[Federal Register Volume 62, Number 68 (Wednesday, April 9, 1997)]
[Proposed Rules]
[Pages 17138-17141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9100]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 3190
[WO-300-07-1310-00]
RIN 1004-AD09
Delegation of Authority, Cooperative Agreements and Contracts for
Oil and Gas Inspections; Cooperative Agreements
AGENCY: Bureau of Land Management, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Land Management (BLM) proposes to streamline and
amend its cooperative agreement regulations. The purpose of this
amendment is to implement section 8(a) of the Federal Oil and Gas
Royalty Simplification and Fairness Act that eliminates State
cooperative agreements on Federal lands and to implement a policy
change for funding of cooperative inspection agreements. In response to
the overall effort to reform regulations and convert them to a more
user friendly and understandable format, this rule is written in plain
English.
DATES: Comments: Any comments must be received by BLM at the address
below on or before May 9, 1997. Comments received after the above date
will not necessarily be considered in the decision making process on
the proposed rule.
ADDRESSES: Comments: If you wish to comment, you may submit your
comments by any one of several methods. You may mail comments to
Director (630), Bureau of Land Management, Administrative Record, Room
401 LS, 1849 C Street, NW, Washington, D.C. 20240. You may also comment
via the Internet to WOComment@wo.blm.gov. Please submit comments as an
ASCII file avoiding the use of special characters and any form of
encryption. Please also include ``attn: 1004-AD09'' and your name and
return address in your Internet message. If you do not receive a
confirmation from the system that we have received your Internet
message, contact us directly at (202) 452-5030. Finally, you may hand-
deliver comments to BLM at 1620 L Street, NW, Room 401, Washington,
D.C. Comments, including names and street addresses of respondents,
will be available for public review at this address during regular
business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except
holidays. Individual respondents may request that their name and/or
home address be kept confidential and state the reasons that one
believes that his or her interest in privacy outweighs the public
interest in disclosure. BLM will evaluate each request for
confidentiality on a case-by-case basis. If you wish to withhold your
name or street address, except for the city or town, from public review
or from disclosure under the Freedom of Information Act, you must state
this prominently at the beginning of your comment. Anonymous comments
will not be considered. All submissions from organizations or
businesses, and from individuals identifying themselves as
representatives or officials of organizations or businesses, will be
made available for public inspection in their entirety.
FOR FURTHER INFORMATION CONTACT: Ian Senio, 202-452-5049 or Sue
Stephens, (505) 438-7553.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
III. Discussion of Proposed Rule
IV. Procedural Matters
I. Public Comment Procedures
Written Comments
Your written comments on the proposed rule should--
(a) Be specific;
(b) Be confined to issues pertinent to the proposed rule;
(c) Explain the reason for any recommended change; and
(d) Where possible, reference the specific section or paragraph of
the proposal which you are addressing.
BLM may not necessarily consider or include in the Administrative
Record for the final rule comments which BLM receives after the close
of the comment period (see DATES) or comments delivered to an address
other than those listed above (see ADDRESSES).
II. Background
In 1987 and 1991, BLM promulgated regulations, found at 43 CFR 3190
(52 FR 27182) and 3192 (56 FR 2998), respectively, implementing Section
202 of the Federal Oil and Gas Royalty Management Act of 1982, (30
U.S.C. 1732) (FOGRMA). Section 202 of FOGRMA provides for cooperative
agreements with States and Tribes to share oil or gas royalty
management information, and to carry out inspection, auditing,
investigation or enforcement activities on Federal and Indian oil and
gas leases. The Federal Oil and Gas Royalty Simplification and Fairness
Act of 1996 (P.L. 104-185), which amended FOGRMA, eliminated
cooperative agreements on Federal lands.
BLM has cooperative agreements with several tribes for oil and gas
inspection and enforcement activities on Tribal lands. These agreements
are funded at 50 percent of allowable costs. The Minerals Management
Service (MMS) also entered into cooperative agreements with several
tribes for royalty accounting activities. Initially these MMS
agreements were funded at 50 percent, but in 1991, MMS increased its
funding for cooperative agreements to 100 percent.
This rule would amend Part 3190 by removing references to
cooperative agreements for States on Federal lands and by increasing
funding for cooperative agreements with Indian tribes to up to 100
percent. This would eliminate discrepancies in funding these types of
agreements between bureaus within the Department of the Interior.
III. Discussion of Proposed Rule
This rulemaking amends 43 CFR Subpart 3190 as follows: First, this
rule would amend 43 CFR 3190.2-2(b) to increase funding for cooperative
agreements with Indian tribes to up to 100 percent. This would
eliminate discrepancies in funding these types of agreements between
agencies within the Department of the Interior.
Second, this rule would amend the regulations to implement Section
8(a) of the Federal Oil and Gas Royalty Simplification and Fairness Act
of 1996 (P.L. 104-185), which made Section 202 of FOGRMA (30 U.S.C.
1732), no longer applicable to Federal lands. The effect of section
8(a) is to eliminate cooperative agreements with States to conduct oil
and gas inspections on Federal lands. The proposed regulations would
implement this requirement by deleting from existing regulations
references to cooperative agreements on Federal lands. States may still
enter into a cooperative agreement on Tribal lands with the permission
of the Tribe or affected allottee.
Third, on March 4, 1995, President Clinton issued a memorandum to
all
[[Page 17139]]
Federal Departments and Agencies directing them to simplify their
regulations. In response to the President's directive, BLM is proposing
this rule in a user-friendly and understandable, plain English format.
Organizationally, existing regulations (43 CFR Part 3190) implement
three related sections of FOGRMA (202, 205 and 301) that provide for
non-Federal entities (States, Tribes and contractors) to assist in
carrying out the Secretary's responsibilities under the Act either by
delegation of authority, cooperative agreement, or contract. 43 CFR
Subpart 3190 covers common elements of the three programs; Subpart 3191
addresses delegations of authority; and Subpart 3192 addresses
cooperative agreements. BLM has not yet promulgated regulations for
contracts, but should they become necessary they will be published at
Subpart 3193.
IV. Procedural Matters
National Environmental Policy Act
BLM has determined that this proposed rule to increase funding for
cooperative agreements with Tribes; eliminate cooperative agreements on
Federal lands; and convert existing regulations to plain English is
administrative, financial, and legal in nature. Increasing funding for
cooperative agreements with tribes is purely financial in nature, and
eliminating cooperative agreements on Federal lands is a legal and
administrative change from existing regulations. Therefore, it is
categorically excluded from environmental review under section
102(2)(C) of the National Environmental Policy Act, pursuant to 516
Departmental Manual (DM), Chapter 2, Appendix 1, Item 1.10. In
addition, the proposed rule does not meet any of the 10 criteria for
exceptions to categorical exclusions listed in 516 DM, Chapter 2,
Appendix 2. Pursuant to Council on Environmental Quality regulations
(40 CFR 1508.4) and the environmental policies and procedures of the
Department of the Interior, the term ``categorical exclusions'' means a
category of actions which do not individually or cumulatively have a
significant effect on the human environment and that have been found to
have no such effect in procedures adopted by a Federal agency and for
which neither an environmental assessment nor an environmental impact
statement is required.
Paperwork Reduction Act
This rule does not contain information collection requirements that
the Office of Management and Budget must approve under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.
Regulatory Flexibility Act
Congress enacted The Regulatory Flexibility Act, (RFA), 5 U.S.C.
601 et seq., to ensure that Government regulations do not unnecessarily
or disproportionately burden small entities. The RFA requires a
regulatory flexibility analysis if a rule would have a significant
economic impact, either detrimental or beneficial, on a substantial
number of small entities. Based on the discussion contained in this
preamble above, the economic impact of the proposed amendment
increasing funding for Indian cooperative agreements will be less than
$250,000. The other proposed changes, deleting cooperative agreements
on Federal lands and converting the regulations to plain English, will
have no economic impact. BLM anticipates that this proposed rule will
have no significant impact on the public at large. Therefore, BLM has
determined under the RFA that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act
Amendment of 43 CFR Part 3190 will not result in any unfunded
mandate to State, local, or tribal governments in the aggregate, or to
the private sector, of $100 million or more in any one year.
Executive Order 12612
The proposed rule will not have a substantial direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
The elimination of cooperative agreements with States for
inspection and enforcement of oil and gas leases on Federal lands is a
requirement of Section 8(a) Federal Oil and Gas Royalty Simplification
and Fairness Act of 1996.
States that are interested in conducting inspections on Federal oil
and gas leases may still do so under a Delegation of Authority as
provided in Section 205 of FOGRMA (30 U.S.C. 1735).
Therefore, in accordance with Executive Order 12612, BLM has
determined that this proposed rule does not have sufficient federalism
implications to warrant preparation of a Federalism Assessment.
Executive Order 12630
The primary effect of the proposed rule is to increase Federal
funding to Tribes that conduct inspections of Tribal oil and gas leases
under a cooperative agreement with BLM. Since the rule has no impact on
lands or other properties, there will be no private property rights
impaired as a result. Therefore, the Department of the Interior has
determined that the rule would not cause a taking of private property
or require further discussion of takings implications under this
Executive Order.
Executive Order 12866
According to the criteria listed in section 3(f) of Executive Order
12866, BLM has determined that the proposed rule is not a significant
regulatory action. As such, the proposed rule is not subject to Office
of Management and Budget review under section 6(a)(3) of the order.
Executive Order 12988
The Department of the Interior has determined that this rule meets
the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988.
Author
The principal author of this rule is Sue Stephens of BLM's New
Mexico State Office, assisted by Ian Senio of BLM's Regulatory
Management Group.
List of Subjects in 43 CFR Part 3190
Administrative practice and procedure, Authority delegations
(Government agencies), Government contracts, Indians-lands,
Intergovernmental relations, Mineral royalties, Reporting and
recordkeeping requirements.
Accordingly, BLM proposes to amend 43 CFR Part 3190 as follows:
PART 3190--DELEGATION OF AUTHORITY, COOPERATIVE AGREEMENTS AND
CONTRACTS FOR OIL AND GAS INSPECTIONS
1. Revise the authority citation to read as follows:
Authority: 30 U.S.C. 1735 and 1751.
2. In Sec. 3190.2-2 revise paragraph (b)(2) to read as follows:
Sec. 3190.2-2 Funding.
* * * * *
(b) * * *
(2) Up to 100 percent for a cooperative agreement.
* * * * *
3. Revise Subpart 3192 of part 3190 to read as follows:
[[Page 17140]]
Subpart 3192--Cooperative Agreements
Sec.
3192.1 What is a cooperative agreement?
3192.2 Who may apply for a cooperative agreement with BLM to
conduct oil and gas inspections?
3192.3 What must a Tribe or State include in its application for a
cooperative agreement?
3192.4 What is the term of a cooperative agreement?
3192.5 How do I modify a cooperative agreement?
3192.6 How will BLM evaluate my request for proprietary data?
3192.7 What must I do with Federal assistance I receive?
3192.8 May I subcontract activities in the agreement?
3192.9 What terms must a cooperative agreement contain?
3192.10 What costs will BLM pay?
3192.11 How are civil penalties shared?
3192.12 What activities may Tribes or States perform under
cooperative agreements?
3192.13 What activities must BLM keep?
3192.14 What are the requirements for Tribal or State inspectors?
3192.15 May cooperative agreements be terminated?
3192.16 How will I know if BLM intends to terminate my agreement?
3192.17 Can BLM reinstate cooperative agreements that have been
terminated?
3192.18 Can I appeal a BLM decision?
Subpart 3192--Cooperative Agreements
Sec. 3192.1 What is a cooperative agreement?
(a) A cooperative agreement is a contract that BLM enters into with
a Tribe or State to conduct inspection, investigation, or enforcement
activities on producing Indian oil and gas leases.
(b) BLM will enter into a cooperative agreement with a State to
inspect oil and gas leases on Indian lands only with the permission of
the Tribe with jurisdiction over the lands.
Sec. 3192.2 Who may apply for a cooperative agreement with BLM to
conduct oil and gas inspections?
(a) The Tribal chairman, or other authorized official, of any Tribe
with producing oil or gas leases, or agreements under the Indian
Mineral Development Act of 1982 (25 U.S.C. 2101 et seq.), for Indian
lands under the Tribe's jurisdiction.
(b) Tribes may join together to apply for a multi-tribe cooperative
agreement.
(c) The Governor of a State having a tribal resolution from the
tribe with jurisdiction over the land, permitting the Governor to enter
into cooperative agreements.
Sec. 3192.3 What must a Tribe or State include in its application for
a cooperative agreement?
(a) You must complete--
(1) Standard Form 424, Application for Federal Assistance;
(2) Standard Form 424A, Budget Information--Non-Construction
Programs; and
(3) Standard Form 424B, Assurances--Non-Construction Programs.
(b) You must describe the type and extent of oil and gas
inspection, enforcement, and investigative activities proposed under
the agreement and the period of time the proposed agreement will be in
effect.
(c) You may include allotted lands under an agreement with the
allottee's written consent.
Sec. 3192.4 What is the term of a cooperative agreement?
Cooperative agreements can be in effect for a period from 1 to 5
years from the effective date of the agreement, as set out in the
agreement.
Sec. 3192.5 How do I modify a cooperative agreement?
You may modify a cooperative agreement by having both parties to
the agreement consent to the change in writing. If the agreement is
with a State, and the modification would effect the duration or scope
of the agreement, then you must obtain the Tribe's written consent.
Sec. 3192.6 How will BLM evaluate my request for proprietary data?
BLM will evaluate Tribal or State requests for proprietary data on
a case-by-case basis according to the requirements of Sec. 3190.1 of
this part.
Sec. 3192.7 What must I do with Federal assistance I receive?
You must use Federal assistance that you receive only for costs
incurred which are directly related to the activities carried out under
the cooperative agreement.
Sec. 3192.8 May I subcontract activities in the agreement?
Yes. You must obtain BLM's written approval before you subcontract
any activities in the agreement with the exception of financial audits
of program funds, that are required by the Single Audit Act of 1984 (31
U.S.C. 7501 et seq.).
Sec. 3192.9 What terms must a cooperative agreement contain?
The cooperative agreement must--
(a) State its purpose, objective, and authority;
(b) Define terms used in the agreement;
(c) Describe the lands covered;
(d) Describe the roles and responsibilities of BLM and the Tribe or
State;
(e) Describe the activities the Tribe or State will carry out;
(f) Define the minimum performance standards to evaluate Tribal or
State performance;
(g) Include provisions to--
(1) Protect proprietary data, as provided in Sec. 3190.1 of this
part;
(2) Prevent conflict of interest, as provided in Sec. 3192.13(d);
(3) Share civil penalties, as provided in Sec. 3192.10; and
(4) Terminate the agreement;
(h) List BLM and Tribal or State contacts;
(i) Provide for the avoidance of duplication of effort between BLM
and the Tribe or State when conducting inspections;
(j) List schedules for--
(1) Inspection activities;
(2) Training of Tribal or State inspectors;
(3) Periodic reviews and meetings;
(k) Specify the limit on the dollar amount of Federal funding;
(l) Describe procedures for Tribes or States to request payment
reimbursement;
(m) Describe allowable costs subject to reimbursement; and
(n) Describe plans for BLM oversight of the cooperative agreement.
Sec. 3192.10 What costs will BLM pay?
(a) BLM will pay expenses allowed under part 12, subpart A,
Administrative and Audit Requirements and Cost Principles for
Assistance Programs, of this title.
(b) BLM will fund the agreements up to 100 percent of allowable
costs.
(c) Funding is subject to the availability of BLM funds.
(d) Funding for cooperative agreements is subject to the shared
civil penalties requirement of Sec. 3192.11.
Sec. 3192.11 How are civil penalties shared?
When a Tribe or State conducts an inspection that results in the
collection of a civil penalty, that Tribe or State and the Federal
government share the civil penalty equally. The law requires BLM to
recover its cost for the cooperative agreement. As a result, BLM will
pay you your share of civil penalties only after civil penalties for
the year exceed the amount of your Federal funding for the year.
[[Page 17141]]
Sec. 3192.12 What activities may Tribes or States perform under
cooperative agreements?
Activities carried out under the cooperative agreement must be in
accordance with the policies of the appropriate BLM State or field
office and as specified in the agreement, and may include--
(a) Inspecting tribal oil and gas leases for compliance with BLM
regulations;
(b) Issuing initial Notices of Incidents of Non-Compliance, Form
3160-9, and Notices to Shut Down Operation, Form 3160-12;
(c) Conducting investigations; or
(d) Conducting oil transporter inspections.
Sec. 3192.13 What activities must BLM keep?
(a) Under cooperative agreements, BLM continues to--
(1) Issue Notices of Incidents of Noncompliance that impose
monetary assessments and penalties;
(2) Collect assessments and penalties;
(3) Calculate and distribute shared civil penalties;
(4) Train and certify Tribal or State inspectors;
(5) Issue and control inspector identification cards; and
(6) Identify leases to be inspected, taking into account the
priorities of the Tribe.
(b) Entering into a cooperative agreement does not affect the right
of BLM to enter lease sites to conduct inspections, enforcement,
investigations or other activities necessary to supervise lease
operations.
Sec. 3192.14 What are the requirements for Tribal or State inspectors?
(a) BLM must certify Tribal or State inspectors before they conduct
independent inspections on Indian oil and gas leases.
(b) The standards for certifying Tribal or State inspectors must be
the same as the standards used for certifying BLM inspectors.
(c) Tribal and State inspectors must satisfactorily complete on-
the-job and classroom training in order to qualify for certification.
(d) Tribal or State inspectors must not--
(1) Inspect the operations of companies in which they, a member of
their immediate family, or their immediate supervisor, have a direct
financial interest; or
(2) Use for personal gain, or gain by another person, information
he or she acquires as a result of his or her participating in the
cooperative agreement.
Sec. 3192.15 May cooperative agreements be terminated?
(a) Cooperative agreements may be terminated at any time if all
parties agree to the termination in writing.
(b) BLM may terminate an agreement without Tribal or State
agreement if the--
(1) Tribe or State fails to carry out the terms of the agreement;
or
(2) Agreement is no longer needed.
Sec. 3192.16 How will I know if BLM intends to terminate my agreement?
(a) If BLM plans to terminate your agreement because you did not
carry out the terms of the agreement, BLM must send a notice to you
that lists the reasons BLM plans to terminate the agreement.
(b) You must send BLM a plan to correct the problems BLM listed in
the notice.
(c) If you submit a plan for correction and BLM approves the plan,
you have 30 days to correct the problem(s).
(d) If you have not corrected the problem within 30 days, BLM will
send you a second termination notice.
(e) If you do not respond to the second notice within 30 days, BLM
will terminate the agreement.
Sec. 3192.17 Can BLM reinstate cooperative agreements that have been
terminated?
(a) If your cooperative agreement was terminated by consent, you
may request that BLM reinstate the agreement.
(b) If BLM terminated an agreement because you did not carry out
the terms of the agreement, you must prove that you have corrected the
problem(s) and are able to carry out the terms of the agreement.
(c) BLM will then decide whether or not your cooperative agreement
may be reinstated and, if so, whether you must make any changes to the
agreement before it can be reinstated.
Sec. 3192.18 Can I appeal a BLM decision?
Yes, you may appeal a BLM decision under the provisions of 43 CFR
part 4.
Dated: March 31, 1997.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
[FR Doc. 97-9100 Filed 4-8-97; 8:45 am]
BILLING CODE 4310-84-P
