techniques, 
and procedures, including considerations for well control; and
    (k) A description of the equipment, materials, and procedures for 
well plugging, including plug depths, plug types, and minimum mud 
weight.


Sec.  9.89  What additional information must be included if I am 
proposing well stimulation operations, including hydraulic fracturing?

    If you are proposing well stimulation operations, including 
hydraulic fracturing, you must submit the following additional 
information:
    (a) The geologic names, a geologic description, and the estimated 
depths (measured and true vertical) to the top and bottom of the target 
formation(s). The estimated minimum vertical distance between the top 
of the completion zone and the nearest usable water zone, and the 
measured depth of the proposed perforated or open-hole interval.
    (b) The estimated depths (measured and true vertical) to the top 
and bottom of the confining zone(s). Include a map showing the 
location, orientation, and extent of any known or suspected faults or 
fractures within one-half mile (horizontal distance) of the wellbore 
trajectory that may transect the confining zone(s).
    (c) A map showing all existing wellbore trajectories, regardless of 
type, within one-half mile (horizontal distance) of any portion of the 
wellbore into which hydraulic fracturing fluids are to be injected. The 
true vertical depth of each wellbore identified on the map must be 
indicated.
    (d) Steps to be taken before well completions to verify mechanical 
integrity of all downhole tubulars and tools and cement quality, 
including pressure tests, monitoring of cement returns to surface, and 
cement evaluation logs (or other logs acceptable to the Superintendent) 
demonstrating that the occurrences of usable water zones have been 
isolated to protect them from contamination.
    (e) A detailed description of the proposed well-stimulation design, 
including:
    (1) The total proposed volume of stimulation fluid to be used; 
total proposed base fluid volume, description of proposed base fluid, 
and each additive in the proposed stimulation 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);
    (2) Proposed proppant system if applicable;
    (3) The anticipated surface treating pressure range;
    (4) The maximum anticipated surface pressure that will be applied 
during the hydraulic fracturing process;
    (5) The trajectory of the wellbore into which hydraulic fracturing 
fluids are to be injected and the estimated direction and length of the 
fractures that will be propagated and a notation indicating the true 
vertical depth of the top and bottom of the fractures; and
    (6) Any microseismic monitoring planned or proposed in conjunction 
with well stimulation.
    (f) The source and location of water supply, such as reused or 
recycled water, rivers, creeks, springs, lakes, ponds, and water supply 
wells, and the source and location of water supply, such as reused or 
recycled water, rivers, creeks, springs, lakes, ponds, and water supply 
wells.
    (g) The storage, mixing, pumping, and control equipment needed to 
perform the stimulation.
    (h) The following information concerning the handling of recovered 
fluids:
    (1) The estimated volume of stimulation fluids to be recovered 
during flow back;
    (2) The proposed methods of handling the recovered fluids including 
any onsite treatment for re-use of fluids in other stimulation 
activities; and
    (3) The proposed disposal method of the recovered fluids, 
including, but not limited to, injection, hauling by truck, or 
transporting by pipeline.


Sec.  9.90  What additional information must be included if I am 
proposing production operations?

    If you are proposing production operations, you must submit the 
following information:
    (a) The dimensions with a to-scale layout of the wellpad, clearly 
identifying well locations, noting partial reclamation areas; 
gathering, separation, metering, and storage equipment; electrical 
lines; fences; spill control 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 pick-up points; gas 
compressor, including size and type (if applicable); and any other well 
site equipment;
    (b) The size, grade, weight, and setting depth of all casing and 
tubing strings; cementing history; type and size of packers and 
subsurface flow control devices; top and bottom depths of each 
completed interval; and method of completion;
    (c) The well history, including completions, stimulations, 
servicing, and workovers;
    (d) The minimum specifications for pressure-control equipment, 
function, and pressure-testing frequency;
    (e) The methods and means to be used to transport produced oil and 
gas, including vehicular transport; flowline and gathering line 
construction; operation; pipe size; operating pressure; cathodic 
protection methods; surface equipment use; surface equipment location; 
maintenance procedures; maintenance schedules; pressure detection 
methods; and shutdown procedures;

[[Page 77999]]

    (f) Road and wellpad maintenance plan, including equipment and 
materials to maintain the road surface and control erosion;
    (g) Vegetation management plan on well sites, roads, pipeline 
corridors, and other disturbed surface areas, including control of 
exotic species;
    (h) Storm water management plan on the well site;
    (i) Produced water storage and disposal plan; and
    (j) The procedures for well plugging, the depths and the types of 
plugs, and minimum mud weight.

Operations Permit: Application Review Process


Sec.  9.100  How will NPS process my application?

    If you propose operations in System units, other than Big Cypress 
National Preserve, we will process your application in accordance with 
Sec. Sec.  9.101 through 9.104. If you propose operations in Big 
Cypress National Preserve, we will process your application in 
accordance with Sec. Sec.  9.103 and 9.105.


Sec.  9.101  How will the NPS conduct initial review?

    (a) Within 30 days after receipt of your application, the 
Superintendent will notify you in writing that either:
    (1) Your application is complete and the NPS will begin formal 
review;
    (2) Your permit application does not meet the information 
requirements and additional information is required before the NPS will 
conduct formal review of your permit application; or
    (3) More time is necessary to complete the review, in which case 
the NPS will provide you an estimate of the amount of additional time 
reasonably needed and an explanation for the delay.
    (b) If you resubmit information requested by the NPS under this 
section and the Superintendent determines that you have met all 
applicable information requirements, the Superintendent will notify you 
within 30 days after receipt of the additional information that either:
    (1) Your application is complete and the NPS will begin formal 
review; or
    (2) More time is necessary to complete the review, in which case 
the NPS will provide you an estimate of the amount of additional time 
reasonably needed and an explanation for the delay.


Sec.  9.102  How will the NPS conduct formal review?

    (a) The Superintendent will evaluate the potential impacts of your 
proposal on federally owned or administered lands, waters, or resources 
within System units, visitor uses and experiences, and visitor and 
employee health and safety. As part of this evaluation process, the NPS 
will comply with all applicable federal laws, including the National 
Environmental Policy Act. The Superintendent will then make a 
recommendation to the Regional Director regarding final action on your 
operations permit.
    (b) As part of the evaluation process, the Superintendent may 
consult with other Federal, State, and local agencies.


Sec.  9.103  What standards must be met to approve my operations 
permit?

    (a) The Regional Director will approve your operations permit if 
the NPS has determined that your operations:
    (1) Will not violate the laws governing administration of units of 
the National Park System; and
    (2) Will meet all applicable operating standards.
    (b) Before approval of your operations permit, you must submit to 
the Superintendent:
    (1) Financial assurance in the amount specified by the Regional 
Director and in accordance with the requirements of Sec. Sec.  9.140 
through 9.144;
    (2) Proof of liability insurance with limits sufficient to cover 
injuries to persons or property caused by your operations; and
    (3) An affidavit stating that the operations planned are in 
compliance with all applicable Federal, State, and local laws and 
regulations.


Sec.  9.104  What final actions may the Regional Director take on my 
operations permit?

    (a) The Regional Director will take final action within 30 days of 
completing all required legal compliance, including compliance with the 
National Environmental Policy Act, unless:
    (1) We and you agree that such final action 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) The Regional Director will notify you in writing that your 
operations permit is:
    (1) Approved with the operating conditions contained therein; or
    (2) Denied, and provide you justification for the denial. Any such 
denial must be consistent with Sec.  9.30(c).


Sec.  9.105  What is the approval process for operations in Big Cypress 
National Preserve?

    (a) Within 30 days after the date of submission of your 
application, we will notify you whether the application contains all 
information reasonably necessary to allow us to consider the 
application and, if not, will request that you provide additional 
information. After receiving this notification, you must either supply 
any reasonably necessary additional information or must notify us that 
you believe that the application contains all reasonably necessary 
information and is therefore complete; whereupon we may:
    (1) Within 30 days after receipt of the notice from the applicant, 
determine that the application does not contain all reasonably 
necessary additional information and, on that basis, deny the 
application; or
    (2) Review the application and take final action within 60 days 
after the date that you provided notification to the NPS that your 
application is complete.
    (b) The Regional Director will take final action within 90 days 
after the date you submitted your application unless:
    (1) We and you agree that final action can 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 
other applicable laws, executive orders, and regulations.

Operating Standards


Sec.  9.110  What are the purposes and functions of NPS operating 
standards?

    (a) You must comply with all operating standards in Sec. Sec.  
9.111 through 9.116, as well as with the standards in Sec. Sec.  9.117 
and 9.118, if applicable. The standards apply only to operations that 
occur within a System unit, including downhole activities, and do not 
apply to surface activities located outside a System unit. These 
operating standards are incorporated into the terms and conditions of 
your operations permit. Violation of these operating standards will 
subject you to the prohibitions and penalties provisions of Sec. Sec.  
9.180 through 9.182.
    (b) NPS operating standards are applied to ensure protection of 
federally owned or administered lands, waters, and resources of System 
units, visitor uses and experiences, and visitor and employee health 
and safety. The operating standards give us and the operator 
flexibility to consider using alternative methods, equipment, materials 
design, and conduct of operations.
    (c) In applying standards to a particular operation, you must use 
technologically feasible, least damaging methods to protect federally 
owned or administered lands, waters, and

[[Page 78000]]

resources of System units, visitor uses and experiences, and visitor 
and employee health and safety.


Sec.  9.111  What general facility design and management standards must 
I meet?

    (a) You must not conduct operations within 500 feet of surface 
water, including an intermittent or ephemeral watercourse, or wetland; 
within 500 feet of the mean high tide line; or within 500 feet of any 
structure or facility used by the NPS for interpretation, public 
recreation, or administration. The Superintendent may increase or 
decrease this distance consistent with the need to protect federally 
owned or administered lands, water, or resources of System units, 
visitor uses or experiences, or visitor or employee health and safety 
while ensuring that you have reasonable access to your non-Federal oil 
and gas rights. Measurements for purposes are by horizontal distance.
    (b) You must 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 the 
NPS has indicated to you as sensitive resources.
    (c) You must 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.
    (d) You must keep temporarily stored waste in the smallest feasible 
area, and confine in a manner appropriate to prevent escape as a result 
of percolation, rain, high water, or other causes. You must regularly 
remove waste from the System unit and dispose of it in a lawful manner. 
Nothing in this subpart affects the application of the regulations 
found at 36 CFR part 6.
    (e) You must use engines that adhere to applicable Federal and 
State emission standards.
    (f) You must construct, maintain, and use roads to minimize 
fugitive dust.
    (g) You must use equipment and practices that minimize releases of 
air pollutants and hydrocarbons, and flaring of gas.
    (h) You must conduct operation in a manner that does not create an 
unsafe environment for fish and wildlife by avoiding or minimizing 
exposure to physical and chemical hazards.
    (i) You must conduct operations in a manner that avoids or 
minimizes impacts to sensitive wildlife, including timing and location 
of operations.
    (j) You must control the invasion of exotic plant and animal 
species in your area of operations from the beginning through final 
reclamation.


Sec.  9.112  What hydrologic standards must I meet?

    (a) You must maintain hydrologic connectivity between surface water 
and groundwater during all operations.
    (b) You must not cause measurable degradation of surface water or 
groundwater.
    (c) You must conduct operations in a manner that maintains natural 
channel and floodplain processes and functions.


Sec.  9.113  What safety standards must I meet?

    (a) You must maintain your area of operations in a manner that 
avoids or minimizes the cause or spread of fires and does not intensify 
fires originating outside your operations area.
    (b) You must maintain site security, structures, facilities, 
improvements, and equipment in a safe and professional manner in order 
to provide a safe environment for park resources, park visitors, and 
NPS employees, free from exposure to physical and chemical hazards.


Sec.  9.114  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.
    (b) You must reduce visual contrast in the landscape by selecting 
the area of operations, avoiding unnecessary disturbance, choosing 
appropriate colors for permanent facilities, and other means.
    (c) You must use road and pad materials similar in composition to 
soils in surrounding profiles whenever feasible.


Sec.  9.115  What noise reduction standards must I meet?

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


Sec.  9.116  What reclamation and protection standards must I meet?

    (a) You must promptly clean up and remove any released 
contaminating substances and provide documentation to the 
Superintendent that the substances were disposed of in accordance with 
all applicable Federal, State, and local laws.
    (b) You must perform partial reclamation of areas no longer 
necessary to conduct operations. You must begin final reclamation as 
soon as possible but no later than 6 months after you complete your 
permitted operations unless the Regional Director authorizes a longer 
period in writing.
    (c) You must protect all survey monuments, witness corners, 
reference monuments, and bearing trees against destruction, 
obliteration, or damage from operations. You are responsible for 
reestablishing, restoring, and referencing 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, and roads and 
all other man-made 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 reasonably conform the contours to preexisting 
elevations that are most appropriate to maximizing ecologic functional 
value;
    (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 reclaimed areas do not interfere with visitor use 
or with administration of the unit;
    (9) Meeting conditions compatible with the management objectives of 
the park; and
    (10) Ensuring proper and equitable apportionment of reclamation 
responsibilities by coordinating with us or with other operators who 
may be using a portion of your area of operations.


Sec.  9.117   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

[[Page 78001]]

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 federally owned or administered 
lands, waters, and resources of System units, visitor uses and 
experiences, and visitor and employee health and safety; and
    (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 reclamation or pose a hazard to human health and safety.


Sec.  9.118  What additional operating standards apply to drilling, 
stimulation, and production operations?

    If you conduct drilling, stimulation, and production operations, 
you must meet all of the standards in this section.
    (a) Drilling. (1) You must use containerized mud circulation 
systems for operations.
    (2) You must not create earthen pits for any use. Earthen pits used 
solely for secondary containment on sites existing before December 5, 
2016 may continue in use; however, the Superintendent may require such 
structures to be lined or removed depending on site-specific 
operational and environmental conditions.
    (3) You must take all necessary precautions to keep your wells 
under control at all times, use only contractors or employees trained 
and competent to drill and operate the wells, and use only oil field 
equipment and practices generally used in the industry.
    (4) You must design, implement, and maintain integrated casing, 
cementing, drilling fluid, completion, stimulation, and blowout 
prevention programs. These programs must be based upon sound 
engineering principles 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) Stimulation operations including hydraulic fracturing. (1) You 
must not begin injection activities before you demonstrate the 
mechanical integrity of all surface and downhole tubulars and equipment 
to differential pressures equal to at least those calculated at the 
maximum anticipated treating pressure.
    (2) You must continuously monitor and record the treating pressures 
and all annular pressures before, during, and after the treatment to 
ensure that treatment materials are directed to the intended zone.
    (3) If mechanical integrity is lost during the treatment, you must 
immediately cease the operation and notify the Superintendent as soon 
as feasible, but no later than 24 hours after the incident. Within 15 
days after the occurrence, you must submit to the Superintendent a 
report containing all details pertaining to the incident, including 
corrective actions taken.
    (c) Production. (1) You must monitor producing conditions in order 
to maintain the mechanical integrity of both surface and subsurface 
equipment.
    (2) You must maintain your well 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.
    (3) You must identify wells and related facilities by a sign, which 
must remain in place until the well is plugged and abandoned and the 
related facilities are closed. The sign 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) You must remove all equipment and materials that are no longer 
needed for a particular phase of your operation.
    (5) You must plug all wells to:
    (i) Prevent a pathway of migration for fluids along any portion of 
the bore; and
    (ii) Leave the surface in a clean and safe condition that will not 
impede surface reclamation or pose a hazard to human health and safety.

General Terms and Conditions


Sec.  9.120  What terms and conditions apply to all operators?

    The following terms and conditions apply to all operators:
    (a) The operator/permittee is responsible for ensuring that all of 
its employees and contractors and subcontractors comply fully with all 
of the requirements of this subpart;
    (b) The operator/permittee may not use any surface water or 
groundwater owned or administered by the United States that has been 
diverted or withdrawn from a source located within the boundaries of a 
System unit unless the use has been approved in accordance with NPS 
policy;
    (c) The operator/permittee must provide the NPS an affidavit, 
signed by an official who is authorized to legally bind the company, 
stating that proposed operations are in compliance with all applicable 
federal, state, and local laws and regulations and that all information 
submitted to the NPS is true and correct;
    (d) The operator/permittee must 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 the operator and its employees, 
agents, representatives, contractors, and subcontractors in the conduct 
of activities under the operations permit; and
    (e) The operator/permittee must agree to take all reasonable 
precautions to avoid, minimize, rectify, or reduce the overall impacts 
of your proposed oil and gas activities to System units. You may be 
required to mitigate for impacts to NPS resources and lost uses. 
Mutually agreed-upon mitigation tools for this purpose may include 
providing or restoring alternative habitat and resources to offset 
those impacts by the operations.


Sec.  9.121  What monitoring and reporting is required for all 
operators?

    (a) The NPS may access your area of operations at any time to 
monitor the potential effects of the operations and to ensure 
compliance with this subpart where applicable.
    (b) The Regional Director may determine that third-party monitors 
are required when necessary to protect federally owned or administered 
lands, waters, or resources of System units, visitor uses or 
experiences, or visitor or employee health and safety.
    (1) The Regional Director's determination will be based on the 
scope and complexity of the proposed operation and whether the park 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 NPS at 
intervals determined by the Superintendent, and you will be responsible 
for the cost of the third party monitor. We will make the information 
reported available to you upon your request.
    (3) Third party monitors must disclose to the NPS any potential 
conflicts of interest that could preclude objectivity in monitoring an 
operator's compliance with the operations permit and any provision of 
this subpart.
    (c) You must notify the Superintendent of any accidents involving 
serious personal injury or death and of any fires or spills on the site 
as soon as feasible, but no later than 24 hours after the accident 
occurs. You must submit a full written report on the

[[Page 78002]]

accident to the Superintendent within 90 days after the accident 
occurs.
    (d) You must notify the Superintendent as soon as feasible, but no 
later than 24 hours after the discovery of any cultural or scientific 
resource you encounter that might be altered or destroyed by your 
operation. You must cease operations if necessary and leave the 
discovered resource intact until the Superintendent provides you with 
instructions. The Superintendent will determine, within 10 working days 
after notification what action will be taken with respect to the 
discovery.
    (e) Upon the Superintendent's 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 the NPS reports that you have submitted to the State under 
State regulations, or that you have submitted to any other Federal 
agency.


Sec.  9.122  What additional reports must I submit if my operation 
includes hydraulic fracturing?

    If your operations include hydraulic fracturing, you must provide 
the Superintendent with a report including all of the following details 
of the stimulation within 30 days after the completion of the last 
stage of hydraulic fracturing operations for each well:
    (a) The true vertical depth of the well; total water volume used; 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). This 
information may be submitted to the Superintendent through FracFocus or 
another existing database available to the public;
    (b) The actual source(s) and location(s) of the water used in the 
hydraulic fracturing fluid;
    (c) The maximum surface pressure and rate at the end of each stage 
of the hydraulic fracturing operation and the actual flush volume;
    (d) The actual, estimated, or calculated fracture length, height 
and direction;
    (e) The actual measured depth of perforations or the open-hole 
interval;
    (f) The actual volume of stimulation fluids recovered during flow 
back, including a description of how the volumes were measured or 
calculated;
    (g) The following information concerning the handling of fluids 
recovered, covering the period between the commencement of hydraulic 
fracturing and the implementation of the approved permit for the 
disposal of produced water under NPS requirements:
    (1) The methods of handling the recovered fluids, including, but 
not limited to, transfer pipes and tankers, holding pond use, re-use 
for other stimulation activities, or injection; and
    (2) The disposal method of the recovered fluids, including, but not 
limited to, the percent injected, the percent stored at an off-lease 
disposal facility, and the percent recycled; and
    (h) Continuous monitoring records of annulus pressure at the 
bradenhead and other annular pressures that document pressures before, 
during, and after injection operations. You must submit a signed 
certification that wellbore integrity was maintained throughout the 
operation.

Access to Oil and Gas Rights


Sec.  9.130  May I cross Federal property to reach the boundary of my 
oil and gas right?

    The Regional Director may grant you the privilege of access, 
subject to the provisions of any applicable law, on, across, or through 
federally owned or administered lands or waters in any System unit 
outside of Alaska to reach the boundary of your oil and gas right.


Sec.  9.131  Will the NPS charge me a fee for access?

    (a) Except as provided in paragraph (b) of this section, the 
Regional Director may charge you a fee if you use federally owned or 
administered lands or waters that are outside the scope of your oil and 
gas right.
    (1) If you require the use of federally owned or administered lands 
or waters to access your operation, the Regional Director will charge 
you a fee based on the fair market value of such use.
    (2) If access to your mineral right is on or across an existing 
park road, the Regional Director may charge you a fee according to a 
posted fee schedule.
    (b) Fees under this section will not be charged for access within 
the scope of your oil and gas right or access to your mineral right 
that is otherwise provided for by law.


Sec.  9.132  Will I be charged a fee for emergency access to my 
operations?

    The Regional Director will not charge a fee for access across 
federally owned or administered lands beyond the scope of your oil and 
gas right as necessary to respond to an emergency situation at your 
area of operations if the Regional Director determines that the 
circumstances require an immediate response to either:
    (a) Prevent or to minimize injury to park resources; or
    (b) Ensure public health and safety.

Financial Assurance


Sec.  9.140  Do I have to provide financial assurance to the NPS?

    Yes. You must file financial assurance with us in a form acceptable 
to the Regional Director and payable upon demand. This financial 
assurance is in addition to any financial assurance required by any 
other regulatory authority.


Sec.  9.141  How does the NPS establish the amount of financial 
assurance?

    We base the financial assurance amount upon the estimated cost for 
a third-party contractor to complete reclamation in accordance with 
this subpart. If the cost of reclamation exceeds the amount of your 
financial assurance, you remain liable for all costs of reclamation in 
excess of the financial assurance.


Sec.  9.142  Will the NPS adjust my financial assurance?

    The Regional Director may require, or you may request, an 
adjustment to the financial assurance amount because of any 
circumstance that increases or decreases the estimated costs 
established under Sec.  9.141.


Sec.  9.143  When will the NPS release my financial assurance?

    We will release your financial assurance within 30 days after the 
Regional Director:
    (a) Determines that you have met all applicable reclamation 
operating standards and any additional reclamation requirements that 
may be included in your operations permit; or
    (b) Accepts a new operator's financial assurance under Sec.  
9.160(b) or (c).


Sec.  9.144  Under what circumstances will the NPS retain my financial 
assurance?

    (a) We will retain all or part of your financial assurance if 
compliance with your reclamation responsibilities under the approved 
permit or any provisions of this subpart is incomplete.
    (b) In addition, we may also:
    (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 federally owned or administered lands, 
waters, or resources of System units, visitor uses or experiences, or 
visitor or employee health and safety; and

[[Page 78003]]

    (3) Suspend review of any permit applications you have submitted 
until the Regional Director determines that all violations of permit 
provisions or of any provision of this subpart are resolved.
    (4) Seek recovery as provided in Sec.  9.141 for all costs of 
reclamation in excess of the posted financial assurance.

Modification to an Operation


Sec.  9.150  How can an approved permit be modified?

    (a) You may request modification to a temporary access permit or 
operations permit by providing the Regional Director with written 
notice describing the modification and why you think it is needed.
    (b) The Regional Director may propose to modify an approved 
temporary access or operations permit to address changed or 
unanticipated conditions within your area of operations. You will be 
notified in writing of the proposed modifications and the 
justifications therefore, and the time within which you must either 
notify the Regional Director that you accept the modifications to your 
permit or explain any concerns you may have
    (c) The Regional Director will review requests made under paragraph 
(a) of this section or responses provided under paragraph (b) of this 
section applying the approval standards and timeframes at Sec.  9.62 or 
Sec.  9.104, respectively. You will be notified in writing of the 
Regional Director's decision and any revisions approved to the terms of 
the permit.

Change of Operator


Sec.  9.160  What are my responsibilities if I transfer my operations?

    (a) You must notify the Superintendent in writing within 30 
calendar days after the date the new owner acquires the rights to 
conduct operations. Your written notification must include:
    (1) The names and contact information of the person or entity 
conveying the oil or gas right, and the names and contact information 
of the person or entity acquiring the oil or gas right;
    (2) The effective date of transfer;
    (3) The description of the rights, assets, and liabilities being 
transferred and those being reserved by the previous owner; and
    (4) A written acknowledgement from the new owner that the contents 
of the notification are true and correct.
    (b) Until you meet the requirements of this section and the 
Regional Director provides notice to you that the new operator has 
complied with Sec.  9.161(a) you remain responsible for compliance with 
your operations permit, and we will retain your financial assurance.
    (c) If you were operating without an operations permit, you are 
subject to Sec. Sec.  9.120 through 9.122 and Sec. Sec.  9.180 through 
9.182 until the new operator meets the requirements of this section and 
the Regional Director provides notice to you that the new operator has 
complied with Sec.  9.161(b) or (c), as applicable.


Sec.  9.161  What must I do if operations are transferred to me?

    (a) If you acquire rights to conduct operations, you must provide 
to the Superintendent:
    (1) Written acknowledgment that you adopt the previous operator's 
operations permit, and that you agree to conduct operations in 
accordance with all terms and conditions thereof, or that you adopt the 
previous operator's operations permit and are also requesting approval 
for modification of the previous operator's permit consistent with the 
procedures at Sec.  9.150;
    (2) Financial assurance in the amount specified by the Regional 
Director and in accordance with the requirements of Sec. Sec.  9.140 
through 9.144;
    (3) Proof of liability insurance with limits sufficient to cover 
injuries to persons or property caused by your operations; and
    (4) An affidavit stating that your operations are in compliance 
with all applicable Federal, State, and local laws and regulations.
    (b) If the previous operator was granted an exemption under Sec.  
9.72, you must provide the Superintendent the following information 
within 30 calendar days after the date you acquire the rights to 
conduct operations:
    (1) Right to operate documentation demonstrating that you are the 
successor in interest to the previous operator's right, and the extent 
of such right, to operate within the System unit; and
    (2) The names and contact information of:
    (i) The operator;
    (ii) The owner; and
    (iii) The individuals responsible for overall management, field 
supervision, and emergency response of the proposed operations.
    (c) If the previous operator was operating without an operations 
permit, you will be considered a previously exempt operator and must 
obtain an operations permit. Within 90 days after acquiring the rights 
to conduct operations, you must submit the information at Sec.  9.51(a) 
through (j), and your operations permit application will be processed 
in accordance with Sec. Sec.  9.52 and 9.53.

Well Plugging


Sec.  9.170  When must I plug my well?

    Except as provided in Sec.  9.171, you must plug your well when any 
of the following occurs:
    (a) Your drilling operations have ended and you have taken no 
further action to produce the well within 60 days;
    (b) Your well, which has been completed for production operations, 
has no measureable production quantities for 12 consecutive months; or
    (c) The period approved in your operations permit to maintain your 
well in shut-in status has expired.


Sec.  9.171  Can I get an extension to the well plugging requirement?

    (a) You may apply for either a modification to your approved 
operations permit or, in the case of previously exempt operations, an 
operations permit to maintain your well in a shut-in status for up to 5 
years. The application must include:
    (1) An explanation of why the well is shut-in or temporarily 
abandoned and your future plans for utilization;
    (2) Proof of the mechanical integrity of both surface and 
production casing demonstrating that no migration of fluid can be 
expected to occur; and
    (3) A description of the manner in which your well, equipment, and 
area of operations will be maintained.
    (b) Based on the information provided under this section, the 
Regional Director may approve your application to maintain your well in 
shut-in status for a period up to 5 years. You may apply for additional 
extensions by submitting a new application under paragraph (a) of this 
section.

Prohibitions and Penalties


Sec.  9.180  What acts are prohibited under this subpart?

    The following are prohibited:
    (a) Operating in violation of the terms or conditions of a 
temporary access permit, or an approved operations permit, or any 
provision of this subpart;
    (b) Damaging federally owned or administered lands, waters, or 
resources of a System unit as a result of violation of the terms or 
conditions of a temporary access permit, an operations permit, or any 
provision of this subpart;
    (c) Conducting operations or activities without a required permit;
    (d) Failure to comply with any suspension or revocation order 
issued under this subpart; and
    (e) Failure to comply with any applicable Federal law or 
regulation, or

[[Page 78004]]

non-conflicting State law or regulation, pertaining to your oil and gas 
operation.


Sec.  9.181  What enforcement actions can the NPS take?

    If you engage in a prohibited act described in Sec.  9.180:
    (a) You may be subject to a fine or imprisonment, or both, in 
accordance with 36 CFR 1.3;
    (b) The Superintendent may suspend your operations; or
    (c) The Regional Director may revoke your approved temporary access 
permit or operations permit.


Sec.  9.182  How do violations affect my ability to obtain a permit?

    Until you are in compliance with this subpart or the terms and 
conditions of an existing temporary access permit or operations permit, 
we will not consider any new permit requests to conduct operations 
within any System unit.

Reconsideration and Appeals


Sec.  9.190  Can I, as operator, request reconsideration of NPS 
decisions?

    Yes. If you disagree with a decision of the Regional Director under 
this subpart, you may file with the Regional Director a written 
statement describing the alleged factual or legal errors in the 
original decision and requesting that the Regional Director reconsider 
the decision. You must file your request for reconsideration within 60 
calendar days after your receipt of the Regional Director's decision. 
The NPS will dismiss as untimely any request for reconsideration 
received more than 60 days after your receipt of the original decision.


Sec.  9.191  How does the NPS process my request for reconsideration?

    The Regional Director will review his or her original decision and, 
within 90 days after receipt of your appeal, provide you with a written 
statement reversing, affirming, or modifying that decision, unless the 
Regional Director notifies you that he or she needs additional time to 
review the original decision. When issued, that written statement 
constitutes the Regional Director's final decision on the matter.


Sec.  9.192  Can I appeal the Regional Director's decision?

    (a) If the Regional Director affirms or modifies his or her 
original decision after you file a request for reconsideration, you may 
file an appeal with the NPS Director within 60 calendar days after your 
receipt of the Regional Director's decision under Sec.  9.191.
    (b) Your appeal must include a statement of exceptions specifying 
your specific disagreements with the Regional Director's final 
decision. If you do not file your appeal within 60 calendar days, your 
appeal will be dismissed as untimely.
    (c) If you timely file your statement of exceptions, the Regional 
Director will forward his or her decision and the record for the appeal 
to the NPS Director. The record will consist of all documents and 
materials considered by NPS that are related to the matter appealed. 
The Regional Director will maintain that record under separate cover 
and will certify that the decision was based on that record. The 
Regional Director will make a copy of the record available to you at 
your request.
    (d) If, upon review, the NPS Director considers the record 
inadequate, the NPS Director may require additional documentation or 
information, or may remand the matter to the Regional Director with 
instructions for further action.
    (e) Within 45 calendar days from the date the NPS Director receives 
your statement of exceptions, the Director will issue a written 
decision. If the Director requires more than 45 calendar days to reach 
a decision, the Director will notify you and specify the reasons for 
the delay. The Director's written decision will include:
    (1) A statement of facts;
    (2) A statement of conclusions; and
    (3) An explanation of the basis for the decision.
    (f) No NPS decision under these regulations that is subject to 
appeal to the Director, or the Regional Director pursuant to Sec.  
9.194, will be considered final agency action subject to judicial 
review under 5 U.S.C. 704 unless the appropriate official has rendered 
a decision on the matter. That decision will constitute NPS's final 
agency action, and no further appeal will lie in the Department from 
that decision.


Sec.  9.193  Will filing a request for reconsideration or appeal stop 
the NPS from taking action under this subpart?

    (a) Except as provided for in paragraph (b) of this section, during 
the reconsideration and appeal processes, the decision at issue will be 
stayed (suspended). The decision will not become effective until the 
appeals process is completed.
    (b) If NPS suspends your operation due to an emergency within your 
area of operation that poses an immediate threat of injury to federally 
owned or administered lands or waters, or to public health and safety, 
you have a right to request reconsideration and appeal the decision 
under Sec. Sec.  9.190 through 9.194, but the suspension will not be 
stayed until the threat is eliminated.


Sec.  9.194  What if the original decision was made by the 
Superintendent?

    Where the Superintendent has the authority to make the original 
decision, requests for reconsideration and appeals may be filed in the 
manner provided by Sec. Sec.  9.190 through 9.193, except that:
    (a) The request for reconsideration will be filed with and decided 
by the Superintendent;
    (b) The appeal will be filed with and decided by the Regional 
Director; and
    (c) The Regional Director's decision will constitute the final 
agency action on the matter.

Public Participation


Sec.  9.200  How can the public participate in the approval process?

    (a) Interested parties may view the publicly available documents at 
the Superintendent's office during normal business hours or by other 
means prescribed by the Superintendent. The availability for public 
inspection of information about the nature, location, character, or 
ownership of park resources will conform to all applicable law and 
implementing regulations, standards, and guidelines.
    (b) The Superintendent will make available for public inspection 
any documents that an operator submits to the NPS under this subpart 
except those that you have identified as proprietary or confidential.
    (c) For the information required in Sec. Sec.  9.88, 9.89, and 
9.122, the operator and the submitter of the information will be deemed 
to have waived any right to protect from public disclosure information 
submitted to the NPS. For information required under Sec. Sec.  9.88, 
9.89, and 9.122 that the owner of the information claims to be exempt 
from public disclosure and is withheld from the NPS, a corporate 
officer, managing partner, or sole proprietor of the operator must sign 
and the operator must submit to the Superintendent 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 NPS from publicly disclosing the information if it were in 
the NPS'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

[[Page 78005]]

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.
    (d) If the operator relies upon information from third parties, 
such as the owner of the withheld information, to make the affirmations 
in paragraphs (c)(6) through (8) of this section, the operator must 
provide a written affidavit from the third party that sets forth the 
relied-upon information.
    (e) The NPS may require any operator to submit to the NPS any 
withheld information, and any information relevant to a claim that 
withheld information is exempt from public disclosure.
    (f) If the NPS determines that the information submitted under 
paragraph (e) of this section is not exempt from disclosure, the NPS 
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 NPS's determination.
    (g) The operator must maintain records of the withheld information 
until the later of the NPS's release of the operator's financial 
assurance or 7 years after completion of hydraulic fracturing 
operations. 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 NPS, 
even if the information is in the custody of its owner.
    (h) If any of the chemical identity information required in Sec.  
9.122 is withheld, the operator must provide the generic chemical name 
in the submission required by Sec.  9.122. 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.  9.210   Has the Office of Management and Budget approved the 
information collection requirements?

    (a) The Office of Management and Budget (OMB) has reviewed and 
approved the information collection requirements in 36 CFR part 9, 
subpart B, and assigned OMB Control Number 1024-0274. 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. 
We use the information collected to:
    (1) Evaluate proposed operations;
    (2) Ensure that all necessary mitigation measures are employed to 
protect park resources and values; and
    (3) Ensure compliance with all applicable laws and regulations.
    (b) You may submit comments on any aspect of the information 
collection requirements to the Information Collection Clearance 
Officer, National Park Service, 12201 Sunrise Valley Drive, Room 2C114, 
Mail Stop 242, Reston, VA 20192.


Sec.  9.302   [Amended]

0
6. In newly redesignated Sec.  9.302:
0
a. In paragraphs (b)(1) and (2), remove the comma and add in its place 
a semicolon.
0
b. In paragraph (b)(2), remove the reference ``Sec.  9.86 of this 
subpart'' and add in its place the reference ``Sec.  9.306.''


Sec.  9.304   [Amended]

0
7. In newly redesignated Sec.  9.304, in paragraph (a), remove the 
reference ``Sec.  9.84(b)'' and add in its place the reference ``Sec.  
9.304(b)'' and remove the reference ``Sec.  9.83(b)'' and add in its 
place the reference ``Sec.  9.303(b).''


Sec.  9.306   [Amended]

0
8. In newly redesignated Sec.  9.306, in paragraph (a), remove the 
reference ``Sec.  9.84'' and add in its place the reference ``Sec.  
9.304.''


Sec.  9.308   [Amended]

0
9. In newly redesignated Sec.  9.308, in paragraph (a), remove the 
reference ``Sec.  9.86'' and add in its place the reference ``Sec.  
9.306.''

    Dated: October 21, 2016.
Karen Hyun,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2016-26489 Filed 11-3-16; 8:45 am]
 BILLING CODE 4312-52-P