[Title 30 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



                    30


          Parts 200 to 699

                         Revised as of July 1, 2002

Mineral Resources





          Containing a codification of documents of general 
          applicability and future effect
          As of July 1, 2002
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2002



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 30:
          Chapter II—Minerals Management Service, 
          Department of the Interior                                 3
          Chapter III—Board of Surface Mining and 
          Reclamation Appeals, Department of the Interior          559
          Chapter IV—Geological Survey, Department of 
          the Interior                                             563
  Finding Aids:
      Material Approved for Incorporation by Reference........     577
      Table of CFR Titles and Chapters........................     587
      Alphabetical List of Agencies Appearing in the CFR......     605
      Redesignation Table.....................................     615
      List of CFR Sections Affected...........................     619



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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 30 CFR 201.100 
                       refers to title 30, part 
                       201, section 100.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2002), consult the “List of 
CFR Sections Affected (LSA),” which is issued monthly, and the 
“Cumulative List of Parts Affected,” which appears in the 
Reader Aids section of the daily Federal Register. These two lists will 
identify the Federal Register page number of the latest amendment of any 
given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 
1949–1963, 1964–1972, or 1973–1985, published in seven 
separate volumes. For the period beginning January 1, 1986, a 
“List of CFR Sections Affected” is published at the end of 
each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 523–4534.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of “Title 3—The President” is 
carried within that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the “Contents” 
entries in the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

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REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd–numbered pages.
    For inquiries concerning CFR reference assistance, call 
202–523–5227 or write to the Director, Office of the Federal 
Register, National Archives and Records Administration, Washington, DC 
20408 or e-mail [email protected]

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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 2002.



[[Page ix]]



                               THIS TITLE

    Title 30—Mineral Resources is composed of three volumes. The 
parts in these volumes are arranged in the following order: parts 1 to 
199, parts 200 to 699, and part 700 to End. The contents of these 
volumes represent all current regulations codified under this title of 
the CFR as of July 1, 2002.

    Redesignation tables appear in the first and second volumes of title 
30.

[[Page x]]





[[Page 1]]



                       TITLE 30--MINERAL RESOURCES




                  (This book contains parts 200 to 699)

  --------------------------------------------------------------------
                                                                    Part

chapter ii--Minerals Management Service, Department of the 
  Interior..................................................         201

chapter iii--Board of Surface Mining and Reclamation 
  Appeals, Department of the Interior.......................         301

chapter iv--Geological Survey, Department of the Interior...         401

Cross References: Bureau of Land Management, Department of the Interior, 
  regulations with respect to mineral lands: 43 CFR, chapter II, 
  subchapter C.

  Foreign Trade Statistics, Bureau of the Census, Department of 
Commerce: 15 CFR part 30.

  Forest Service regulations relating to mineral developments and mining 
in national forests: 36 CFR part 228.

  General Services Administration regulations for stockpiling of 
strategic and critical materials: 41 CFR chapter 101, subchapter C.

  Interstate Commerce Commission: 49 CFR chapter X.

  Bureau of Indian Affairs, Department of the Interior, energy and 
minerals regulations: 25 CFR chapter I, subchapter I.

  Other regulations issued by the Department of the Interior appear in 
title 25, chapters I and II; title 36, chapter I; title 41, chapter 114; 
title 43; and title 50, chapters I and IV.

[[Page 3]]



                CHAPTER II--MINERALS MANAGEMENT SERVICE,






                       DEPARTMENT OF THE INTERIOR




                           (Parts 200 to 699)

  --------------------------------------------------------------------

                    SUBCHAPTER A--ROYALTY MANAGEMENT
Part                                                                Page
201             General.....................................           5
202             Royalties...................................           5
203             Relief or reduction in royalty rates........          13
206             Product valuation...........................          35
207             Sales agreements or contracts governing the 
                    disposal of lease products..............         144
208             Sale of Federal royalty oil.................         146
210             Forms and reports...........................         153
212             Records and files maintenance...............         166
215

Accounting and auditing standards [Reserved]

216             Production accounting.......................         168
217             Audits and inspections......................         174
218             Collection of royalties, rentals, bonuses 
                    and other monies due the Federal 
                    Government..............................         176
219             Distribution and disbursement of royalties, 
                    rentals, and bonuses....................         190
220             Accounting procedures for determining net 
                    profit share payment for outer 
                    Continental Shelf oil and gas leases....         191
227             Delegation to States........................         205
228             Cooperative activities with States and 
                    Indian tribes...........................         216
229             Delegation to States........................         220
230

Recoupments and refunds [Reserved]

232

Interest payments [Reserved]

233

Escrow and investments [Reserved]

234

Bonding--payment liability [Reserved]

241             Penalties...................................         228
242

Orders [Reserved]

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243             Suspensions pending appeal and bonding--
                    Minerals revenue management.............         233
                         SUBCHAPTER B--OFFSHORE
250             Oil and gas and sulphur operations in the 
                    Outer Continental Shelf.................         239
251             Geological and geophysical (G & G) 
                    explorations of the Outer Continental 
                    Shelf...................................         427
252             Outer Continental Shelf (OCS) oil and gas 
                    information program.....................         440
253             Oil spill financial responsibility for 
                    offshore facilities.....................         445
254             Oil-spill response requirements for 
                    facilities located seaward of the coast 
                    line....................................         459
256             Leasing of sulphur or oil and gas in the 
                    Outer Continental Shelf.................         471
259             Mineral leasing: Definitions................         499
260             Outer Continental Shelf oil and gas leasing.         500
270             Nondiscrimination in the Outer Continental 
                    Shelf...................................         507
280             Prospecting for minerals other than oil, 
                    gas, and sulfur in the outer continental 
                    shelf...................................         509
281             Leasing of minerals other than oil, gas, and 
                    sulphur in the outer continental shelf..         516
282             Operations in the outer continental shelf 
                    for minerals other than oil, gas, and 
                    sulphur.................................         529
                          SUBCHAPTER C--APPEALS
290             Appeals procedures..........................         552

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                    SUBCHAPTER A--ROYALTY MANAGEMENT





PART 201--GENERAL--Table of Contents




Subpart A--General Provisions [Reserved]

Subpart B--Oil and Gas, General [Reserved]

                     Subpart C--Oil and Gas, Onshore

Sec.
201.100  Responsibilities of the Associate Director for Minerals Revenue 
          Management.

Subpart D--Oil, Gas and Sulphur, Offshore [Reserved]

Subpart E--Coal [Reserved]

Subpart F--Other Solid Minerals [Reserved]

Subpart G--Geothermal Resources [Reserved]

Subpart H--Indian Lands [Reserved]

    Authority: The Act of February 25, 1920 (30 U.S.C. 181, et seq.), as 
amended; the Act of May 21, 1930 (30 U.S.C. 301-306); the Mineral 
Leasing Act for Acquired Lands (30 U.S.C. 351-359), as amended; the Act 
of March 3, 1909 (25 U.S.C. 396), as amended; the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321, et seq.) as amended; the Act of May 
11, 1938 (25 U.S.C. 396a-396q), as amended; the Act of February 28, 1891 
(25 U.S.C. 397), as amended; the Act of May 29, 1924 (25 U.S.C. 398); 
the Act of March 3, 1927 (25 U.S.C. 398a-398e); the Act of June 30, 1919 
(25 U.S.C. 399), as amended; R.S. Sec. 441 (43 U.S.C. 1457), see also 
Attorney General's Opinion of April 2, 1941 (40 Op. Atty. Gen. 41); the 
Federal Property and Administrative Services Act of 1949 (40 U.S.C. 471, 
et seq.), as amended; the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.), as amended; the Act of December 12, 1980 (Pub. L. 
96-514, 94 Stat. 2964); the Combined Hydrocarbon Leasing Act of 1981 
(Pub. L. 97-78, 95 Stat. 1070); the Outer Continental Shelf Lands Act 
(43 U.S.C. 1331, et seq.), as amended; section 2 of Reorganization Plan 
No. 3 of 1950 (64 stat. 1262); Secretarial Order No. 3071 of January 19, 
1982, as amended; and Secretarial Order 3087, as amended.

Subpart A--General Provisions [Reserved]

Subpart B--Oil and Gas, General [Reserved]



                     Subpart C--Oil and Gas, Onshore



Sec. 201.100  Responsibilities of the Associate Director for Minerals Revenue Management.

    The Associate Director is responsible for the collection of certain 
rents, royalties, and other payments; for the receipt of sales and 
production reports; for determining royalty liability; for maintaining 
accounting records; for any audits of the royalty payments and 
obligations; and for any and all other functions relating to royalty 
management on Federal and Indian oil and gas leases.

[47 FR 47768, Oct. 27, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983]

Subpart D--Oil, Gas and Sulphur, Offshore [Reserved]

Subpart E--Coal [Reserved]

Subpart F--Other Solid Minerals [Reserved]

Subpart G--Geothermal Resources [Reserved]

Subpart H--Indian Lands [Reserved]



PART 202--ROYALTIES--Table of Contents




Subpart A--General Provisions [Reserved]

              Subpart B--Oil, Gas, and OCS Sulfur, General

Sec.
202.51  Scope and definitions.
202.52  Royalties.
202.53  Minimum royalty.

                    Subpart C--Federal and Indian Oil

202.100  Royalty on oil.
202.101  Standards for reporting and paying royalties.

[[Page 6]]

                         Subpart D--Federal Gas

202.150  Royalty on gas.
202.151  Royalty on processed gas.
202.152  Standards for reporting and paying royalties on gas.

Subpart E--Solid Minerals, General [Reserved]

                             Subpart F--Coal

202.250  Overriding royalty interest.

Subpart G--Other Solid Minerals [Reserved]

                     Subpart H--Geothermal Resources

202.350  Scope and definitions.
202.351  Royalties on geothermal resources.
202.352  Minimum royalty.
202.353  Measurement standards for reporting and paying royalties.

Subpart I--OCS Sulfur [Reserved]

              Subpart J--Gas Production from Indian Leases

202.550  How do I determine the royalty due on gas production?
202.551  How do I determine the volume of production for which I must 
          pay royalty if my lease is not in an approved Federal unit or 
          communitization agreement (AFA)?
202.552  How do I determine how much royalty I must pay if my lease is 
          in an approved Federal unit or communitization agreement 
          (AFA)?
202.553  How do I value my production if I take more than my entitled 
          share?
202.554  How do I value my production that I do not take if I take less 
          than my entitled share?
202.555  What portion of the gas that I produce is subject to royalty?
202.556  How do I determine the value of avoidably lost, wasted, or 
          drained gas?
202.557  Must I pay royalty on insurance compensation for unavoidably 
          lost gas?
202.558  What standards do I use to report and pay royalties on gas?

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq., 396a et 
seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et seq.; 
1701 et seq.; 31 U.S.C. 9701; 43 U.S.C. 1301 et seq.; 1331 et seq., 1801 
et seq.

Subpart A--General Provisions [Reserved]



              Subpart B--Oil, Gas, and OCS Sulfur, General

    Source: 53 FR 1217, Jan. 15, 1988, unless otherwise noted.



Sec. 202.51  Scope and definitions.

    (a) This subpart is applicable to Federal and Indian (Tribal and 
allotted) oil and gas leases (except leases on the Osage Indian 
Reservation, Osage County, Oklahoma) and OCS sulfur leases.
    (b) The definitions in subparts B, C, D, and E, of part 206 of this 
title are applicable to subparts B, C, D, and J of this part.

[53 FR 1217, Jan. 15, 1988, as amended at 64 FR 43513, Aug. 10, 1999]



Sec. 202.52  Royalties.

    (a) Royalties on oil, gas, and OCS sulfur shall be at the royalty 
rate specified in the lease, unless the Secretary, pursuant to the 
provisions of the applicable mineral leasing laws, reduces, or in the 
case of OCS leases, reduces or eliminates, the royalty rate or net 
profit share set forth in the lease.
    (b) For purposes of this subpart, the use of the term royalty(ies) 
includes the term net profit share(s).



Sec. 202.53  Minimum royalty.

    For leases that provide for minimum royalty payments, the lessee 
shall pay the minimum royalty as specified in the lease.



                    Subpart C--Federal and Indian Oil



Sec. 202.100  Royalty on oil.

    (a) Royalties due on oil production from leases subject to the 
requirements of this part, including condensate separated from gas 
without processing, shall be at the royalty rate established by the 
terms of the lease. Royalty shall be paid in value unless MMS requires 
payment in-kind. When paid in value, the royalty due shall be the value, 
for royalty purposes, determined pursuant to part 206 of this title 
multiplied by the royalty rate in the lease.
    (b)(1) All oil (except oil unavoidably lost or used on, or for the 
benefit of, the lease, including that oil used off-lease for the benefit 
of the lease when such off-lease use is permitted by the

[[Page 7]]

MMS or BLM, as appropriate) produced from a Federal or Indian lease to 
which this part applies is subject to royalty.
    (2) When oil is used on, or for the benefit of, the lease at a 
production facility handling production from more than one lease with 
the approval of the MMS or BLM, as appropriate, or at a production 
facility handling unitized or communitized production, only that 
proportionate share of each lease's production (actual or allocated) 
necessary to operate the production facility may be used royalty-free.
    (3) Where the terms of any lease are inconsistent with this section, 
the lease terms shall govern to the extent of that inconsistency.
    (c) If BLM determines that oil was avoidably lost or wasted from an 
onshore lease, or that oil was drained from an onshore lease for which 
compensatory royalty is due, or if MMS determines that oil was avoidably 
lost or wasted from an offshore lease, then the value of that oil shall 
be determined in accordance with 30 CFR part 206.
    (d) If a lessee receives insurance compensation for unavoidably lost 
oil, royalties are due on the amount of that compensation. This 
paragraph shall not apply to compensation through self-insurance.
    (e)(1) In those instances where the lessee of any lease committed to 
a federally approved unitization or communitization agreement does not 
actually take the proportionate share of the agreement production 
attributable to its lease under the terms of the agreement, the full 
share of production attributable to the lease under the terms of the 
agreement nonetheless is subject to the royalty payment and reporting 
requirements of this title. Except as provided in paragraph (e)(2) of 
this section, the value, for royalty purposes, of production 
attributable to unitized or communitized leases will be determined in 
accordance with 30 CFR part 206. In applying the requirements of 30 CFR 
part 206, the circumstances involved in the actual disposition of the 
portion of the production to which the lessee was entitled but did not 
take shall be considered as controlling in arriving at the value, for 
royalty purposes, of that portion as though the person actually selling 
or disposing of the production were the lessee of the Federal or Indian 
lease.
    (2) If a Federal or Indian lessee takes less than its proportionate 
share of agreement production, upon request of the lessee MMS may 
authorize a royalty valuation method different from that required by 
paragraph (e)(1) of this section, but consistent with the purposes of 
these regulations, for any volumes not taken by the lessee but for which 
royalties are due.
    (3) For purposes of this subchapter, all persons actually taking 
volumes in excess of their proportionate share of production in any 
month under a unitization or communitization agreement shall be deemed 
to have taken ratably from all persons actually taking less than their 
proportionate share of the agreement production for that month.
    (4) If a lessee takes less than its proportionate share of agreement 
production for any month but royalties are paid on the full volume of 
its proportionate share in accordance with the provisions of this 
section, no additional royalty will be owed for that lease for prior 
periods when the lessee subsequently takes more than its proportionate 
share to balance its account or when the lessee is paid a sum of money 
by the other agreement participants to balance its account.
    (f) For production from Federal and Indian leases which are 
committed to federally-approved unitization or communitization 
agreements, upon request of a lessee MMS may establish the value of 
production pursuant to a method other than the method required by the 
regulations in this title if: (1) The proposed method for establishing 
value is consistent with the requirements of the applicable statutes, 
lease terms, and agreement terms; (2) persons with an interest in the 
agreement, including, to the extent practical, royalty interests, are 
given notice and an opportunity to comment on the proposed valuation 
method before it is authorized; and (3) to the extent practical, persons 
with an interest in a Federal or Indian lease committed to the 
agreement, including royalty interests, must agree to use the proposed 
method for valuing production from the agreement for royalty purposes.

[53 FR 1217, Jan. 15, 1988]

[[Page 8]]



Sec. 202.101  Standards for reporting and paying royalties.

    Oil volumes are to be reported in barrels of clean oil of 42 
standard U.S. gallons (231 cubic inches each) at 60  deg.F. When 
reporting oil volumes for royalty purposes, corrections must have been 
made for Basic Sediment and Water (BS&W) and other impurities. Reported 
American Petroleum Institute (API) oil gravities are to be those 
determined in accordance with standard industry procedures after 
correction to 60  deg.F.

[53 FR 1217, Jan. 15, 1988]



                         Subpart D--Federal Gas

    Source: 53 FR 1271, Jan. 15, 1988, unless otherwise noted.



Sec. 202.150  Royalty on gas.

    (a) Royalties due on gas production from leases subject to the 
requirements of this subpart, except helium produced from Federal 
leases, shall be at the rate established by the terms of the lease. 
Royalty shall be paid in value unless MMS requires payment in kind. When 
paid in value, the royalty due shall be the value, for royalty purposes, 
determined pursuant to 30 CFR part 206 of this title multiplied by the 
royalty rate in the lease.
    (b)(1) All gas (except gas unavoidably lost or used on, or for the 
benefit of, the lease, including that gas used off-lease for the benefit 
of the lease when such off-lease use is permitted by the MMS or BLM, as 
appropriate) produced from a Federal lease to which this subpart applies 
is subject to royalty.
    (2) When gas is used on, or for the benefit of, the lease at a 
production facility handling production from more than one lease with 
the approval of MMS or BLM, as appropriate, or at a production facility 
handling unitized or communitized production, only that proportionate 
share of each lease's production (actual or allocated) necessary to 
operate the production facility may be used royalty free.
    (3) Where the terms of any lease are inconsistent with this subpart, 
the lease terms shall govern to the extent of that inconsistency.
    (c) If BLM determines that gas was avoidably lost or wasted from an 
onshore lease, or that gas was drained from an onshore lease for which 
compensatory royalty is due, or if MMS determines that gas was avoidably 
lost or wasted from an OCS lease, then the value of that gas shall be 
determined in accordance with 30 CFR part 206.
    (d) If a lessee receives insurance compensation for unavoidably lost 
gas, royalties are due on the amount of that compensation. This 
paragraph shall not apply to compensation through self-insurance.
    (e)(1) In those instances where the lessee of any lease committed to 
a Federally approved unitization or communitization agreement does not 
actually take the proportionate share of the production attributable to 
its Federal lease under the terms of the agreement, the full share of 
production attributable to the lease under the terms of the agreement 
nonetheless is subject to the royalty payment and reporting requirements 
of this title. Except as provided in paragraph (e)(2) of this section, 
the value for royalty purposes of production attributable to unitized or 
communitized leases will be determined in accordance with 30 CFR part 
206. In applying the requirements of 30 CFR part 206, the circumstances 
involved in the actual disposition of the portion of the production to 
which the lessee was entitled but did not take shall be considered as 
controlling in arriving at the value for royalty purposes of that 
portion, as if the person actually selling or disposing of the 
production were the lessee of the Federal lease.
    (2) If a Federal lessee takes less than its proportionate share of 
agreement production, upon request of the lessee MMS may authorize a 
royalty valuation method different from that required by paragraph 
(e)(1) of this section, but consistent with the purpose of these 
regulations, for any volumes not taken by the lessee but for which 
royalties are due.
    (3) For purposes of this subchapter, all persons actually taking 
volumes in excess of their proportionate share of production in any 
month under a unitization or communitization agreement shall be deemed 
to have taken ratably from all persons actually taking less

[[Page 9]]

than their proportionate share of the agreement production for that 
month.
    (4) If a lessee takes less than its proportionate share of agreement 
production for any month but royalties are paid on the full volume of 
its proportionate share in accordance with the provisions of this 
section, no additional royalty will be owed for that lease for prior 
periods at the time the lessee subsequently takes more than its 
proportionate share to balance its account or when the lessee is paid a 
sum of money by the other agreement participants to balance its account.
    (f) For production from Federal leases which are committed to 
federally-approved unitization or communitization agreements, upon 
request of a lessee MMS may establish the value of production pursuant 
to a method other than the method required by the regulations in this 
title if: (1) The proposed method for establishing value is consistent 
with the requirements of the applicable statutes, lease terms and 
agreement terms; (2) to the extent practical, persons with an interest 
in the agreement, including royalty interests, are given notice and an 
opportunity to comment on the proposed valuation method before it is 
authorized; and (3) to the extent practical, persons with an interest in 
a Federal lease committed to the agreement, including royalty interests, 
must agree to use the proposed method for valuing production from the 
agreement for royalty purposes.

[53 FR 1271, Jan. 15, 1988, as amended at 64 FR 43513, Aug. 10, 1999]



Sec. 202.151  Royalty on processed gas.

    (a)(1) A royalty, as provided in the lease, shall be paid on the 
value of:
    (i) Any condensate recovered downstream of the point of royalty 
settlement without resorting to processing; and
    (ii) Residue gas and all gas plant products resulting from 
processing the gas produced from a lease subject to this subpart.
    (2) MMS shall authorize a processing allowance for the reasonable, 
actual costs of processing the gas produced from Federal leases. 
Processing allowances shall be determined in accordance with 30 CFR part 
206 subpart D for gas production from Federal leases and 30 CFR part 206 
subpart E for gas production from Indian leases.
    (b) A reasonable amount of residue gas shall be allowed royalty free 
for operation of the processing plant, but no allowance shall be made 
for boosting residue gas or other expenses incidental to marketing, 
except as provided in 30 CFR part 206. In those situations where a 
processing plant processes gas from more than one lease, only that 
proportionate share of each lease's residue gas necessary for the 
operation of the processing plant shall be allowed royalty free.
    (c) No royalty is due on residue gas, or any gas plant product 
resulting from processing gas, which is reinjected into a reservoir 
within the same lease, unit area, or communitized area, when the 
reinjection is included in a plan of development or operations and the 
plan has received BLM or MMS approval for onshore or offshore 
operations, respectively, until such time as they are finally produced 
from the reservoir for sale or other disposition off-lease.

[53 FR 1217, Jan. 15, 1988, as amended at 61 FR 5490, Feb. 12, 1996; 64 
FR 43513, Aug. 10, 1999]



Sec. 202.152  Standards for reporting and paying royalties on gas.

    (a)(1) If you are responsible for reporting production or royalties, 
you must:
    (i) Report gas volumes and British thermal unit (Btu) heating 
values, if applicable, under the same degree of water saturation;
    (ii) Report gas volumes in units of 1,000 cubic feet (mcf); and
    (iii) Report gas volumes and Btu heating value at a standard 
pressure base of 14.73 pounds per square inch absolute (psia) and a 
standard temperature base of 60  deg.F.
    (2) The frequency and method of Btu measurement as set forth in the 
lessee's contract shall be used to determine Btu heating values for 
reporting purposes. However, the lessee shall measure the Btu value at 
least semiannually by recognized standard industry testing methods even 
if the lessee's contract provides for less frequent measurement.

[[Page 10]]

    (b)(1) Residue gas and gas plant product volumes shall be reported 
as specified in this paragraph.
    (2) Carbon dioxide (CO2), nitrogen (N2), 
helium (He), residue gas, and any other gas marketed as a separate 
product shall be reported by using the same standards specified in 
paragraph (a) of this section.
    (3) Natural gas liquids (NGL) volumes shall be reported in standard 
U.S. gallons (231 cubic inches) at 60  deg.F.
    (4) Sulfur (S) volumes shall be reported in long tons (2,240 
pounds).

[53 FR 1271, Jan. 15, 1988, as amended at 63 FR 26367, May 12, 1998]

Subpart E--Solid Minerals, General [Reserved]



                             Subpart F--Coal



Sec. 202.250  Overriding royalty interest.

    The regulations governing overriding royalty interests, production 
payments, or similar interests created under Federal coal leases are in 
43 CFR group 3400.

[54 FR 1522, Jan. 13, 1989]

Subpart G--Other Solid Minerals [Reserved]



                     Subpart H--Geothermal Resources

    Source: 56 FR 57275, Nov. 8, 1991, unless otherwise noted.



Sec. 202.350  Scope and definitions.

    (a) This subpart is applicable to all geothermal resources produced 
from Federal geothermal leases issued pursuant to the Geothermal Steam 
Act of 1970, as amended (30 U.S.C. 1001 et seq.).
    (b) The definitions in 30 CFR 206.351 are applicable to this 
subpart.



Sec. 202.351  Royalties on geothermal resources.

    (a) Royalties on geothermal resources, including byproduct minerals 
and commercially demineralized water, shall be at the royalty rate(s) 
specified in the lease, unless the Secretary of the Interior temporarily 
waives, suspends, or reduces that rate(s). Royalties shall be paid in 
value. The royalty due shall be the value determined pursuant to subpart 
H of 30 CFR part 206 multiplied by the royalty rate in the lease.
    (b)(1) Royalties are due on all geothermal resources, except those 
specified in paragraph (b)(2) of this section, that are produced from a 
lease and are sold or utilized by the lessee or are reasonably 
susceptible to sale or utilization by the lessee.
    (2) Geothermal resources that are unavoidably lost, as determined by 
the Bureau of Land Management (BLM), and geothermal resources that are 
reinjected prior to use on or off the lease, as approved by BLM, are not 
subject to royalty. The Minerals Management Service (MMS) will allow 
free of royalty a reasonable amount of geothermal energy necessary to 
generate electricity for internal powerplant operations or to generate 
electricity returned to the lease for lease operations. If a powerplant 
uses geothermal production from more than one lease, or uses unitized or 
communitized production, only that proportionate share of each lease's 
production (actual or allocated) necessary to operate the powerplant may 
be used royalty free. The MMS will also allow free of royalty a 
reasonable amount of commercially demineralized water necessary for 
powerplant operations or otherwise used on or for the benefit of the 
lease.
    (3) Royalties on byproducts are due at the time the recovered 
byproduct is used, sold, or otherwise finally disposed of. Byproducts 
produced and added to stockpiles or inventory do not require payment of 
royalty until the byproducts are sold, utilized, or otherwise finally 
disposed of. The MMS may ask BLM to increase the lease bond to protect 
the lessor's interest when BLM determines that stockpiles or inventories 
become excessive.
    (c) If BLM determines that geothermal resources (including 
byproducts) were avoidably lost or wasted from the lease, or that 
geothermal resources (including byproducts) were drained from the lease 
for which compensatory royalty is due, the value of those geothermal 
resources shall be determined in accordance with subpart H of 30 CFR 
part 206.

[[Page 11]]

    (d) If a lessee receives insurance or other compensation for 
unavoidably lost geothermal resources (including byproducts), royalties 
at the rates specified in the lease are due on the amount of that 
compensation. This paragraph shall not apply to compensation through 
self-insurance.



Sec. 202.352  Minimum royalty.

    In no event shall the lessee's annual royalty payments for any 
producing lease be less than the minimum royalty established by the 
lease.



Sec. 202.353  Measurement standards for reporting and paying royalties.

    (a) For geothermal resources used to generate electricity, the 
quantity on which royalty is due shall be reported on Form MMS-2014 
(Report of Sales and Royalty Remittance) as follows:
    (1) For geothermal resources valued under arm's-length or non-arm's-
length contracts, quantities shall be reported in:
    (i) Kilowatthours to the nearest whole kilowatthour if the contract 
specifies payment in terms of generated electricity,
    (ii) Thousands of pounds to the nearest whole thousand pounds if the 
contract specifies payment in terms of weight, or
    (iii) Millions of Btu's to the nearest whole million Btu if the 
contract specifies payment in terms of heat or thermal energy.
    (2) For geothermal resources valued by the netback procedure 
pursuant to 30 CFR 206.352(c)(1)(ii) or (d)(1)(ii), the quantities shall 
be reported in kilowatthours to the nearest whole kilowatthour.
    (b) For geothermal resources used in direct utilization processes, 
the quantity on which royalty is due shall be reported on Form MMS-2014 
in:
    (1) Millions of Btu's to the nearest whole million Btu if valuation 
is in terms of thermal energy used or displaced,
    (2) Hundreds of gallons to the nearest hundred gallons of geothermal 
fluid produced if valuation is in terms of volume, or
    (3) Other measurement unit approved by MMS for valuation and 
reporting purposes.
    (c) For byproduct minerals, the quantity on which royalty is due 
shall be reported on Form MMS-2014 consistent with MMS-established 
reporting standards.
    (d) For commercially demineralized water, the quantity on which 
royalty is due shall be reported on Form MMS-2014 in hundreds of gallons 
to the nearest hundred gallons.
    (e) Lessees are not required to report the quality of geothermal 
resources, including byproducts, to MMS. The lessee must maintain 
quality measurements for audit and valuation purposes. Quality 
measurements include, but are not limited to, temperatures and chemical 
analyses for fluid geothermal resources and chemical analyses, weight 
percent, or other purity measurements for byproducts.

Subpart I--OCS Sulfur [Reserved]



              Subpart J-- Gas Production From Indian Leases

    Source: 64 FR 43514, Aug. 10, 1999, unless otherwise noted.



Sec. 202.550  How do I determine the royalty due on gas production?

    If you produce gas from an Indian lease subject to this subpart, you 
must determine and pay royalties on gas production as specified in this 
section.
    (a) Royalty rate. You must calculate your royalty using the royalty 
rate in the lease.
    (b) Payment in value or in kind. You must pay royalty in value 
unless:
    (1) The Tribal lessor requires payment in kind; or
    (2) You have a lease on allotted lands and MMS requires payment in 
kind.
    (c) Royalty calculation. You must use the following calculations to 
determine royalty due on the production from or attributable to your 
lease.
    (1) When paid in value, the royalty due is the unit value of 
production for royalty purposes, determined under 30 CFR part 206, 
multiplied by the volume of production multiplied by the royalty rate in 
the lease.
    (2) When paid in kind, the royalty due is the volume of production 
multiplied by the royalty rate.

[[Page 12]]

    (d) Reduced royalty rate. The Indian lessor and the Secretary may 
approve a request for a royalty rate reduction. In your request you must 
demonstrate economic hardship.
    (e) Reporting and paying. You must report and pay royalties as 
provided in part 218 of this title.



Sec. 202.551  How do I determine the volume of production for which I must pay royalty if my lease is not in an approved Federal unit or communitization 
          agreement (AFA)?

    (a) You are liable for royalty on your entitled share of gas 
production from your Indian lease, except as provided in Secs. 202.555, 
202.556, and 202.557.
    (b) You and all other persons paying royalties on the lease must 
report and pay royalties based on your takes. If another person takes 
some of your entitled share but does not pay the royalties owed, you are 
liable for those royalties.
    (c) You and all other persons paying royalties on the lease may ask 
MMS for permission to report and pay royalties based on your 
entitlements. In that event, MMS will provide valuation instructions 
consistent with this part and part 206 of this title.



Sec. 202.552  How do I determine how much royalty I must pay if my lease is in an approved Federal unit or communitization agreement (AFA)?

    You must pay royalties each month on production allocated to your 
lease under the terms of an AFA. To determine the volume and the value 
of your production, you must follow these three steps:
    (a) You must determine the volume of your entitled share of 
production allocated to your lease under the terms of an AFA. This may 
include production from more than one AFA.
    (b) You must value the production you take using 30 CFR part 206. If 
you take more than your entitled share of production, see Sec. 202.553 
for information on how to value this production. If you take less than 
your entitled share of production, see Sec. 202.554 for information on 
how to value production you are entitled to but do not take.



Sec. 202.553  How do I value my production if I take more than my entitled share?

    If you take more than your entitled share of production from a lease 
in an AFA for any month, you must determine the weighted-average value 
of all of the production that you take using the procedures in 30 CFR 
part 206, and use that value for your entitled share of production.



Sec. 202.554  How do I value my production that I do not take if I take less than my entitled share?

    If you take none or only part of your entitled production from a 
lease in an AFA for any month, use this section to value the production 
that you are entitled to but do not take.
    (a) If you take a significant volume of production from your lease 
during the month, you must determine the weighted average value of the 
production that you take using 30 CFR part 206, and use that value for 
the production that you do not take.
    (b) If you do not take a significant volume of production from your 
lease during the month, you must use paragraph (c) or (d) of this 
section, whichever applies.
    (c) In a month where you do not take production or take an 
insignificant volume, and if you would have used Sec. 206.172(b) to 
value the production if you had taken it, you must determine the value 
of production not taken for that month under Sec. 206.172(b) as if you 
had taken it.
    (d) If you take none of your entitled share of production from a 
lease in an AFA, and if that production cannot be valued under 
Sec. 206.172(b), then you must determine the value of the production 
that you do not take using the first of the following methods that 
applies:
    (1) The weighted average of the value of your production (under 30 
CFR part 206) in that month from other leases in the same AFA.
    (2) The weighted average of the value of your production (under 30 
CFR part 206) in that month from other leases in the same field or area.
    (3) The weighted average of the value of your production (under 30 
CFR part 206) during the previous month for production from leases in 
the same AFA.

[[Page 13]]

    (4) The weighted average of the value of your production (under 30 
CFR part 206) during the previous month for production from other leases 
in the same field or area.
    (5) The latest major portion value that you received from MMS 
calculated under 30 CFR 206.174 for the same MMS-designated area.
    (e) You may take less than your entitled share of AFA production for 
any month, but pay royalties on the full volume of your entitled share 
under this section. If you do, you will owe no additional royalty for 
that lease for that month when you later take more than your entitled 
share to balance your account. The provisions of this paragraph (e) also 
apply when the other AFA participants pay you money to balance your 
account.



Sec. 202.555  What portion of the gas that I produce is subject to royalty?

    (a) All gas produced from or allocated to your Indian lease is 
subject to royalty except the following:
    (1) Gas that is unavoidably lost.
    (2) Gas that is used on, or for the benefit of, the lease.
    (3) Gas that is used off-lease for the benefit of the lease when the 
Bureau of Land Management (BLM) approves such off-lease use.
    (4) Gas used as plant fuel as provided in 30 CFR 206.179(e).
    (b) You may use royalty-free only that proportionate share of each 
lease's production (actual or allocated) necessary to operate the 
production facility when you use gas for one of the following purposes:
    (1) On, or for the benefit of, the lease at a production facility 
handling production from more than one lease with BLM's approval.
    (2) At a production facility handling unitized or communitized 
production.
    (c) If the terms of your lease are inconsistent with this subpart, 
your lease terms will govern to the extent of that inconsistency.



Sec. 202.556  How do I determine the value of avoidably lost, wasted, or drained gas?

    If BLM determines that a volume of gas was avoidably lost or wasted, 
or a volume of gas was drained from your Indian lease for which 
compensatory royalty is due, then you must determine the value of that 
volume of gas under 30 CFR part 206.



Sec. 202.557  Must I pay royalty on insurance compensation for unavoidably lost gas?

    If you receive insurance compensation for unavoidably lost gas, you 
must pay royalties on the amount of that compensation. This paragraph 
does not apply to compensation through self-insurance.



Sec. 202.558  What standards do I use to report and pay royalties on gas?

    (a) You must report gas volumes as follows:
    (1) Report gas volumes and Btu heating values, if applicable, under 
the same degree of water saturation. Report gas volumes and Btu heating 
value at a standard pressure base of 14.73 psia and a standard 
temperature of 60 degrees Fahrenheit. Report gas volumes in units of 
1,000 cubic feet (Mcf).
    (2) You must use the frequency and method of Btu measurement stated 
in your contract to determine Btu heating values for reporting purposes. 
However, you must measure the Btu value at least semi-annually by 
recognized standard industry testing methods even if your contract 
provides for less frequent measurement.
    (b) You must report residue gas and gas plant product volumes as 
follows:
    (1) Report carbon dioxide (CO2), nitrogen 
(N2), helium (He), residue gas, and any gas marketed as a 
separate product by using the same standards specified in paragraph (a) 
of this section.
    (2) Report natural gas liquid (NGL) volumes in standard U.S. gallons 
(231 cubic inches) at 60 degrees F.
    (3) Report sulfur (S) volumes in long tons (2,240 pounds).



PART 203--RELIEF OR REDUCTION IN ROYALTY RATES--Table of Contents




                      Subpart A--General Provisions

Sec.
203.0  What definitions apply to this part?
203.1  What is MMS's authority to grant royalty relief?

[[Page 14]]

203.2  How can I get royalty relief?
203.3  Why must I pay a fee to request royalty relief?
203.4  How do the provisions in this part apply to different types of 
          leases and projects?

               Subpart B--OCS Oil, Gas, and Sulfur General

                  Royalty Relief for end-of-life Leases

203.50  Who may apply for end-of-life royalty relief?
203.51  How do I apply for end-of-life royalty relief?
203.52  What criteria must I meet to get relief?
203.53  What relief will MMS grant?
203.54  How does my relief arrangement for an oil and gas lease operate 
          if prices rise sharply?
203.55  Under what conditions can my end-of-life royalty relief 
          arrangement for an oil and gas lease be ended?
203.56  Does relief transfer when a lease is assigned?

Royalty Relief For Deep Water Expansion Projects And Pre-Act Deep Water 
                                 Leases

203.60  Who may apply for deep water royalty relief?
203.61  How do I assess my chances for getting relief?
203.62  How do I apply for relief?
203.63  Does my application have to include all leases in the field?
203.64  How many applications may I file on a field or a development 
          project?
203.65  How long will MMS take to evaluate my application?
203.66  What happens if MMS does not act in the time allowed?
203.67  What economic criteria must I meet to get royalty relief on an 
          authorized field or project?
203.68  What pre-application costs will MMS consider in determining 
          economic viability?
203.69  If my application is approved, what royalty relief will I 
          receive?
203.70  What information must I provide after MMS approves relief?
203.71  How does MMS allocate a field's suspension volume between my 
          lease and other leases on my field?
203.72  Can my lease receive more than one suspension volume?
203.73  How do suspension volumes apply to natural gas?
203.74  When will MMS reconsider its determination?
203.75  What risk do I run if I request a redetermination?
203.76  When might MMS withdraw or reduce the approved size of my 
          relief?
203.77  May I voluntarily give up relief if conditions change?
203.78  Do I keep relief if prices rise significantly?
203.79  How do I appeal MMS's decisions related to Deep Water Royalty 
          Relief?
203.80  When can I get royalty relief if I am not eligible for end-of-
          life or deep water royalty relief?

                            Required Reports

203.81  What supplemental reports do royalty-relief applications 
          require?
203.82  What is MMS's authority to collect this information?
203.83  What is in an administrative information report?
203.84  What is in a net revenue and relief justification report?
203.85  What is in an economic viability and relief justification 
          report?
203.86  What is in a G&G report?
203.87  What is in an engineering report?
203.88  What is in a production report?
203.89  What is in a deep water cost report?
203.90  What is in a fabricator's confirmation report?
203.91  What is in a post-production development report?

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals, General [Reserved]

                             Subpart F--Coal

203.250  Advance royalty.
203.251  Reduction in royalty rate or rental.

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal Resources [Reserved]

Subpart I--OCS Sulfur [Reserved]

    Authority: 25 U.S.C. 396 et seq.; 25 U.S.C. 396a et seq.; 25 U.S.C. 
2101 et seq.; 30 U.S.C. 181 et seq.; 30 U.S.C. 351 et seq.; 30 U.S.C. 
1001 et seq.; 30 U.S.C. 1701 et seq.; 31 U.S.C. 9701; 43 U.S.C. 1301 et 
seq.; 43 U.S.C. 1331 et seq.; and 43 U.S.C. 1801 et seq.



                      Subpart A--General Provisions

    Source: 63 FR 2616, Jan. 16, 1998, unless otherwise noted.

[[Page 15]]



Sec. 203.0  What definitions apply to this part?

    Authorized field means a field:
    (1) Located in a water depth of at least 200 meters and in the Gulf 
of Mexico (GOM) west of 87 degrees, 30 minutes West longitude;
    (2) That includes one or more pre-Act leases; and
    (3) From which no current pre-Act lease produced, other than test 
production, before November 28, 1995.
    Complete application means an original and two copies of the six 
reports consisting of the data specified in 30 CFR 203.81, 203.83 and 
203.85 through 203.89, along with one set of digital information, which 
MMS has reviewed and found complete.
    Determination means the binding decision by MMS on whether your 
field qualifies for relief or how large a royalty-suspension volume must 
be to make the field economically viable.
    Development project means a project to develop one or more oil or 
gas reservoirs located on one or more contiguous leases that:
    (1) Were issued in a sale held after November 28, 2000;
    (2) Are located in a water depth of at least 200 meters and in the 
GOM wholly west of 87 degrees, 30 minutes West longitude; and
    (3) Have had no production (other than test production) before the 
current application for royalty relief.
    Draft application means the preliminary set of information and 
assumptions you submit to seek a nonbinding assessment on whether a 
field could be expected to qualify for royalty relief.
    Eligible lease means a lease that:
    (1) Is issued as part of an OCS lease sale held after November 28, 
1995, and before November 28, 2000;
    (2) Is located in the Gulf of Mexico in water depths of 200 meters 
or deeper;
    (3) Lies wholly west of 87 degrees, 30 minutes West longitude; and
    (4) Is offered subject to a royalty suspension volume.
    Expansion project means a project you propose in a Development 
Operations Coordination Document (DOCD) or a Supplement approved by the 
Secretary of the Interior after November 28, 1995, that will 
significantly increase the ultimate recovery of resources from one or 
more reservoirs that have not produced on a pre-Act lease or a lease 
issued in a sale held after November 28, 2000. A significant increase 
does not simply extend recovery from reservoirs already in production. 
For a pre-Act lease, the expansion project must also involve a 
substantial capital investment (e.g., fixed-leg platform, subsea 
template and manifold, tension-leg platform, multiple well project, 
etc.). For a lease issued after November 28, 2000, the expansion project 
must involve a new well drilled into a reservoir that has not previously 
produced. In all cases, all leases in an expansion project must be 
wholly located in a water depth of at least 200 meters and in the GOM 
wholly west of 87 degrees, 30 minutes West longitude.
    Fabrication (or start of construction) means evidence of an 
irreversible commitment to a concept and scale of development. Evidence 
includes copies of a binding contract between you (as applicant) and a 
fabrication yard, a letter from a fabricator certifying that continuous 
construction has begun, and a receipt for the customary down payment.
    Field means an area consisting of a single reservoir or multiple 
reservoirs all grouped on, or related to, the same general geological 
structural feature or stratigraphic trapping condition. Two or more 
reservoirs may be in a field, separated vertically by intervening 
impervious strata or laterally by local geologic barriers, or both.
    Lease means a lease or unit.
    New production means any production from a current pre-Act lease 
from which no royalties are due on production, other than test 
production, before November 28, 1995. Also, it means any additional 
production resulting from new lease-development activities on a lease 
issued in a sale after November 28, 2000, or a current pre-Act lease 
under a DOCD or a Supplement approved by the Secretary of the Interior 
after November, 28, 1995.
    Nonbinding assessment means an opinion by MMS of whether your field 
could qualify for royalty relief. It is based on your draft application 
and does not entitle the field to relief.
    Performance conditions means minimum conditions you must meet, after

[[Page 16]]

we have granted relief and before production begins, to remain qualified 
for that relief. If you do not meet each one of these performance 
conditions, we consider it a change in material fact significant enough 
to invalidate our original evaluation and approval.
    Pre-Act lease means a lease that:
    (1) Results from a sale held before November 28, 1995;
    (2) Is located in the GOM in water depths of 200 meters or deeper; 
and
    (3) Lies wholly west of 87 degrees, 30 minutes West longitude.
    Production means all oil, gas, and other relevant products you save, 
remove, or sell from a tract or those quantities allocated to your tract 
under a unitization formula, as measured for the purposes of determining 
the amount of royalty payable to the United States.
    Project means any activity that requires at least a permit to drill.
    Redetermination means our reconsideration of our determination on 
royalty relief because you request it after:
    (1) We have rejected your application;
    (2) We have granted relief but you want a larger suspension volume;
    (3) We withdraw approval; or
    (4) You renounce royalty relief.
    Renounce means action you take to give up relief after we have 
granted it and before you start production.
    Royalty suspension (RS) lease means a lease that:
    (1) Is issued as part of an OCS lease sale held after November 28, 
2000;
    (2) Is in locations or planning areas specified in a particular 
Notice of OCS Lease Sale offering that lease; and
    (3) Is offered subject to a royalty suspension specified in a Notice 
of OCS Lease Sale published in the Federal Register.
    Sunk costs for an authorized field means the after-tax eligible 
costs that you (not third parties) incur for exploration, development, 
and production from the spud date of the first discovery on the field to 
the date we receive your complete application for royalty relief. The 
discovery well must be qualified as producible under part 250, subpart A 
of this title. Sunk costs include the rig mobilization and material 
costs for the discovery well that you incurred before its spud date.
    Sunk costs for an expansion or development project means the after-
tax eligible costs that you (not third parties) incur for only the first 
well that encounters hydrocarbons in the reservoir(s) included in the 
application and that meets the producibility requirements under part 
250, subpart A of this chapter on each lease participating in the 
application. Sunk costs include rig mobilization and material costs for 
the discovery wells that you incurred before their spud dates.
    Withdraw means action we take on a field that has qualified for 
relief if you have not met one or more of the performance conditions.

[63 FR 2616, Jan. 16, 1998, as amended at 67 FR 1872, Jan. 15, 2002]



Sec. 203.1  What is MMS's authority to grant royalty relief?

    The Outer Continental Shelf (OCS) Lands Act, 43 U.S.C. 1337, as 
amended by the OCS Deep Water Royalty Relief Act (DWRRA), Public Law 
104-58, authorizes us to grant royalty relief in three situations.
    (a) Under 43 U.S.C. 1337(a)(3)(A), we may reduce or eliminate any 
royalty or a net profit share specified for an OCS lease to promote 
increased production.
    (b) Under 43 U.S.C. 1337(a)(3)(B), we may reduce, modify, or 
eliminate any royalty or net profit share to promote development, 
increase production, or encourage production of marginal resources on 
certain leases or categories of leases. This authority is restricted to 
leases in the Gulf of Mexico (GOM) that are west of 87 degrees, 30 
minutes West longitude.
    (c) Under 43 U.S.C. 1337(a)(3)(C), we may suspend royalties for 
designated volumes of new production from any lease if:
    (1) Your lease is in deep water (water at least 200 meters deep);
    (2) Your lease is in designated areas of the GOM (west of 87 
degrees, 30 minutes West longitude);
    (3) Your lease was acquired in a lease sale held before the DWRRA 
(before November 28, 1995);
    (4) We find that your new production would not be economic without 
royalty relief; and

[[Page 17]]

    (5) Your lease is on a field that did not produce before enactment 
of the DWRRA, or if you propose a project to significantly expand 
production under a Development Operations Coordination Document (DOCD) 
or a supplementary DOCD, that MMS approved after November 28, 1995.



Sec. 203.2  How can I get royalty relief?

    We may reduce or suspend royalties for Outer Continental Shelf (OCS) 
leases or projects that meet the criteria in the following table.

------------------------------------------------------------------------
                                                       Then we may grant
    If you have a lease . . .      And if you . . .        you . . .
------------------------------------------------------------------------
(a) With earnings that cannot     Would abandon       A reduced royalty
 sustain production (i.e., End-    otherwise           rate on current
 of-life lease).                   potentially         monthly
                                   recoverable         production and a
                                   resources but       higher royalty
                                   seek to increase    rate on
                                   production by       additional
                                   operating beyond    monthly
                                   the point at        production. (See
                                   which the lease     Secs.  203.50
                                   is economic under   through 203.56.)
                                   the existing
                                   royalty rate.
(b) Located in a designated GOM   Are producing and   A royalty
 deep water area, and acquired     seek to increase    suspension for
 in a lease sale before November   ultimate resource   additional
 28, 1995, or after November 28,   recovery from one   production large
 2000, and you propose in a DOCD   or more             enough to make
 or supplement to expand           reservoirs not      the project
 production significantly.         previously or       economic. (See
                                   currently           Secs.  203.60
                                   producing on the    through 203.79.)
                                   field or lease,
                                   not simply extend
                                   recovery of
                                   reservoirs that
                                   already produced.
                                   (Expansion
                                   project).
(c) Located in a designated GOM   Are on a field      A royalty
 deep water area and acquired in   from which no       suspension for a
 a lease sale held before          current pre-Act     minimum
 November 28, 1995 (Pre-Act        lease produced      production volume
 lease).                           (other than test    plus any
                                   production)         additional volume
                                   before November     needed to make
                                   28, 1995            the field
                                   (Authorized         economic. (See
                                   field).             Secs.  203.60
                                                       through 203.79.)
(d) Located in a designated GOM   Have not produced   A royalty
 deep water area and acquired in   and can             suspension for a
 a lease sale held after           demonstrate that    minimum
 November 28, 2000.                the suspension      production volume
                                   volume, if any,     plus any
                                   in your lease is    additional volume
                                   not enough to       needed to make
                                   make development    your project
                                   economic            economic. (See
                                   (Development        Secs.  203.60
                                   project).           through 203.79.)
(e) Where royalty relief would    Are not eligible    A royalty
 recover significant additional    to apply for end-   modification in
 resources or, in certain areas    of-life or deep     size, duration,
 of the GOM, would enable          water royalty       or form that
 development.                      relief, but show    makes your lease
                                   us you meet         or project
                                   certain             economic. (See
                                   elligibility        Sec.  203.80.)
                                   conditions.
------------------------------------------------------------------------


[67 FR 1872, Jan. 15, 2002]



Sec. 203.3  Why must I pay a fee to request royalty relief?

    (a) When you submit an application or ask for a preview assessment, 
you must include a fee to reimburse us for our costs of processing your 
application or assessment. Federal policy and law require us to recover 
the cost of services that confer special benefits to identifiable non-
Federal recipients. The Independent Offices Appropriation Act (31 U.S.C. 
9701), Office of Management and Budget Circular A-25, and the Omnibus 
Appropriations Bill (Pub. L. 104-133, 110 Stat. 1321, April 26, 1996) 
authorize us to collect these fees.
    (b) We will specify the necessary fees for each of the types of 
royalty-relief applications and possible MMS audits in a Notice to 
Lessees. We will periodically update the fees to reflect changes in 
costs as well as provide other information necessary to administer 
royalty relief.



Sec. 203.4  How do the provisions in this part apply to different types of leases and projects?

    The tables in this section summarize how similar provisions of this 
part apply in different situations.
    (a) We require the information elements indicated by an X in the 
following table and described in Secs. 203.51, 203.62, and 203.81 
through 203.89 for applications for royalty relief.

----------------------------------------------------------------------------------------------------------------
                                                                                       Deep water
                                                             End-of-  ------------------------------------------
                   Information elements                        life       Expansion     Pre-act     Development
                                                              lease        project       lease        project
----------------------------------------------------------------------------------------------------------------
(1) Administrative information report.....................         X               X          X               X
(2) Net revenue and relief justification report                    X
 (prescribed format)......................................

[[Page 18]]

 
(3) Economic viability and relief justification report                             X          X               X
 (Royalty Suspension Viability Program (RSVP) model inputs
 justified with Geological and Geophysical (G&G),
 Engineering, Production, & Cost reports).................
(4) G&G report............................................                         X          X               X
(5) Engineering report....................................                         X          X               X
(6) Production report.....................................                         X          X               X
(7) Deep water cost report................................                         X          X               X
----------------------------------------------------------------------------------------------------------------

(b) We require the confirmation elements indicated by an X in the 
following table and described in Secs. 203.70, 203.81 and 203.90 through 
203.91 to retain royalty relief.

----------------------------------------------------------------------------------------------------------------
                                                                                       Deep water
                                                             End-of-  ------------------------------------------
                   Confirmation elements                       life       Expansion     Pre-act     Development
                                                              lease        project       lease        project
----------------------------------------------------------------------------------------------------------------
(1) Fabricator's confirmation report......................                         X          X               X
(2) Post-production development report approved by an                              X          X               X
 independent certified public accountant (CPA)............
----------------------------------------------------------------------------------------------------------------

(c) The following table indicates by an X, and Secs. 203.50, 203.52, 
203.60 and 203.67 describe, the prerequisites for our approval of your 
royalty relief application.

----------------------------------------------------------------------------------------------------------------
                                                                                       Deep water
                                                             End-of-  ------------------------------------------
                    Approval conditions                        life                     Pre-act     Development
                                                              lease       Expansion      lease        project
----------------------------------------------------------------------------------------------------------------
(1) At least 12 of the last 15 months have the required            X
 level of production......................................
(2) Already producing.....................................         X
(3)A producible well into a reservoir that has not                                 X          X               X
 produced before..........................................
(4) Royalties for qualifying months exceed 75% of net              X
 revenue (NR).............................................
(5) Substantial investment on a pre-Act lease (e.g.,                               X
 platform, subsea template)...............................
(6) Determined to be economic only with relief............                         X          X               X
----------------------------------------------------------------------------------------------------------------

(d) The following table indicates by an X, and Secs. 203.52 and 203.74 
through 203.75 describe, the prerequisites for a redetermination of our 
royalty relief decision.

----------------------------------------------------------------------------------------------------------------
                                                                                       Deep water
                                                             End-of-  ------------------------------------------
                Redetermination conditions                     Life       Expansion     Pre-act     Development
                                                              lease        project       lease        project
----------------------------------------------------------------------------------------------------------------
(1) After 12 months under current rate, criteria same as           X
 for approval.............................................
(2) For material change in geologic data, prices, costs,                           X          X               X
 or available technology..................................
----------------------------------------------------------------------------------------------------------------

(e) The following table indicates by an X, and Secs. 203.53 and 203.69 
describe, the characteristics of approved royalty relief.

----------------------------------------------------------------------------------------------------------------
                                                                                       Deep water
                                                             End-of-  ------------------------------------------
   Relief rate and volume, subject to certain conditions       life       Expansion     Pre-act     Development
                                                              lease        project       lease        project
----------------------------------------------------------------------------------------------------------------
(1) One-half pre-application effective lease rate on the           X
 qualifying amount, 1.5 times pre-application effective
 lease rate on additional production up to twice the
 qualifying amount, and the pre-application effective
 lease rate for any larger volumes........................
(2) Qualifying amount is the average monthly production            X
 for 12 qualifying months.................................
(3) Zero royalty rate on the suspension volume and the                             X          X               X
 original lease rate on additional production.............
(4) Suspension volume is at least 17.5, 52.5 or 87.5                                          X
 million barrels of oil equivalent (MMBOE)................
(5) Suspension volume is at least the minimum set in the                           X                          X
 Notice of Sale, the lease, or the regulations............

[[Page 19]]

 
(6) Amount needed to become economic......................                         X          X               X
----------------------------------------------------------------------------------------------------------------

(f) The following table indicates by an X, and Secs. 203.54 and 203.78 
describe, circumstances under which we discontinue your royalty relief.

----------------------------------------------------------------------------------------------------------------
                                                                                       Deep water
                                                             End-of-  ------------------------------------------
                 Full royalty resumes when                     life       Expansion     Pre-act     Development
                                                              lease        project       lease        project
----------------------------------------------------------------------------------------------------------------
(1) Average NYMEX price for last 12 months is at least 25          X
 percent above the average for the qualifying months......
(2) Average NYMEX price for last calendar year exceeds $28/                        X          X
 bbl or $3.50/mcf, escalated by the gross domestic product
 (GDP) deflator since 1994................................
(3) Average prices for designated periods exceed levels we                         X                          X
 specify in the Notice of Sale or the lease...............
----------------------------------------------------------------------------------------------------------------

(g) The following table indicates by an X, and Secs. 203.55 and 203.76 
through 203.77 describe, circumstances under which we end or reduce 
royalty relief.

----------------------------------------------------------------------------------------------------------------
                                                                                       Deep water
                                                             End-of-  ------------------------------------------
                Relief withdrawn or reduced                    life       Expansion     Pre-act     Development
                                                              lease        project       lease        project
----------------------------------------------------------------------------------------------------------------
(1) If recipient requests.................................         X               X          X               X
(2) Lease royalty rate is at the effective rate for 12             X
 consecutive months.......................................
(3) Conditions occur that we specified in the approval             X
 letter in individual cases...............................
(4) Recipient does not submit post-production report that                          X          X               X
 compares expected to actual costs........................
(5) Recipient changes development system..................                         X          X               X
(6) Recipient excessively delays starting fabrication.....                         X          X               X
(7) Recipient spends less than 80 percent of proposed pre-                         X          X               X
 production costs prior to start of production............
(8) Amount of relief volume is produced...................                         X          X               X
----------------------------------------------------------------------------------------------------------------


[67 FR 1873, Jan. 15, 2002]



               Subpart B--OCS Oil, Gas, and Sulfur General

    Source: 63 FR 2618, Jan. 16, 1998, unless otherwise noted.

                  Royalty Relief for End-of-life Leases



Sec. 203.50  Who may apply for end-of-life royalty relief?

    You may apply for royalty relief in two situations.
    (a) Your end-of-life lease (as defined in Sec. 203.2) is an oil and 
gas lease and has average daily production of at least 100 barrels of 
oil equivalent (BOE) per month (as calculated in Sec. 203.73) in at 
least 12 of the past 15 months. The most recent of these 12 months are 
considered the qualifying months. These 12 months should reflect the 
basic operation you intend to use until your resources are depleted. If 
you changed your operation significantly (e.g., begin re-injecting 
rather than recovering gas) during the qualifying months, or if you do 
so while we are processing your application, we may defer action on your 
application until you revise it to show the new circumstances.
    (b) Your end-of-life lease is other than an oil and gas lease (e.g., 
sulphur) and has production in at least 12 of the past 15 months. The 
most recent of these 12 months are considered the qualifying months.

[63 FR 2618, Jan. 16, 1998, as amended at 63 FR 57249, Oct. 27, 1998]

[[Page 20]]



Sec. 203.51  How do I apply for end-of-life royalty relief?

    You must submit a complete application and the required fee to the 
appropriate MMS Regional Director. Your MMS regional office will provide 
specific guidance on the report formats. A complete application for 
relief includes:
    (a) An administrative information report (specified in Sec. 203.83) 
and
    (b) A net revenue and relief justification report (specified in 
Sec. 203.84).



Sec. 203.52  What criteria must I meet to get relief?

    (a) To qualify for relief, you must demonstrate that the sum of 
royalty payments over the 12 qualifying months exceeds 75 percent of the 
sum of net revenues (before-royalty revenues minus allowable costs, as 
defined in Sec. 203.84).
    (b) To re-qualify for relief, e.g., either applying for additional 
relief on top of relief already granted, or applying for relief sometime 
after your earlier agreement terminated, you must demonstrate that:
    (1) You have met the criterion listed in paragraph (a) of this 
section, and
    (2) The 12 required qualifying months of operation have occurred 
under the current royalty arrangement.



Sec. 203.53  What relief will MMS grant?

    (a) If we approve your application and you meet certain conditions, 
we will reduce the pre-application effective royalty rate by one-half on 
production up to the relief volume amount. If you produce more than the 
relief volume amount:
    (1) We will impose a royalty rate equal to 1.5 times the effective 
royalty rate on your additional production up to twice the relief volume 
amount; and
    (2) We will impose a royalty rate equal to the effective rate on all 
production greater than twice the relief volume amount.
    (b) Regardless of the level of production or prices (see 
Sec. 203.54), royalty payments due under end-of-life relief will not 
exceed the royalty obligations that would have been due at the effective 
royalty rate.
    (1) The effective royalty rate is the average lease rate paid on 
production during the 12 qualifying months.
    (2) The relief volume amount is the average monthly BOE production 
for the 12 qualifying months.



Sec. 203.54  How does my relief arrangement for an oil and gas lease operate if prices rise sharply?

    In those months when your current reference price rises by at least 
25 percent above your base reference price, you must pay the effective 
royalty rate on all monthly production.
    (a) Your current reference price is a weighted average of daily 
closing prices on the NYMEX for light sweet crude oil and natural gas 
over the most recent full 12 calendar months;
    (b) Your base reference price is a weighted average of daily closing 
prices on the NYMEX for light sweet crude oil and natural gas during the 
qualifying months; and
    (c) Your weighting factors are the proportions of your total 
production volume (in BOE) provided by oil and gas during the qualifying 
months.



Sec. 203.55  Under what conditions can my end-of-life royalty relief arrangement for an oil and gas lease be ended?

    (a) If you have an end-of-life royalty relief arrangement, you may 
renounce it at any time. The lease rate will return to the effective 
rate during the qualifying period in the first full month following our 
receipt of your renouncement of the relief arrangement.
    (b) If you pay the effective lease rate for 12 consecutive months, 
we will terminate your relief. The lease rate will return to the 
effective rate in the first full month following this termination.
    (c) We may stipulate in the letter of approval for individual cases 
certain events that would cause us to terminate relief because they are 
inconsistent with an end-of-life situation.



Sec. 203.56  Does relief transfer when a lease is assigned?

    Yes. Royalty relief is based on the lease circumstances, not 
ownership. It transfers upon lease assignment.

[[Page 21]]

Royalty Relief For Deep Water Expansion Projects And Pre-Act Deep Water 
                                 Leases



Sec. 203.60  Who may apply for deep water royalty relief?

    You may apply for royalty relief under Secs. 203.61(b) and 203.62 
if:
    (a) You are a lessee of a lease in water at least 200 meters deep in 
the GOM and lying wholly west of 87 degrees, 30 minutes West longitude;
    (b) We have assigned your pre-Act lease to a field (as defined in 
Sec. 203.0); and
    (c) You either:
    (1) Hold a pre-Act lease on an authorized field (as defined in 
Sec. 203.0) or
    (2) Propose an expansion project (as defined in Sec. 203.0) or
    (3) Propose a development project (as defined in Sec. 203.0).

[67 FR 1875, Jan. 15, 2002]



Sec. 203.61  How do I assess my chances for getting relief?

    You may ask for a nonbinding assessment (a formal opinion on whether 
a field would qualify for royalty relief) before turning in your first 
complete application on an authorized field. This field must have a 
qualifying well under 30 CFR part 250, subpart A, or be on a lease that 
has allocated production under an approved unit agreement.
    (a) To request a nonbinding assessment, you must:
    (1) Submit a draft application in the format and detail specified in 
guidance from the MMS regional office for the GOM;
    (2) Propose to drill at least one more appraisal well if you get a 
favorable assessment; and
    (3) Pay a fee under Sec. 203.3.
    (b) You must wait at least 90 days after receiving our assessment to 
apply for relief under Sec. 203.62.
    (c) This assessment is not binding because a complete application 
may contain more accurate information that does not support our original 
assessment. It will help you decide whether your proposed inputs for 
evaluating economic viability and your supporting data and assumptions 
are adequate.

    Effective Date Note: At 63 FR 2619, Jan. 16, 1998, Sec. 203.61 was 
revised. This section contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 203.62  How do I apply for relief?

    You must send a complete application and the required fee to the MMS 
Regional Director for the GOM.
    (a) Your application for deep water royalty relief must include an 
original and two copies (one set of digital information) of:
    (1) Administrative information report;
    (2) Deep water economic viability and relief justification report;
    (3) G&G report;
    (4) Engineering report;
    (5) Production report; and
    (6) Deep water cost report.
    (b) Section 203.82 explains why we are authorized to require these 
reports.
    (c) Sections 203.81, 203.83, and 203.85 through 203.89 describe what 
these reports must include. The MMS regional office for the GOM will 
guide you on the format for the required reports, and we encourage you 
to contact this office prior to preparing your application for this 
guidance.

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1875, Jan. 15, 2002]



Sec. 203.63  Does my application have to include all leases in the field?

    (a) For authorized fields, we will accept only one joint application 
for all leases that are part of the designated field on the date of 
application, except as provided in paragraph (a)(3) of this section and 
Sec. 203.64. However, we will evaluate all acreage that may eventually 
become part of the authorized field. Therefore, if you have any other 
leases that you believe may eventually be part of the authorized field, 
you must submit data for these leases according to Sec. 203.81.
    (1) The Regional Director maintains a Field Names Master List with 
updates of all leases in each designated field.
    (2) To avoid sharing proprietary data with other lessees on the 
field, you may submit your proprietary G&G report separately from the 
rest of your application. Your application is not complete until we 
receive all the required information for each lease on

[[Page 22]]

the field. We will not disclose proprietary data when explaining our 
assumptions and reasons for our determinations under Sec. 203.67.
    (3) We will not require a joint application if you show good cause 
and honest effort to get all lessees in the field to participate. If you 
must exclude a lease from your application because its lessee will not 
participate, that lease is ineligible for the royalty relief for the 
designated field.
    (b) If your application seeks only relief for a development project 
or an expansion project, your application does not have to include all 
leases in the field.

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1875, Jan. 15, 2002]



Sec. 203.64  How many applications may I file on a field or a development project?

    You may file one complete application for royalty relief during the 
life of the field or for a development project or an expansion project 
designed to produce a reservoir or set of reservoirs. However, you may 
send another application if:
    (a) You are eligible to apply for a redetermination under 
Sec. 203.74;
    (b) You apply for royalty relief for an expansion project;
    (c) You withdraw the application before we make a determination; or
    (d) You apply for end-of-life royalty relief.

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1875, Jan. 15, 2002]



Sec. 203.65  How long will MMS take to evaluate my application?

    (a) We will determine within 20 working days if your application for 
royalty relief is complete. If your application is incomplete, we will 
explain in writing what it needs. If you withdraw a complete 
application, you may reapply.
    (b) We will evaluate your first application on a field within 180 
days, evaluate your first application on a development project or an 
expansion project within 150 days and evaluate a redetermination under 
Sec. 203.75 within 120 days after we determine that it is complete.
    (c) We may ask to extend the review period for your application 
under the conditions in the following table.

------------------------------------------------------------------------
                If--                            Then we may--
------------------------------------------------------------------------
We need more records to audit sunk   Ask to extend the 120-day or 180-
 costs.                               day evaluation period. The
                                      extension we request will equal
                                      the number of days between when
                                      you receive our request for
                                      records and the day we receive the
                                      records.
We cannot evaluate your application  Add another 30 days. We may add
 for a valid reason, such as          more than 30 days, but only if you
 missing vital information or         agree.
 inconsistent or inconclusive
 supporting data.
We need more data, explanations, or  Ask to extend the 120-day or 180-
 revision.                            day evaluation period. The
                                      extension we request will equal
                                      the number of days between when
                                      you receive our request and the
                                      day we receive the information.
------------------------------------------------------------------------

    (d) We may change your assumptions under Sec. 203.62 if our 
technical evaluation reveals others that are more appropriate. We may 
consult with you before a final decision and will explain any changes.
    (e) We will notify all designated lease operators within a field 
when royalty relief is granted.

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1875, Jan. 15, 2002]



Sec. 203.66  What happens if MMS does not act in the time allowed?

    If we do not act within the timeframes established under 
Sec. 203.65, you get royalty relief according to the following table.

[[Page 23]]



------------------------------------------------------------------------
                                     And we do not
 If you apply for royalty relief   decide within the    As long as you
               for                  time specified
------------------------------------------------------------------------
(a) An authorized field.........  You get the         Abide by Secs.
                                   minimum             203.70 and
                                   suspension          203.76.
                                   volumes specified
                                   in Sec.  203.69.
(b) An expansion project........  You get a royalty   Abide by Secs.
                                   suspension for      203.70 and
                                   the first year of   203.76.
                                   production.
(c) A development project.......  You get a royalty   Abide by Secs.
                                   suspension for      203.70 and
                                   initial             203.76.
                                   production for
                                   the number of
                                   months that a
                                   decision is
                                   delayed beyond
                                   the stipulated
                                   timeframes set by
                                   Sec.  203.65,
                                   plus all the
                                   royalty
                                   suspension volume
                                   for which you
                                   qualify.
------------------------------------------------------------------------


[67 FR 1875, Jan. 15, 2002]



Sec. 203.67  What economic criteria must I meet to get royalty relief on an authorized field or project?

    We will not approve applications if we determine that royalty relief 
cannot make the field, development project, or expansion project 
economically viable. Your field or project must be uneconomic while you 
are paying royalties and must become economic with royalty relief.

[67 FR 1876, Jan. 15, 2002]



Sec. 203.68  What pre-application costs will MMS consider in determining economic viability?

    (a) We will not consider ineligible costs as set forth in 
Sec. 203.89(h) in determining economic viability for purposes of royalty 
relief.
    (b) We will consider sunk costs according to the following table.

------------------------------------------------------------------------
                We will                          When determining
------------------------------------------------------------------------
(1) Include sunk costs.................  Whether a field that includes a
                                          pre-Act lease which has not
                                          produced, other than test
                                          production, before the
                                          application or redetermination
                                          submission date needs relief
                                          to become economic.
(2) Not include sunk costs.............  Whether an authorized field, a
                                          development project, or an
                                          expansion project can become
                                          economic with full relief (see
                                          Sec.  203.67).
(3) Not include sunk costs.............  How much suspension volume is
                                          necessary to make the field, a
                                          development project, or an
                                          expansion project economic
                                          (see Sec.  203.69(c)).
(4) Include sunk costs for the project   Whether a development project
 discovery well on each lease.            or an expansion project needs
                                          relief to become economic.
------------------------------------------------------------------------


[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1876, Jan. 15, 2002]



Sec. 203.69  If my application is approved, what royalty relief will I receive?

    If we approve your application, subject to certain conditions, we 
will not collect royalties on a specified suspension volume for your 
field, development project, or expansion project. Suspension volumes 
include volumes allocated to a lease under an approved unit agreement, 
but exclude any volumes of production that are not normally royalty-
bearing under the lease or the regulations of this chapter (e.g., fuel 
gas).
    (a) For authorized fields, the minimum royalty-suspension volumes 
are:
    (1) 17.5 million barrels of oil equivalent (MMBOE) for fields in 200 
to 400 meters of water;
    (2) 52.5 MMBOE for fields in 400 to 800 meters of water; and
    (3) 87.5 MMBOE for fields in more than 800 meters of water.
    (b) For development projects, any relief we grant applies only to 
project wells and replaces the royalty suspension volume with which we 
issued your lease. If your project is economic given the royalty 
suspension volume with which we issued your lease, we will reject the 
application. Otherwise, the minimum royalty suspension volumes are as 
shown in the following table:

[[Page 24]]



------------------------------------------------------------------------
                                  The minimum royalty
              For                suspension volume is         Plus
------------------------------------------------------------------------
(1) RS leases.................  A volume equal to the   10 percent of
                                 combined royalty        the median of
                                 suspension volumes      the
                                 (or the volume          distribution of
                                 equivalent based on     known
                                 the data in your        recoverable
                                 approved application    resources upon
                                 for other forms of      which we based
                                 royalty suspension)     approval of
                                 with which we issued    your
                                 the leases              application
                                 participating in the    from all
                                 application that have   reservoirs
                                 or plan a well into a   included in the
                                 reservoir identified    project.
                                 in the application.
(2) Other deep water leases     A volume equal to 10
 issued in sales after           percent of the median
 November 28, 2000.              of the distribution
                                 of known recoverable
                                 resources upon which
                                 we based approval of
                                 your application from
                                 all reservoirs
                                 included in the
                                 project.
------------------------------------------------------------------------

    (c) If your application includes pre-Act or eligible leases in 
different categories of water depth, we apply the minimum royalty 
suspension volume for the deepest such lease then assigned to the field. 
We base the water depth and makeup of a field on the water-depth 
delineations in the ``Lease Terms and Economic Conditions'' map and the 
``Field Names Master List'' documents and updates in effect at the time 
your application is deemed complete. These publications are available 
from the MMS Regional Office for the GOM.
    (d) You will get a royalty suspension volume above the minimum if we 
determine that you need more to make the field or development project 
economic.
    (e) For expansion projects, the minimum royalty suspension volume 
equals 10 percent of the median of the distribution of known recoverable 
resources upon which we based approval of your application from all 
reservoirs included in your project plus any suspension volumes required 
under Sec. 203.66. If we determine that your expansion project may be 
economic only with more relief, we will determine and grant you the 
royalty suspension volume necessary to make the project economic.
    (f) The royalty suspension volume applicable to specific leases will 
continue through the end of the month in which cumulative production 
reaches that volume. You must calculate cumulative production from all 
the leases in the authorized field or project that are entitled to share 
the royalty suspension volume.

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1876, Jan. 15, 2002]



Sec. 203.70  What information must I provide after MMS approves relief?

    You must submit reports to us as indicated in the following table. 
Sections 203.81, 203.90, and 203.91 describe what these reports must 
include. The MMS regional office for the GOM will prescribe the formats.

------------------------------------------------------------------------
                                                           Due date
         Required report            When due to MMS       extensions
------------------------------------------------------------------------
(a) Fabricator's confirmation     Within 18 months    MMS Director may
 report.                           after approval of   grant you an
                                   relief.             extension under
                                                       Sec.  203.79(c)
                                                       for up to 6
                                                       months.
(b) Post-production report......  Within 120 days     With acceptable
                                   after the start     justification
                                   of production       from you, MMS
                                   that is subject     Regional Director
                                   to the approved     for the GOM may
                                   royalty             extend due date
                                   suspension volume.  up to 30 days.
------------------------------------------------------------------------


[67 FR 1876, Jan. 15, 2002]



Sec. 203.71  How does MMS allocate a field's suspension volume between my lease and other leases on my field?

    The allocation depends on when production occurs, when we issued the 
lease, when we assigned it to the field, and whether we award the volume 
suspension by an approved application or establish it in the lease 
terms, as prescribed in this section.
    (a) If your authorized field has an approved royalty suspension 
volume

[[Page 25]]

 under Secs. 203.67 and 203.69, we will suspend payment of royalties on 
production from all leases in the field that participate in the 
application until their cumulative production equals the approved 
volume. The following conditions also apply:

------------------------------------------------------------------------
            If . . .                  Then . . .           And . . .
------------------------------------------------------------------------
(1) We assign an eligible lease   We will not change  The assigned
 to your field after we approve    your field's        lease(s) may
 relief.                           royalty             share in any
                                   suspension volume.  remaining royalty
                                                       relief.
(2) We assign a pre-Act or post-  We will not change  The assigned
 November 2000 deep water lease    your field's        lease(s) may
 to your field after we approve    royalty             share in any
 your application.                 suspension volume.  remaining royalty
                                                       relief by filing
                                                       the short-form
                                                       application
                                                       specified in Sec.
                                                        203.83 and
                                                       authorized in
                                                       Sec.  203.82. An
                                                       assigned RS lease
                                                       also gets any
                                                       portion of its
                                                       royalty
                                                       suspension volume
                                                       remaining even
                                                       after the field
                                                       has produced the
                                                       approved relief
                                                       volume.
(3) We assign another lease(s)    We will change      (i) You toll the
 that you operate to your field    your field's        time period for
 while we are evaluating your      minimum             evaluation until
 application.                      suspension volume   you modify your
                                   if the assigned     application to be
                                   lease is a pre-     consistent with
                                   Act or eligible     the new field;
                                   lease entitled to  (ii) We have an
                                   a larger minimum    additional 60
                                   or automatic        days to review
                                   suspension volume.  the new
                                                       information; and
                                                      (iii) The assigned
                                                       lease(s) shares
                                                       the royalty
                                                       suspension we
                                                       grant to the new
                                                       field. If you do
                                                       not agree to
                                                       toll, we will
                                                       have to reject
                                                       your application
                                                       due to incomplete
                                                       information. But,
                                                       an eligible lease
                                                       we assigned to
                                                       the field kept
                                                       its automatic
                                                       suspension
                                                       volume.
(4) We assign another operator's  We will change      (i) You both toll
 lease to your field while we      your field's        the time period
 are evaluating your application.  minimum             for evaluation
                                   suspension volume   until both of you
                                   provided the        modify your
                                   assigned lease      application to be
                                   joins the           consistent with
                                   application and     the new field;
                                   is entitled to a   (ii) We have an
                                   larger minimum      additional 60
                                   suspension volume.  days to review
                                                       the new
                                                       information; and
                                                      (iii) The assigned
                                                       lease(s) shares
                                                       the royalty
                                                       suspension we
                                                       grant to the new
                                                       field. If you
                                                       (the original
                                                       applicant) do not
                                                       agree to toll,
                                                       the other
                                                       operator's lease
                                                       retains any
                                                       suspension volume
                                                       it has or may
                                                       share in any
                                                       relief that we
                                                       grant by filing
                                                       the short form
                                                       application
                                                       specified in Sec.
                                                        203.83 and
                                                       authorized in
                                                       Sec.  203.82.
(5) We reassign a well on a pre-  The past            The past
 Act, eligible, or post-November   production from     production from
 2000 deep water lease to          the well counts     that well will
 another field.                    toward the          not count toward
                                   royalty             any royalty
                                   suspension volume   suspension volume
                                   of the field to     granted to the
                                   which we assigned   field from which
                                   the well.           we reassigned it.
------------------------------------------------------------------------

    (b) If your authorized field has a royalty suspension volume 
established under Sec. 260.111 of this title (i.e., a field with a pre-
Act lease where an eligible lease starts production first), we will 
suspend payment of royalties on production from all eligible leases in 
the field until their cumulative production equals the established 
volume. The following conditions also apply:

------------------------------------------------------------------------
            If . . .                  Then . . .           And . . .
------------------------------------------------------------------------
(1) We assign another eligible    Your field's        The assigned lease
 lease to your field.              royalty             may share in any
                                   suspension volume   remaining royalty
                                   does not change.    relief.
(2) We assign an RS lease to      Your field's        The assigned lease
 your field.                       royalty             gets only the
                                   suspension volume   volume suspension
                                   does not change.    with which we
                                                       issued it, and
                                                       its production
                                                       volume counts
                                                       against the
                                                       field's royalty
                                                       suspension
                                                       volume.
(3) We assign a pre-Act lease or  Your field's        We assign lease
 a lease issued after November     royalty             shares none of
 2000 without royalty suspension   suspension volume   the volume
 to your field.                    does not change.    suspension, and
                                                       its production
                                                       does not count as
                                                       part of the
                                                       suspension
                                                       volume.

[[Page 26]]

 
(4) A pre-Act or post-November    Your field's        (i) All leases in
 2000 deep water lease applies     royalty             the field share
 (along with the other leases in   suspension volume   the royalty
 the field) and qualifies          may increase or     suspension volume
 (subject to any pre-existing      stay the same,      if we approve the
 suspension volumes) for royalty   but will not        application; or
 relief under Secs.  203.67 and    diminish.          (ii) The eligible
 203.69.                                               or RS leases in
                                                       the field keep
                                                       their respective
                                                       volumes if we
                                                       reject the
                                                       application.
------------------------------------------------------------------------

    (c) When a project has more than one lease, the royalty suspension 
volume for each lease equals that lease's actual production from the 
project (or production allocated under an approved unit agreement) until 
total production for all leases in the project equals the project's 
approved royalty suspension volume.
    (d) You may receive a royalty-suspension volume only if your entire 
lease is west of 87 degrees, 30 minutes West longitude. If the field 
lies on both sides of this meridian, only leases located entirely west 
of the meridian will receive a royalty-suspension volume.

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1877, Jan. 15, 2002]



Sec. 203.72  Can my lease receive more than one suspension volume?

    Yes. You may apply for royalty relief that involves more than one 
suspension volume under Sec. 203.62 in two circumstances.
    (a) Each field that includes your lease may receive a separate 
royalty-suspension volume, if it meets the evaluation criteria of 
Sec. 203.67.
    (b) An expansion project on your lease may receive a separate 
royalty-suspension volume, even if we have already granted a royalty-
suspension volume to the field that encompasses the project. But the 
reserves associated with the project must not have been part of our 
original determination, and the project must meet the evaluation 
criteria of Sec. 203.67.



Sec. 203.73  How do suspension volumes apply to natural gas?

    You must measure natural gas production under the royalty-suspension 
volume as follows: 5.62 thousand cubic feet of natural gas, measured in 
accordance with 30 CFR part 250, subpart L, equals one barrel of oil 
equivalent.



Sec. 203.74  When will MMS reconsider its determination?

    You may request a redetermination after we withdraw approval or 
after you renounce royalty relief, unless we withdraw approval due to 
your providing false or intentionally inaccurate information. Under 
certain conditions you may also request a redetermination if we deny 
your application or if you want your approved royalty suspension volume 
to change. In these instances, to be eligible for a redetermination, at 
least one of the following four conditions must occur.
    (a) You have significant new G&G data and you previously have not 
either requested a redetermination or reapplied for relief after we 
withdrew approval or you relinquished royalty relief. ``Significant'' 
means that the new G&G data:
    (1) Results from drilling new wells or getting new three-dimensional 
seismic data and information (but not reinterpreting old data);
    (2) Did not exist at the time of the earlier application; and
    (3) Changes your estimates of gross resource size, quality, or 
projected flow rates enough to materially affect the results of our 
earlier determination.
    (b) You demonstrate in your new application that the technology that 
most efficiently develops this field or lease was not considered or 
deemed feasible in the original application. Your newly proposed 
technology must improve the profitability, under equivalent market 
conditions, of the field or lease relative to the development system 
proposed in the prior application.
    (c) Your current reference price decreases by more than 25 percent 
from your base reference price as calculated under this paragraph.
    (1) Your current reference price is a weighted-average of daily 
closing prices on the NYMEX for light sweet

[[Page 27]]

 crude oil and natural gas over the most recent full 12 calendar months;
    (2) Your base reference price is a weighted average of daily closing 
prices on the NYMEX for light sweet crude oil and natural gas for the 
full 12 calendar months preceding the date of your most recently 
approved application for this royalty relief; and
    (3) The weighting factors are the proportions of the total 
production volume (in BOE) for oil and gas associated with the most 
likely scenario (identified in Secs. 203.85 and 203.88) from your most 
recently approved application for this royalty relief.
    (d) Before starting to build your development and production system, 
you have revised your estimated development costs, and they are more 
than 120 percent of the eligible development costs associated with the 
most likely scenario from your most recently approved application for 
this royalty relief.

[63 FR 2618, Jan. 16, 1998; 63 FR 24747, May 5, 1998, as amended at 67 
FR 1878, Jan. 15, 2002]



Sec. 203.75  What risk do I run if I request a redetermination?

    If you request a redetermination after we have granted you a 
suspension volume, you could lose some or all of the previously granted 
relief. This can happen because you must file a new complete application 
and pay the required fee, as discussed in Sec. 203.62. We will evaluate 
your application under Sec. 203.67 using the conditions prevailing at 
the time of your redetermination request. In our evaluation, we may find 
that you should receive a larger, equivalent, smaller, or no suspension 
volume. This means we could find that you do not qualify for the amount 
of relief previously granted or for any relief at all.



Sec. 203.76  When might MMS withdraw or reduce the approved size of my relief?

    We will withdraw approval of relief for any of the following 
reasons.
    (a) You change the type of development system proposed in your 
application (e.g., change from a fixed platform to floating production 
system, or from an independent development and production system to one 
with subsea wells tied back to a host production facility, etc.).
    (b) You do not start building the proposed development and 
production system within18 months of the date we approved your 
application, unless the MMS Director grants you an extension under 
Sec. 203.79(c). If you start building the proposed system and then 
suspend its construction before completion, and you do not restart 
continuous building of the proposed system within 18 months of our 
approval, we will withdraw the relief we granted.
    (c) Your actual development costs are less than 80 percent of the 
eligible development costs estimated in your application's most likely 
scenario, and you do not report that fact in your post-production 
development report (Sec. 203.70). Development costs are those 
expenditures defined in Sec. 203.89(b) incurred between the application 
submission date and start of production. If you report this fact in the 
post-production development report, you may retain the lesser of 50 
percent of the original royalty suspension volume or 50 percent of the 
median of the distribution of the potentially recoverable resources 
anticipated in your application.
    (d) We granted you a royalty-suspension volume after you qualified 
for a redetermination under Sec. 203.74(c), and we find out your actual 
development costs are less than 90 percent of the eligible development 
costs associated with your application's most likely scenario. 
Development costs are those expenditures defined in Sec. 203.89(b) 
incurred between your application submission date and start of 
production.
    (e) You do not send us the fabrication confirmation report or the 
post-production development report, or you provide false or 
intentionally inaccurate information that was material to our granting 
royalty relief under this section. You must pay royalties and late-
payment interest determined under 30 U.S.C. 1721 and Sec. 218.54 of this 
chapter on all volumes for which you used the royalty suspension. You 
also may be subject to penalties under other provisions of law.

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1878, Jan. 15, 2002]

[[Page 28]]



Sec. 203.77  May I voluntarily give up relief if conditions change?

    Yes, by sending a letter to that effect to the MMS Regional Director 
for the GOM.

[67 FR 1878, Jan. 15, 2002]



Sec. 203.78  Do I keep relief if prices rise significantly?

    If prices rise above a base price for light sweet crude oil or 
natural gas, set by statute for pre-Act leases, indicated in your 
original lease agreement or Notice of Sale for post-November 2000 deep 
water leases, you must pay full royalties as prescribed in this section. 
For post-November 2000 deepwater leases, price thresholds apply on a 
lease basis, so different leases on the same field, development project, 
or expansion project may have different price thresholds.
    (a) Suppose the arithmetic average of the daily closing NYMEX light 
sweet crude oil prices for the previous calendar year exceeds $28.00 per 
barrel, as adjusted in paragraph (f) of this section. In this case, we 
retract the royalty relief authorized in this section and you must:
    (1) Pay royalties on all oil production for the previous year at the 
lease stipulated royalty rate plus interest (under 30 U.S.C. 1721 and 
Sec. 218.54 of this chapter) by March 31 of the current calendar year, 
and
    (2) Pay royalties on all your oil production in the current year.
    (b) Suppose the arithmetic average of the daily closing NYMEX 
natural gas prices for the previous calendar year exceeds $3.50 per 
million British thermal units (Btu), as adjusted in paragraph (f) of 
this section. In this case, we retract the royalty relief authorized in 
this section and you must:
    (1) Pay royalties on all natural gas production for the previous 
year at the lease stipulated royalty rate plus interest (under 30 U.S.C. 
1721 and Sec. 218.54 of this chapter) by March 31 of the current 
calendar year, and
    (2) Pay royalties on all your natural gas production in the current 
year.
    (c) Production under both paragraphs (a) and (b) of this section 
counts as part of the royalty-suspension volume.
    (d) You are entitled to a refund or credit, with interest, of 
royalties paid on any production (that counts as part of the royalty-
suspension volume):
    (1) Of oil if the arithmetic average of the closing oil prices for 
the current calendar year is $28.00 per barrel or less, as adjusted in 
paragraph (f) of this section, and
    (2) Of gas if the arithmetic average of the closing natural gas 
prices for the current calendar year is $3.50 per million Btu or less, 
as adjusted in paragraph (f) of this section.
    (e) You must follow our regulations in part 230 of this chapter for 
receiving refunds or credits.
    (f) We change the prices referred to in paragraphs (a), (b), and (d) 
of this section periodically. For pre-Act leases, these prices change 
during each calendar year after 1994 by the percentage that the implicit 
price deflator for the gross domestic product changed during the 
preceding calendar year. For post-November 2000 deepwater leases, these 
prices change as indicated in the lease instrument or in the Notice of 
Sale under which we issued the lease.

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1878, Jan. 15, 2002]



Sec. 203.79  How do I appeal MMS's decisions related to Deep Water Royalty Relief?

    (a) Once we have designated your lease as part of a field and 
notified you and other affected operators of the designation, you can 
request reconsideration by sending the MMS Director a letter within 15 
days that also states your reasons. The MMS Director's response is the 
final agency action.
    (b) Our decisions on your application for relief from paying royalty 
under Sec. 203.67 and the royalty-suspension volumes under Sec. 203.69 
are final agency actions.
    (c) If you cannot start construction by the deadline in 
Sec. 203.76(b) for reasons beyond your control (e.g., strike at the 
fabrication yard), you may request an extension up to 1 year by writing 
the MMS Director and stating your reasons. The MMS Director's response 
is the final agency action.

[[Page 29]]

    (d) We will notify you of all final agency actions by certified 
mail, return receipt requested. Final agency actions are not subject to 
appeal to the Interior Board of Land Appeals under 30 CFR part 290 and 
43 CFR part 4. They are judicially reviewable under section 10(a) of the 
Administrative Procedure Act (5 U.S.C. 702) only if you file an action 
within 30 days of the date you receive our decision.



Sec. 203.80  When can I get royalty relief if I am not eligible for end-of-life or deep water royalty relief?

    We may grant royalty relief when it serves the statutory purposes 
summarized in Sec. 203.1, and our formal relief programs provide 
inadequate encouragement to increase production or development. Unless 
your lease lies wholly west of 87 degrees, 30 minutes West longitude in 
the Gulf of Mexico, your lease must be producing to qualify for relief. 
Before you may apply for royalty relief apart from our end-of-life or 
deepwater programs, we must agree that your lease or project has two or 
more of the following characteristics:
    (a) The lease has produced for a substantial period and the lessee 
can recover significant additional resources. Significant additional 
resources means enough to allow production for at least a year more than 
would be profitable without royalty relief.
    (b) Valuable facilities (e.g., a platform or pipeline that would be 
removed upon lease relinquishment) exist that we do not expect a 
successor lessee to use. If the facilities are located off the lease, 
their preservation must depend on continued production from the lease 
applying for royalty relief. We will only consider an allocable share of 
costs for off-lease facilities in the relief application.
    (c) A substantial risk exists that no new lessee will recover the 
resources.
    (d) The lessee made major efforts to reduce operating costs too 
recently to use the formal program for royalty relief (e.g., recent 
significant change in operations).
    (e) Circumstances beyond the lessee's control, other than water 
depth, preclude reliance on one of the existing royalty relief programs.

[67 FR 1879, Jan. 15, 2002]

                            Required Reports



Sec. 203.81  What supplemental reports do royalty-relief applications require?

    (a) You must send us the supplemental reports, indicated in the 
following table by an X, that apply to your field. Sections 203.83 
through 203.91 describe these reports in detail.

----------------------------------------------------------------------------------------------------------------
                                                                                       Deep water
                                                             End-of-  ------------------------------------------
                     Required reports                          life       Expansion     Pre-act     Development
                                                              lease        project       lease        project
----------------------------------------------------------------------------------------------------------------
(1) Administrative information Report.....................         X               X          X               X
(2) Net revenue & relief justification report.............         X
(3) Economic viability & relief justification report (RSVP                         X          X               X
 model imputs justified by other required reports)........
(4) G&G report............................................                         X          X               X
(5) Engineering report....................................                         X          X               X
(6) Production report.....................................                         X          X               X
(7) Deep water cost report................................                         X          X               X
(8) Fabricator's confirmation report......................                         X          X               X
(9) Post-production development report....................                         X          X               X
----------------------------------------------------------------------------------------------------------------

    (b) You must certify that all information in your application, 
fabricator's confirmation and post-production development reports is 
accurate, complete, and conforms to the most recent content and 
presentation guidelinesavailable from the MMS GOM Regional Office.
    (c) With your application and post-production development report, 
you must submit an additional report prepared by an independent CPA 
that:
    (1) Assesses the accuracy of the historical financial information in 
your report; and
    (2) Certifies that the content and presentation of the financial 
data and

[[Page 30]]

information conform to our most recent guidelines on royalty relief. 
This means the data and information must--
    (i) Include only eligible costs that are incurred during the 
qualification months; and
    (ii) Be shown in the proper format.
    (d) You must identify the people in the CPA firm who prepared the 
reports referred to in paragraph (c) of this section and make them 
available to us to respond to questions about the historical financial 
information. We may also further review your records to support this 
information.

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1879, Jan. 15, 2002]



Sec. 203.82  What is MMS's authority to collect this information?

    The Office of Management and Budget (OMB) approved the information 
collection requirements in part 203 under 44 U.S.C. 3501 et seq. and 
assigned OMB control number 1010-0071.
    (a) We use the information to determine whether royalty relief will 
result in production that wouldn't otherwise occur. We rely largely on 
your information to make these determinations.
    (1) Your application for royalty relief must contain enough 
information on finances, economics, reservoirs, G&G characteristics, 
production, and engineering estimates for us to determine whether:
    (i) We should grant relief under the law, and
    (ii) The requested relief will ultimately recover more resources and 
return a reasonable profit on project investments.
    (2) Your fabricator confirmation and post-production development 
reports must contain enough information for us to verify that your 
application reasonably represented your plans.
    (b) Applicants (respondents) are Federal OCS oil and gas lessees. 
Applications are required to obtain or retain a benefit. Therefore, if 
you apply for royalty relief, you must provide this information. We will 
protect information considered proprietary under applicable law and 
under regulations at Sec. 203.63(b) and part 250 of this chapter.
    (c) The Paperwork Reduction Act of 1995 requires us to inform you 
that 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.
    (d) Send comments regarding any aspect of the collection of 
information under this part, including suggestions for reducing the 
burden, to the Information Collection Clearance Officer, Minerals 
Management Service, Mail Stop 4230, 1849 C Street, NW., Washington, DC 
20240.

[63 FR 2618, Jan. 16, 1998, as amended at 65 FR 2875, Jan. 19, 2000]



Sec. 203.83  What is in an administrative information report?

    This report identifies the field or lease for which royalty relief 
is requested and must contain the following items:
    (a) The field or lease name;
    (b) The serial number of leases we have assigned to the field, names 
of the lease title holders of record, the lease operators, and whether 
any lease is part of a unit;
    (c) Well number, API number, location, and status of each well that 
has been drilled on the field or lease or project (not required for non-
oil and gas leases);
    (d) The location of any new wells proposed under the terms of the 
application (not required for non-oil and gas leases);
    (e) A description of field or lease history;
    (f) Full information as to whether you will pay royalties or a share 
of production to anyone other than the United States, the amount you 
will pay, and how much you will reduce this payment if we grant relief;
    (g) The type of royalty relief you are requesting;
    (h) Confirmation that we approved a DOCD or supplemental DOCD (Deep 
Water expansion project applications only); and
    (i) A narrative description of the development activities associated 
with the proposed capital investments and an explanation of proposed 
timing of the activities and the effect on production (Deep Water 
applications only).

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1879, Jan. 15, 2002]

[[Page 31]]



Sec. 203.84  What is in a net revenue and relief justification report?

    This report presents cash flow data for 12 qualifying months, using 
the format specified in the ``Guidelines for the Application, Review, 
Approval, and Administration of Royalty Relief for End-of-Life Leases'', 
U.S. Department of the Interior, MMS. Qualifying months for an oil and 
gas lease are the most recent 12 months out of the last 15 months that 
you produced at least 100 BOE per day on average. Qualifying months for 
other than oil and gas leases are the most recent 12 of the last 15 
months having some production.
    (a) The cash flow table you submit must include historical data for:
    (1) Lease production subject to royalty;
    (2) Total revenues;
    (3) Royalty payments out of production;
    (4) Total allowable costs; and
    (5) Transportation and processing costs.
    (b) Do not include in your cash flow table the non-allowable costs 
listed at 30 CFR 220.013 or:
    (1) OCS rental payments on the lease(s) in the application;
    (2) Damages and losses;
    (3) Taxes;
    (4) Any costs associated with exploratory activities;
    (5) Civil or criminal fines or penalties;
    (6) Fees for your royalty relief application; and
    (7) Costs associated with existing obligations (e.g., royalty 
overrides or other forms of payment for acquiring the lease, 
depreciation on previously acquired equipment or facilities).
    (c) We may, in reviewing and evaluating your application, disallow 
costs when you have not shown they are necessary to operate the lease, 
or if they are inconsistent with end-of-life operations.

[63 FR 2618, Jan. 16, 1998, as amended at 63 FR 57249, Oct. 27, 1998]



Sec. 203.85  What is in an economic viability and relief justification report?

    This report should show that your project appears economic without 
royalties and sunk costs using the RSVP model we provide. The format of 
the report and the assumptions and parameters we specify are found in 
the ``Guidelines for the Application, Review, Approval and 
Administration of the Deep Water Royalty Relief Program,'' U.S. 
Department of the Interior, MMS. Clearly justify each parameter you set 
in every scenario you specify in the RSVP. You may provide supplemental 
information, including your own model and results. The economic 
viability and relief justification report must contain the following 
items for an oil and gas lease.
    (a) Economic assumptions we provide which include:
    (1) Starting oil and gas prices;
    (2) Real price growth;
    (3) Real cost growth or decline rate, if any;
    (4) Base year;
    (5) Range of discount rates; and
    (6) Tax rate (for use in determining after-tax sunk costs).
    (b) Analysis of projected cash flow (from the date of the 
application using annual totals and constant dollar values) which shows:
    (1) Oil and gas production;
    (2) Total revenues;
    (3) Capital expenditures;
    (4) Operating costs;
    (5) Transportation costs; and
    (6) Before-tax net cash flow without royalties, overrides, sunk 
costs, and ineligible costs.
    (c) Discounted values which include:
    (1) Discount rate used (selected from within the range we specify).
    (2) Before-tax net present value without royalties, overrides, sunk 
costs, and ineligible costs.
    (d) Demonstrations that:
    (1) All costs, gross production, and scheduling are consistent with 
the data in the G&G, engineering, production, and cost reports 
(Secs. 203.86 through 203.89) and
    (2) The development and production scenarios provided in the various 
reports are consistent with each other and with the proposed development 
system. You can use up to three scenarios (conservative, most likely, 
and optimistic), but you must link each to a specific range on the 
distribution of resources from the RSVP Resource Module.

[[Page 32]]



Sec. 203.86  What is in a G&G report?

    This report supports the reserve and resource estimates used in the 
economic evaluation and must contain each of the following elements.
    (a) Seismic data which includes:
    (1) Non-interpreted 2D/3D survey lines reflecting any available 
state-of-the-art processing technique in a format readable by MMS and 
specified by the deep water royalty relief guidelines;
    (2) Interpreted 2D/3D seismic survey lines reflecting any available 
state-of-the-art processing technique identifying all known and 
prospective pay horizons, wells, and fault cuts;
    (3) Digital velocity surveys in the format of the GOM region's 
letter to lessees of 10/1/90;
    (4) Plat map of ``shot points;'' and
    (5) ``Time slices'' of potential horizons.
    (b) Well data which includes:
    (1) Hard copies of all well logs in which--
    (i) The 1-inch electric log shows pay zones and pay counts and 
lithologic and paleo correlation markers at least every 500-feet,
    (ii) The 1-inch type log shows missing sections from other logs 
where faulting occurs,
    (iii) The 5-inch electric log shows pay zones and pay counts and 
labeled points used in establishing resistivity of the formation, 100 
percent water saturated (Ro) and the resistivity of the 
undisturbed formation (Rt), and
    (iv) The 5-inch porosity logs show pay zones and pay counts and 
labeled points used in establishing reservoir porosity or labeled points 
showing values used in calculating reservoir porosity such as bulk 
density or transit time;
    (2) Digital copies of all well logs spudded before December 1, 1995;
    (3) Core data, if available;
    (4) Well correlation sections;
    (5) Pressure data;
    (6) Production test results;
    (7) Pressure-volume-temperature analysis, if available; and
    (8) A table listing the wells and completions, and indicating which 
sands and fault blocks will be targeted for completion or recompletion.
    (c) Map interpretations which includes for each reservoir in the 
field:
    (1) Structure maps consisting of top and base of sand maps showing 
well and seismic shot point locations;
    (2) Isopach maps for net sand, net oil, net gas, all with well 
locations;
    (3) Maps indicating well surface and bottom hole locations, location 
of development facilities, and shot points; and
    (4) An explanation for excluding the reservoirs you are not planning 
to develop.
    (d) Reservoir-specific data which includes:
    (1) Probability of reservoir occurrence with hydrocarbons;
    (2) Probability the hydrocarbon in the reservoir is all oil and the 
probability it is all gas;
    (3) Distributions or point estimates (accompanied by explanations of 
why distributions less appropriately reflect the uncertainty) for the 
parameters used to estimate reservoir size, i.e., acres and net 
thickness;
    (4) Most likely values for porosity, salt water saturation, volume 
factor for oil formation, and volume factor for gas formation;
    (5) Distributions or point estimates (accompanied by explanations of 
why distributions less appropriately reflect the uncertainty) for 
recovery efficiency (in percent) and oil or gas recovery (in stock-tank-
barrels per acre-foot or in thousands of cubic feet per acre foot);
    (6) A gas/oil ratio distribution or point estimate (accompanied by 
explanations of why distributions less appropriately reflect the 
uncertainty) for each reservoir;
    (7) A yield distribution or point estimate (accompanied by 
explanations of why distributions less appropriately reflect the 
uncertainty) for each gas reservoir; and
    (8) Reserve or resource distribution by reservoir.
    (e) Aggregated reserve and resource data which includes:
    (1) The aggregated distributions for reserves and resources (in BOE) 
and oil fraction for your field computed by the resource module of our 
RSVP model;

[[Page 33]]

    (2) A description of anticipated hydrocarbon quality (i.e., specific 
gravity); and
    (3) The ranges within the aggregated distribution for reserves and 
resources that define the development and production scenarios presented 
in the engineering and production reports. Typically there will be three 
ranges specified by two positive reserve and resource points on the 
aggregated distribution. The range at the low end of the distribution 
will be associated with the conservative development and production 
scenario; the middle range will be related to the most likely 
development and production scenario; and, the high end range will be 
consistent with the optimistic development and production scenario.

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1879, Jan. 15, 2002]



Sec. 203.87  What is in an engineering report?

    This report defines the development plan and capital requirements 
for the economic evaluation and must contain the following elements.
    (a) A description of the development concept (e.g., tension leg 
platform, fixed platform, floater type, subsea tieback, etc.) which 
includes:
    (1) Its size along with basic design specifications and drawings; 
and
    (2) The construction schedule.
    (b) An identification of planned wells which includes:
    (1) The number;
    (2) The type (platform, subsea, vertical, deviated, horizontal);
    (3) The well depth;
    (4) The drilling schedule;
    (5) The kind of completion (single, dual, horizontal, etc.); and
    (6) The completion schedule.
    (c) A description of the production system equipment which includes:
    (1) The production capacity for oil and gas and a description of 
limiting component(s);
    (2) Any unusual problems (low gravity, paraffin, etc.);
    (3) All subsea structures;
    (4) All flowlines; and
    (5) Schedule for installing the production system.
    (d) A discussion of any plans for multi-phase development which 
includes the conceptual basis for developing in phases and goals or 
milestones required for starting later phases.
    (e) A set of development scenarios consisting of activity timing and 
scale associated with each of up to three production profiles 
(conservative, most likely, optimistic) provided in the production 
report for your field (Sec. 203.88). Each development scenario and 
production profile must denote the likely events should the field size 
turn out to be within a range represented by one of the three segments 
of the field size distribution. If you send in fewer than three 
scenarios, you must explain why fewer scenarios are more efficient 
across the whole field size distribution.

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1880, Jan. 15, 2002]



Sec. 203.88  What is in a production report?

    This report supports your development and production timing and 
product quality expectations and must contain the following elements.
    (a) Production profiles by well completion and field that specify 
the actual and projected production by year for each of the following 
products: oil, condensate, gas, and associated gas. The production from 
each profile must be consistent with a specific level of reserves and 
resources on the aggregated distribution of field size.
    (b) Production drive mechanisms for each reservoir.



Sec. 203.89  What is in a deep water cost report?

    This report lists all actual and projected costs for your field, 
must explain and document the source of each cost estimate, and must 
identify the following elements.
    (a) Sunk costs. Report sunk costs in dollars not adjusted for 
inflation and only if you have documentation.
    (b) Appraisal, delineation and development costs. Base them on 
actual spending, current authorization for expenditure, engineering 
estimates, or analogous projects. These costs cover:
    (1) Platform well drilling and average depth;
    (2) Platform well completion;
    (3) Subsea well drilling and average depth;

[[Page 34]]

    (4) Subsea well completion;
    (5) Production system (platform); and
    (6) Flowline fabrication and installation.
    (c) Production costs based on historical costs, engineering 
estimates, or analogous projects. These costs cover:
    (1) Operation;
    (2) Equipment; and
    (3) Existing royalty overrides (we will not use the royalty 
overrides in evaluations).
    (d) Transportation costs, based on historical costs, engineering 
estimates, or analogous projects. These costs cover:
    (1) Oil or gas tariffs from pipeline or tankerage;
    (2) Trunkline and tieback lines; and
    (3) Gas plant processing for natural gas liquids.
    (e) Abandonment costs, based on historical costs, engineering 
estimates, or analogous projects. You should provide the costs to plug 
and abandon only wells and to remove only production systems for which 
you have not incurred costs as of the time of application submission. 
You should also include a point estimate or distribution of prospective 
salvage value for all potentially reusable facilities and materials, 
along with the source and an explanation of the figures provided.
    (f) A set of cost estimates consistent with each one of up to three 
field-development scenarios and production profiles (conservative, most 
likely, optimistic). You should express costs in constant real dollar 
terms for the base year. You may also express the uncertainty of each 
cost estimate with a minimum and maximum percentage of the base value.
    (g) A spending schedule. You should provide costs for each year (in 
real dollars) for each category in paragraphs (a) through (f) of this 
section.
    (h) A summary of other costs which are ineligible for evaluating 
your need for relief. These costs cover:
    (1) Expenses before first discovery on the field;
    (2) Cash bonuses;
    (3) Fees for royalty relief applications;
    (4) Lease rentals, royalties, and payments of net profit share and 
net revenue share;
    (5) Legal expenses;
    (6) Damages and losses;
    (7) Taxes;
    (8) Interest or finance charges, including those embedded in 
equipment leases;
    (9) Fines or penalties; and
    (10) Money spent on previously existing obligations (e.g., royalty 
overrides or other forms of payment for acquiring a financial position 
in a lease, expenditures for plugging wells and removing and abandoning 
facilities that existed on the application submission date).

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1880, Jan. 15, 2002]



Sec. 203.90  What is in a fabricator's confirmation report?

    This report shows you have committed in a timely way to the approved 
system for production. This report must include the following (or its 
equivalent for unconventionally acquired systems):
    (a) A copy of the contract(s) under which the fabrication yard is 
building the approved system for you;
    (b) A letter from the contractor building the system to the MMS's 
GOM Regional Supervisor--Production and Development, certifying when 
construction started on your system; and
    (c) Evidence of an appropriate down payment or equal action that 
you've started acquiring the approved system.



Sec. 203.91  What is in a post-production development report?

    For each cost category in the deep water cost report, you must 
compare actual costs up to the date when production starts to your 
planned pre-production costs. If your application included more than one 
development scenario, you need to compare actual costs with those in 
your scenario of most likely development. Also, you must have this 
report certified by an independent CPA according to Sec. 203.81(c).

[63 FR 2618, Jan. 16, 1998, as amended at 67 FR 1880, Jan. 15, 2002]

Subpart C--Federal and Indian Oil [Reserved]

[[Page 35]]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals, General [Reserved]



                             Subpart F--Coal



Sec. 203.250  Advance royalty.

    Provisions for the payment of advance royalty in lieu of continued 
operation are contained at 43 CFR 3483.4.

[54 FR 1522, Jan. 13, 1989]



Sec. 203.251  Reduction in royalty rate or rental.

    An application for reduction in coal royalty rate or rental shall be 
filed and processed in accordance with 43 CFR group 3400.

[54 FR 1522, Jan. 13, 1989]

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal Resources [Reserved]

Subpart I--OCS Sulfur [Reserved]



PART 206--PRODUCT VALUATION--Table of Contents




                      Subpart A--General Provisions

Sec.
206.10  Information collection.

                          Subpart B--Indian Oil

206.50  Purpose and scope.
206.51  Definitions.
206.52  Valuation standards.
206.53  Point of royalty settlement.
206.54  Transportation allowances--general.
206.55  Determination of transportation allowances.

                         Subpart C--Federal Oil

206.100   What is the purpose of this subpart?
206.101   What definitions apply to this subpart?
206.102   How do I calculate royalty value for oil that I or my 
          affiliate sell(s) under an arm's-length contract?
206.103   How do I value oil that is not sold under an arm's-length 
          contract?
206.104   What index price publications are acceptable to MMS?
206.105   What records must I keep to support my calculations of value 
          under this subpart?
206.106   What are my responsibilities to place production into 
          marketable condition and to market production?
206.107   How do I request a value determination?
206.108   Does MMS protect information I provide?
206.109   When may I take a transportation allowance in determining 
          value?
206.110   How do I determine a transportation allowance under an arm's-
          length transportation contract?
206.111   How do I determine a transportation allowance under a non-
          arm's-length transportation arrangement?
206.112   What adjustments and transportation allowances apply when I 
          value oil using index pricing?
206.113   How will MMS identify market centers?
206.114   What are my reporting requirements under an arm's-length 
          transportation contract?
206.115   What are my reporting requirements under a non-arm's-length 
          transportation arrangement?
206.116   What interest and assessments apply if I improperly report a 
          transportation allowance?
206.117   What reporting adjustments must I make for transportation 
          allowances?
206.118   Are actual or theoretical losses permitted as part of a 
          transportation allowance?
206.119   How are the royalty quantity and quality determined?
206.120   How are operating allowances determined?
206.121   Is there any grace period for reporting and paying royalties 
          after this subpart becomes effective?

                         Subpart D--Federal Gas

206.150  Purpose and scope.
206.151  Definitions.
206.152  Valuation standards--unprocessed gas.
206.153  Valuation standards--processed gas.
206.154  Determination of quantities and qualities for computing 
          royalties.
206.155  Accounting for comparison.
206.156  Transportation allowances--general.
206.157  Determination of transportation allowances.
206.158  Processing allowances--general.
206.159  Determination of processing allowances.
206.160  Operating allowances.

                          Subpart E--Indian Gas

206.170  What does this subpart contain?
206.171  What definitions apply to this subpart?

[[Page 36]]

206.172  How do I value gas produced from leases in an index zone?
206.173  How do I calculate the alternative methodology for dual 
          accounting?
206.174  How do I value gas production when an index-based method cannot 
          be used?
206.175  How do I determine quantities and qualities of production for 
          computing royalties?
206.176  How do I perform accounting for comparison?

                        Transportation Allowances

206.177  What general requirements regarding transportation allowances 
          apply to me?
206.178  How do I determine a transportation allowance?

                          Processing Allowances

206.179  What general requirements regarding processing allowances apply 
          to me?
206.180  How do I determine an actual processing allowance?
206.181  How do I establish processing costs for dual accounting 
          purposes when I do not process the gas?

                         Subpart F--Federal Coal

206.250  Purpose and scope.
206.251  Definitions.
206.252  Information collection.
206.253  Coal subject to royalties--general provisions.
206.254  Quality and quantity measurement standards for reporting and 
          paying royalties.
206.255  Point of royalty determination.
206.256  Valuation standards for cents-per-ton leases.
206.257  Valuation standards for ad valorem leases.
206.258  Washing allowances--general.
206.259  Determination of washing allowances.
206.260  Allocation of washed coal.
206.261  Transportation allowances--general.
206.262  Determination of transportation allowances.
206.263  [Reserved]
206.264  In-situ and surface gasification and liquefaction operations.
206.265  Value enhancement of marketable coal.

                     Subpart G--Other Solid Minerals

206.301  Value basis for royalty computation.

                     Subpart H--Geothermal Resources

206.350  Purpose and scope.
206.351  Definitions.
206.352  Valuation standards for electrical generation.
206.353  Determination of transmission deductions.
206.354  Determination of generating deductions.
206.355  Valuation standards for direct utilization.
206.356  Valuation standards for byproducts.
206.357  Byproduct transportation allowances--general.
206.358  Determination of byproduct transportation allowances.

Subpart I--OCS Sulfur [Reserved]

                         Subpart J--Indian Coal

206.450  Purpose and scope.
206.451  Definitions.
206.452  Coal subject to royalties--general provisions.
206.453  Quality and quantity measurement standards for reporting and 
          paying royalties.
206.454  Point of royalty determination.
206.455  Valuation standards for cents-per-ton leases.
206.456  Valuation standards for ad valorem leases.
206.457  Washing allowances--general.
206.458  Determination of washing allowances.
206.459  Allocation of washed coal.
206.460  Transportation allowances--general.
206.461  Determination of transportation allowances.
206.462  [Reserved]
206.463  In-situ and surface gasification and liquefaction operations.
206.464  Value enhancement of marketable coal.

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq., 396a et 
seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et seq., 
1701 et seq.; 31 U.S.C. 9701.; 43 U.S.C. 1301 et seq., 1331 et seq., and 
1801 et seq.

    Editorial Note: Nomenclature changes to part 206 appear at 67 FR 
19111, Apr. 18, 2002.



                      Subpart A--General Provisions



Sec. 206.10  Information collection.

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. The forms, filing date, and approved OMB clearance 
numbers are identified in 30 CFR 210.10.

[57 FR 41863, Sept. 14, 1992]

[[Page 37]]



                          Subpart B--Indian Oil

    Source: 61 FR 5455, Feb. 12, 1996, unless otherwise noted.



Sec. 206.50  Purpose and scope.

    (a) This subpart is applicable to all oil production from Indian 
(Tribal and allotted) oil and gas leases (except leases on the Osage 
Indian Reservation, Osage County, Oklahoma). The purpose of this subpart 
is to establish the value of production, for royalty purposes, 
consistent with the mineral leasing laws, other applicable laws, and 
lease terms.
    (b) If the specific provisions of any Federal statute, treaty, 
settlement agreement between the Indian lessor and a lessee resulting 
from administrative or judicial litigation, or oil and gas lease subject 
to the requirements of this subpart are inconsistent with any regulation 
in this subpart, then the statute, treaty, lease provision or settlement 
agreement shall govern to the extent of that inconsistency.
    (c) All royalty payments made to MMS or Indian Tribes are subject to 
audit and adjustment.
    (d) The regulations in this subpart are intended to ensure that the 
trust responsibilities of the United States with respect to the 
administration of Indian oil and gas leases are discharged in accordance 
with the requirements of the governing mineral leasing laws, treaties, 
and lease terms.



Sec. 206.51  Definitions.

    For the purposes of this subpart:
    Allowance means an approved or an MMS-initially accepted deduction 
in determining value for royalty purposes. Transportation allowance 
means an allowance for the reasonable, actual costs incurred by the 
lessee for moving oil to a point of sale or point of delivery off the 
lease, unit area, or communitized area, excluding gathering, or an 
approved or MMS-initially accepted deduction for costs of such 
transportation, determined by this subpart.
    Area means a geographic region at least as large as the defined 
limits of an oil and/or gas field in which oil and/or gas lease products 
have similar quality, economic, and legal characteristics.
    Arm's-length contract means a contract or agreement that has been 
arrived at in the market place between independent, nonaffiliated 
persons with opposing economic interests regarding that contract. For 
purposes of this subpart, two persons are affiliated if one person 
controls, is controlled by, or is under common control with another 
person. For purposes of this subpart, based on the instruments of 
ownership of the voting securities of an entity, or based on other forms 
of ownership: ownership in excess of 50 percent constitutes control; 
ownership of 10 through 50 percent creates a presumption of control; and 
ownership of less than 10 percent creates a presumption of noncontrol 
which MMS may rebut if it demonstrates actual or legal control, 
including the existence of interlocking directorates. Notwithstanding 
any other provisions of this subpart, contracts between relatives, 
either by blood or by marriage, are not arm's-length contracts. MMS may 
require the lessee to certify ownership control. To be considered arm's-
length for any production month, a contract must meet the requirements 
of this definition for that production month, as well as when the 
contract was executed.
    Audit means a review, conducted in accordance with generally 
accepted accounting and auditing standards, of royalty payment 
compliance activities of lessees or other interest holders who pay 
royalties, rents, or bonuses on Indian leases.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Condensate means liquid hydrocarbons (normally exceeding 40 degrees 
of API gravity) recovered at the surface without resorting to 
processing. Condensate is the mixture of liquid hydrocarbons that 
results from condensation of petroleum hydrocarbons existing initially 
in a gaseous phase in an underground reservoir.
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that

[[Page 38]]

with due consideration creates an obligation.
    Field means a geographic region situated over one or more subsurface 
oil and gas reservoirs encompassing at least the outermost boundaries of 
all oil and gas accumulations known to be within those reservoirs 
vertically projected to the land surface. Onshore fields are usually 
given names and their official boundaries are often designated by oil 
and gas regulatory agencies in the respective States in which the fields 
are located.
    Gathering means the movement of lease production to a central 
accumulation or treatment point on the lease, unit, or communitized 
area, or to a central accumulation or treatment point off the lease, 
unit, or communitized area as approved by BLM operations personnel for 
onshore leases.
    Gross proceeds (for royalty payment purposes) means the total monies 
and other consideration accruing to an oil and gas lessee for the 
disposition of the oil produced. Gross proceeds includes, but is not 
limited to, payments to the lessee for certain services such as 
dehydration, measurement, and/or gathering to the extent that the lessee 
is obligated to perform them at no cost to the Indian lessor. Gross 
proceeds, as applied to oil, also includes, but is not limited to, 
reimbursements for harboring or terminaling fees. Tax reimbursements are 
part of the gross proceeds accruing to a lessee even though the Indian 
royalty interest may be exempt from taxation. Monies and other 
consideration, including the forms of consideration identified in this 
paragraph, to which a lessee is contractually or legally entitled but 
which it does not seek to collect through reasonable efforts are also 
part of gross proceeds.
    Indian allottee means any Indian for whom land or an interest in 
land is held in trust by the United States or who holds title subject to 
Federal restriction against alienation.
    Indian Tribe means any Indian Tribe, band, nation, pueblo, 
community, rancheria, colony, or other group of Indians for which any 
land or interest in land is held in trust by the United States or which 
is subject to Federal restriction against alienation.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by the United States under a 
mineral leasing law that authorizes exploration for, development or 
extraction of, or removal of lease products--or the land area covered by 
that authorization, whichever is required by the context.
    Lease products means any leased minerals attributable to, 
originating from, or allocated to Indian leases.
    Lessee means any person to whom an Indian Tribe, or an Indian 
allottee issues a lease, and any person who has been assigned an 
obligation to make royalty or other payments required by the lease. This 
includes any person who has an interest in a lease as well as an 
operator or payor who has no interest in the lease but who has assumed 
the royalty payment responsibility.
    Like-quality lease products means lease products which have similar 
chemical, physical, and legal characteristics.
    Load oil means any oil which has been used with respect to the 
operation of oil or gas wells for wellbore stimulation, workover, 
chemical treatment, or production purposes. It does not include oil used 
at the surface to place lease production in marketable condition.
    Marketable condition means lease products which are sufficiently 
free from impurities and otherwise in a condition that they will be 
accepted by a purchaser under a sales contract typical for the field or 
area.
    Marketing affiliate means an affiliate of the lessee whose function 
is to acquire only the lessee's production and to market that 
production.
    Minimum royalty means that minimum amount of annual royalty that the 
lessee must pay as specified in the lease or in applicable leasing 
regulations.
    MMS means the Minerals Management Service of the Department of the 
Interior.
    Net-back method (or workback method) means a method for calculating 
market value of oil at the lease. Under this method, costs of 
transportation,

[[Page 39]]

processing, or manufacturing are deducted from the proceeds received for 
the oil and any extracted, processed, or manufactured products, or from 
the value of the oil or any extracted, processed, or manufactured 
products at the first point at which reasonable values for any such 
products may be determined by a sale under an arm's-length contract or 
comparison to other sales of such products, to ascertain value at the 
lease.
    Net profit share (for applicable Indian lessees) means the specified 
share of the net profit from production of oil and gas as provided in 
the agreement.
    Oil means a mixture of hydrocarbons that existed in the liquid phase 
in natural underground reservoirs and remains liquid at atmospheric 
pressure after passing through surface separating facilities and is 
marketed or used as such. Condensate recovered in lease separators or 
field facilities is considered to be oil. For purposes of royalty 
valuation, the term tar sands is defined separately from oil.
    Oil shale means a kerogen-bearing rock (i.e., fossilized, insoluble, 
organic material). Separation of kerogen from oil shale may take place 
in situ or in surface retorts by various processes. The kerogen, upon 
distillation, will yield liquid and gaseous hydrocarbons.
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture (when established as a 
separate entity).
    Posted price means the price specified in publicly available posted 
price bulletins, onshore terminal postings, or other price notices net 
of all adjustments for quality (e.g., API gravity, sulfur content, etc.) 
and location for oil in marketable condition.
    Processing means any process designed to remove elements or 
compounds (hydrocarbon and nonhydrocarbon) from gas, including 
absorption, adsorption, or refrigeration. Field processes which normally 
take place on or near the lease, such as natural pressure reduction, 
mechanical separation, heating, cooling, dehydration, and compression 
are not considered processing. The changing of pressures and/or 
temperatures in a reservoir is not considered processing.
    Selling arrangement means the individual contractual arrangements 
under which sales or dispositions of oil are made. Selling arrangements 
are described by illustration in MMS Royalty Management Program Oil and 
Gas Payor Handbook.
    Spot sales agreement means a contract wherein a seller agrees to 
sell to a buyer a specified amount of oil at a specified price over a 
fixed period, usually of short duration, which does not normally require 
a cancellation notice to terminate, and which does not contain an 
obligation, nor imply an intent, to continue in subsequent periods.
    Tar sands means any consolidated or unconsolidated rock (other than 
coal, oil shale, or gilsonite) that contains a hydrocarbonaceous 
material with a gas-free viscosity greater than 10,000 centipoise at 
original reservoir temperature.

[61 FR 5455, Feb. 12, 1996, as amended at 64 FR 43288, Aug. 10, 1999]



Sec. 206.52  Valuation standards.

    (a)(1) The value of production, for royalty purposes, of oil from 
leases subject to this subpart shall be the value determined under this 
section less applicable allowances determined under this subpart.
    (2)(i) For any Indian leases which provide that the Secretary may 
consider the highest price paid or offered for a major portion of 
production (major portion) in determining value for royalty purposes, if 
data are available to compute a major portion, MMS will, where 
practicable, compare the value determined in accordance with this 
section with the major portion. The value to be used in determining the 
value of production, for royalty purposes, shall be the higher of those 
two values.
    (ii) For purposes of this paragraph, major portion means the highest 
price paid or offered at the time of production for the major portion of 
oil production from the same field. The major portion will be calculated 
using like-quality oil sold under arm's-length contracts from the same 
field (or, if necessary to obtain a reasonable sample, from the same 
area) for each month. All such oil production will be

[[Page 40]]

arrayed from highest price to lowest price (at the bottom).
    The major portion is that price at which 50 percent (by volume) plus 
1 barrel of the oil (starting from the bottom) is sold.
    (b)(1)(i) The value of oil which is sold under an arm's-length 
contract shall be the gross proceeds accruing to the lessee, except as 
provided in paragraphs (b)(1)(ii) and (b)(1)(iii) of this section. The 
lessee shall have the burden of demonstrating that its contract is 
arm's-length. The value which the lessee reports, for royalty purposes, 
is subject to monitoring, review, and audit. For purposes of this 
section, oil which is sold or otherwise transferred to the lessee's 
marketing affiliate and then sold by the marketing affiliate under an 
arm's-length contract shall be valued in accordance with this paragraph 
based upon the sale by the marketing affiliate.
    (ii) In conducting reviews and audits, MMS will examine whether the 
contract reflects the total consideration actually transferred either 
directly or indirectly from the buyer to the seller for the oil. If the 
contract does not reflect the total consideration, then MMS may require 
that the oil sold under that contract be valued in accordance with 
paragraph (c) of this section. Value may not be less than the gross 
proceeds accruing to the lessee, including the additional consideration.
    (iii) If MMS determines that the gross proceeds accruing to the 
lessee under an arm's-length contract do not reflect the reasonable 
value of the production because of misconduct by or between two 
contracting parties, or because the lessee otherwise has breached its 
duty to the lessor to market the production for the mutual benefit of 
the lessee and the lessor, then MMS shall require that the oil 
production be valued under the first applicable of paragraph (c)(2), 
(c)(3), (c)(4), or (c)(5) of this section. When MMS determines that the 
value may be unreasonable, MMS will notify the lessee and give the 
lessee an opportunity to provide written information justifying the 
lessee's value. If the oil production is then valued under paragraph 
(c)(4) or (c)(5) of this section, the notification requirements of 
paragraph (e) of this section shall apply.
    (2) MMS may require a lessee to certify that its arm's-length 
contract provisions include all of the consideration to be paid by the 
buyer, either directly or indirectly, for the oil.
    (c) The value of oil production from leases subject to this section 
which is not sold under an arm's-length contract shall be the reasonable 
value determined in accordance with the first applicable of the 
following paragraphs:
    (1) The lessee's contemporaneous posted prices or oil sales contract 
prices used in arm's-length transactions for purchases or sales of 
significant quantities of like-quality oil in the same field (or, if 
necessary to obtain a reasonable sample, from the same area); provided, 
however, that those posted prices or oil sales contract prices are 
comparable to other contemporaneous posted prices or oil sales contract 
prices used in arm's-length transactions for purchases or sales of 
significant quantities of like-quality oil in the same field (or, if 
necessary to obtain a reasonable sample, from the same area). In 
evaluating the comparability of posted prices or oil sales contract 
prices, the following factors shall be considered: Price, duration, 
market or markets served, terms, quality of oil, volume, and other 
factors as may be appropriate to reflect the value of the oil. If the 
lessee makes arm's-length purchases or sales at different postings or 
prices, then the volume-weighted average price for the purchases or 
sales for the production month will be used;
    (2) The arithmetic average of contemporaneous posted prices used in 
arm's-length transactions by persons other than the lessee for purchases 
or sales of significant quantities of like-quality oil in the same field 
(or, if necessary to obtain a reasonable sample, from the same area);
    (3) The arithmetic average of other contemporaneous arm's-length 
contract prices for purchases or sales of significant quantities of 
like-quality oil in the same area or nearby areas;
    (4) Prices received for arm's-length spot sales of significant 
quantities of like-quality oil from the same field (or, if necessary to 
obtain a reasonable

[[Page 41]]

sample, from the same area), and other relevant matters, including 
information submitted by the lessee concerning circumstances unique to a 
particular lease operation or the salability of certain types of oil;
    (5) A net-back method or any other reasonable method to determine 
value;
    (6) For purposes of this paragraph, the term lessee includes the 
lessee's designated purchasing agent, and the term contemporaneous means 
postings or contract prices in effect at the time the royalty obligation 
is incurred.
    (d) Any Indian lessee will make available, upon request to the 
authorized MMS or Indian representatives, to the Office of the Inspector 
General of the Department of the Interior, or other persons authorized 
to receive such information, arm's-length sales and volume data for 
like-quality production sold, purchased, or otherwise obtained by the 
lessee from the field or area or from nearby fields or areas.
    (e)(1) Where the value is determined under paragraph (c) of this 
section, the lessee shall retain all data relevant to the determination 
of royalty value. Such data shall be subject to review and audit, and 
MMS will direct a lessee to use a different value if it determines that 
the reported value is inconsistent with the requirements of these 
regulations.
    (2) A lessee shall notify MMS if it has determined value under 
paragraph (c)(4) or (c)(5) of this section. The notification shall be by 
letter to MMS Associate Director for Minerals Revenue Management or his/
her designee. The letter shall identify the valuation method to be used 
and contain a brief description of the procedure to be followed. The 
notification required by this paragraph is a one-time notification due 
no later than the end of the month following the month the lessee first 
reports royalties on a Form MMS-2014 using a valuation method authorized 
by paragraph (c)(4) or (c)(5) of this section and each time there is a 
change from one to the other of these two methods.
    (f) If MMS determines that a lessee has not properly determined 
value, the lessee shall pay the difference, if any, between royalty 
payments made based upon the value it has used and the royalty payments 
that are due based upon the value established by MMS. The lessee shall 
also pay interest on the difference computed under 30 CFR 218.54. If the 
lessee is entitled to a credit, MMS will provide instructions for the 
taking of that credit.
    (g) The lessee may request a value determination from MMS. In that 
event, the lessee shall propose to MMS a value determination method and 
may use that value for royalty payment purposes until MMS issues a value 
determination. The lessee shall submit all available data relevant to 
its proposal. MMS shall expeditiously determine the value based upon the 
lessee's proposal and any additional information MMS deems necessary. In 
making a value determination, MMS may use any of the valuation criteria 
authorized by this subpart. That determination shall remain effective 
for the period stated therein. After MMS issues its determination, the 
lessee shall make the adjustments in accordance with paragraph (f) of 
this section.
    (h) Notwithstanding any other provision of this section, under no 
circumstances shall the value of production, for royalty purposes, be 
less than the gross proceeds accruing to the lessee for lease 
production, less applicable allowances determined under this subpart.
    (i) The lessee is required to place oil in marketable condition at 
no cost to the Indian lessor unless otherwise provided in the lease 
agreement or this section. Where the value established under this 
section is determined by a lessee's gross proceeds, that value shall be 
increased to the extent that the gross proceeds have been reduced 
because the purchaser, or any other person, is providing certain 
services the cost of which ordinarily is the responsibility of the 
lessee to place the oil in marketable condition.
    (j) Value shall be based on the highest price a prudent lessee can 
receive through legally enforceable claims under its contract. Absent 
contract revision or amendment, if the lessee fails to take proper or 
timely action to receive prices or benefits to which it is entitled, it 
must pay royalty at a value based upon that obtainable price or

[[Page 42]]

benefit. Contract revisions or amendments shall be in writing and signed 
by all parties to an arm's-length contract. If the lessee makes timely 
application for a price increase or benefit allowed under its contract 
but the purchaser refuses, and the lessee takes reasonable measures, 
which are documented, to force purchaser compliance, the lessee will owe 
no additional royalties unless or until monies or consideration 
resulting from the price increase or additional benefits are received. 
This paragraph shall not be construed to permit a lessee to avoid its 
royalty payment obligation in situations where a purchaser fails to pay, 
in whole or in part or timely, for a quantity of oil.
    (k) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by MMS of value under this section 
shall be considered final or binding as against the Indian Tribes or 
allottees until the audit period is formally closed.
    (l) Certain information submitted to MMS to support valuation 
proposals, including transportation allowances or extraordinary cost 
allowances, is exempted from disclosure by the Freedom of Information 
Act, 5 U.S.C. 552, or other Federal law. Any data specified by law to be 
privileged, confidential, or otherwise exempt, will be maintained in a 
confidential manner in accordance with applicable laws and regulations. 
All requests for information about determinations made under this part 
are to be submitted in accordance with the Freedom of Information Act 
regulation of the Department of the Interior, 43 CFR part 2. Nothing in 
this section is intended to limit or diminish in any manner whatsoever 
the right of an Indian lessor to obtain any and all information to which 
such lessor may be lawfully entitled from MMS or such lessor's lessee 
directly under the terms of the lease, 30 U.S.C. 1733, or other 
applicable law.



Sec. 206.53  Point of royalty settlement.

    (a)(1) Royalties shall be computed on the quantity and quality of 
oil as measured at the point of settlement approved by BLM for onshore 
leases.
    (2) If the value of oil determined under Sec. 206.52 of this subpart 
is based upon a quantity and/or quality different from the quantity and/
or quality at the point of royalty settlement approved by the BLM for 
onshore leases, the value shall be adjusted for those differences in 
quantity and/or quality.
    (b) No deductions may be made from the royalty volume or royalty 
value for actual or theoretical losses. Any actual loss that may be 
sustained prior to the royalty settlement metering or measurement point 
will not be subject to royalty provided that such actual loss is 
determined to have been unavoidable by BLM.
    (c) Except as provided in paragraph (b) of this section, royalties 
are due on 100 percent of the volume measured at the approved point of 
royalty settlement. There can be no reduction in that measured volume 
for actual losses beyond the approved point of royalty settlement or for 
theoretical losses that are claimed to have taken place either prior to 
or beyond the approved point of royalty settlement. Royalties are due on 
100 percent of the value of the oil as provided in this subpart. There 
can be no deduction from the value of the oil for royalty purposes to 
compensate for actual losses beyond the approved point of royalty 
settlement or for theoretical losses that are claimed to have taken 
place either prior to or beyond the approved point of royalty 
settlement.

[61 FR 5455, Feb. 12, 1996; 64 FR 43288, Aug. 10, 1999]



Sec. 206.54  Transportation allowances--general.

    (a) Where the value of oil has been determined under Section 206.52 
of this subpart at a point (e.g., sales point or point of value 
determination) off the lease, MMS shall allow a deduction for the 
reasonable, actual costs incurred by the lessee to transport oil to a 
point off the lease; provided, however, that no transportation allowance 
will be granted for transporting oil taken as Royalty-In-Kind (RIK); or
    (b)(1) Except as provided in paragraph (b)(2) of this section, the 
transportation allowance deduction on the basis of a selling arrangement 
shall not exceed 50 percent of the value of the oil

[[Page 43]]

at the point of sale as determined under Sec. 206.52 of this subpart. 
Transportation costs cannot be transferred between selling arrangements 
or to other products.
    (2) Upon request of a lessee, MMS may approve a transportation 
allowance deduction in excess of the limitation prescribed by paragraph 
(b)(1) of this section. The lessee must demonstrate that the 
transportation costs incurred in excess of the limitation prescribed in 
paragraph (b)(1) of this section were reasonable, actual, and necessary. 
An application for exception (using Form MMS-4393, Request to Exceed 
Regulatory Allowance Limitation) shall contain all relevant and 
supporting documentation necessary for MMS to make a determination. 
Under no circumstances shall the value, for royalty purposes, under any 
selling arrangement, be reduced to zero.
    (c) Transportation costs must be allocated among all products 
produced and transported as provided in Sec. 206.55. Transportation 
allowances for oil shall be expressed as dollars per barrel.
    (d) If, after a review and/or audit, MMS determines that a lessee 
has improperly determined a transportation allowance authorized by this 
subpart, then the lessee shall pay any additional royalties, plus 
interest determined in accordance with 30 CFR 218.54, or shall be 
entitled to a credit, without interest.



Sec. 206.55  Determination of transportation allowances.

    (a) Arm's-length transportation contracts. (1)(i) For transportation 
costs incurred by a lessee under an arm's-length contract, the 
transportation allowance shall be the reasonable, actual costs incurred 
by the lessee for transporting oil under that contract, except as 
provided in paragraphs (a)(1)(ii) and (a)(1)(iii) of this section, 
subject to monitoring, review, audit, and adjustment. The lessee shall 
have the burden of demonstrating that its contract is arm's-length. Such 
allowances shall be subject to the provisions of paragraph (f) of this 
section. Before any deduction may be taken, the lessee must submit a 
completed page one of Form MMS-4110 (and Schedule 1), Oil Transportation 
Allowance Report, in accordance with paragraph (c)(1) of this section. A 
transportation allowance may be claimed retroactively for a period of 
not more than 3 months prior to the first day of the month that Form 
MMS-4110 is filed with MMS, unless MMS approves a longer period upon a 
showing of good cause by the lessee.
    (ii) In conducting reviews and audits, MMS will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the transporter for the 
transportation. If the contract reflects more than the total 
consideration, then MMS may require that the transportation allowance be 
determined in accordance with paragraph (b) of this section.
    (iii) If MMS determines that the consideration paid under an arm's-
length transportation contract does not reflect the reasonable value of 
the transportation because of misconduct by or between the contracting 
parties, or because the lessee otherwise has breached its duty to the 
lessor to market the production for the mutual benefit of the lessee and 
the lessor, then MMS shall require that the transportation allowance be 
determined in accordance with paragraph (b) of this section. When MMS 
determines that the value of the transportation may be unreasonable, MMS 
will notify the lessee and give the lessee an opportunity to provide 
written information justifying the lessee's transportation costs.
    (2)(i) If an arm's-length transportation contract includes more than 
one liquid product, and the transportation costs attributable to each 
product cannot be determined from the contract, then the total 
transportation costs shall be allocated in a consistent and equitable 
manner to each of the liquid products transported in the same proportion 
as the ratio of the volume of each product (excluding waste products 
which have no value) to the volume of all liquid products (excluding 
waste products which have no value). Except as provided in this 
paragraph, no allowance may be taken for the costs of transporting lease 
production which is not royalty-bearing without MMS approval.

[[Page 44]]

    (ii) Notwithstanding the requirements of paragraph (i), the lessee 
may propose to MMS a cost allocation method on the basis of the values 
of the products transported. MMS shall approve the method unless it 
determines that it is not consistent with the purposes of the 
regulations in this part.
    (3) If an arm's-length transportation contract includes both gaseous 
and liquid products, and the transportation costs attributable to each 
product cannot be determined from the contract, the lessee shall propose 
an allocation procedure to MMS. The lessee may use the oil 
transportation allowance determined in accordance with its proposed 
allocation procedure until MMS issues its determination on the 
acceptability of the cost allocation. The lessee shall submit all 
available data to support its proposal. The initial proposal must be 
submitted by June 30, 1988 or within 3 months after the last day of the 
month for which the lessee requests a transportation allowance, 
whichever is later (unless MMS approves a longer period). MMS shall then 
determine the oil transportation allowance based upon the lessee's 
proposal and any additional information MMS deems necessary.
    (4) Where the lessee's payments for transportation under an arm's-
length contract are not on a dollar-per-unit basis, the lessee shall 
convert whatever consideration is paid to a dollar value equivalent for 
the purposes of this section.
    (5) Where an arm's-length sales contract price, or a posted price, 
includes a provision whereby the listed price is reduced by a 
transportation factor, MMS will not consider the transportation factor 
to be a transportation allowance. The transportation factor may be used 
in determining the lessee's gross proceeds for the sale of the product. 
The transportation factor may not exceed 50 percent of the base price of 
the product without MMS approval.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length transportation contract or has no contract, including those 
situations where the lessee performs transportation services for itself, 
the transportation allowance will be based upon the lessee's reasonable, 
actual costs as provided in this paragraph. All transportation 
allowances deducted under a non-arms-length or no-contract situation are 
subject to monitoring, review, audit, and adjustment. Before any 
estimated or actual deduction may be taken, the lessee must submit a 
completed Form MMS-4110 in its entirety in accordance with paragraph 
(c)(2) of this section. A transportation allowance may be claimed 
retroactively for a period of not more than 3 months prior to the first 
day of the month that Form MMS-4110 is filed with MMS, unless MMS 
approves a longer period upon a showing of good cause by the lessee. MMS 
will monitor the allowance deductions to determine whether lessees are 
taking deductions that are reasonable and allowable. When necessary or 
appropriate, MMS may direct a lessee to modify its actual transportation 
allowance deduction.
    (2) The transportation allowance for non-arms-length or no-contract 
situations shall be based upon the lessee's actual costs for 
transportation during the reporting period, including operating and 
maintenance expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the initial capital 
investment in the transportation system multiplied by a rate of return 
in accordance with paragraph (b)(2)(iv)(B) of this section. Allowable 
capital costs are generally those for depreciable fixed assets 
(including costs of delivery and installation of capital equipment) 
which are an integral part of the transportation system.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the 
transportation system; maintenance of equipment; maintenance labor; and 
other directly allocable and attributable maintenance expenses which the 
lessee can document.

[[Page 45]]

    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the transportation system is an allowable expense. 
State and Federal income taxes and severance taxes and other fees, 
including royalties, are not allowable expenses.
    (iv) A lessee may use either depreciation or a return on depreciable 
capital investment. After a lessee has elected to use either method for 
a transportation system, the lessee may not later elect to change to the 
other alternative without approval of MMS.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the transportation system services or on 
a unit-of-production method. After an election is made, the lessee may 
not change methods without MMS approval. A change in ownership of a 
transportation system shall not alter the depreciation schedule 
established by the original transporter/lessee for purposes of the 
allowance calculation. With or without a change in ownership, a 
transportation system shall be depreciated only once. Equipment shall 
not be depreciated below a reasonable salvage value.
    (B) MMS shall allow as a cost an amount equal to the initial capital 
investment in the transportation system multiplied by the rate of return 
determined under paragraph (b)(2)(v) of this section. No allowance shall 
be provided for depreciation. This alternative shall apply only to 
transportation facilities first placed in service after March 1, 1988.
    (v) The rate of return shall be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return shall be the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month of the reporting period for which the allowance is 
applicable and shall be effective during the reporting period. The rate 
shall be redetermined at the beginning of each subsequent transportation 
allowance reporting period (which is determined under paragraph (c) of 
this section).
    (3)(i) The deduction for transportation costs shall be determined on 
the basis of the lessee's cost of transporting each product through each 
individual transportation system. Where more than one liquid product is 
transported, allocation of costs to each of the liquid products 
transported shall be in the same proportion as the ratio of the volume 
of each liquid product (excluding waste products which have no value) to 
the volume of all liquid products (excluding waste products which have 
no value) and such allocation shall be made in a consistent and 
equitable manner. Except as provided in this paragraph, the lessee may 
not take an allowance for transporting lease production which is not 
royalty-bearing without MMS approval.
    (ii) Notwithstanding the requirements of paragraph (i), the lessee 
may propose to MMS a cost allocation method on the basis of the values 
of the products transported. MMS shall approve the method unless it 
determines that it is not consistent with the purposes of the 
regulations in this part.
    (4) Where both gaseous and liquid products are transported through 
the same transportation system, the lessee shall propose a cost 
allocation procedure to MMS. The lessee may use the oil transportation 
allowance determined in accordance with its proposed allocation 
procedure until MMS issues its determination on the acceptability of the 
cost allocation. The lessee shall submit all available data to support 
its proposal. The initial proposal must be submitted by June 30, 1988 or 
within 3 months after the last day of the month for which the lessee 
requests a transportation allowance, whichever is later (unless MMS 
approves a longer period). MMS shall then determine the oil 
transportation allowance on the basis of the lessee's proposal and any 
additional information MMS deems necessary.
    (5) A lessee may apply to MMS for an exception from the requirement 
that it compute actual costs in accordance with paragraphs (b)(1) 
through (b)(4) of this section. MMS will grant the exception only if the 
lessee has a tariff for the transportation system approved by the 
Federal Energy Regulatory Commission (FERC) for Indian leases. MMS shall 
deny the exception request if it determines that the tariff is excessive

[[Page 46]]

as compared to arm's-length transportation charges by pipelines, owned 
by the lessee or others, providing similar transportation services in 
that area. If there are no arm's-length transportation charges, MMS 
shall deny the exception request if:
    (i) No FERC cost analysis exists and the FERC has declined to 
investigate under MMS timely objections upon filing; and
    (ii) the tariff significantly exceeds the lessee's actual costs for 
transportation as determined under this section.
    (c) Reporting requirements. (1) Arm's-length contracts. (i) With the 
exception of those transportation allowances specified in paragraphs 
(c)(1)(v) and (c)(1)(vi) of this section, the lessee shall submit page 
one of the initial Form MMS-4110 (and Schedule 1), Oil Transportation 
Allowance Report, prior to, or at the same time as, the transportation 
allowance determined, under an arm's-length contract, is reported on 
Form MMS-2014, Report of Sales and Royalty Remittance. A Form MMS-4110 
received by the end of the month that the Form MMS-2014 is due shall be 
considered to be timely received.
    (ii) The initial Form MMS-4110 shall be effective for a reporting 
period beginning the month that the lessee is first authorized to deduct 
a transportation allowance and shall continue until the end of the 
calendar year, or until the applicable contract or rate terminates or is 
modified or amended, whichever is earlier.
    (iii) After the initial reporting period and for succeeding 
reporting periods, lessees must submit page one of Form MMS-4110 (and 
Schedule 1) within 3 months after the end of the calendar year, or after 
the applicable contract or rate terminates or is modified or amended, 
whichever is earlier, unless MMS approves a longer period (during which 
period the lessee shall continue to use the allowance from the previous 
reporting period).
    (iv) MMS may require that a lessee submit arm's-length 
transportation contracts, production agreements, operating agreements, 
and related documents. Documents shall be submitted within a reasonable 
time, as determined by MMS.
    (v) Transportation allowances which are based on arm's-length 
contracts and which are in effect at the time these regulations become 
effective will be allowed to continue until such allowances terminate. 
For the purposes of this section, only those allowances that have been 
approved by MMS in writing shall qualify as being in effect at the time 
these regulations become effective.
    (vi) MMS may establish, in appropriate circumstances, reporting 
requirements which are different from the requirements of this section.
    (2) Non-arm's-length or no contract. (i) With the exception of those 
transportation allowances specified in paragraphs (c)(2)(v), (c)(2)(vii) 
and (c)(2)(viii) of this section, the lessee shall submit an initial 
Form MMS-4110 prior to, or at the same time as, the transportation 
allowance determined under a non-arm's-length contract or no-contract 
situation is reported on Form MMS-2014. A Form MMS-4110 received by the 
end of the month that the Form MMS-2014 is due shall be considered to be 
timely received. The initial report may be based upon estimated costs.
    (ii) The initial Form MMS-4110 shall be effective for a reporting 
period beginning the month that the lessee first is authorized to deduct 
a transportation allowance and shall continue until the end of the 
calendar year, or until transportation under the non-arm's-length 
contract or the no-contract situation terminates, whichever is earlier.
    (iii) For calendar-year reporting periods succeeding the initial 
reporting period, the lessee shall submit a completed Form MMS-4110 
containing the actual costs for the previous reporting period. If oil 
transportation is continuing, the lessee shall include on Form MMS-4110 
its estimated costs for the next calendar year. The estimated oil 
transportation allowance shall be based on the actual costs for the 
previous reporting period plus or minus any adjustments which are based 
on the lessee's knowledge of decreases or increases that will affect the 
allowance. MMS must receive the Form

[[Page 47]]

MMS-4110 within 3 months after the end of the previous reporting period, 
unless MMS approves a longer period (during which period the lessee 
shall continue to use the allowance from the previous reporting period).
    (iv) For new transportation facilities or arrangements, the lessee's 
initial Form MMS-4110 shall include estimates of the allowable oil 
transportation costs for the applicable period. Cost estimates shall be 
based upon the most recently available operations data for the 
transportation system or, if such data are not available, the lessee 
shall use estimates based upon industry data for similar transportation 
systems.
    (v) Non-arm's-length contract or no-contract transportation 
allowances which are in effect at the time these regulations become 
effective will be allowed to continue until such allowances terminate. 
For the purposes of this section, only those allowances that have been 
approved by MMS in writing shall qualify as being in effect at the time 
these regulations become effective.
    (vi) Upon request by MMS, the lessee shall submit all data used to 
prepare its Form MMS-4110. The data shall be provided within a 
reasonable period of time, as determined by MMS.
    (vii) MMS may establish, in appropriate circumstances, reporting 
requirements which are different from the requirements of this section.
    (viii) If the lessee is authorized to use its FERC-approved tariff 
as its transportation cost in accordance with paragraph (b)(5) of this 
section, it shall follow the reporting requirements of paragraph (c)(1) 
of this section.
    (3) MMS may establish reporting dates for individual lessees 
different from those specified in this subpart in order to provide more 
effective administration. Lessees will be notified of any change in 
their reporting period.
    (4) Transportation allowances must be reported as a separate line 
item on Form MMS-2014, unless MMS approves a different reporting 
procedure.
    (d) Interest assessments for incorrect or late reports and for 
failure to report. (1) If a lessee deducts a transportation allowance on 
its Form MMS-2014 without complying with the requirements of this 
section, the lessee shall pay interest only on the amount of such 
deduction until the requirements of this section are complied with. The 
lessee also shall repay the amount of any allowance which is disallowed 
by this section.
    (2) If a lessee erroneously reports a transportation allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with 30 CFR 218.54.
    (e) Adjustments. (1) If the actual transportation allowance is less 
than the amount the lessee has taken on Form MMS-2014 for each month 
during the allowance form reporting period, the lessee shall be required 
to pay additional royalties due plus interest computed under 30 CFR 
218.54, retroactive to the first day of the first month the lessee is 
authorized to deduct a transportation allowance. If the actual 
transportation allowance is greater than the amount the lessee has taken 
on Form MMS-2014 for each month during the allowance form reporting 
period, the lessee shall be entitled to a credit without interest.
    (2) For lessees transporting production from Indian leases, the 
lessee must submit a corrected Form MMS-2014 to reflect actual costs, 
together with any payment, in accordance with instructions provided by 
MMS.
    (f) Actual or theoretical losses. Notwithstanding any other 
provisions of this subpart, for other than arm's-length contracts, no 
cost shall be allowed for oil transportation which results from payments 
(either volumetric or for value) for actual or theoretical losses. This 
section does not apply when the transportation allowance is based upon a 
FERC or State regulatory agency approved tariff.
    (g) Other transportation cost determinations. The provisions of this 
section shall apply to determine transportation costs when establishing 
value using a netback valuation procedure or any other procedure that 
requires deduction of transportation costs.

[[Page 48]]



                         Subpart C--Federal Oil

    Source: 65 FR 14088, Mar. 15, 2000, unless otherwise noted.



Sec. 206.100  What is the purpose of this subpart?

    (a) This subpart applies to all oil produced from Federal oil and 
gas leases onshore and on the Outer Continental Shelf (OCS). It explains 
how you as a lessee must calculate the value of production for royalty 
purposes consistent with the mineral leasing laws, other applicable 
laws, and lease terms.
    (b) If you are a designee and if you dispose of production on behalf 
of a lessee, the terms ``you'' and ``your'' in this subpart refer to you 
and not to the lessee. In this circumstance, you must determine and 
report royalty value for the lessee's oil by applying the rules in this 
subpart to your disposition of the lessee's oil.
    (c) If you are a designee and only report for a lessee, and do not 
dispose of the lessee's production, references to ``you'' and ``your'' 
in this subpart refer to the lessee and not the designee. In this 
circumstance, you as a designee must determine and report royalty value 
for the lessee's oil by applying the rules in this subpart to the 
lessee's disposition of its oil.
    (d) If the regulations in this subpart are inconsistent with:
    (1) A Federal statute;
    (2) A settlement agreement between the United States and a lessee 
resulting from administrative or judicial litigation;
    (3) A written agreement between the lessee and the MMS Director 
establishing a method to determine the value of production from any 
lease that MMS expects at least would approximate the value established 
under this subpart; or
    (4) An express provision of an oil and gas lease subject to this 
subpart, then the statute, settlement agreement, written agreement, or 
lease provision will govern to the extent of the inconsistency.
    (e) MMS may audit and adjust all royalty payments.



Sec. 206.101  What definitions apply to this subpart?

    The following definitions apply to this subpart:
    Affiliate means a person who controls, is controlled by, or is under 
common control with another person. For purposes of this subpart:
    (1) Ownership or common ownership of more than 50 percent of the 
voting securities, or instruments of ownership, or other forms of 
ownership, of another person constitutes control. Ownership of less than 
10 percent constitutes a presumption of noncontrol that MMS may rebut.
    (2) If there is ownership or common ownership of between 10 and 50 
percent of the voting securities or instruments of ownership, or other 
forms of ownership, of another person, MMS will consider the following 
factors in determining whether there is control under the circumstances 
of a particular case:
    (i) The extent to which there are common officers or directors;
    (ii) With respect to the voting securities, or instruments of 
ownership, or other forms of ownership: the percentage of ownership or 
common ownership, the relative percentage of ownership or common 
ownership compared to the percentage(s) of ownership by other persons, 
whether a person is the greatest single owner, or whether there is an 
opposing voting bloc of greater ownership;
    (iii) Operation of a lease, plant, or other facility;
    (iv) The extent of participation by other owners in operations and 
day-to-day management of a lease, plant, or other facility; and
    (v) Other evidence of power to exercise control over or common 
control with another person.
    (3) Regardless of any percentage of ownership or common ownership, 
relatives, either by blood or marriage, are affiliates.
    ANS means Alaska North Slope (ANS).
    Area means a geographic region at least as large as the limits of an 
oil field, in which oil has similar quality, economic, and legal 
characteristics.

[[Page 49]]

    Arm's-length contract means a contract or agreement between 
independent persons who are not affiliates and who have opposing 
economic interests regarding that contract. To be considered arm's 
length for any production month, a contract must satisfy this definition 
for that month, as well as when the contract was executed.
    Audit means a review, conducted under generally accepted accounting 
and auditing standards, of royalty payment compliance activities of 
lessees, designees or other persons who pay royalties, rents, or bonuses 
on Federal leases.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Condensate means liquid hydrocarbons (normally exceeding 40 degrees 
of API gravity) recovered at the surface without processing. Condensate 
is the mixture of liquid hydrocarbons resulting from condensation of 
petroleum hydrocarbons existing initially in a gaseous phase in an 
underground reservoir.
    Contract means any oral or written agreement, including amendments 
or revisions, between two or more persons, that is enforceable by law 
and that with due consideration creates an obligation.
    Designee means the person the lessee designates to report and pay 
the lessee's royalties for a lease.
    Exchange agreement means an agreement where one person agrees to 
deliver oil to another person at a specified location in exchange for 
oil deliveries at another location. Exchange agreements may or may not 
specify prices for the oil involved. They frequently specify dollar 
amounts reflecting location, quality, or other differentials. Exchange 
agreements include buy/sell agreements, which specify prices to be paid 
at each exchange point and may appear to be two separate sales within 
the same agreement. Examples of other types of exchange agreements 
include, but are not limited to, exchanges of produced oil for specific 
types of crude oil (e.g., West Texas Intermediate); exchanges of 
produced oil for other crude oil at other locations (Location Trades); 
exchanges of produced oil for other grades of oil (Grade Trades); and 
multi-party exchanges.
    Field means a geographic region situated over one or more subsurface 
oil and gas reservoirs and encompassing at least the outermost 
boundaries of all oil and gas accumulations known within those 
reservoirs, vertically projected to the land surface. State oil and gas 
regulatory agencies usually name onshore fields and designate their 
official boundaries. MMS names and designates boundaries of OCS fields.
    Gathering means the movement of lease production to a central 
accumulation or treatment point on the lease, unit, or communitized 
area, or to a central accumulation or treatment point off the lease, 
unit, or communitized area that BLM or MMS approves for onshore and 
offshore leases, respectively.
    Gross proceeds means the total monies and other consideration 
accruing for the disposition of oil produced. Gross proceeds also 
include, but are not limited to, the following examples:
    (1) Payments for services such as dehydration, marketing, 
measurement, or gathering which the lessee must perform at no cost to 
the Federal Government;
    (2) The value of services, such as salt water disposal, that the 
producer normally performs but that the buyer performs on the producer's 
behalf;
    (3) Reimbursements for harboring or terminaling fees;
    (4) Tax reimbursements, even though the Federal royalty interest may 
be exempt from taxation;
    (5) Payments made to reduce or buy down the purchase price of oil to 
be produced in later periods, by allocating such payments over the 
production whose price the payment reduces and including the allocated 
amounts as proceeds for the production as it occurs; and
    (6) Monies and all other consideration to which a seller is 
contractually or legally entitled, but does not seek to collect through 
reasonable efforts.
    Index pricing means using ANS crude oil spot prices, West Texas 
Intermediate (WTI) crude oil spot prices at Cushing, Oklahoma, or other 
appropriate crude oil spot prices for royalty valuation.

[[Page 50]]

    Index pricing point means the physical location where an index price 
is established in an MMS-approved publication.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by the United States under a 
mineral leasing law that authorizes exploration for, development or 
extraction of, or removal of oil or gas--or the land area covered by 
that authorization, whichever the context requires.
    Lessee means any person to whom the United States issues an oil and 
gas lease, an assignee of all or a part of the record title interest, or 
any person to whom operating rights in a lease have been assigned.
    Location differential means an amount paid or received (whether in 
money or in barrels of oil) under an exchange agreement that results 
from differences in location between oil delivered in exchange and oil 
received in the exchange. A location differential may represent all or 
part of the difference between the price received for oil delivered and 
the price paid for oil received under a buy/sell exchange agreement.
    Market center means a major point MMS recognizes for oil sales, 
refining, or transshipment. Market centers generally are locations where 
MMS-approved publications publish oil spot prices.
    Marketable condition means oil sufficiently free from impurities and 
otherwise in a condition a purchaser will accept under a sales contract 
typical for the field or area.
    MMS-approved publication means a publication MMS approves for 
determining ANS spot prices, other spot prices, or location 
differentials.
    Netting means reducing the reported sales value to account for 
transportation instead of reporting a transportation allowance as a 
separate entry on Form MMS-2014.
    Oil means a mixture of hydrocarbons that existed in the liquid phase 
in natural underground reservoirs, remains liquid at atmospheric 
pressure after passing through surface separating facilities, and is 
marketed or used as a liquid. Condensate recovered in lease separators 
or field facilities is oil.
    Outer Continental Shelf (OCS) means all submerged lands lying 
seaward and outside of the area of lands beneath navigable waters as 
defined in Section 2 of the Submerged Lands Act (43 U.S.C. 1301) and of 
which the subsoil and seabed appertain to the United States and are 
subject to its jurisdiction and control.
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture (when established as a 
separate entity).
    Quality differential means an amount paid or received under an 
exchange agreement (whether in money or in barrels of oil) that results 
from differences in API gravity, sulfur content, viscosity, metals 
content, and other quality factors between oil delivered and oil 
received in the exchange. A quality differential may represent all or 
part of the difference between the price received for oil delivered and 
the price paid for oil received under a buy/sell agreement.
    Rocky Mountain Region means the States of Colorado, Montana, North 
Dakota, South Dakota, Utah, and Wyoming, except for those portions of 
the San Juan Basin and other oil-producing fields in the ``Four 
Corners'' area that lie within Colorado and Utah.
    Sale means a contract between two persons where:
    (1) The seller unconditionally transfers title to the oil to the 
buyer and does not retain any related rights such as the right to buy 
back similar quantities of oil from the buyer elsewhere;
    (2) The buyer pays money or other consideration for the oil; and
    (3) The parties' intent is for a sale of the oil to occur.
    Spot price means the price under a spot sales contract where:
    (1) A seller agrees to sell to a buyer a specified amount of oil at 
a specified price over a specified period of short duration;
    (2) No cancellation notice is required to terminate the sales 
agreement; and
    (3) There is no obligation or implied intent to continue to sell in 
subsequent periods.
    Tendering program means a producer's offer of a portion of its crude 
oil produced from a field or area for competitive bidding, regardless of 
whether the

[[Page 51]]

production is offered or sold at or near the lease or unit or away from 
the lease or unit.
    Trading month means the span of time during which crude oil trading 
occurs and spot prices are determined, generally for deliveries of 
production in the following calendar month. For example, for ANS spot 
prices, the trading month includes all business days in the calendar 
month. For other spot prices, for example, the trading month may include 
the span of time from the 26th of the previous month through the 25th of 
the current month.
    Transportation allowance means a deduction in determining royalty 
value for the reasonable, actual costs of moving oil to a point of sale 
or delivery off the lease, unit area, or communitized area. The 
transportation allowance does not include gathering costs.



Sec. 206.102  How do I calculate royalty value for oil that I or my affiliate sell(s) under an arm's-length contract?

    (a) The value of oil under this section is the gross proceeds 
accruing to the seller under the arm's-length contract, less applicable 
allowances determined under Secs. 206.110 or 206.111. This value does 
not apply if you exercise an option to use a different value provided in 
paragraph (d)(1) or (d)(2)(i) of this section, or if one of the 
exceptions in paragraph (c) of this section applies. Use this paragraph 
(a) to value oil that:
    (1) You sell under an arm's-length sales contract; or
    (2) You sell or transfer to your affiliate or another person under a 
non-arm's-length contract and that affiliate or person, or another 
affiliate of either of them, then sells the oil under an arm's-length 
contract, unless you exercise the option provided in paragraph (d)(2)(i) 
of this section.
    (b) If you have multiple arm's-length contracts to sell oil produced 
from a lease that is valued under paragraph (a) of this section, the 
value of the oil is the volume-weighted average of the values 
established under this section for each contract for the sale of oil 
produced from that lease.
    (c) This paragraph contains exceptions to the valuation rule in 
paragraph (a) of this section. Apply these exceptions on an individual 
contract basis.
    (1) In conducting reviews and audits, if MMS determines that any 
arm's-length sales contract does not reflect the total consideration 
actually transferred either directly or indirectly from the buyer to the 
seller, MMS may require that you value the oil sold under that contract 
either under Sec. 206.103 or at the total consideration received.
    (2) You must value the oil under Sec. 206.103 if MMS determines that 
the value under paragraph (a) of this section does not reflect the 
reasonable value of the production due to either:
    (i) Misconduct by or between the parties to the arm's-length 
contract; or
    (ii) Breach of your duty to market the oil for the mutual benefit of 
yourself and the lessor.
    (A) MMS will not use this provision to simply substitute its 
judgment of the market value of the oil for the proceeds received by the 
seller under an arm's-length sales contract.
    (B) The fact that the price received by the seller under an arm's 
length contract is less than other measures of market price, such as 
index prices, is insufficient to establish breach of the duty to market 
unless MMS finds additional evidence that the seller acted unreasonably 
or in bad faith in the sale of oil from the lease.
    (d)(1) If you enter into an arm's-length exchange agreement, or 
multiple sequential arm's-length exchange agreements, and following the 
exchange(s) you or your affiliate sell(s) the oil received in the 
exchange(s) under an arm's-length contract, then you may use either 
Sec. 206.102(a) or Sec. 206.103 to value your production for royalty 
purposes.
    (i) If you use Sec. 206.102(a), your gross proceeds are the gross 
proceeds under your or your affiliate's arm's-length sales contract 
after the exchange(s) occur(s). You must adjust your gross proceeds for 
any location or quality differential, or other adjustments, you received 
or paid under the arm's-length exchange agreement(s). If MMS determines 
that any arm's-length exchange agreement does not reflect reasonable 
location or quality differentials, MMS

[[Page 52]]

may require you to value the oil under Sec. 206.103. You may not 
otherwise use the price or differential specified in an arm's-length 
exchange agreement to value your production.
    (ii) When you elect under Sec. 206.102(d)(1) to use Sec. 206.102(a) 
or Sec. 206.103, you must make the same election for all of your 
production from the same unit, communitization agreement, or lease (if 
the lease is not part of a unit or communitization agreement) sold under 
arm's-length contracts following arm's-length exchange agreements. You 
may not change your election more often than once every 2 years.
    (2)(i) If you sell or transfer your oil production to your affiliate 
and that affiliate or another affiliate then sells the oil under an 
arm's-length contract, you may use either Sec. 206.102(a) or 
Sec. 206.103 to value your production for royalty purposes.
    (ii) When you elect under Sec. 206.102(d)(2)(i) to use 
Sec. 206.102(a) or Sec. 206.103, you must make the same election for all 
of your production from the same unit, communitization agreement, or 
lease (if the lease is not part of a unit or communitization agreement) 
that your affiliates resell at arm's length. You may not change your 
election more often than once every 2 years.
    (e) If you value oil under paragraph (a) of this section:
    (1) MMS may require you to certify that your or your affiliate's 
arm's-length contract provisions include all of the consideration the 
buyer must pay, either directly or indirectly, for the oil.
    (2) You must base value on the highest price the seller can receive 
through legally enforceable claims under the contract.
    (i) If the seller fails to take proper or timely action to receive 
prices or benefits it is entitled to, you must pay royalty at a value 
based upon that obtainable price or benefit. But you will owe no 
additional royalties unless or until the seller receives monies or 
consideration resulting from the price increase or additional benefits, 
if:
    (A) The seller makes timely application for a price increase or 
benefit allowed under the contract;
    (B) The purchaser refuses to comply; and
    (C) The seller takes reasonable documented measures to force 
purchaser compliance.
    (ii) Paragraph (e)(2)(i) of this section will not permit you to 
avoid your royalty payment obligation where a purchaser fails to pay, 
pays only in part, or pays late. Any contract revisions or amendments 
that reduce prices or benefits to which the seller is entitled must be 
in writing and signed by all parties to the arm's-length contract.



Sec. 206.103  How do I value oil that is not sold under an arm's-length contract?

    This section explains how to value oil that you may not value under 
Sec. 206.102 or that you elect under Sec. 206.102(d) to value under this 
section. First determine whether paragraph (a), (b), or (c) of this 
section applies to production from your lease, or whether you may apply 
paragraph (d) or (e) with MMS approval.
    (a) Production from leases in California or Alaska. Value is the 
average of the daily mean ANS spot prices published in any MMS-approved 
publication during the trading month most concurrent with the production 
month. (For example, if the production month is June, compute the 
average of the daily mean prices using the daily ANS spot prices 
published in the MMS-approved publication for all the business days in 
June.)
    (1) To calculate the daily mean spot price, average the daily high 
and low prices for the month in the selected publication.
    (2) Use only the days and corresponding spot prices for which such 
prices are published.
    (3) You must adjust the value for applicable location and quality 
differentials, and you may adjust it for transportation costs, under 
Sec. 206.112.
    (4) After you select an MMS-approved publication, you may not select 
a different publication more often than once every 2 years, unless the 
publication you use is no longer published or MMS revokes its approval 
of the publication. If you are required to change publications, you must 
begin a new 2-year period.

[[Page 53]]

    (b) Production from leases in the Rocky Mountain Region. This 
paragraph provides methods and options for valuing your production under 
different factual situations.
    (1) If you have an MMS-approved tendering program, value your oil 
under paragraph (b)(2) of this section. If you do not have an MMS-
approved tendering program, you may value your oil under either 
paragraph (b)(3) or paragraph (b)(4) of this section.
    (i) You must apply the same subparagraph of this section to value 
all of your production from the same unit, communitization agreement, or 
lease (if the lease is not part of a unit or communitization agreement) 
that you cannot value under Sec. 206.102 or that you elect under 
Sec. 206.102(d) to value under this section.
    (ii) After you select either paragraph (b)(3) or (b)(4) of this 
section, you may not change to the other method more often than once 
every 2 years, unless the method you have been using is no longer 
applicable and you must apply one of the other paragraphs. If you change 
methods, you must begin a new 2-year period.
    (2) If you have an MMS-approved tendering program, the value of 
production from leases in the area the tendering program covers is the 
highest winning bid price for tendered volumes.
    (i) You must offer and sell at least 30 percent of your production 
from both Federal and non-Federal leases in that area under your 
tendering program.
    (ii) You also must receive at least three bids for the tendered 
volumes from bidders who do not have their own tendering programs that 
cover some or all of the same area.
    (iii) MMS will provide additional criteria for approval of a 
tendering program in its revenue reporter handbook.
    (3) Value is the volume-weighted average gross proceeds accruing to 
the seller under your and your affiliates' arm's-length contracts for 
the purchase or sale of production from the field or area during the 
production month. The total volume purchased or sold under those 
contracts must exceed 50 percent of your and your affiliates' production 
from both Federal and non-Federal leases in the same field or area 
during that month. Before calculating the volume-weighted average, you 
must normalize the quality of the oil in your or your affiliates' arms-
length purchases or sales to the same gravity as that of the oil 
produced from the lease.
    (4) Value is the average of the daily mean spot prices published in 
any MMS-approved publication for WTI crude at Cushing, Oklahoma, during 
the trading month most concurrent with the production month. (For 
example, if the production month is June and the trading month is May 
26--June 25, compute the average of the daily mean prices using the 
daily Cushing spot prices published in the MMS-approved publication for 
all the business days between and including May 26 and June 25.)
    (i) Calculate the daily mean spot price by averaging the daily high 
and low prices for the period in the selected publication.
    (ii) Use only the days and corresponding spot prices for which such 
prices are published.
    (iii) You must adjust the value for applicable location and quality 
differentials, and you may adjust it for transportation costs, under 
Sec. 206.112.
    (iv) After you select an MMS-approved publication, you may not 
select a different publication more often than once every 2 years, 
unless the publication you use is no longer published or MMS revokes its 
approval of the publication. If you are required to change publications, 
you must begin a new 2-year period.
    (5) If you demonstrate to MMS's satisfaction that paragraphs (b)(2) 
through (b)(4) of this section result in an unreasonable value for your 
production as a result of circumstances regarding that production, the 
MMS Director may establish an alternative valuation method.
    (c) Production from leases not located in California, Alaska, or the 
Rocky Mountain Region. (1) Value is the average of the daily mean spot 
prices published in any MMS-approved publication:
    (i) For the market center nearest your lease for crude oil similar 
in quality to that of your production (for example, at the St. James, 
Louisiana,

[[Page 54]]

market center, spot prices are published for both Light Louisiana Sweet 
and Eugene Island crude oils--their quality specifications differ 
significantly); and
    (ii) During the trading month most concurrent with the production 
month. (For example, if the production month is June and the trading 
month is May 26-June 25, compute the average of the daily mean prices 
using the daily spot prices published in the MMS-approved publication 
for all the business days between and including May 26 and June 25 for 
the applicable market center.)
    (2) Calculate the daily mean spot price by averaging the daily high 
and low prices for the period in the selected publication. Use only the 
days and corresponding spot prices for which such prices are published. 
You must adjust the value for applicable location and quality 
differentials, and you may adjust it for transportation costs, under 
Sec. 206.112.
    (3) After you select an MMS-approved publication, you may not select 
a different publication more often than once every 2 years, unless the 
publication you use is no longer published or MMS revokes its approval 
of the publication. If you are required to change publications, you must 
begin a new 2-year period.
    (d) Unavailable or unreasonable index prices. If MMS determines that 
any of the index prices referenced in paragraphs (a), (b), and (c) of 
this section are unavailable or no longer represent reasonable royalty 
value, in any particular case, MMS may establish reasonable royalty 
value based on other relevant matters.
    (e) Production delivered to your refinery and index price is 
unreasonable.(1) Instead of valuing your production under paragraph (a), 
(b), or (c) of this section, you may apply to the MMS Director to 
establish a value representing the market at the refinery if:
    (i) You transport your oil directly to your or your affiliate's 
refinery, or exchange your oil for oil delivered to your or your 
affiliate's refinery; and
    (ii) You must value your oil under this section at an index price; 
and
    (iii) You believe that use of the index price is unreasonable.
    (2) You must provide adequate documentation and evidence 
demonstrating the market value at the refinery. That evidence may 
include, but is not limited to:
    (i) Costs of acquiring other crude oil at or for the refinery;
    (ii) How adjustments for quality, location, and transportation were 
factored into the price paid for other oil;
    (iii) Volumes acquired for and refined at the refinery; and
    (iv) Any other appropriate evidence or documentation that MMS 
requires.
    (3) If the MMS Director establishes a value representing market 
value at the refinery, you may not take an allowance against that value 
under Sec. 206.112(b) unless it is included in the Director's approval.

[65 FR 14088, Mar. 15, 2002, as amended at 67 FR 19111, Apr. 18, 2002]



Sec. 206.104  What index price publications are acceptable to MMS?

    (a) MMS periodically will publish in the Federal Register a list of 
acceptable index price publications based on certain criteria, including 
but not limited to:
    (1) Publications buyers and sellers frequently use;
    (2) Publications frequently mentioned in purchase or sales 
contracts;
    (3) Publications that use adequate survey techniques, including 
development of spot price estimates based on daily surveys of buyers and 
sellers of ANS and other crude oil; and (4) Publications independent 
from MMS, other lessors, and lessees.
    (b) Any publication may petition MMS to be added to the list of 
acceptable publications.
    (c) MMS will reference the tables you must use in the publications 
to determine the associated index prices.
    (d) MMS may revoke its approval of a particular publication if it 
determines that the prices published in the publication do not 
accurately represent spot market values.



Sec. 206.105  What records must I keep to support my calculations of value under this subpart?

    If you determine the value of your oil under this subpart, you must 
retain all

[[Page 55]]

data relevant to the determination of royalty value.
    (a) You must be able to show:
    (1) How you calculated the value you reported, including all 
adjustments for location, quality, and transportation, and
    (2) How you complied with these rules.
    (b) Recordkeeping requirements are found at part 207 of this 
chapter.
    (c) MMS may review and audit your data, and MMS will direct you to 
use a different value if it determines that the reported value is 
inconsistent with the requirements of this subpart.



Sec. 206.106  What are my responsibilities to place production into marketable condition and to market production?

    You must place oil in marketable condition and market the oil for 
the mutual benefit of the lessee and the lessor at no cost to the 
Federal Government. If you use gross proceeds under an arm's-length 
contract in determining value, you must increase those gross proceeds to 
the extent that the purchaser, or any other person, provides certain 
services that the seller normally would be responsible to perform to 
place the oil in marketable condition or to market the oil.



Sec. 206.107  How do I request a value determination?

    (a) You may request a value determination from MMS regarding any 
Federal lease oil production. Your request must:
    (1) Be in writing;
    (2) Identify specifically all leases involved, the record title or 
operating rights owners of those leases, and the designees for those 
leases;
    (3) Completely explain all relevant facts. You must inform MMS of 
any changes to relevant facts that occur before we respond to your 
request;
    (4) Include copies of all relevant documents;
    (5) Provide your analysis of the issue(s), including citations to 
all relevant precedents (including adverse precedents); and
    (6) Suggest your proposed valuation method.
    (b) MMS will reply to requests expeditiously. MMS may either:
    (1) Issue a value determination signed by the Assistant Secretary, 
Land and Minerals Management; or
    (2) Issue a value determination by MMS; or
    (3) Inform you in writing that MMS will not provide a value 
determination. Situations in which MMS typically will not provide any 
value determination include, but are not limited to:
    (i) Requests for guidance on hypothetical situations; and
    (ii) Matters that are the subject of pending litigation or 
administrative appeals.
    (c)(1) A value determination signed by the Assistant Secretary, Land 
and Minerals Management, is binding on both you and MMS until the 
Assistant Secretary modifies or rescinds it.
    (2) After the Assistant Secretary issues a value determination, you 
must make any adjustments in royalty payments that follow from the 
determination and, if you owe additional royalties, pay late payment 
interest under 30 CFR 218.54.
    (3) A value determination signed by the Assistant Secretary is the 
final action of the Department and is subject to judicial review under 5 
U.S.C. 701-706.
    (d) A value determination issued by MMS is binding on MMS and 
delegated States with respect to the specific situation addressed in the 
determination unless the MMS (for MMS-issued value determinations) or 
the Assistant Secretary modifies or rescinds it.
    (1) A value determination by MMS is not an appealable decision or 
order under 30 CFR part 290 subpart B.
    (2) If you receive an order requiring you to pay royalty on the same 
basis as the value determination, you may appeal that order under 30 CFR 
part 290 subpart B.
    (e) In making a value determination, MMS or the Assistant Secretary 
may use any of the applicable valuation criteria in this subpart.
    (f) A change in an applicable statute or regulation on which any 
value determination is based takes precedence over the value 
determination, regardless of whether the MMS or the Assistant Secretary 
modifies or rescinds the value determination.

[[Page 56]]

    (g) The MMS or the Assistant Secretary generally will not 
retroactively modify or rescind a value determination issued under 
paragraph (d) of this section, unless:
    (1) There was a misstatement or omission of material facts; or
    (2) The facts subsequently developed are materially different from 
the facts on which the guidance was based.
    (h) MMS may make requests and replies under this section available 
to the public, subject to the confidentiality requirements under 
Sec. 206.108.



Sec. 206.108  Does MMS protect information I provide?

    Certain information you submit to MMS regarding valuation of oil, 
including transportation allowances, may be exempt from disclosure. To 
the extent applicable laws and regulations permit, MMS will keep 
confidential any data you submit that is privileged, confidential, or 
otherwise exempt from disclosure. All requests for information must be 
submitted under the Freedom of Information Act regulations of the 
Department of the Interior at 43 CFR part 2.



Sec. 206.109  When may I take a transportation allowance in determining value?

    (a) Transportation allowances permitted when value is based on gross 
proceeds. MMS will allow a deduction for the reasonable, actual costs to 
transport oil from the lease to the point off the lease under 
Secs. 206.110 or 206.111, as applicable. This paragraph applies when:
    (1) You value oil under Sec. 206.102 based on gross proceeds from a 
sale at a point off the lease, unit, or communitized area where the oil 
is produced, and
    (2) The movement to the sales point is not gathering.
    (b) Transportation allowances and other adjustments that apply when 
value is based on index pricing. If you value oil using an index price 
under Sec. 206.103, MMS will allow a deduction for certain location/
quality adjustments and certain costs associated with transporting oil 
as provided under Sec. 206.112.
    (c) Limits on transportation allowances. (1) Except as provided in 
paragraph (c)(2) of this section, your transportation allowance may not 
exceed 50 percent of the value of the oil as determined under 
Sec. 206.102 or Sec. 206.103 of this subpart. You may not use 
transportation costs incurred to move a particular volume of production 
to reduce royalties owed on production for which those costs were not 
incurred.
    (2) You may ask MMS to approve a transportation allowance in excess 
of the limitation in paragraph (c)(1) of this section. You must 
demonstrate that the transportation costs incurred were reasonable, 
actual, and necessary. Your application for exception (using Form MMS-
4393, Request to Exceed Regulatory Allowance Limitation) must contain 
all relevant and supporting documentation necessary for MMS to make a 
determination. You may never reduce the royalty value of any production 
to zero.
    (d) Allocation of transportation costs. You must allocate 
transportation costs among all products produced and transported as 
provided in Secs. 206.110 and 206.111. You must express transportation 
allowances for oil as dollars per barrel.
    (e) Liability for additional payments. If MMS determines that you 
took an excessive transportation allowance, then you must pay any 
additional royalties due, plus interest under 30 CFR 218.54. You also 
could be entitled to a credit with interest under applicable rules if 
you understated your transportation allowance. If you take a deduction 
for transportation on Form MMS-2014 by improperly netting the allowance 
against the sales value of the oil instead of reporting the allowance as 
a separate entry, MMS may assess you an amount under Sec. 206.116.



Sec. 206.110  How do I determine a transportation allowance under an arm's-length transportation contract?

    (a) If you or your affiliate incur transportation costs under an 
arm's-length transportation contract, you may claim a transportation 
allowance for the reasonable, actual costs incurred for transporting oil 
under that contract, except as provided in paragraphs (a)(1) and (a)(2) 
of this section and subject to the limitation in Sec. 206.109(c). You 
must be able to demonstrate that your contract is arm's

[[Page 57]]

length. You do not need MMS approval before reporting a transportation 
allowance for costs incurred under an arm's-length transportation 
contract.
    (1) If MMS determines that the contract reflects more than the 
consideration actually transferred either directly or indirectly from 
you or your affiliate to the transporter for the transportation, MMS may 
require that you calculate the transportation allowance under 
Sec. 206.111.
    (2) You must calculate the transportation allowance under 
Sec. 206.111 if MMS determines that the consideration paid under an 
arm's-length transportation contract does not reflect the reasonable 
value of the transportation due to either:
    (i) Misconduct by or between the parties to the arm's-length 
contract; or
    (ii) Breach of your duty to market the oil for the mutual benefit of 
yourself and the lessor.
    (A) MMS will not use this provision to simply substitute its 
judgment of the reasonable oil transportation costs incurred by you or 
your affiliate under an arm's-length transportation contract.
    (B) The fact that the cost you or your affiliate incur in an arm's 
length transaction is higher than other measures of transportation 
costs, such as rates paid by others in the field or area, is 
insufficient to establish breach of the duty to market unless MMS finds 
additional evidence that you or your affiliate acted unreasonably or in 
bad faith in transporting oil from the lease.
    (b) If your arm's-length transportation contract includes more than 
one liquid product, and the transportation costs attributable to each 
product cannot be determined from the contract, then you must allocate 
the total transportation costs to each of the liquid products 
transported.
    (1) Your allocation must use the same proportion as the ratio of the 
volume of each product (excluding waste products with no value) to the 
volume of all liquid products (excluding waste products with no value).
    (2) You may not claim an allowance for the costs of transporting 
lease production that is not royalty-bearing.
    (3) You may propose to MMS a cost allocation method on the basis of 
the values of the products transported. MMS will approve the method 
unless it is not consistent with the purposes of the regulations in this 
subpart.
    (c) If your arm's-length transportation contract includes both 
gaseous and liquid products, and the transportation costs attributable 
to each product cannot be determined from the contract, then you must 
propose an allocation procedure to MMS.
    (1) You may use your proposed procedure to calculate a 
transportation allowance until MMS accepts or rejects your cost 
allocation. If MMS rejects your cost allocation, you must amend your 
Form MMS-2014 for the months that you used the rejected method and pay 
any additional royalty and interest due.
    (2) You must submit your initial proposal, including all available 
data, within 3 months after first claiming the allocated deductions on 
Form MMS-2014.
    (d) If your payments for transportation under an arm's-length 
contract are not on a dollar-per-unit basis, you must convert whatever 
consideration is paid to a dollar-value equivalent.
    (e) If your arm's-length sales contract includes a provision 
reducing the contract price by a transportation factor, do not 
separately report the transportation factor as a transportation 
allowance on Form MMS-2014.
    (1) You may use the transportation factor in determining your gross 
proceeds for the sale of the product.
    (2) You must obtain MMS approval before claiming a transportation 
factor in excess of 50 percent of the base price of the product.



Sec. 206.111  How do I determine a transportation allowance under a non-arm's-length transportation arrangement?

    (a) If you or your affiliate have a non-arm's-length transportation 
contract or no contract, including those situations where you or your 
affiliate perform your own transportation services, calculate your 
transportation allowance based on your or your affiliate's reasonable, 
actual transportation costs using the procedures provided in this 
section.

[[Page 58]]

    (b) Base your transportation allowance for non-arm's-length or no-
contract situations on your or your affiliate's actual costs for 
transportation during the reporting period, including:
    (1) Operating and maintenance expenses under paragraphs (d) and (e) 
of this section;
    (2) Overhead under paragraph (f) of this section;
    (3) Depreciation under paragraphs (g) and (h) of this section;
    (4) A return on undepreciated capital investment under paragraph (i) 
of this section; and
    (5) Once the transportation system has been depreciated below ten 
percent of total capital investment, a return on ten percent of total 
capital investment under paragraph (j) of this section.
    (c) Allowable capital costs are generally those for depreciable 
fixed assets (including costs of delivery and installation of capital 
equipment) which are an integral part of the transportation system.
    (d) Allowable operating expenses include:
    (i) Operations supervision and engineering;
    (ii) Operations labor;
    (iii) Fuel;
    (iv) Utilities;
    (v) Materials;
    (vi) Ad valorem property taxes;
    (vii) Rent;
    (viii) Supplies; and
    (ix) Any other directly allocable and attributable operating expense 
which you can document.
    (e) Allowable maintenance expenses include:
    (i) Maintenance of the transportation system;
    (ii) Maintenance of equipment;
    (iii) Maintenance labor; and
    (iv) Other directly allocable and attributable maintenance expenses 
which you can document.
    (f) Overhead directly attributable and allocable to the operation 
and maintenance of the transportation system is an allowable expense. 
State and Federal income taxes and severance taxes and other fees, 
including royalties, are not allowable expenses.
    (g) To compute depreciation, you may elect to use either a straight-
line depreciation method based on the life of equipment or on the life 
of the reserves which the transportation system services, or a unit-of-
production method. After you make an election, you may not change 
methods without MMS approval. You may not depreciate equipment below a 
reasonable salvage value.
    (h) This paragraph describes the basis for your depreciation 
schedule.
    (1) If you or your affiliate own a transportation system on June 1, 
2000, you must base your depreciation schedule used in calculating 
actual transportation costs for production after June 1, 2000, on your 
total capital investment in the system (including your original purchase 
price or construction cost and subsequent reinvestment).
    (2) If you or your affiliate purchased the transportation system at 
arm's length before June 1, 2000, you must incorporate depreciation on 
the schedule based on your purchase price (and subsequent reinvestment) 
into your transportation allowance calculations for production after 
June 1, 2000, beginning at the point on the depreciation schedule 
corresponding to that date. You must prorate your depreciation for 
calendar year 2000 by claiming part-year depreciation for the period 
from June 1, 2000 until December 31, 2000. You may not adjust your 
transportation costs for production before June 1, 2000, using the 
depreciation schedule based on your purchase price.
    (3) If you are the original owner of the transportation system on 
June 1, 2000, or if you purchased your transportation system before 
March 1, 1988, you must continue to use your existing depreciation 
schedule in calculating actual transportation costs for production in 
periods after June 1, 2000.
    (4) If you or your affiliate purchase a transportation system at 
arm's length from the original owner after June 1, 2000, you must base 
your depreciation schedule used in calculating actual transportation 
costs on your total capital investment in the system (including your 
original purchase price and subsequent reinvestment). You must prorate 
your depreciation for the year in which you or your affiliate purchased 
the system to reflect the portion of that year for which you or your 
affiliate own the system.

[[Page 59]]

    (5) If you or your affiliate purchase a transportation system at 
arm's length after June 1, 2000, from anyone other than the original 
owner, you must assume the depreciation schedule of the person who owned 
the system on June 1, 2000.
    (i)(1) To calculate a return on undepreciated capital investment, 
multiply the remaining undepreciated capital balance as of the beginning 
of the period for which you are calculating the transportation allowance 
by the rate of return provided in paragraph (i)(2) of this section.
    (2) The rate of return is the industrial bond yield index for 
Standard and Poor's BBB rating. Use the monthly average rate published 
in ``Standard and Poor's Bond Guide'' for the first month of the 
reporting period for which the allowance applies. Calculate the rate at 
the beginning of each subsequent transportation allowance reporting 
period.
    (j)(1) After a transportation system has been depreciated at or 
below a value equal to ten percent of your total capital investment, you 
may continue to include in the allowance calculation a cost equal to ten 
percent of your total capital investment in the transportation system 
multiplied by a rate of return under paragraph (i)(2) of this section.
    (2) You may apply this paragraph to a transportation system that 
before June 1, 2000, was depreciated at or below a value equal to ten 
percent of your total capital investment.
    (k) Calculate the deduction for transportation costs based on your 
or your affiliate's cost of transporting each product through each 
individual transportation system. Where more than one liquid product is 
transported, allocate costs consistently and equitably to each of the 
liquid products transported. Your allocation must use the same 
proportion as the ratio of the volume of each liquid product (excluding 
waste products with no value) to the volume of all liquid products 
(excluding waste products with no value).
    (1) You may not take an allowance for transporting lease production 
that is not royalty-bearing.
    (2) You may propose to MMS a cost allocation method on the basis of 
the values of the products transported. MMS will approve the method if 
it is consistent with the purposes of the regulations in this subpart.
    (l)(1) Where you transport both gaseous and liquid products through 
the same transportation system, you must propose a cost allocation 
procedure to MMS.
    (2) You may use your proposed procedure to calculate a 
transportation allowance until MMS accepts or rejects your cost 
allocation. If MMS rejects your cost allocation, you must amend your 
Form MMS-2014 for the months that you used the rejected method and pay 
any additional royalty and interest due.
    (3) You must submit your initial proposal, including all available 
data, within 3 months after first claiming the allocated deductions on 
Form MMS-2014.



Sec. 206.112  What adjustments and transportation allowances apply when I value oil using index pricing?

    When you use index pricing to calculate the value of production 
under Sec. 206.103, you must adjust the index price for location and 
quality differentials and you may adjust it for certain transportation 
costs, as specified in this section.
    (a) If you dispose of your production under one or more arm's-length 
exchange agreements, then each of the conditions in this paragraph 
applies.
    (1) You must adjust the index price for location/quality 
differentials. You must determine those differentials from each of your 
arm's-length exchange agreements applicable to the exchanged oil.
    (i) Therefore, for example, if you exchange 100 barrels of 
production from a given lease under two separate arm's-length exchange 
agreements for 60 barrels and 40 barrels respectively, separately 
determine the location/quality differential under each of those exchange 
agreements, and apply each differential to the corresponding index 
price.
    (ii) As another example, if you produce 100 barrels and exchange 
that 100 barrels three successive times under arm's-length agreements to 
obtain oil at a final destination, total the

[[Page 60]]

three adjustments from those exchanges to determine the adjustment under 
this subparagraph. (If one of the three exchanges was not at arm's 
length, you must request MMS approval under paragraph (b) of this 
section for the location/quality adjustment for that exchange to 
determine the total location/quality adjustment for the three 
exchanges.) You also could have a combination of these examples.
    (2) You may adjust the index price for actual transportation costs, 
determined under Sec. 206.110 or Sec. 206.111:
    (i) From the lease to the first point where you give your oil in 
exchange; and
    (ii) From any intermediate point where you receive oil in exchange 
to another intermediate point where you give the oil in exchange again; 
and
    (iii) From the point where you receive oil in exchange and transport 
it without further exchange to a market center, or to a refinery that is 
not at a market center.
    (b) For non-arm's-length exchange agreements, you must request 
approval from MMS for any location/quality adjustment.
    (c) If you transport lease production directly to a market center or 
to an alternate disposal point (for example, your refinery), you may 
adjust the index price for your actual transportation costs, determined 
under Sec. 206.110 or Sec. 206.111.
    (d) If you adjust for location/quality or transportation costs under 
paragraphs (a), (b), or (c) of this section, also adjust the index price 
for quality based on premia or penalties determined by pipeline quality 
bank specifications at intermediate commingling points or at the market 
center. Make this adjustment only if and to the extent that such 
adjustments were not already included in the location/quality 
differentials determined from your arm's-length exchange agreements.
    (e) For leases in the Rocky Mountain Region, for purposes of this 
section, the term ``market center'' means Cushing, Oklahoma, unless MMS 
specifies otherwise through notice published in the Federal Register.
    (f) If you cannot determine your location/quality adjustment under 
paragraph (a) or (c) of this section, you must request approval from MMS 
for any location/quality adjustment.
    (g) You may not use any transportation or quality adjustment that 
duplicates all or part of any other adjustment that you use under this 
section.



Sec. 206.113  How will MMS identify market centers?

    MMS periodically will publish in the Federal Register a list of 
market centers. MMS will monitor market activity and, if necessary, add 
to or modify the list of market centers and will publish such 
modifications in the Federal Register. MMS will consider the following 
factors and conditions in specifying market centers:
    (a) Points where MMS-approved publications publish prices useful for 
index purposes;
    (b) Markets served;
    (c) Input from industry and others knowledgeable in crude oil 
marketing and transportation;
    (d) Simplification; and
    (e) Other relevant matters.



Sec. 206.114  What are my reporting requirements under an arm's-length transportation contract?

    You or your affiliate must use a separate entry on Form MMS-2014 to 
notify MMS of an allowance based on transportation costs you or your 
affiliate incur. MMS may require you or your affiliate to submit arm's-
length transportation contracts, production agreements, operating 
agreements, and related documents. Recordkeeping requirements are found 
at part 207 of this chapter.



Sec. 206.115  What are my reporting requirements under a non-arm's-length transportation arrangement?

    (a) You or your affiliate must use a separate entry on Form MMS-2014 
to notify MMS of an allowance based on transportation costs you or your 
affiliate incur.
    (b) For new transportation facilities or arrangements, base your 
initial deduction on estimates of allowable oil transportation costs for 
the applicable period. Use the most recently available operations data 
for the transportation

[[Page 61]]

system or, if such data are not available, use estimates based on data 
for similar transportation systems. Section 206.117 will apply when you 
amend your report based on your actual costs.
    (c) MMS may require you or your affiliate to submit all data used to 
calculate the allowance deduction. Recordkeeping requirements are found 
at part 207 of this chapter.



Sec. 206.116  What interest and assessments apply if I improperly report a transportation allowance?

    (a) If you or your affiliate net a transportation allowance rather 
than report it as a separate entry against the royalty value on Form 
MMS-2014, you will be assessed an amount up to 10 percent of the netted 
allowance, not to exceed $250 per lease selling arrangement per sales 
period.
    (b) If you or your affiliate deduct a transportation allowance on 
Form MMS-2014 that exceeds 50 percent of the value of the oil 
transported without obtaining MMS's prior approval under Sec. 206.109, 
you must pay interest on the excess allowance amount taken from the date 
that amount is taken to the date you or your affiliate file an exception 
request that MMS approves. If you do not file an exception request, or 
if MMS does not approve your request, you must pay interest on the 
excess allowance amount taken from the date that amount is taken until 
the date you pay the additional royalties owed.



Sec. 206.117  What reporting adjustments must I make for transportation allowances?

    (a) If your or your affiliate's actual transportation allowance is 
less than the amount you claimed on Form MMS-2014 for each month during 
the allowance reporting period, you must pay additional royalties plus 
interest computed under 30 CFR 218.54 from the date you took the 
deduction to the date you repay the difference.
    (b) If the actual transportation allowance is greater than the 
amount you claimed on Form MMS-2014 for any month during the allowance 
form reporting period, you are entitled to a credit plus interest under 
applicable rules.



Sec. 206.118  Are actual or theoretical losses permitted as part of a transportation allowance?

    You are allowed a deduction for oil transportation which results 
from payments that you make (either volumetric or for value) for actual 
or theoretical losses only under an arm's-length contract. You may not 
take such a deduction under a non-arm's-length contract.



Sec. 206.119  How are royalty quantity and quality determined?

    (a) Compute royalties based on the quantity and quality of oil as 
measured at the point of settlement approved by BLM for onshore leases 
or MMS for offshore leases.
    (b) If the value of oil determined under this subpart is based upon 
a quantity or quality different from the quantity or quality at the 
point of royalty settlement approved by the BLM for onshore leases or 
MMS for offshore leases, adjust the value for those differences in 
quantity or quality.
    (c) You may not claim a deduction from the royalty volume or royalty 
value for actual or theoretical losses except as provided in 
Sec. 206.118. Any actual loss that you may incur before the royalty 
settlement metering or measurement point is not subject to royalty if 
BLM or MMS, as appropriate, determines that the loss is unavoidable.
    (d) Except as provided in paragraph (b) of this section, royalties 
are due on 100 percent of the volume measured at the approved point of 
royalty settlement. You may not claim a reduction in that measured 
volume for actual losses beyond the approved point of royalty settlement 
or for theoretical losses that are claimed to have taken place either 
before or after the approved point of royalty settlement.



Sec. 206.120  How are operating allowances determined?

    MMS may use an operating allowance for the purpose of computing 
payment obligations when specified in the notice of sale and the lease. 
MMS will specify the allowance amount or formula in the notice of sale 
and in the lease agreement.

[[Page 62]]



Sec. 206.121  Is there any grace period for reporting and paying royalties after this subpart becomes effective?

    You may adjust royalties reported and paid for the three production 
months beginning June 1, 2000, without liability for late payment 
interest. This section applies only if the adjustment results from 
systems changes needed to comply with new requirements imposed under 
this subpart that were not requirements under the predecessor rule.



                         Subpart D--Federal Gas

    Source: 53 FR 1272, Jan. 15, 1988, unless otherwise noted.



Sec. 206.150  Purpose and scope.

    (a) This subpart is applicable to all gas production from Federal 
oil and gas leases. The purpose of this subpart is to establish the 
value of production for royalty purposes consistent with the mineral 
leasing laws, other applicable laws and lease terms.
    (b) If the specific provisions of any statute or settlement 
agreement between the United States and a lessee resulting from 
administrative or judicial litigation, or oil and gas lease subject to 
the requirements of this subpart are inconsistent with any regulation in 
this subpart, then the lease, statute, or settlement agreement shall 
govern to the extent of that inconsistency.
    (c) All royalty payments made to MMS are subject to audit and 
adjustment.
    (d) The regulations in this subpart are intended to ensure that the 
administration of oil and gas leases is discharged in accordance with 
the requirements of the governing mineral leasing laws and lease terms.

[61 FR 5464, Feb. 12, 1996]



Sec. 206.151  Definitions.

    For purposes of this subpart:
    Allowance means a deduction in determining value for royalty 
purposes. Processing allowance means an allowance for the reasonable 
costs for processing gas determined under this subpart. Transportation 
allowance means an allowance for the cost of moving royalty bearing 
substances (identifiable, measurable oil and gas, including gas that is 
not in need of initial separation) from the point at which it is first 
identifiable and measurable to the sales point or other point where 
value is established under this subpart.
    Area means a geographic region at least as large as the defined 
limits of an oil and/or gas field, in which oil and/or gas lease 
products have similar quality, economic, and legal characteristics.
    Arm's-length contract means a contract or agreement that has been 
arrived at in the marketplace between independent, nonaffiliated persons 
with opposing economic interests regarding that contract. For purposes 
of this subpart, two persons are affiliated if one person controls, is 
controlled by, or is under common control with another person. For 
purposes of this subpart, based on the instruments of ownership of the 
voting securities of an entity, or based on other forms of ownership:
    (a) Ownership in excess of 50 percent constitutes control;
    (b) Ownership of 10 through 50 percent creates a presumption of 
control; and
    (c) Ownership of less than 10 percent creates a presumption of 
noncontrol which MMS may rebut if it demonstrates actual or legal 
control, including the existence of interlocking directorates.

Notwithstanding any other provisions of this subpart, contracts between 
relatives, either by blood or by marriage, are not arm's-length 
contracts. The MMS may require the lessee to certify ownership control. 
To be considered arm's-length for any production month, a contract must 
meet the requirements of this definition for that production month as 
well as when the contract was executed.
    Audit means a review, conducted in accordance with generally 
accepted accounting and auditing standards, of royalty payment 
compliance activities of lessees or other interest holders who pay 
royalties, rents, or bonuses on Federal leases.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Compression means the process of raising the pressure of gas.

[[Page 63]]

    Condensate means liquid hydrocarbons (normally exceeding 40 degrees 
of API gravity) recovered at the surface without resorting to 
processing. Condensate is the mixture of liquid hydrocarbons that 
results from condensation of petroleum hydrocarbons existing initially 
in a gaseous phase in an underground reservoir.
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that with due consideration creates an obligation.
    Field means a geographic region situated over one or more subsurface 
oil and gas reservoirs encompassing at least the outermost boundaries of 
all oil and gas accumulations known to be within those reservoirs 
vertically projected to the land surface. Onshore fields are usually 
given names and their official boundaries are often designated by oil 
and gas regulatory agencies in the respective States in which the fields 
are located. Outer Continental Shelf (OCS) fields are named and their 
boundaries are designated by MMS.
    Gas means any fluid, either combustible or noncombustible, 
hydrocarbon or nonhydrocarbon, which is extracted from a reservoir and 
which has neither independent shape nor volume, but tends to expand 
indefinitely. It is a substance that exists in a gaseous or rarefied 
state under standard temperature and pressure conditions.
    Gas plant products means separate marketable elements, compounds, or 
mixtures, whether in liquid, gaseous, or solid form, resulting from 
processing gas, excluding residue gas.
    Gathering means the movement of lease production to a central 
accumulation and/or treatment point on the lease, unit or communitized 
area, or to a central accumulation or treatment point off the lease, 
unit or communitized area as approved by BLM or MMS OCS operations 
personnel for onshore and OCS leases, respectively.
    Gross proceeds (for royalty payment purposes) means the total monies 
and other consideration accruing to an oil and gas lessee for the 
disposition of the gas, residue gas, and gas plant products produced. 
Gross proceeds includes, but is not limited to, payments to the lessee 
for certain services such as dehydration, measurement, and/or gathering 
to the extent that the lessee is obligated to perform them at no cost to 
the Federal Government. Tax reimbursements are part of the gross 
proceeds accruing to a lessee even though the Federal royalty interest 
may be exempt from taxation. Monies and other consideration, including 
the forms of consideration identified in this paragraph, to which a 
lessee is contractually or legally entitled but which it does not seek 
to collect through reasonable efforts are also part of gross proceeds.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by the United States under a 
mineral leasing law that authorizes exploration for, development or 
extraction of, or removal of lease products--or the land area covered by 
that authorization, whichever is required by the context.
    Lease products means any leased minerals attributable to, 
originating from, or allocated to Outer Continental Shelf or onshore 
Federal leases.
    Lessee means any person to whom the United States issues a lease, 
and any person who has been assigned an obligation to make royalty or 
other payments required by the lease. This includes any person who has 
an interest in a lease as well as an operator or payor who has no 
interest in the lease but who has assumed the royalty payment 
responsibility.
    Like-quality lease products means lease products which have similar 
chemical, physical, and legal characteristics.
    Marketable condition means lease products which are sufficiently 
free from impurities and otherwise in a condition that they will be 
accepted by a purchaser under a sales contract typical for the field or 
area.
    Marketing affiliate means an affiliate of the lessee whose function 
is to acquire only the lessee's production and to market that 
production.
    Minimum royalty means that minimum amount of annual royalty that the 
lessee must pay as specified in the

[[Page 64]]

lease or in applicable leasing regulations.
    Net-back method (or work-back method) means a method for calculating 
market value of gas at the lease. Under this method, costs of 
transportation, processing, or manufacturing are deducted from the 
proceeds received for the gas, residue gas or gas plant products, and 
any extracted, processed, or manufactured products, or from the value of 
the gas, residue gas or gas plant products, and any extracted, 
processed, or manufactured products, at the first point at which 
reasonable values for any such products may be determined by a sale 
pursuant to an arm's-length contract or comparison to other sales of 
such products, to ascertain value at the lease.
    Net output means the quantity of residue gas and each gas plant 
product that a processing plant produces.
    Net profit share (for applicable Federal leases) means the specified 
share of the net profit from production of oil and gas as provided in 
the agreement.
    Netting is the deduction of an allowance from the sales value by 
reporting a one line net sales value, instead of correctly reporting the 
deduction as a separate line item on the Form MMS-2014.
    Outer Continental Shelf (OCS) means all submerged lands lying 
seaward and outside of the area of land beneath navigable waters as 
defined in section 2 of the Submerged Lands Act (43 U.S.C. 1301) and of 
which the subsoil and seabed appertain to the United States and are 
subject to its jurisdiction and control.
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture (when established as a 
separate entity).
    Posted price means the price, net of all adjustments for quality and 
location, specified in publicly available price bulletins or other price 
notices available as part of normal business operations for quantities 
of unprocessed gas, residue gas, or gas plant products in marketable 
condition.
    Processing means any process designed to remove elements or 
compounds (hydrocarbon and nonhydrocarbon) from gas, including 
absorption, adsorption, or refrigeration. Field processes which normally 
take place on or near the lease, such as natural pressure reduction, 
mechanical separation, heating, cooling, dehydration, and compression, 
are not considered processing. The changing of pressures and/or 
temperatures in a reservoir is not considered processing.
    Residue gas means that hydrocarbon gas consisting principally of 
methane resulting from processing gas.
    Section 6 lease means an OCS lease subject to section 6 of the Outer 
Continental Shelf Lands Act, as amended, 43 U.S.C. 1335.
    Selling arrangement means the individual contractual arrangements 
under which sales or dispositions of gas, residue gas and gas plant 
products are made. Selling arrangements are described by illustration in 
the MMS Royalty Management Program Oil and Gas Payor Handbook.
    Spot sales agreement means a contract wherein a seller agrees to 
sell to a buyer a specified amount of unprocessed gas, residue gas, or 
gas plant products at a specified price over a fixed period, usually of 
short duration, which does not normally require a cancellation notice to 
terminate, and which does not contain an obligation, nor imply an 
intent, to continue in subsequent periods.
    Warranty contract means a long-term contract entered into prior to 
1970, including any amendments thereto, for the sale of gas wherein the 
producer agrees to sell a specific amount of gas and the gas delivered 
in satisfaction of this obligation may come from fields or sources 
outside of the designated fields.

[53 FR 1272, Jan. 15, 1988, as amended at 53 FR 45084, Nov. 8, 1988; 61 
FR 5464, Feb. 12, 1996; 64 FR 43288, Aug. 10, 1999]



Sec. 206.152  Valuation standards--unprocessed gas.

    (a)(1) This section applies to the valuation of all gas that is not 
processed and all gas that is processed but is sold or otherwise 
disposed of by the lessee pursuant to an arm's-length contract prior to 
processing (including all gas where the lessee's arm's-length contract 
for the sale of that gas prior to processing provides for the value to

[[Page 65]]

be determined on the basis of a percentage of the purchaser's proceeds 
resulting from processing the gas). This section also applies to 
processed gas that must be valued prior to processing in accordance with 
Sec. 206.155 of this part. Where the lessee's contract includes a 
reservation of the right to process the gas and the lessee exercises 
that right, Sec. 206.153 of this part shall apply instead of this 
section.
    (2) The value of production, for royalty purposes, of gas subject to 
this subpart shall be the value of gas determined under this section 
less applicable allowances.
    (b)(1)(i) The value of gas sold under an arm's-length contract is 
the gross proceeds accruing to the lessee except as provided in 
paragraphs (b)(1)(ii), (iii), and (iv) of this section. The lessee shall 
have the burden of demonstrating that its contract is arm's-length. The 
value which the lessee reports, for royalty purposes, is subject to 
monitoring, review, and audit. For purposes of this section, gas which 
is sold or otherwise transferred to the lessee's marketing affiliate and 
then sold by the marketing affiliate pursuant to an arm's-length 
contract shall be valued in accordance with this paragraph based upon 
the sale by the marketing affiliate. Also, where the lessee's arm's-
length contract for the sale of gas prior to processing provides for the 
value to be determined based upon a percentage of the purchaser's 
proceeds resulting from processing the gas, the value of production, for 
royalty purposes, shall never be less than a value equivalent to 100 
percent of the value of the residue gas attributable to the processing 
of the lessee's gas.
    (ii) In conducting reviews and audits, MMS will examine whether the 
contract reflects the total consideration actually transferred either 
directly or indirectly from the buyer to the seller for the gas. If the 
contract does not reflect the total consideration, then the MMS may 
require that the gas sold pursuant to that contract be valued in 
accordance with paragraph (c) of this section. Value may not be less 
than the gross proceeds accruing to the lessee, including the additional 
consideration.
    (iii) If the MMS determines that the gross proceeds accruing to the 
lessee pursuant to an arm's-length contract do not reflect the 
reasonable value of the production because of misconduct by or between 
the contracting parties, or because the lessee otherwise has breached 
its duty to the lessor to market the production for the mutual benefit 
of the lessee and the lessor, then MMS shall require that the gas 
production be valued pursuant to paragraph (c)(2) or (c)(3) of this 
section, and in accordance with the notification requirements of 
paragraph (e) of this section. When MMS determines that the value may be 
unreasonable, MMS will notify the lessee and give the lessee an 
opportunity to provide written information justifying the lessee's 
value.
    (iv) How to value over-delivered volumes under a cash-out program. 
This paragraph applies to situations where a pipeline purchases gas from 
a lessee according to a cash-out program under a transportation 
contract. For all over-delivered volumes, the royalty value is the price 
the pipeline is required to pay for volumes within the tolerances for 
over-delivery specified in the transportation contract. Use the same 
value for volumes that exceed the over-delivery tolerances even if those 
volumes are subject to a lower price under the transportation contract. 
However, if MMS determines that the price specified in the 
transportation contract for over-delivered volumes is unreasonably low, 
the lessee must value all over-delivered volumes under paragraph (c)(2) 
or (c)(3) of this section.
    (2) Notwithstanding the provisions of paragraph (b)(1) of this 
section, the value of gas sold pursuant to a warranty contract shall be 
determined by MMS, and due consideration will be given to all valuation 
criteria specified in this section. The lessee must request a value 
determination in accordance with paragraph (g) of this section for gas 
sold pursuant to a warranty contract; provided, however, that any value 
determination for a warranty contract in effect on the effective date of 
these regulations shall remain in effect until modified by MMS.
    (3) MMS may require a lessee to certify that its arm's-length 
contract provisions include all of the consideration to be paid by the 
buyer, either directly or indirectly, for the gas.

[[Page 66]]

    (c) The value of gas subject to this section which is not sold 
pursuant to an arm's-length contract shall be the reasonable value 
determined in accordance with the first applicable of the following 
methods:
    (1) The gross proceeds accruing to the lessee pursuant to a sale 
under its non-arm's-length contract (or other disposition other than by 
an arm's-length contract), provided that those gross proceeds are 
equivalent to the gross proceeds derived from, or paid under, comparable 
arm's-length contracts for purchases, sales, or other dispositions of 
like-quality gas in the same field (or, if necessary to obtain a 
reasonable sample, from the same area). In evaluating the comparability 
of arm's-length contracts for the purposes of these regulations, the 
following factors shall be considered: price, time of execution, 
duration, market or markets served, terms, quality of gas, volume, and 
such other factors as may be appropriate to reflect the value of the 
gas;
    (2) A value determined by consideration of other information 
relevant in valuing like-quality gas, including gross proceeds under 
arm's-length contracts for like-quality gas in the same field or nearby 
fields or areas, posted prices for gas, prices received in arm's-length 
spot sales of gas, other reliable public sources of price or market 
information, and other information as to the particular lease operation 
or the saleability of the gas; or
    (3) A net-back method or any other reasonable method to determine 
value.
    (d)(1) Notwithstanding any other provisions of this section, except 
paragraph (h) of this section, if the maximum price permitted by Federal 
law at which gas may be sold is less than the value determined pursuant 
to this section, then MMS shall accept such maximum price as the value. 
For purposes of this section, price limitations set by any State or 
local government shall not be considered as a maximum price permitted by 
Federal law.
    (2) The limitation prescribed in paragraph (d)(1) of this section 
shall not apply to gas sold pursuant to a warranty contract and valued 
pursuant to paragraph (b)(2) of this section.
    (e)(1) Where the value is determined pursuant to paragraph (c) of 
this section, the lessee shall retain all data relevant to the 
determination of royalty value. Such data shall be subject to review and 
audit, and MMS will direct a lessee to use a different value if it 
determines that the reported value is inconsistent with the requirements 
of these regulations.
    (2) Any Federal lessee will make available upon request to the 
authorized MMS or State representatives, to the Office of the Inspector 
General of the Department of the Interior, or other person authorized to 
receive such information, arm's-length sales and volume data for like-
quality production sold, purchased or otherwise obtained by the lessee 
from the field or area or from nearby fields or areas.
    (3) A lessee shall notify MMS if it has determined value pursuant to 
paragraph (c)(2) or (c)(3) of this section. The notification shall be by 
letter to the MMS Associate Director for Minerals Revenue Management or 
his/her designee. The letter shall identify the valuation method to be 
used and contain a brief description of the procedure to be followed. 
The notification required by this paragraph is a one-time notification 
due no later than the end of the month following the month the lessee 
first reports royalties on a Form MMS-2014 using a valuation method 
authorized by paragraph (c)(2) or (c)(3) of this section, and each time 
there is a change in a method under paragraph (c)(2) or (c)(3) of this 
section.
    (f) If MMS determines that a lessee has not properly determined 
value, the lessee shall pay the difference, if any, between royalty 
payments made based upon the value it has used and the royalty payments 
that are due based upon the value established by MMS. The lessee shall 
also pay interest on that difference computed pursuant to 30 CFR 218.54. 
If the lessee is entitled to a credit, MMS will provide instructions for 
the taking of that credit.
    (g) The lessee may request a value determination from MMS. In that 
event, the lessee shall propose to MMS a value determination method, and 
may use that method in determining value for royalty purposes until MMS

[[Page 67]]

issues its decision. The lessee shall submit all available data relevant 
to its proposal. The MMS shall expeditiously determine the value based 
upon the lessee's proposal and any additional information MMS deems 
necessary. In making a value determination MMS may use any of the 
valuation criteria authorized by this subpart. That determination shall 
remain effective for the period stated therein. After MMS issues its 
determination, the lessee shall make the adjustments in accordance with 
paragraph (f) of this section.
    (h) Notwithstanding any other provision of this section, under no 
circumstances shall the value of production for royalty purposes be less 
than the gross proceeds accruing to the lessee for lease production, 
less applicable allowances.
    (i) The lessee must place gas in marketable condition and market the 
gas for the mutual benefit of the lessee and the lessor at no cost to 
the Federal Government. Where the value established under this section 
is determined by a lessee's gross proceeds, that value will be increased 
to the extent that the gross proceeds have been reduced because the 
purchaser, or any other person, is providing certain services the cost 
of which ordinarily is the responsibility of the lessee to place the gas 
in marketable condition or to market the gas.
    (j) Value shall be based on the highest price a prudent lessee can 
receive through legally enforceable claims under its contract. If there 
is no contract revision or amendment, and the lessee fails to take 
proper or timely action to receive prices or benefits to which it is 
entitled, it must pay royalty at a value based upon that obtainable 
price or benefit. Contract revisions or amendments shall be in writing 
and signed by all parties to an arm's-length contract. If the lessee 
makes timely application for a price increase or benefit allowed under 
its contract but the purchaser refuses, and the lessee takes reasonable 
measures, which are documented, to force purchaser compliance, the 
lessee will owe no additional royalties unless or until monies or 
consideration resulting from the price increase or additional benefits 
are received. This paragraph shall not be construed to permit a lessee 
to avoid its royalty payment obligation in situations where a purchaser 
fails to pay, in whole or in part or timely, for a quantity of gas.
    (k) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by MMS of value under this section 
shall be considered final or binding as against the Federal Government 
or its beneficiaries until the audit period is formally closed.
    (l) Certain information submitted to MMS to support valuation 
proposals, including transportation or extraordinary cost allowances, is 
exempted from disclosure by the Freedom of Information Act, 5 U.S.C. 
Sec. 552, or other Federal law. Any data specified by law to be 
privileged, confidential, or otherwise exempt will be maintained in a 
confidential manner in accordance with applicable law and regulations. 
All requests for information about determinations made under this 
subpart are to be submitted in accordance with the Freedom of 
Information Act regulation of the Department of the Interior, 43 CFR 
part 2.

[53 FR 1272, Jan. 15, 1988, as amended at 56 FR 46530, Sept. 13, 1991; 
61 FR 5464, Feb. 12, 1996; 62 FR 65761, 65762, Dec. 16, 1997]



Sec. 206.153  Valuation standards--processed gas.

    (a)(1) This section applies to the valuation of all gas that is 
processed by the lessee and any other gas production to which this 
subpart applies and that is not subject to the valuation provisions of 
Sec. 206.152 of this part. This section applies where the lessee's 
contract includes a reservation of the right to process the gas and the 
lessee exercises that right.
    (2) The value of production, for royalty purposes, of gas subject to 
this section shall be the combined value of the residue gas and all gas 
plant products determined pursuant to this section, plus the value of 
any condensate recovered downstream of the point of royalty settlement 
without resorting to processing determined pursuant to Sec. 206.102 of 
this part, less applicable

[[Page 68]]

transportation allowances and processing allowances determined pursuant 
to this subpart.
    (b)(1)(i) The value of residue gas or any gas plant product sold 
under an arm's-length contract is the gross proceeds accruing to the 
lessee, except as provided in paragraphs (b)(1)(ii), (iii), and (iv) of 
this section. The lessee shall have the burden of demonstrating that its 
contract is arm's-length. The value that the lessee reports for royalty 
purposes is subject to monitoring, review, and audit. For purposes of 
this section, residue gas or any gas plant product which is sold or 
otherwise transferred to the lessee's marketing affiliate and then sold 
by the marketing affiliate pursuant to an arm's-length contract shall be 
valued in accordance with this paragraph based upon the sale by the 
marketing affiliate.
    (ii) In conducting these reviews and audits, MMS will examine 
whether or not the contract reflects the total consideration actually 
transferred either directly or indirectly from the buyer to the seller 
for the residue gas or gas plant product. If the contract does not 
reflect the total consideration, then the MMS may require that the 
residue gas or gas plant product sold pursuant to that contract be 
valued in accordance with paragraph (c) of this section. Value may not 
be less than the gross proceeds accruing to the lessee, including the 
additional consideration.
    (iii) If the MMS determines that the gross proceeds accruing to the 
lessee pursuant to an arm's-length contract do not reflect the 
reasonable value of the residue gas or gas plant product because of 
misconduct by or between the contracting parties, or because the lessee 
otherwise has breached its duty to the lessor to market the production 
for the mutual benefit of the lessee and the lessor, then MMS shall 
require that the residue gas or gas plant product be valued pursuant to 
paragraph (c)(2) or (c)(3) of this section, and in accordance with the 
notification requirements of paragraph (e) of this section. When MMS 
determines that the value may be unreasonable, MMS will notify the 
lessee and give the lessee an opportunity to provide written information 
justifying the lessee's value.
    (iv) How to value over-delivered volumes under a cash-out program. 
This paragraph applies to situations where a pipeline purchases gas from 
a lessee according to a cash-out program under a transportation 
contract. For all over-delivered volumes, the royalty value is the price 
the pipeline is required to pay for volumes within the tolerances for 
over-delivery specified in the transportation contract. Use the same 
value for volumes that exceed the over-delivery tolerances even if those 
volumes are subject to a lower price under the transportation contract. 
However, if MMS determines that the price specified in the 
transportation contract for over-delivered volumes is unreasonably low, 
the lessee must value all over-delivered volumes under paragraph (c)(2) 
or (c)(3) of this section.
    (2) Notwithstanding the provisions of paragraph (b)(1) of this 
section, the value of residue gas sold pursuant to a warranty contract 
shall be determined by MMS, and due consideration will be given to all 
valuation criteria specified in this section. The lessee must request a 
value determination in accordance with paragraph (g) of this section for 
gas sold pursuant to a warranty contract; provided, however, that any 
value determination for a warranty contract in effect on the effective 
date of these regulations shall remain in effect until modified by MMS.
    (3) MMS may require a lessee to certify that its arm's-length 
contract provisions include all of the consideration to be paid by the 
buyer, either directly or indirectly, for the residue gas or gas plant 
product.
    (c) The value of residue gas or any gas plant product which is not 
sold pursuant to an arm's-length contract shall be the reasonable value 
determined in accordance with the first applicable of the following 
methods:
    (1) The gross proceeds accruing to the lessee pursuant to a sale 
under its non-arm's-length contract (or other disposition other than by 
an arm's-length contract), provided that those gross proceeds are 
equivalent to the gross proceeds derived from, or paid under, comparable 
arm's-length contracts for purchases, sales, or other dispositions of 
like quality residue gas or gas plant products from the same processing

[[Page 69]]

plant (or, if necessary to obtain a reasonable sample, from nearby 
plants). In evaluating the comparability of arm's-length contracts for 
the purposes of these regulations, the following factors shall be 
considered: price, time of execution, duration, market or markets 
served, terms, quality of residue gas or gas plant products, volume, and 
such other factors as may be appropriate to reflect the value of the 
residue gas or gas plant products;
    (2) A value determined by consideration of other information 
relevant in valuing like-quality residue gas or gas plant products, 
including gross proceeds under arm's-length contracts for like-quality 
residue gas or gas plant products from the same gas plant or other 
nearby processing plants, posted prices for residue gas or gas plant 
products, prices received in spot sales of residue gas or gas plant 
products, other reliable public sources of price or market information, 
and other information as to the particular lease operation or the 
saleability of such residue gas or gas plant products; or
    (3) A net-back method or any other reasonable method to determine 
value.
    (d)(1) Notwithstanding any other provisions of this section, except 
paragraph (h) of this section, if the maximum price permitted by Federal 
law at which any residue gas or gas plant products may be sold is less 
than the value determined pursuant to this section, then MMS shall 
accept such maximum price as the value. For the purposes of this 
section, price limitations set by any State or local government shall 
not be considered as a maximum price permitted by Federal law.
    (2) The limitation prescribed by paragraph (d)(1) of this section 
shall not apply to residue gas sold pursuant to a warranty contract and 
valued pursuant to paragraph (b)(2) of this section.
    (e)(1) Where the value is determined pursuant to paragraph (c) of 
this section, the lessee shall retain all data relevant to the 
determination of royalty value. Such data shall be subject to review and 
audit, and MMS will direct a lessee to use a different value if it 
determines upon review or audit that the reported value is inconsistent 
with the requirements of these regulations.
    (2) Any Federal lessee will make available upon request to the 
authorized MMS or State representatives, to the Office of the Inspector 
General of the Department of the Interior, or other persons authorized 
to receive such information, arm's-length sales and volume data for 
like-quality residue gas and gas plant products sold, purchased or 
otherwise obtained by the lessee from the same processing plant or from 
nearby processing plants.
    (3) A lessee shall notify MMS if it has determined any value 
pursuant to paragraph (c)(2) or (c)(3) of this section. The notification 
shall be by letter to the MMS Associate Director for Minerals Revenue 
Management or his/her designee. The letter shall identify the valuation 
method to be used and contain a brief description of the procedure to be 
followed. The notification required by this paragraph is a one-time 
notification due no later than the end of the month following the month 
the lessee first reports royalties on a Form MMS-2014 using a valuation 
method authorized by paragraph (c)(2) or (c)(3) of this section, and 
each time there is a change in a method under paragraph (c)(2) or (c)(3) 
of this section.
    (f) If MMS determines that a lessee has not properly determined 
value, the lessee shall pay the difference, if any, between royalty 
payments made based upon the value it has used and the royalty payments 
that are due based upon the value established by MMS. The lessee shall 
also pay interest computed on that difference pursuant to 30 CFR 218.54. 
If the lessee is entitled to a credit, MMS will provide instructions for 
the taking of that credit.
    (g) The lessee may request a value determination from MMS. In that 
event, the lessee shall propose to MMS a value determination method, and 
may use that method in determining value for royalty purposes until MMS 
issues its decision. The lessee shall submit all available data relevant 
to its proposal. The MMS shall expeditiously determine the value based 
upon the lessee's proposal and any additional information MMS deems 
necessary. In making a value determination, MMS may use any of the 
valuation criteria authorized by this subpart. That determination shall 
remain effective for the

[[Page 70]]

period stated therein. After MMS issues its determination, the lessee 
shall make the adjustments in accordance with paragraph (f) of this 
section.
    (h) Notwithstanding any other provision of this section, under no 
circumstances shall the value of production for royalty purposes be less 
than the gross proceeds accruing to the lessee for residue gas and/or 
any gas plant products, less applicable transportation allowances and 
processing allowances determined pursuant to this subpart.
    (i) The lessee must place residue gas and gas plant products in 
marketable condition and market the residue gas and gas plant products 
for the mutual benefit of the lessee and the lessor at no cost to the 
Federal Government. Where the value established under this section is 
determined by a lessee's gross proceeds, that value will be increased to 
the extent that the gross proceeds have been reduced because the 
purchaser, or any other person, is providing certain services the cost 
of which ordinarily is the responsibility of the lessee to place the 
residue gas or gas plant products in marketable condition or to market 
the residue gas and gas plant products.
    (j) Value shall be based on the highest price a prudent lessee can 
receive through legally enforceable claims under its contract. Absent 
contract revision or amendment, if the lessee fails to take proper or 
timely action to receive prices or benefits to which it is entitled it 
must pay royalty at a value based upon that obtainable price or benefit. 
Contract revisions or amendments shall be in writing and signed by all 
parties to an arm's-length contract. If the lessee makes timely 
application for a price increase or benefit allowed under its contract 
but the purchaser refuses, and the lessee takes reasonable measures, 
which are documented, to force purchaser compliance, the lessee will owe 
no additional royalties unless or until monies or consideration 
resulting from the price increase or additional benefits are received. 
This paragraph shall not be construed to permit a lessee to avoid its 
royalty payment obligation in situations where a purchaser fails to pay, 
in whole or in part, or timely, for a quantity of residue gas or gas 
plant product.
    (k) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by MMS of value under this section 
shall be considered final or binding against the Federal Government or 
its beneficiaries until the audit period is formally closed.
    (l) Certain information submitted to MMS to support valuation 
proposals, including transportation allowances, processing allowances or 
extraordinary cost allowances, is exempted from disclosure by the 
Freedom of Information Act, 5 U.S.C. 552, or other Federal law. Any data 
specified by law to be privileged, confidential, or otherwise exempt, 
will be maintained in a confidential manner in accordance with 
applicable law and regulations. All requests for information about 
determinations made under this part are to be submitted in accordance 
with the Freedom of Information Act regulation of the Department of the 
Interior, 43 CFR part 2.

[53 FR 1272, Jan. 15, 1988, as amended at 56 FR 46530, Sept. 13, 1991; 
61 FR 5465, Feb. 12, 1996; 62 FR 65762, Dec. 16, 1997]



Sec. 206.154  Determination of quantities and qualities for computing royalties.

    (a)(1) Royalties shall be computed on the basis of the quantity and 
quality of unprocessed gas at the point of royalty settlement approved 
by BLM or MMS for onshore and OCS leases, respectively.
    (2) If the value of gas determined pursuant to Sec. 206.152 of this 
subpart is based upon a quantity and/or quality that is different from 
the quantity and/or quality at the point of royalty settlement, as 
approved by BLM or MMS, that value shall be adjusted for the differences 
in quantity and/or quality.
    (b)(1) For residue gas and gas plant products, the quantity basis 
for computing royalties due is the monthly net output of the plant even 
though residue gas and/or gas plant products may be in temporary 
storage.
    (2) If the value of residue gas and/or gas plant products determined 
pursuant to Sec. 206.153 of this subpart is based

[[Page 71]]

upon a quantity and/or quality of residue gas and/or gas plant products 
that is different from that which is attributable to a lease, determined 
in accordance with paragraph (c) of this section, that value shall be 
adjusted for the differences in quantity and/or quality.
    (c) The quantity of the residue gas and gas plant products 
attributable to a lease shall be determined according to the following 
procedure:
    (1) When the net output of the processing plant is derived from gas 
obtained from only one lease, the quantity of the residue gas and gas 
plant products on which computations of royalty are based is the net 
output of the plant.
    (2) When the net output of a processing plant is derived from gas 
obtained from more than one lease producing gas of uniform content, the 
quantity of the residue gas and gas plant products allocable to each 
lease shall be in the same proportions as the ratios obtained by 
dividing the amount of gas delivered to the plant from each lease by the 
total amount of gas delivered from all leases.
    (3) When the net output of a processing plant is derived from gas 
obtained from more than one lease producing gas of nonuniform content, 
the quantity of the residue gas allocable to each lease will be 
determined by multiplying the amount of gas delivered to the plant from 
the lease by the residue gas content of the gas, and dividing the 
arithmetical product thus obtained by the sum of the similar 
arithmetical products separately obtained for all leases from which gas 
is delivered to the plant, and then multiplying the net output of the 
residue gas by the arithmetic quotient obtained. The net output of gas 
plant products allocable to each lease will be determined by multiplying 
the amount of gas delivered to the plant from the lease by the gas plant 
product content of the gas, and dividing the arithmetical product thus 
obtained by the sum of the similar arithmetical products separately 
obtained for all leases from which gas is delivered to the plant, and 
then multiplying the net output of each gas plant product by the 
arithmetic quotient obtained.
    (4) A lessee may request MMS approval of other methods for 
determining the quantity of residue gas and gas plant products allocable 
to each lease. If approved, such method will be applicable to all gas 
production from Federal leases that is processed in the same plant.
    (d)(1) No deductions may be made from the royalty volume or royalty 
value for actual or theoretical losses. Any actual loss of unprocessed 
gas that may be sustained prior to the royalty settlement metering or 
measurement point will not be subject to royalty provided that such loss 
is determined to have been unavoidable by BLM or MMS, as appropriate.
    (2) Except as provided in paragraph (d)(1) of this section and 30 
CFR 202.151(c), royalties are due on 100 percent of the volume 
determined in accordance with paragraphs (a) through (c) of this 
section. There can be no reduction in that determined volume for actual 
losses after the quantity basis has been determined or for theoretical 
losses that are claimed to have taken place. Royalties are due on 100 
percent of the value of the unprocessed gas, residue gas, and/or gas 
plant products as provided in this subpart, less applicable allowances. 
There can be no deduction from the value of the unprocessed gas, residue 
gas, and/or gas plant products to compensate for actual losses after the 
quantity basis has been determined, or for theoretical losses that are 
claimed to have taken place.

[53 FR 1272, Jan. 15, 1988, as amended at 61 FR 5465, Feb. 12, 1996]



Sec. 206.155  Accounting for comparison.

    (a) Except as provided in paragraph (b) of this section, where the 
lessee (or a person to whom the lessee has transferred gas pursuant to a 
non-arm's-length contract or without a contract) processes the lessee's 
gas and after processing the gas the residue gas is not sold pursuant to 
an arm's-length contract, the value, for royalty purposes, shall be the 
greater of (1) the combined value, for royalty purposes, of the residue 
gas and gas plant products resulting from processing the gas determined 
pursuant to Sec. 206.153 of this subpart, plus the value, for royalty 
purposes, of any condensate recovered

[[Page 72]]

downstream of the point of royalty settlement without resorting to 
processing determined pursuant to Sec. 206.102 of this subpart; or (2) 
the value, for royalty purposes, of the gas prior to processing 
determined in accordance with Sec. 206.152 of this subpart.
    (b) The requirement for accounting for comparison contained in the 
terms of leases will govern as provided in Sec. 206.150(b) of this 
subpart. When accounting for comparison is required by the lease terms, 
such accounting for comparison shall be determined in accordance with 
paragraph (a) of this section.

[53 FR 1272, Jan. 15, 1988, as amended at 61 FR 5465, Feb. 12, 1996]



Sec. 206.156  Transportation allowances--general.

    (a) Where the value of gas has been determined pursuant to 
Sec. 206.152 or Sec. 206.153 of this subpart at a point (e.g., sales 
point or point of value determination) off the lease, MMS shall allow a 
deduction for the reasonable actual costs incurred by the lessee to 
transport unprocessed gas, residue gas, and gas plant products from a 
lease to a point off the lease including, if appropriate, transportation 
from the lease to a gas processing plant off the lease and from the 
plant to a point away from the plant.
    (b) Transportation costs must be allocated among all products 
produced and transported as provided in Sec. 206.157.
    (c)(1) Except as provided in paragraph (c)(3) of this section, for 
unprocessed gas valued in accordance with Sec. 206.152 of this subpart, 
the transportation allowance deduction on the basis of a selling 
arrangement shall not exceed 50 percent of the value of the unprocessed 
gas determined in accordance with Sec. 206.152 of this subpart.
    (2) Except as provided in paragraph (c)(3) of this section, for gas 
production valued in accordance with Sec. 206.153 of this subpart the 
transportation allowance deduction on the basis of a selling arrangement 
shall not exceed 50 percent of the value of the residue gas or gas plant 
product determined in accordance with Sec. 206.153 of this subpart. For 
purposes of this section, natural gas liquids shall be considered one 
product.
    (3) Upon request of a lessee, MMS may approve a transportation 
allowance deduction in excess of the limitations prescribed by 
paragraphs (c)(1) and (c)(2) of this section. The lessee must 
demonstrate that the transportation costs incurred in excess of the 
limitations prescribed in paragraphs (c)(1) and (c)(2) of this section 
were reasonable, actual, and necessary. An application for exception 
(using Form MMS-4393, Request to Exceed Regulatory Allowance Limitation) 
shall contain all relevant and supporting documentation necessary for 
MMS to make a determination. Under no circumstances shall the value for 
royalty purposes under any selling arrangement be reduced to zero.
    (d) If, after a review and/or audit, MMS determines that a lessee 
has improperly determined a transportation allowance authorized by this 
subpart, then the lessee shall pay any additional royalties, plus 
interest, determined in accordance with 30 CFR 218.54, or shall be 
entitled to a credit, without interest. If the lessee takes a deduction 
for transportation on the Form MMS-2014 by improperly netting the 
allowance against the sales value of the unprocessed gas, residue gas, 
and gas plant products instead of reporting the allowance as a separate 
line item, he may be assessed an additional amount under 206.157(d).

[53 FR 1272, Jan. 15, 1988, as amended at 61 FR 5465, Feb. 12, 1996; 64 
FR 43288, Aug. 10, 1999]



Sec. 206.157  Determination of transportation allowances.

    (a) Arm's-length transportation contracts. (1)(i) For transportation 
costs incurred by a lessee under an arm's-length contract, the 
transportation allowance shall be the reasonable, actual costs incurred 
by the lessee for transporting the unprocessed gas, residue gas and/or 
gas plant products under that contract, except as provided in paragraphs 
(a)(1)(ii) and (a)(1)(iii) of this section, subject to monitoring, 
review, audit, and adjustment. The lessee shall have the burden of 
demonstrating that its contract is arm's-length. MMS' prior approval is 
not required before a lessee may deduct costs incurred under

[[Page 73]]

an arm's-length contract. Such allowances shall be subject to the 
provisions of paragraph (f) of this section. The lessee must claim a 
transportation allowance by reporting it as a separate line entry on the 
Form MMS-2014.
    (ii) In conducting reviews and audits, MMS will examine whether or 
not the contract reflects more than the consideration actually 
transferred either directly or indirectly from the lessee to the 
transporter for the transportation. If the contract reflects more than 
the total consideration, then the MMS may require that the 
transportation allowance be determined in accordance with paragraph (b) 
of this section.
    (iii) If the MMS determines that the consideration paid pursuant to 
an arm's-length transportation contract does not reflect the reasonable 
value of the transportation because of misconduct by or between the 
contracting parties, or because the lessee otherwise has breached its 
duty to the lessor to market the production for the mutual benefit of 
the lessee and the lessor, then MMS shall require that the 
transportation allowance be determined in accordance with paragraph (b) 
of this section. When MMS determines that the value of the 
transportation may be unreasonable, MMS will notify the lessee and give 
the lessee an opportunity to provide written information justifying the 
lessee's transportation costs.
    (2)(i) If an arm's-length transportation contract includes more than 
one product in a gaseous phase and the transportation costs attributable 
to each product cannot be determined from the contract, the total 
transportation costs shall be allocated in a consistent and equitable 
manner to each of the products transported in the same proportion as the 
ratio of the volume of each product (excluding waste products which have 
no value) to the volume of all products in the gaseous phase (excluding 
waste products which have no value). Except as provided in this 
paragraph, no allowance may be taken for the costs of transporting lease 
production which is not royalty bearing without MMS approval.
    (ii) Notwithstanding the requirements of paragraph (i), the lessee 
may propose to MMS a cost allocation method on the basis of the values 
of the products transported. MMS shall approve the method unless it 
determines that it is not consistent with the purposes of the 
regulations in this part.
    (3) If an arm's-length transportation contract includes both gaseous 
and liquid products and the transportation costs attributable to each 
cannot be determined from the contract, the lessee shall propose an 
allocation procedure to MMS. The lessee may use the transportation 
allowance determined in accordance with its proposed allocation 
procedure until MMS issues its determination on the acceptability of the 
cost allocation. The lessee shall submit all relevant data to support 
its proposal. MMS shall then determine the gas transportation allowance 
based upon the lessee's proposal and any additional information MMS 
deems necessary. The lessee must submit the allocation proposal within 3 
months of claiming the allocated deduction on the Form MMS-2014.
    (4) Where the lessee's payments for transportation under an arm's-
length contract are not based on a dollar per unit, the lessee shall 
convert whatever consideration is paid to a dollar value equivalent for 
the purposes of this section.
    (5) Where an arm's-length sales contract price or a posted price 
includes a provision whereby the listed price is reduced by a 
transportation factor, MMS will not consider the transportation factor 
to be a transportation allowance. The transportation factor may be used 
in determining the lessee's gross proceeds for the sale of the product. 
The transportation factor may not exceed 50 percent of the base price of 
the product without MMS approval.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length transportation contract or has no contract, including those 
situations where the lessee performs transportation services for itself, 
the transportation allowance will be based upon the lessee's reasonable 
actual costs as provided in this paragraph. All transportation 
allowances deducted under a non-arm's-length or no contract situation 
are subject to monitoring, review, audit, and adjustment. The lessee 
must claim a transportation allowance by

[[Page 74]]

reporting it as a separate line entry on the Form MMS-2014. When 
necessary or appropriate, MMS may direct a lessee to modify its 
estimated or actual transportation allowance deduction.
    (2) The transportation allowance for non-arm's-length or no-contract 
situations shall be based upon the lessee's actual costs for 
transportation during the reporting period, including operating and 
maintenance expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the initial 
depreciable investment in the transportation system multiplied by a rate 
of return in accordance with paragraph (b)(2)(iv)(B) of this section. 
Allowable capital costs are generally those costs for depreciable fixed 
assets (including costs of delivery and installation of capital 
equipment) which are an integral part of the transportation system.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the 
transportation system; maintenance of equipment; maintenance labor; and 
other directly allocable and attributable maintenance expenses which the 
lessee can document.
    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the transportation system is an allowable expense. 
State and Federal income taxes and severance taxes and other fees, 
including royalties, are not allowable expenses.
    (iv) A lessee may use either depreciation or a return on depreciable 
capital investment. After a lessee has elected to use either method for 
a transportation system, the lessee may not later elect to change to the 
other alternative without approval of the MMS.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the transportation system services, or a 
unit of production method. After an election is made, the lessee may not 
change methods without MMS approval. A change in ownership of a 
transportation system shall not alter the depreciation schedule 
established by the original transporter/lessee for purposes of the 
allowance calculation. With or without a change in ownership, a 
transportation system shall be depreciated only once. Equipment shall 
not be depreciated below a reasonable salvage value.
    (B) The MMS shall allow as a cost an amount equal to the allowable 
initial capital investment in the transportation system multiplied by 
the rate of return determined pursuant to paragraph (b)(2)(v) of this 
section. No allowance shall be provided for depreciation. This 
alternative shall apply only to transportation facilities first placed 
in service after March 1, 1988.
    (v) The rate of return must be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return must be the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month for which the allowance is applicable. The rate must be 
redetermined at the beginning of each subsequent calendar year.
    (3)(i) The deduction for transportation costs shall be determined on 
the basis of the lessee's cost of transporting each product through each 
individual transportation system. Where more than one product in a 
gaseous phase is transported, the allocation of costs to each of the 
products transported shall be made in a consistent and equitable manner 
in the same proportion as the ratio of the volume of each product 
(excluding waste products which have no value) to the volume of all 
products in the gaseous phase (excluding waste products which have no 
value). Except as provided in this paragraph, the lessee may not take an 
allowance for transporting a product which is not royalty bearing 
without MMS approval.
    (ii) Notwithstanding the requirements of paragraph (b)(3)(i), the 
lessee may propose to the MMS a cost allocation method on the basis of 
the values of the products transported. MMS shall

[[Page 75]]

approve the method unless it determines that it is not consistent with 
the purposes of the regulations in this part.
    (4) Where both gaseous and liquid products are transported through 
the same transportation system, the lessee shall propose a cost 
allocation procedure to MMS. The lessee may use the transportation 
allowance determined in accordance with its proposed allocation 
procedure until MMS issues its determination on the acceptability of the 
cost allocation. The lessee shall submit all relevant data to support 
its proposal. MMS shall then determine the transportation allowance 
based upon the lessee's proposal and any additional information MMS 
deems necessary. The lessee must submit the allocation proposal within 3 
months of claiming the allocated deduction on the Form MMS-2014.
    (5) A lessee may apply to the MMS for an exception from the 
requirement that it compute actual costs in accordance with paragraphs 
(b)(1) through (b)(4) of this section. The MMS will grant the exception 
only if the lessee has a tariff for the transportation system approved 
by the Federal Energy Regulatory Commission (FERC) (for both Federal and 
Indian leases) or a State regulatory agency (for Federal leases). The 
MMS shall deny the exception request if it determines that the tariff is 
excessive as compared to arm's-length transportation charges by 
pipelines, owned by the lessee or others, providing similar 
transportation services in that area. If there are no arm's-length 
transportation charges, MMS shall deny the exception request if: (i) No 
FERC or State regulatory agency cost analysis exists and the FERC or 
State regulatory agency, as applicable, has declined to investigate 
pursuant to MMS timely objections upon filing; and (ii) the tariff 
significantly exceeds the lessee's actual costs for transportation as 
determined under this section.
    (c) Reporting requirements. (1) Arm's-length contracts. (i) The 
lessee must notify MMS of an allowance based on incurred costs by using 
a separate line entry on the Form MMS-2014.
    (ii) The MMS may require that a lessee submit arm's-length 
transportation contracts, production agreements, operating agreements, 
and related documents. Documents shall be submitted within a reasonable 
time, as determined by MMS.
    (2) Non-arm's-length or no contract. (i) The lessee must notify MMS 
of an allowance based on the incurred costs by using a separate line 
entry on the Form MMS-2014.
    (ii) For new transportation facilities or arrangements, the lessee's 
initial deduction shall include estimates of the allowable gas 
transportation costs for the applicable period. Cost estimates shall be 
based upon the most recently available operations data for the 
transportation system or, if such data are not available, the lessee 
shall use estimates based upon industry data for similar transportation 
systems.
    (iii) Upon request by MMS, the lessee shall submit all data used to 
prepare the allowance deduction. The data shall be provided within a 
reasonable period of time, as determined by MMS.
    (iv) If the lessee is authorized to use its FERC-approved or State 
regulatory agency-approved tariff as its transportation cost in 
accordance with paragraph (b)(5) of this section, it shall follow the 
reporting requirements of paragraph (c)(1) of this section.
    (d) Interest and assessments. (1) If a lessee nets a transportation 
allowance against the royalty value on the Form MMS-2014, the lessee 
shall be assessed an amount of up to 10 percent of the allowance netted 
not to exceed $250 per lease selling arrangement per sales period.
    (2) If a lessee deducts a transportation allowance on its Form MMS-
2014 that exceeds 50 percent of the value of the gas transported without 
obtaining prior approval of MMS under Sec. 206.156, the lessee shall pay 
interest on the excess allowance amount taken from the date such amount 
is taken to the date the lessee files an exception request with MMS.
    (3) If a lessee erroneously reports a transportation allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (4) Interest required to be paid by this section shall be determined 
in accordance with 30 CFR 218.54.

[[Page 76]]

    (e) Adjustments. (1) If the actual transportation allowance is less 
than the amount the lessee has taken on Form MMS-2014 for each month 
during the allowance reporting period, the lessee shall be required to 
pay additional royalties due plus interest computed under 30 CFR 218.54 
from the allowance reporting period when the lessee took the deduction 
to the date the lessee repays the difference to MMS. If the actual 
transportation allowance is greater than the amount the lessee has taken 
on Form MMS-2014 for each month during the allowance reporting period, 
the lessee shall be entitled to a credit without interest.
    (2) For lessees transporting production from onshore Federal leases, 
the lessee must submit a corrected Form MMS-2014 to reflect actual 
costs, together with any payment, in accordance with instructions 
provided by MMS.
    (3) For lessees transporting gas production from leases on the OCS, 
if the lessee's estimated transportation allowance exceeds the allowance 
based on actual costs, the lessee must submit a corrected Form MMS-2014 
to reflect actual costs, together with its payment, in accordance with 
instructions provided by MMS. If the lessee's estimated transportation 
allowance is less than the allowance based on actual costs, the refund 
procedure will be specified by MMS.
    (f) Allowable costs in determining transportation allowances. 
Lessees may include, but are not limited to, the following costs in 
determining the arm's-length transportation allowance under paragraph 
(a) of this section or the non-arm's-length transportation allowance 
under paragraph (b) of this section:
    (1) Firm demand charges paid to pipelines. You must limit the 
allowable costs for the firm demand charges to the applicable rate per 
MMBtu multiplied by the actual volumes transported. You may not include 
any losses incurred for previously purchased but unused firm capacity. 
You also may not include any gains associated with releasing firm 
capacity. If you receive a payment or credit from the pipeline for 
penalty refunds, rate case refunds, or other reasons, you must reduce 
the firm demand charge claimed on the Form MMS-2014. You must modify the 
Form MMS-2014 by the amount received or credited for the affected 
reporting period;
    (2) Gas supply realignment (GSR) costs. The GSR costs result from a 
pipeline reforming or terminating supply contracts with producers to 
implement the restructuring requirements of FERC Orders in 18 CFR part 
284;
    (3) Commodity charges. The commodity charge allows the pipeline to 
recover the costs of providing service;
    (4) Wheeling costs. Hub operators charge a wheeling cost for 
transporting gas from one pipeline to either the same or another 
pipeline through a market center or hub. A hub is a connected manifold 
of pipelines through which a series of incoming pipelines are 
interconnected to a series of outgoing pipelines;
    (5) Gas Research Institute (GRI) fees. The GRI conducts research, 
development, and commercialization programs on natural gas related 
topics for the benefit of the U.S. gas industry and gas customers. GRI 
fees are allowable provided such fees are mandatory in FERC-approved 
tariffs;
    (6) Annual Charge Adjustment (ACA) fees. FERC charges these fees to 
pipelines to pay for its operating expenses;
    (7) Payments (either volumetric or in value) for actual or 
theoretical losses. This paragraph does not apply to non-arm's-length 
transportation arrangements unless the transportation allowance is based 
on a FERC or State regulatory-approved tariff;
    (8) Temporary storage services. This includes short duration storage 
services offered by market centers or hubs (commonly referred to as 
``parking'' or ``banking''), or other temporary storage services 
provided by pipeline transporters, whether actual or provided as a 
matter of accounting. Temporary storage is limited to 30 days or less; 
and
    (9) Supplemental costs for compression, dehydration, and treatment 
of gas. MMS allows these costs only if such services are required for 
transportation and exceed the services necessary to place production 
into marketable condition required under Secs. 206.152(i) and 206.153(i) 
of this part.

[[Page 77]]

    (g) Nonallowable costs in determining transportation allowances. 
Lessees may not include the following costs in determining the arm's-
length transportation allowance under paragraph (a) of this section or 
the non-arm's-length transportation allowance under paragraph (b) of 
this section:
    (1) Fees or costs incurred for storage. This includes storing 
production in a storage facility, whether on or off the lease, for more 
than 30 days;
    (2) Aggregator/marketer fees. This includes fees you pay to another 
person (including your affiliates) to market your gas, including 
purchasing and reselling the gas, or finding or maintaining a market for 
the gas production;
    (3) Penalties you incur as shipper. These penalties include, but are 
not limited to:
    (i) Over-delivery cash-out penalties. This includes the difference 
between the price the pipeline pays you for over-delivered volumes 
outside the tolerances and the price you receive for over-delivered 
volumes within the tolerances;
    (ii) Scheduling penalties. This includes penalties you incur for 
differences between daily volumes delivered into the pipeline and 
volumes scheduled or nominated at a receipt or delivery point;
    (iii) Imbalance penalties. This includes penalties you incur 
(generally on a monthly basis) for differences between volumes delivered 
into the pipeline and volumes scheduled or nominated at a receipt or 
delivery point; and
    (iv) Operational penalties. This includes fees you incur for 
violation of the pipeline's curtailment or operational orders issued to 
protect the operational integrity of the pipeline;
    (4) Intra-hub transfer fees. These are fees you pay to hub operators 
for administrative services (e.g., title transfer tracking) necessary to 
account for the sale of gas within a hub; and
    (5) Other nonallowable costs. Any cost you incur for services you 
are required to provide at no cost to the lessor.
    (h) Other transportation cost determinations. Use this section when 
calculating transportation costs to establish value using a netback 
procedure or any other procedure that requires deduction of 
transportation costs.

[53 FR 1272, Jan. 15, 1988, as amended at 53 FR 45762, Nov. 14, 1988; 61 
FR 5465, Feb. 12, 1996; 62 FR 65762, Dec. 16, 1997]



Sec. 206.158  Processing allowances--general.

    (a) Where the value of gas is determined pursuant to Sec. 206.153 of 
this subpart, a deduction shall be allowed for the reasonable actual 
costs of processing.
    (b) Processing costs must be allocated among the gas plant products. 
A separate processing allowance must be determined for each gas plant 
product and processing plant relationship. Natural gas liquids (NGL's) 
shall be considered as one product.
    (c)(1) Except as provided in paragraph (d)(2) of this section, the 
processing allowance shall not be applied against the value of the 
residue gas. Where there is no residue gas MMS may designate an 
appropriate gas plant product against which no allowance may be applied.
    (2) Except as provided in paragraph (c)(3) of this section, the 
processing allowance deduction on the basis of an individual product 
shall not exceed 66\2/3\ percent of the value of each gas plant product 
determined in accordance with Sec. 206.153 of this subpart (such value 
to be reduced first for any transportation allowances related to 
postprocessing transportation authorized by Sec. 206.156 of this 
subpart).
    (3) Upon request of a lessee, MMS may approve a processing allowance 
in excess of the limitation prescribed by paragraph (c)(2) of this 
section. The lessee must demonstrate that the processing costs incurred 
in excess of the limitation prescribed in paragraph (c)(2) of this 
section were reasonable, actual, and necessary. An application for 
exception (using Form MMS-4393, Request to Exceed Regulatory Allowance 
Limitation) shall contain all relevant and supporting documentation for 
MMS to make a determination. Under no circumstances shall the value for 
royalty purposes of any gas plant product be reduced to zero.
    (d)(1) Except as provided in paragraph (d)(2) of this section, no 
processing cost deduction shall be allowed

[[Page 78]]

for the costs of placing lease products in marketable condition, 
including dehydration, separation, compression, or storage, even if 
those functions are performed off the lease or at a processing plant. 
Where gas is processed for the removal of acid gases, commonly referred 
to as ``sweetening,'' no processing cost deduction shall be allowed for 
such costs unless the acid gases removed are further processed into a 
gas plant product. In such event, the lessee shall be eligible for a 
processing allowance as determined in accordance with this subpart. 
However, MMS will not grant any processing allowance for processing 
lease production which is not royalty bearing.
    (2)(i) If the lessee incurs extraordinary costs for processing gas 
production from a gas production operation, it may apply to MMS for an 
allowance for those costs which shall be in addition to any other 
processing allowance to which the lessee is entitled pursuant to this 
section. Such an allowance may be granted only if the lessee can 
demonstrate that the costs are, by reference to standard industry 
conditions and practice, extraordinary, unusual, or unconventional.
    (ii) Prior MMS approval to continue an extraordinary processing cost 
allowance is not required. However, to retain the authority to deduct 
the allowance the lessee must report the deduction to MMS in a form and 
manner prescribed by MMS.
    (e) If MMS determines that a lessee has improperly determined a 
processing allowance authorized by this subpart, then the lessee shall 
pay any additional royalties, plus interest determined in accordance 
with 30 CFR 218.54, or shall be entitled to a credit, without interest. 
If the lessee takes a deduction for processing on the Form MMS-2014 by 
improperly netting the allowance against the sales value of the gas 
plant products instead of reporting the allowance as a separate line 
item, he may be assessed an additional amount under 206.159(d).

[53 FR 1272, Jan. 15, 1988, as amended at 61 FR 5466, Feb. 12, 1996; 64 
FR 43288, Aug. 10, 1999]



Sec. 206.159  Determination of processing allowances.

    (a) Arm's-length processing contracts. (1)(i) For processing costs 
incurred by a lessee under an arm's-length contract, the processing 
allowance shall be the reasonable actual costs incurred by the lessee 
for processing the gas under that contract, except as provided in 
paragraphs (a)(1)(ii) and (a)(1)(iii) of this section, subject to 
monitoring, review, audit, and adjustment. The lessee shall have the 
burden of demonstrating that its contract is arm's-length. MMS' prior 
approval is not required before a lessee may deduct costs incurred under 
an arm's-length contract. The lessee must claim a processing allowance 
by reporting it as a separate line entry on the Form MMS-2014.
    (ii) In conducting reviews and audits, MMS will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the processor for the 
processing. If the contract reflects more than the total consideration, 
then the MMS may require that the processing allowance be determined in 
accordance with paragraph (b) of this section.
    (iii) If MMS determines that the consideration paid pursuant to an 
arm's-length processing contract does not reflect the reasonable value 
of the processing because of misconduct by or between the contracting 
parties, or because the lessee otherwise has breached its duty to the 
lessor to market the production for the mutual benefit of the lessee and 
lessor, then MMS shall require that the processing allowance be 
determined in accordance with paragraph (b) of this section. When MMS 
determines that the value of the processing may be unreasonable, MMS 
will notify the lessee and give the lessee an opportunity to provide 
written information justifying the lessee's processing costs.
    (2) If an arm's-length processing contract includes more than one 
gas plant product and the processing costs attributable to each product 
can be determined from the contract, then the processing costs for each 
gas plant product shall be determined in accordance with the contract. 
No allowance

[[Page 79]]

may be taken for the costs of processing lease production which is not 
royalty-bearing.
    (3) If an arm's-length processing contract includes more than one 
gas plant product and the processing costs attributable to each product 
cannot be determined from the contract, the lessee shall propose an 
allocation procedure to MMS. The lessee may use its proposed allocation 
procedure until MMS issues its determination. The lessee shall submit 
all relevant data to support its proposal. MMS shall then determine the 
processing allowance based upon the lessee's proposal and any additional 
information MMS deems necessary. No processing allowance will be granted 
for the costs of processing lease production which is not royalty 
bearing. The lessee must submit the allocation proposal within 3 months 
of claiming the allocated deduction on Form MMS-2014.
    (4) Where the lessee's payments for processing under an arm's-length 
contract are not based on a dollar per unit basis, the lessee shall 
convert whatever consideration is paid to a dollar value equivalent for 
the purposes of this section.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length processing contract or has no contract, including those 
situations where the lessee performs processing for itself, the 
processing allowance will be based upon the lessee's reasonable actual 
costs as provided in this paragraph. All processing allowances deducted 
under a non-arm's-length or no-contract situation are subject to 
monitoring, review, audit, and adjustment. The lessee must claim a 
processing allowance by reflecting it as a separate line entry on the 
Form MMS-2014. When necessary or appropriate, MMS may direct a lessee to 
modify its estimated or actual processing allowance.
    (2) The processing allowance for non-arm's-length or no-contract 
situations shall be based upon the lessee's actual costs for processing 
during the reporting period, including operating and maintenance 
expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the initial 
depreciable investment in the processing plant multiplied by a rate of 
return in accordance with paragraph (b)(2)(iv)(B) of this section. 
Allowable capital costs are generally those costs for depreciable fixed 
assets (including costs of delivery and installation of capital 
equipment) which are an integral part of the processing plant.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the 
processing plant; maintenance of equipment; maintenance labor; and other 
directly allocable and attributable maintenance expenses which the 
lessee can document.
    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the processing plant is an allowable expense. State 
and Federal income taxes and severance taxes, including royalties, are 
not allowable expenses.
    (iv) A lessee may use either depreciation or a return on depreciable 
capital investment. When a lessee has elected to use either method for a 
processing plant, the lessee may not later elect to change to the other 
alternative without approval of the MMS.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the processing plant services, or a unit-
of-production method. After an election is made, the lessee may not 
change methods without MMS approval. A change in ownership of a 
processing plant shall not alter the depreciation schedule established 
by the original processor/lessee for purposes of the allowance 
calculation. With or without a change in ownership, a processing plant 
shall be depreciated only once. Equipment shall not be depreciated below 
a reasonable salvage value.
    (B) The MMS shall allow as a cost an amount equal to the allowable 
initial capital investment in the processing

[[Page 80]]

plant multiplied by the rate of return determined pursuant to paragraph 
(b)(2)(v) of this section. No allowance shall be provided for 
depreciation. This alternative shall apply only to plants first placed 
in service after March 1, 1988.
    (v) The rate of return must be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return must be the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month for which the allowance is applicable. The rate must be 
redetermined at the beginning of each subsequent calendar year.
    (3) The processing allowance for each gas plant product shall be 
determined based on the lessee's reasonable and actual cost of 
processing the gas. Allocation of costs to each gas plant product shall 
be based upon generally accepted accounting principles. The lessee may 
not take an allowance for the costs of processing lease production which 
is not royalty bearing.
    (4) A lessee may apply to MMS for an exception from the requirement 
that it compute actual costs in accordance with paragraphs (b)(1) 
through (b)(3) of this section. The MMS may grant the exception only if: 
(i) The lessee has arm's-length contracts for processing other gas 
production at the same processing plant; and (ii) at least 50 percent of 
the gas processed annually at the plant is processed pursuant to arm's-
length processing contracts; if the MMS grants the exception, the lessee 
shall use as its processing allowance the volume weighted average prices 
charged other persons pursuant to arm's-length contracts for processing 
at the same plant.
    (c) Reporting requirements--(1) Arm's-length contracts. (i) The 
lessee must notify MMS of an allowance based on incurred costs by using 
a separate line entry on the Form MMS-2014.
    (ii) The MMS may require that a lessee submit arm's-length 
processing contracts and related documents. Documents shall be submitted 
within a reasonable time, as determined by MMS.
    (2) Non-arm's-length or no contract. (i) The lessee must notify MMS 
of an allowance based on the incurred costs by using a separate line 
entry on the Form MMS-2014.
    (ii) For new processing plants, the lessee's initial deduction shall 
include estimates of the allowable gas processing costs for the 
applicable period. Cost estimates shall be based upon the most recently 
available operations data for the plant or, if such data are not 
available, the lessee shall use estimates based upon industry data for 
similar gas processing plants.
    (iii) Upon request by MMS, the lessee shall submit all data used to 
prepare the allowance deduction. The data shall be provided within a 
reasonable period of time, as determined by MMS.
    (iv) If the lessee is authorized to use the volume weighted average 
prices charged other persons as its processing allowance in accordance 
with paragraph (b)(4) of this section, it shall follow the reporting 
requirements of paragraph (c)(1) of this section.
    (d) Interest and assessments. (1) If a lessee nets a processing 
allowance against the royalty value on the Form MMS-2014, the lessee 
shall be assessed an amount of up to 10 percent of the allowance netted 
not to exceed $250 per lease selling arrangement per sales period.
    (2) If a lessee deducts a processing allowance on its Form MMS-2014 
that exceeds 66\2/3\ percent of the value of the gas processed without 
obtaining prior approval of MMS under Sec. 206.158, the lessee shall pay 
interest on the excess allowance amount taken from the date such amount 
is taken to the date the lessee files an exception request with MMS.
    (3) If a lessee erroneously reports a processing allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (4) Interest required to be paid by this section shall be determined 
in accordance with 30 CFR 218.54.
    (e) Adjustments. (1) If the actual processing allowance is less than 
the amount the lessee has taken on Form MMS-2014 for each month during 
the allowance reporting period, the lessee shall pay additional 
royalties due plus interest computed under 30 CFR 218.54 from the 
allowance reporting period when the lessee took the deduction to

[[Page 81]]

the date the lessee repays the difference to MMS. If the actual 
processing allowance is greater than the amount the lessee has taken on 
Form MMS-2014 for each month during the allowance reporting period, the 
lessee shall be entitled to a credit without interest.
    (2) For lessees processing production from onshore Federal leases, 
the lessee must submit a corrected Form MMS-2014 to reflect actual 
costs, together with any payment, in accordance with instructions 
provided by MMS.
    (3) For lessees processing gas production from leases on the OCS, if 
the lessee's estimated processing allowance exceeds the allowance based 
on actual costs, the lessee must submit a corrected Form MMS-2014 to 
reflect actual costs, together with its payment, in accordance with 
instructions provided by MMS. If the lessee's estimated costs were less 
than the actual costs, the refund procedure will be specified by MMS.
    (f) Other processing cost determinations. The provisions of this 
section shall apply to determine processing costs when establishing 
value using a net back valuation procedure or any other procedure that 
requires deduction of processing costs.

[53 FR 1272, Jan. 15, 1988, as amended at 53 FR 45762, Nov. 14, 1988; 61 
FR 5466, Feb. 12, 1996; 64 FR 43288, Aug. 10, 1999]



Sec. 206.160  Operating allowances.

    Notwithstanding any other provisions in these regulations, an 
operating allowance may be used for the purpose of computing payment 
obligations when specified in the notice of sale and the lease. The 
allowance amount or formula shall be specified in the notice of sale and 
in the lease agreement.

[61 FR 3804, Feb. 2, 1996]



                          Subpart E--Indian Gas

    Source: 64 FR 43515, Aug. 10, 1999, unless otherwise noted.



Sec. 206.170  What does this subpart contain?

    This subpart contains royalty valuation provisions applicable to 
Indian lessees.
    (a) This subpart applies to all gas production from Indian (tribal 
and allotted) oil and gas leases (except leases on the Osage Indian 
Reservation). The purpose of this subpart is to establish the value of 
production for royalty purposes consistent with the mineral leasing 
laws, other applicable laws, and lease terms. This subpart does not 
apply to Federal leases.
    (b) If the specific provisions of any Federal statute, treaty, 
negotiated agreement, settlement agreement resulting from any 
administrative or judicial proceeding, or Indian oil and gas lease are 
inconsistent with any regulation in this subpart, then the Federal 
statute, treaty, negotiated agreement, settlement agreement, or lease 
will govern to the extent of that inconsistency.
    (c) You may calculate the value of production for royalty purposes 
under methods other than those the regulations in this title require, 
but only if you, the tribal lessor, and MMS jointly agree to the 
valuation methodology. For leases on Indian allotted lands, you and MMS 
must agree to the valuation methodology.
    (d) All royalty payments you make to MMS are subject to monitoring, 
review, audit, and adjustment.
    (e) The regulations in this subpart are intended to ensure that the 
trust responsibilities of the United States with respect to the 
administration of Indian oil and gas leases are discharged in accordance 
with the requirements of the governing mineral leasing laws, treaties, 
and lease terms.



Sec. 206.171  What definitions apply to this subpart?

    The following definitions apply to this subpart and to subpart J of 
part 202 of this title:
    Accounting for comparison means the same as dual accounting.
    Active spot market means a market where one or more MMS-acceptable 
publications publish bidweek prices (or if bidweek prices are not 
available, first of the month prices) for at least one index-pricing 
point in the index zone.
    Allowance means a deduction in determining value for royalty 
purposes.

[[Page 82]]

Processing allowance means an allowance for the reasonable, actual costs 
of processing gas determined under this subpart. Transportation 
allowance means an allowance for the reasonable, actual cost of 
transportation determined under this subpart.
    Approved Federal Agreement (AFA) means a unit or communitization 
agreement approved under departmental regulations.
    Area means a geographic region at least as large as the defined 
limits of an oil or gas field, in which oil or gas lease products have 
similar quality, economic, or legal characteristics. An area may be all 
lands within the boundaries of an Indian reservation.
    Arm's-length contract means a contract or agreement that has been 
arrived at in the marketplace between independent, nonaffiliated persons 
with opposing economic interests regarding that contract. For purposes 
of this subpart, two persons are affiliated if one person controls, is 
controlled by, or is under common control with another person. The 
following percentages (based on the instruments of ownership of the 
voting securities of an entity, or based on other forms of ownership) 
determine if persons are affiliated:
    (1) Ownership in excess of 50 percent constitutes control.
    (2) Ownership of 10 through 50 percent creates a presumption of 
control.
    (3) Ownership of less than 10 percent creates a presumption of 
noncontrol which MMS may rebut if it demonstrates actual or legal 
control, including the existence of interlocking directorates. 
Notwithstanding any other provisions of this subpart, contracts between 
relatives, either by blood or by marriage, are not arm's-length 
contracts. MMS may require the lessee to certify the percentage of 
ownership or control of the entity. To be considered arm's-length for 
any production month, a contract must meet the requirements of this 
definition for that production month as well as when the contract was 
executed.
    Audit means a review, conducted under generally accepted accounting 
and auditing standards, of royalty payment compliance activities of 
lessees or other persons who pay royalties, rents, or bonuses on Indian 
leases.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Compression means raising the pressure of gas.
    Condensate means liquid hydrocarbons (normally exceeding 40 degrees 
of API gravity) recovered at the surface without resorting to 
processing. Condensate is the mixture of liquid hydrocarbons that 
results from condensation of petroleum hydrocarbons existing initially 
in a gaseous phase in an underground reservoir.
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that with due consideration creates an obligation.
    Dedicated means a contractual commitment to deliver gas production 
(or a specified portion of production) from a lease or well when that 
production is specified in a sales contract and that production must be 
sold pursuant to that contract to the extent that production occurs from 
that lease or well.
    Drip condensate means any condensate recovered downstream of the 
facility measurement point without resorting to processing. Drip 
condensate includes condensate recovered as a result of its becoming a 
liquid during the transportation of the gas removed from the lease or 
recovered at the inlet of a gas processing plant by mechanical means, 
often referred to as scrubber condensate.
    Dual Accounting (or accounting for comparison) refers to the 
requirement to pay royalty based on a value which is the higher of the 
value of gas prior to processing less any applicable allowances as 
compared to the combined value of drip condensate, residue gas, and gas 
plant products after processing, less applicable allowances.
    Entitlement (or entitled share) means the gas production from a 
lease, or allocable to lease acreage under the terms of an AFA, 
multiplied by the operating rights owner's percentage of interest 
ownership in the lease or the acreage.
    Facility measurement point (or point of royalty settlement) means 
the point

[[Page 83]]

where the BLM-approved measurement device is located for determining the 
volume of gas removed from the lease. The facility measurement point may 
be on the lease or off-lease with BLM approval.
    Field means a geographic region situated over one or more subsurface 
oil and gas reservoirs encompassing at least the outermost boundaries of 
all oil and gas accumulations known to be within those reservoirs 
vertically projected to the land surface. Onshore fields are usually 
given names and their official boundaries are often designated by oil 
and gas regulatory agencies in the respective States in which the fields 
are located.
    Gas means any fluid, either combustible or noncombustible, 
hydrocarbon or nonhydrocarbon, which is extracted from a reservoir and 
which has neither independent shape nor volume, but tends to expand 
indefinitely. It is a substance that exists in a gaseous or rarefied 
state under standard temperature and pressure conditions.
    Gas plant products means separate marketable elements, compounds, or 
mixtures, whether in liquid, gaseous, or solid form, resulting from 
processing gas. However, it does not include residue gas.
    Gathering means the movement of lease production to a central 
accumulation or treatment point on the lease, unit, or communitized 
area; or a central accumulation or treatment point off the lease, unit, 
or communitized area as approved by BLM operations personnel.
    Gross proceeds (for royalty payment purposes) means the total monies 
and other consideration accruing to an oil and gas lessee for the 
disposition of unprocessed gas, residue gas, and gas plant products 
produced. Gross proceeds includes, but is not limited to, payments to 
the lessee for certain services such as compression, dehydration, 
measurement, or field gathering to the extent that the lessee is 
obligated to perform them at no cost to the Indian lessor, and payments 
for gas processing rights. Gross proceeds, as applied to gas, also 
includes but is not limited to reimbursements for severance taxes and 
other reimbursements. Tax reimbursements are part of the gross proceeds 
accruing to a lessee even though the Indian royalty interest is exempt 
from taxation. Monies and other consideration, including the forms of 
consideration identified in this paragraph, to which a lessee is 
contractually or legally entitled but which it does not seek to collect 
through reasonable efforts are also part of gross proceeds.
    Index means the calculated composite price ($/MMBtu) of spot-market 
sales published by a publication that meets MMS-established criteria for 
acceptability at the index-pricing point.
    Index-pricing point (IPP) means any point on a pipeline for which 
there is an index.
    Index zone means a field or an area with an active spot market and 
published indices applicable to that field or area that are acceptable 
to MMS under Sec. 206.172(d)(2).
    Indian allottee means any Indian for whom land or an interest in 
land is held in trust by the United States or who holds title subject to 
Federal restriction against alienation.
    Indian tribe means any Indian tribe, band, nation, pueblo, 
community, rancheria, colony, or other group of Indians for which any 
land or interest in land is held in trust by the United States or which 
is subject to Federal restriction against alienation.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by the United States under a 
mineral leasing law that authorizes exploration for, development or 
extraction of, or removal of lease products--or the land area covered by 
that authorization, whichever is required by the context. For purposes 
of this subpart, this definition excludes Federal leases.
    Lease products means any leased minerals attributable to, 
originating from, or allocated to a lease.
    Lessee means any person to whom the United States, a tribe, and/or 
individual Indian landowner issues a lease, and any person who has been 
assigned an obligation to make royalty or other payments required by the 
lease. This includes any person who has an interest in a lease 
(including operating rights owners) as well as an operator or payor who 
has no interest in the lease

[[Page 84]]

but who has assumed the royalty payment responsibility.
    Like-quality lease products means lease products which have similar 
chemical, physical, and legal characteristics.
    Marketable condition means a condition in which lease products are 
sufficiently free from impurities and otherwise so conditioned that a 
purchaser will accept them under a sales contract typical for the field 
or area.
    MMS means the Minerals Management Service, Department of the 
Interior. MMS includes, where appropriate, tribal auditors acting under 
agreements under the Federal Oil and Gas Royalty Management Act of 1982, 
30 U.S.C. 1701 et seq. or other applicable agreements.
    Minimum royalty means that minimum amount of annual royalty that the 
lessee must pay as specified in the lease or in applicable leasing 
regulations.
    Natural gas liquids (NGL's) means those gas plant products 
consisting of ethane, propane, butane, or heavier liquid hydrocarbons.
    Net-back method (or work-back method) means a method for calculating 
market value of gas at the lease under which costs of transportation, 
processing, and manufacturing are deducted from the proceeds received 
for, or the value of, the gas, residue gas, or gas plant products, and 
any extracted, processed, or manufactured products, at the first point 
at which reasonable values for any such products may be determined by a 
sale under an arm's-length contract or comparison to other sales of such 
products.
    Net output means the quantity of residue gas and each gas plant 
product that a processing plant produces.
    Net profit share means the specified share of the net profit from 
production of oil and gas as provided in the agreement.
    Operating rights owner (or working interest owner) means any person 
who owns operating rights in a lease subject to this subpart. A record 
title owner is the owner of operating rights under a lease except to the 
extent that the operating rights or a portion thereof have been 
transferred from record title (see BLM regulations at 43 CFR 3100.0-
5(d)).
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture (when established as a 
separate entity).
    Point of royalty measurement means the same as facility measurement 
point.
    Processing means any process designed to remove elements or 
compounds (hydrocarbon and nonhydrocarbon) from gas, including 
absorption, adsorption, or refrigeration. Field processes which normally 
take place on or near the lease, such as natural pressure reduction, 
mechanical separation, heating, cooling, dehydration, desulphurization 
(or ``sweetening''), and compression, are not considered processing. The 
changing of pressures and/or temperatures in a reservoir is not 
considered processing.
    Residue gas means that hydrocarbon gas consisting principally of 
methane resulting from processing gas.
    Selling arrangement means the individual contractual arrangements 
under which sales or dispositions of gas, residue gas and gas plant 
products are made. Selling arrangements are described by illustration in 
the ``MMS Royalty Management Program Oil and Gas Payor Handbook.''
    Spot sales agreement means a contract wherein a seller agrees to 
sell to a buyer a specified amount of unprocessed gas, residue gas, or 
gas plant products at a specified price over a fixed period, usually of 
short duration. It also does not normally require a cancellation notice 
to terminate, and does not contain an obligation, or imply an intent, to 
continue in subsequent periods.
    Takes means when the operating rights owner sells or removes 
production from, or allocated to, the lease, or when such sale or 
removal occurs for the benefit of an operating rights owner.
    Work-back method means the same as net-back method.



Sec. 206.172  How do I value gas produced from leases in an index zone?

    (a) What leases this section applies to. This section explains how 
lessees must value, for royalty purposes, gas produced from Indian 
leases located in an

[[Page 85]]

index zone. For other leases, value must be determined under 
Sec. 206.174.
    (1) You must use the valuation provision of this section if your 
lease is in an index zone and meets one of the following two 
requirements:
    (i) Has a major portion provision;
    (ii) Does not have a major portion provision, but provides for the 
Secretary to determine the value of production.
    (2) This section does not apply to carbon dioxide, nitrogen, or 
other non-hydrocarbon components of the gas stream. However, if they are 
recovered and sold separately from the gas stream, you must determine 
the value of these products under Sec. 206.174.
    (b) Valuing residue gas and gas before processing. (1) Except as 
provided in paragraphs (e), (f), and (g) of this section, this paragraph 
(b) explains how you must value the following four types of gas:
    (i) Gas production before processing;
    (ii) Gas production that you certify on Form MMS-4410, Certification 
for Not Performing Accounting for Comparison (Dual Accounting), is not 
processed before it flows into a pipeline with an index but which may be 
processed later;
    (iii) Residue gas after processing; and
    (iv) Gas that is never processed.
    (2) The value of gas production that is not sold under an arm's-
length dedicated contract is the index-based value determined under 
paragraph (d) of this section unless the gas was subject to a previous 
contract which was part of a gas contract settlement. If the previous 
contract was subject to a gas contract settlement and if the royalty-
bearing contract settlement proceeds per MMBtu added to the 80 percent 
of the safety net prices calculated at Sec. 206.172(e)(4)(i) exceeds the 
index-based value that applies to the gas under this section (including 
any adjustments required under Sec. 206.176), then the value of the gas 
is the higher of the value determined under this section (including any 
adjustments required under Sec. 206.176) or Sec. 206.174.
    (3) The value of gas production that is sold under an arm's-length 
dedicated contract is the higher of the index-based value under 
paragraph (d) of this section or the value of that production determined 
under Sec. 206.174(b).
    (c) Valuing gas that is processed before it flows into a pipeline 
with an index. Except as provided in paragraphs (e), (f), and (g) of 
this section, this paragraph (c) explains how you must value gas that is 
processed before it flows into a pipeline with an index. You must value 
this gas production based on the higher of the following two values:
    (1) The value of the gas before processing determined under 
paragraph (b) of this section.
    (2) The value of the gas after processing, which is either the 
alternative dual accounting value under Sec. 206.173 or the sum of the 
following three values:
    (i) The value of the residue gas determined under paragraph (b)(2) 
or (3) of this section, as applicable;
    (ii) The value of the gas plant products determined under 
Sec. 206.174, less any applicable processing and/or transportation 
allowances determined under this subpart; and
    (iii) The value of any drip condensate associated with the processed 
gas determined under subpart B of this part.
    (d) Determining the index-based value for gas production. (1) To 
determine the index-based value per MMBtu for production from a lease in 
an index zone, you must use the following procedures:
    (i) For each MMS-approved publication, calculate the average of the 
highest reported prices for all index-pricing points in the index zone, 
except for any prices excluded under paragraph (d)(6) of this section;
    (ii) Sum the averages calculated in paragraph (d)(1)(i) of this 
section and divide by the number of publications; and
    (iii) Reduce the number calculated under paragraph (d)(1)(ii) of 
this section by 10 percent, but not by less than 10 cents per MMBtu or 
more than 30 cents per MMBtu. The result is the index-based value per 
MMBtu for production from all leases in that index zone.
    (2) MMS will publish in the Federal Register the index zones that 
are eligible for the index-based valuation method under this paragraph. 
MMS will monitor the market activity in the index zones and, if 
necessary, hold a technical conference to add or modify a

[[Page 86]]

particular index zone. Any change to the index zones will be published 
in the Federal Register. MMS will consider the following five factors 
and conditions in determining eligible index zones:
    (i) Areas for which MMS-approved publications establish index prices 
that accurately reflect the value of production in the field or area 
where the production occurs;
    (ii) Common markets served;
    (iii) Common pipeline systems;
    (iv) Simplification; and
    (v) Easy identification in MMS's systems, such as counties or Indian 
reservations.
    (3) If market conditions change so that an index-based method for 
determining value is no longer appropriate for an index zone, MMS will 
hold a technical conference to consider disqualification of an index 
zone. MMS will publish notice in the Federal Register if an index zone 
is disqualified. If an index zone is disqualified, then production from 
leases in that index zone cannot be valued under this paragraph.
    (4) MMS periodically will publish in the Federal Register a list of 
acceptable publications based on certain criteria, including, but not 
limited to the following five criteria:
    (i) Publications buyers and sellers frequently use;
    (ii) Publications frequently referenced in purchase or sales 
contracts;
    (iii) Publications that use adequate survey techniques, including 
the gathering of information from a substantial number of sales;
    (iv) Publications that publish the range of reported prices they use 
to calculate their index; and
    (v) Publications independent from DOI, lessors, and lessees.
    (5) Any publication may petition MMS to be added to the list of 
acceptable publications.
    (6) MMS may exclude an individual index price for an index zone in 
an MMS-approved publication if MMS determines that the index price does 
not accurately reflect the value of production in that index zone. MMS 
will publish a list of excluded indices in the Federal Register.
    (7) MMS will reference which tables in the publications you must use 
for determining the associated index prices.
    (8) The index-based values determined under this paragraph are not 
subject to deductions for transportation or processing allowances 
determined under Secs. 206.177, 206.178, 206.179, and 206.180.
    (e) Determining the minimum value for royalty purposes of gas sold 
beyond the first index pricing point. (1) Notwithstanding any other 
provision of this section, the value for royalty purposes of gas 
production from an Indian lease that is sold beyond the first index 
pricing point through which it flows cannot be less than the value 
determined under this paragraph (e).
    (2) By June 30 following any calendar year, you must calculate for 
each month of that calendar year your safety net price per MMBtu using 
the procedures in paragraph (e)(3) of this section. You must calculate a 
safety net price for each month and for each index zone where you have 
an Indian lease for which you report and pay royalties.
    (3) Your safety net price (S) for an index zone is the volume-
weighted average contract price per delivered MMBtu under your or your 
affiliate's arm's-length contracts for the disposition of residue gas or 
unprocessed gas produced from your Indian leases in that index zone as 
computed under this paragraph (e)(3).
    (i) Include in your calculation only sales under those contracts 
that establish a delivery point beyond the first index pricing point 
through which the gas flows, and that include any gas produced from or 
allocable to one or more of your Indian leases in that index zone, even 
if the contract also includes gas produced from Federal, State, or fee 
properties. Include in your volume-weighted average calculation those 
volumes that are allocable to your Indian leases in that index zone.
    (ii) Do not reduce the contract price for any transportation costs 
incurred to deliver the gas to the purchaser.
    (iii) For purposes of this paragraph (e), the contract price will 
not include the following amounts:

[[Page 87]]

    (A) Any amounts you receive in compromise or settlement of a 
predecessor contract for that gas;
    (B) Deductions for you or any other person to put gas production 
into marketable condition or to market the gas; and
    (C) Any amounts related to marketable securities associated with the 
sales contract.
    (4) Next, you must determine for each month the safety net 
differential (SND). You must perform this calculation separately for 
each index zone.
    (i) For each index zone, the safety net differential is equal to: 
SND = [(0.80 x S) - (1.25 x I)] where (I) is the index-based value 
determined under 30 CFR 206.172(d).
    (ii) If the safety net differential is positive you owe additional 
royalties.
    (5)(i) To calculate the additional royalties you owe, make the 
following calculation for each of your Indian leases in that index zone 
that produced gas that was sold beyond the first index-pricing point 
through which the gas flowed and that was used in the calculation in 
paragraph (e)(3) of this section:

    Lease royalties owed = SND x V x R, where R = the lease royalty rate 
and V = the volume allocable to the lease which produced gas that was 
sold beyond the first index pricing point.

    (ii) If gas produced from any of your Indian leases is commingled or 
pooled with gas produced from non-Indian properties, and if any of the 
combined gas is sold at a delivery point beyond the first index pricing 
point through which the gas flows, then the volume allocable to each 
Indian lease for which gas was sold beyond the first index pricing point 
in the calculation under paragraph (e)(5)(i) of this section is the 
volume produced from the lease multiplied by the proportion that the 
total volume of gas sold beyond the first index pricing point bears to 
the total volume of gas commingled or pooled from all properties.
    (iii) Add the numbers calculated for each lease under paragraph 
(e)(5)(i) of this section. The total is the additional royalty you owe.
    (6) You have the following responsibilities to comply with the 
minimum value for royalty purposes:
    (i) You must report the safety net price for each index zone to MMS 
on Form MMS-4411, Safety Net Report, no later than June 30 following 
each calendar year;
    (ii) You must pay and report on Form MMS-2014 additional royalties 
due no later than June 30 following each calendar year; and
    (iii) MMS may order you to amend your safety net price within one 
year from the date your Form MMS-4411 is due or is filed, whichever is 
later. If MMS does not order any amendments within that one-year period, 
your safety net price calculation is final.
    (f) Excluding some or all tribal leases from valuation under this 
section. (1) An Indian tribe may ask MMS to exclude some or all of its 
leases from valuation under this section. MMS will consult with BIA 
regarding the request.
    (i) If MMS approves the request for your lease, you must value your 
production under Sec. 206.174 beginning with production on the first day 
of the second month following the date MMS publishes notice of its 
decision in the Federal Register.
    (ii) If an Indian tribe requests exclusion from an index zone for 
less than all of its leases, MMS will approve the request only if the 
excluded leases may be segregated into one or more groups based on 
separate fields within the reservation.
    (2) An Indian tribe may ask MMS to terminate exclusion of its leases 
from valuation under this section. MMS will consult with BIA regarding 
the request.
    (i) If MMS approves the request, you must value your production 
under Sec. 206.172 beginning with production on the first day of the 
second month following the date MMS publishes notice of its decision in 
the Federal Register.
    (ii) Termination of an exclusion under paragraph (f)(2)(i) of this 
section cannot take effect earlier than 1 year after the first day of 
the production month that the exclusion was effective.
    (3) The Indian tribe's request to MMS under either paragraph (f)(1) 
or (2) of this section must be in the form of a tribal resolution.
    (g) Excluding Indian allotted leases from valuation under this 
section. (1)(i)

[[Page 88]]

MMS may exclude any Indian allotted leases from valuation under this 
section. MMS will consult with BIA regarding the exclusion.
    (ii) If MMS excludes your lease, you must value your production 
under Sec. 206.174 beginning with production on the first day of the 
second month following the date MMS publishes notice of its decision in 
the Federal Register.
    (iii) If MMS excludes any Indian allotted leases under this 
paragraph (g)(1), it will exclude all Indian allotted leases in the same 
field.
    (2)(i) MMS may terminate the exclusion of any Indian allotted leases 
from valuation under this section. MMS will consult with BIA regarding 
the termination.
    (ii) If MMS terminates the exclusion, you must value your production 
under Sec. 206.172 beginning with production on the first day of the 
second month following the date MMS publishes notice of its decision in 
the Federal Register.



Sec. 206.173  How do I calculate the alternative methodology for dual accounting?

    (a) Electing a dual accounting method. (1) If you are required to 
perform the accounting for comparison (dual accounting) under 
Sec. 206.176, you have two choices. You may elect to perform the dual 
accounting calculation according to either Sec. 206.176(a) (called 
actual dual accounting), or paragraph (b) of this section (called the 
alternative methodology for dual accounting).
    (2) You must make a separate election to use the alternative 
methodology for dual accounting for your Indian leases in each MMS-
designated area. Your election for a designated area must apply to all 
of your Indian leases in that area.
    (i) MMS will publish in the Federal Register a list of the lease 
prefixes that will be associated with each designated area for purposes 
of this section. The MMS-designated areas are as follows:
    (A) Alabama-Coushatta;
    (B) Blackfeet Reservation;
    (C) Crow Reservation;
    (D) Fort Belknap Reservation;
    (E) Fort Berthold Reservation;
    (F) Fort Peck Reservation;
    (G) Jicarilla Apache Reservation;
    (H) MMS-designated groups of counties in the State of Oklahoma;
    (I) Navajo Reservation;
    (J) Northern Cheyenne Reservation;
    (K) Rocky Boys Reservation;
    (L) Southern Ute Reservation;
    (M) Turtle Mountain Reservation;
    (N) Ute Mountain Ute Reservation;
    (O) Uintah and Ouray Reservation;
    (P) Wind River Reservation; and
    (Q) Any other area that MMS designates. MMS will publish a new area 
designation in the Federal Register.
    (ii) You may elect to begin using the alternative methodology for 
dual accounting at the beginning of any month. The first election to use 
the alternative methodology will be effective from the time of election 
through the end of the following calendar year. Thereafter, each 
election to use the alternative methodology must remain in effect for 2 
calendar years. You may return to the actual dual accounting method only 
at the beginning of the next election period or with the written 
approval of MMS and the tribal lessor for tribal leases, and MMS for 
Indian allottee leases in the designated area.
    (iii) When you elect to use the alternative methodology for a 
designated area, you must also use the alternative methodology for any 
new wells commenced and any new leases acquired in the designated area 
during the term of the election.
    (b) Calculating value using the alternative methodology for dual 
accounting. (1) The alternative methodology adjusts the value of gas 
before processing determined under either Sec. 206.172 or Sec. 206.174 
to provide the value of the gas after processing. You must use the value 
of the gas after processing for royalty payment purposes. The amount of 
the increase depends on your relationship with the owner(s) of the plant 
where the gas is processed. If you have no direct or indirect ownership 
interest in the processing plant, then the increase is lower, as 
provided in the table in paragraph (b)(2)(ii) of this section. If you 
have a direct or indirect ownership interest in the plant where the gas 
is processed, the increase is higher, as

[[Page 89]]

provided in paragraph (b)(2)(ii) of this section.
    (2) To calculate the value of the gas after processing using the 
alternative methodology for dual accounting, you must apply the increase 
to the value before processing, determined in either Sec. 206.172 or 
Sec. 206.174, as follows:
    (i) Value of gas after processing = (value determined under either 
Sec. 206.172 or Sec. 206.174, as applicable) x (1 + increment for dual 
accounting); and
    (ii) In this equation, the increment for dual accounting is the 
number you take from the applicable Btu range, determined under 
paragraph (b)(3) of this section, in the following table:

------------------------------------------------------------------------
                                                 Increment    Increment
                                                 if Lessee    if lessee
                                                   has no       has an
                   BTU range                     ownership    ownership
                                                interest in  interest in
                                                   plant        plant
------------------------------------------------------------------------
1001 to 1050..................................        .0275        .0375
1051 to 1100..................................        .0400        .0625
1101 to 1150..................................        .0425        .0750
1151 to 1200..................................        .0700        .1225
1201 to 1250..................................        .0975        .1700
1251 to 1300..................................        .1175        .2050
1301 to 1350..................................        .1400        .2400
1351 to 1400..................................        .1450        .2500
1401 to 1450..................................        .1500        .2600
1451 to 1500..................................        .1550        .2700
1501 to 1550..................................        .1600        .2800
1551 to 1600..................................        .1650        .2900
1601 to 1650..................................        .1850        .3225
1651 to 1700..................................        .1950        .3425
1701+.........................................        .2000        .3550
------------------------------------------------------------------------

    (3) The applicable Btu for purposes of this section is the volume 
weighted-average Btu for the lease computed from measurements at the 
facility measurement point(s) for gas production from the lease.
    (4) If any of your gas from the lease is processed during a month, 
use the following two paragraphs to determine which amounts are subject 
to dual accounting and which dual accounting method you must use.
    (i) Weighted-average Btu content determined under paragraph (b)(3) 
of this section is greater than 1,000 Btu's per cubic foot (Btu/cf). All 
gas production from the lease is subject to dual accounting and you must 
use the alternative method for all that gas production if you elected to 
use the alternative method under this section.
    (ii) Weighted-average Btu content determined under paragraph (b)(3) 
of this section is less than or equal to 1,000 Btu/cf. Only the volumes 
of lease production measured at facility measurement points whose 
quality exceeds 1,000 Btu/cf are subject to dual accounting, and you may 
use the alternative methodology for these volumes. For gas measured at 
facility measurement points for these leases where the quality is equal 
to or less than 1,000 Btu/cf, you are not required to do dual 
accounting.



Sec. 206.174  How do I value gas production when an index-based method cannot be used?

    (a) Situations in which an index-based method cannot be used. (1) 
Gas production must be valued under this section in the following 
situations.
    (i) Your lease is not in an index zone (or MMS has excluded your 
lease from an index zone).
    (ii) If your lease is in an index zone and you sell your gas under 
an arm's-length dedicated contract, then the value of your gas is the 
higher of the value received under the dedicated contract determined 
under Sec. 206.174(b) or the value under Sec. 206.172.
    (iii) Also use this section to value any other gas production that 
cannot be valued under Sec. 206.172, as well as gas plant products, and 
to value components of the gas stream that have no Btu value (for 
example, carbon dioxide, nitrogen, etc.).
    (2) The value for royalty purposes of gas production subject to this 
subpart is the value of gas determined under this section less 
applicable allowances determined under this subpart.
    (3) You must determine the value of gas production that is processed 
and is subject to accounting for comparison using the procedure in 
Sec. 206.176.
    (4) This paragraph applies if your lease has a major portion 
provision. It also applies if your lease does not have a major portion 
provision but the lease provides for the Secretary to determine value.
    (i) The value of production you must initially report and pay is the 
value determined in accordance with the other paragraphs of this 
section.
    (ii) MMS will determine the major portion value and notify you in 
the Federal Register of that value. The

[[Page 90]]

value of production for royalty purposes for your lease is the higher of 
either the value determined under this section which you initially used 
to report and pay royalties, or the major portion value calculated under 
this paragraph (a)(4). If the major portion value is higher, you must 
submit an amended Form MMS-2014 to MMS by the due date specified in the 
written notice from MMS of the major portion value. Late-payment 
interest under 30 CFR 218.54 on any underpayment will not begin to 
accrue until the date the amended Form MMS-2014 is due to MMS.
    (iii) Except as provided in paragraph (a)(4)(iv) of this section, 
MMS will calculate the major portion value for each designated area 
(which are the same designated areas as under Sec. 206.173) using values 
reported for unprocessed gas and residue gas on Form MMS-2014 for gas 
produced from leases on that Indian reservation or other designated 
area. MMS will array the reported prices from highest to lowest price. 
The major portion value is that price at which 25 percent (by volume) of 
the gas (starting from the highest) is sold. MMS cannot unilaterally 
change the major portion value after you are notified in writing of what 
that value is for your leases.
    (iv) MMS may calculate the major portion value using different data 
than the data described in paragraph (a)(4)(iii) of this section or data 
to augment the data described in paragraph (a)(4)(iii) of this section. 
This may include price data reported to the State tax authority or price 
data from leases MMS has reviewed in the designated area. MMS may use 
this alternate or the augmented data source beginning with production on 
the first day of the month following the date MMS publishes notice in 
the Federal Register that it is calculating the major portion using a 
method in this paragraph (a)(4)(iv) of this section.
    (b) Arm's-length contracts. (1) The value of gas, residue gas, or 
any gas plant product you sell under an arm's-length contract is the 
gross proceeds accruing to you or your affiliate, except as provided in 
paragraphs (b)(1)(ii)-(iv) of this section.
    (i) You have the burden of demonstrating that your contract is 
arm's-length.
    (ii) In conducting reviews and audits for gas valued based upon 
gross proceeds under this paragraph, MMS will examine whether or not 
your contract reflects the total consideration actually transferred 
either directly or indirectly from the buyer to you or your affiliate 
for the gas, residue gas, or gas plant product. If the contract does not 
reflect the total consideration, then MMS may require that the gas, 
residue gas, or gas plant product sold under that contract be valued in 
accordance with paragraph (c) of this section. Value may not be less 
than the gross proceeds accruing to you or your affiliate, including the 
additional consideration.
    (iii) If MMS determines for gas valued under this paragraph that the 
gross proceeds accruing to you or your affiliate under an arm's-length 
contract do not reflect the value of the gas, residue gas, or gas plant 
products because of misconduct by or between the contracting parties, or 
because you otherwise have breached your duty to the lessor to market 
the production for the mutual benefit of you and the lessor, then MMS 
will require that the gas, residue gas, or gas plant product be valued 
under paragraphs (c)(2) or (3) of this section. In these circumstances, 
MMS will notify you and give you an opportunity to provide written 
information justifying your value.
    (iv) This paragraph applies to situations where a pipeline purchases 
gas from a lessee according to a cash-out program under a transportation 
contract. For all over-delivered volumes, the royalty value is the price 
the pipeline is required to pay for volumes within the tolerances for 
over-delivery specified in the transportation contract. Use the same 
value for volumes that exceed the over-delivery tolerances even if those 
volumes are subject to a lower price specified in the transportation 
contract. However, if MMS determines that the price specified in the 
transportation contract for over-delivered volumes is unreasonably low, 
the lessees must value all over-delivered volumes under paragraph (c)(2) 
or (3) of this section.

[[Page 91]]

    (2) MMS may require you to certify that your arm's-length contract 
provisions include all of the consideration the buyer pays, either 
directly or indirectly, for the gas, residue gas, or gas plant product.
    (c) Non-arm's-length contracts. If your gas, residue gas, or any gas 
plant product is not sold under an arm's-length contract, then you must 
value the production using the first applicable method of the following 
three methods:
    (1) The gross proceeds accruing to you under your non-arm's-length 
contract sale (or other disposition other than by an arm's-length 
contract), provided that those gross proceeds are equivalent to the 
gross proceeds derived from, or paid under, comparable arm's-length 
contracts for purchases, sales, or other dispositions of like-quality 
gas in the same field (or, if necessary to obtain a reasonable sample, 
from the same area). For residue gas or gas plant products, the 
comparable arm's-length contracts must be for gas from the same 
processing plant (or, if necessary to obtain a reasonable sample, from 
nearby plants). In evaluating the comparability of arm's-length 
contracts for the purposes of these regulations, the following factors 
will be considered: price, time of execution, duration, market or 
markets served, terms, quality of gas, residue gas, or gas plant 
products, volume, and such other factors as may be appropriate to 
reflect the value of the gas, residue gas, or gas plant products.
    (2) A value determined by consideration of other information 
relevant in valuing like-quality gas, residue gas, or gas plant 
products, including gross proceeds under arm's-length contracts for 
like-quality gas in the same field or nearby fields or areas, or for 
residue gas or gas plant products from the same gas plant or other 
nearby processing plants. Other factors to consider include prices 
received in spot sales of gas, residue gas or gas plant products, other 
reliable public sources of price or market information, and other 
information as to the particular lease operation or the salability of 
such gas, residue gas, or gas plant products.
    (3) A net-back method or any other reasonable method to determine 
value.
    (d) Supporting data. If you determine the value of production under 
paragraph (c) of this section, you must retain all data relevant to the 
determination of royalty value.
    (1) Such data will be subject to review and audit, and MMS will 
direct you to use a different value if we determine upon review or audit 
that the value you reported is inconsistent with the requirements of 
these regulations.
    (2) You must make all such data available upon request to the 
authorized MMS or Indian representatives, to the Office of the Inspector 
General of the Department, or other authorized persons. This includes 
your arm's-length sales and volume data for like-quality gas, residue 
gas, and gas plant products that are sold, purchased, or otherwise 
obtained from the same processing plant or from nearby processing 
plants, or from the same or nearby field or area.
    (e) Improper values. If MMS determines that you have not properly 
determined value, you must pay the difference, if any, between royalty 
payments made based upon the value you used and the royalty payments 
that are due based upon the value MMS established. You also must pay 
interest computed on that difference under 30 CFR 218.54. If you are 
entitled to a credit, MMS will provide instructions on how to take that 
credit.
    (f) Value guidance. You may ask MMS for guidance in determining 
value. You may propose a valuation method to MMS. Submit all available 
data related to your proposal and any additional information MMS deems 
necessary. MMS will promptly review your proposal and provide you with a 
non-binding determination of the guidance you request.
    (g) Minimum value of production. (1) For gas, residue gas, and gas 
plant products valued under this section, under no circumstances may the 
value of production for royalty purposes be less than the gross proceeds 
accruing to the lessee (including its affiliates) for gas, residue gas 
and/or any gas plant products, less applicable transportation allowances 
and processing allowances determined under this subpart.
    (2) For gas plant products valued under this section and not valued

[[Page 92]]

under Sec. 206.173, the alternative methodology for dual accounting, the 
minimum value of production for each gas plant product is as follows:
    (i) Leases in certain States and areas have specific minimum values.
    (A) For production from leases in Colorado in the San Juan Basin, 
New Mexico, and Texas, the monthly average minimum price reported in 
commercial price bulletins for the gas plant product at Mont Belvieu, 
Texas, minus 8.0 cents per gallon.
    (B) For production in Arizona, in Colorado outside the San Juan 
Basin, Minnesota, Montana, North Dakota, Oklahoma, South Dakota, Utah, 
and Wyoming, the monthly average minimum price reported in commercial 
price bulletins for the gas plant product at Conway, Kansas, minus 7.0 
cents per gallon;
    (ii) You may use any commercial price bulletin, but you must use the 
same bulletin for all of the calendar year. If the commercial price 
bulletin you are using stops publication, you may use a different 
commercial price bulletin for the remaining part of the calendar year; 
and (iii) If you use a commercial price bulletin that is published 
monthly, the monthly average minimum price is the bulletin's minimum 
price. If you use a commercial price bulletin that is published weekly, 
the monthly average minimum price is the arithmetic average of the 
bulletin's weekly minimum prices. If you use a commercial price bulletin 
that is published daily, the monthly average minimum price is the 
arithmetic average of the bulletin's minimum prices for each Wednesday 
in the month.
    (h) Marketable condition/Marketing. You are required to place gas, 
residue gas, and gas plant products in marketable condition and market 
the gas for the mutual benefit of the lessee and the lessor at no cost 
to the Indian lessor. When your gross proceeds establish the value under 
this section, that value must be increased to the extent that the gross 
proceeds have been reduced because the purchaser, or any other person, 
is providing certain services to place the gas, residue gas, or gas 
plant products in marketable condition or to market the gas, the cost of 
which ordinarily is your responsibility.
    (i) Highest obtainable price or benefit. For gas, residue gas, and 
gas plant products valued under this section, value must be based on the 
highest price a prudent lessee can receive through legally enforceable 
claims under its contract. Absent contract revision or amendment, if you 
fail to take proper or timely action to receive prices or benefits to 
which you are entitled, you must pay royalty at a value based upon that 
obtainable price or benefit. Contract revisions or amendments must be in 
writing and signed by all parties to an arm's-length contract. If you 
make timely application for a price increase or benefit allowed under 
your contract but the purchaser refuses, and you take reasonable 
measures, which are documented, to force purchaser compliance, you will 
owe no additional royalties unless or until monies or consideration 
resulting from the price increase or additional benefits are received. 
This paragraph is not intended to permit you to avoid your royalty 
payment obligation in situations where your purchaser fails to pay, in 
whole or in part, or timely, for a quantity of gas, residue gas, or gas 
plant product.
    (j) Non-binding MMS reviews. Notwithstanding any provision in these 
regulations to the contrary, no review, reconciliation, monitoring, or 
other like process that results in an MMS redetermination of value under 
this section will be considered final or binding against the Federal 
Government or its beneficiaries until the audit period is formally 
closed.
    (k) Confidential information. Certain information submitted to MMS 
to support valuation proposals, including transportation allowances and 
processing allowances, may be exempted from disclosure under the Freedom 
of Information Act, 5 U.S.C. 552, or other Federal law. Any data 
specified by law to be privileged, confidential, or otherwise exempt, 
will be maintained in a confidential manner in accordance with 
applicable laws and regulations. All requests for information about 
determinations made under this subpart must be submitted in accordance 
with

[[Page 93]]

the Freedom of Information Act regulation of the Department of the 
Interior, 43 CFR part 2.

[64 FR 43515, Aug. 10, 1999, as amended at 65 FR 62614, Oct. 19, 2000]



Sec. 206.175  How do I determine quantities and qualities of production for computing royalties?

    (a) For unprocessed gas, you must pay royalties on the quantity and 
quality at the facility measurement point BLM either allowed or 
approved.
    (b) For residue gas and gas plant products, you must pay royalties 
on your share of the monthly net output of the plant even though residue 
gas and/or gas plant products may be in temporary storage.
    (c) If you have no ownership interest in the processing plant and 
you do not operate the plant, you may use the contract volume allocation 
to determine your share of plant products.
    (d) If you have an ownership interest in the plant or if you operate 
it, use the following procedure to determine the quantity of the residue 
gas and gas plant products attributable to you for royalty payment 
purposes:
    (1) When the net output of the processing plant is derived from gas 
obtained from only one lease, the quantity of the residue gas and gas 
plant products on which you must pay royalty is the net output of the 
plant.
    (2) When the net output of a processing plant is derived from gas 
obtained from more than one lease producing gas of uniform content, the 
quantity of the residue gas and gas plant products allocable to each 
lease must be in the same proportions as the ratios obtained by dividing 
the amount of gas delivered to the plant from each lease by the total 
amount of gas delivered from all leases.
    (3) When the net output of a processing plant is derived from gas 
obtained from more than one lease producing gas of non-uniform content, 
the volumes of residue gas and gas plant products allocable to each 
lease are based on theoretical volumes of residue gas and gas plant 
products measured in the lease gas stream. You must calculate the 
portion of net plant output of residue gas and gas plant products 
attributable to each lease as follows:
    (i) First, compute the theoretical volumes of residue gas and of gas 
plant products attributable to the lease by multiplying the lease volume 
of the gas stream by the tested residue gas content (mole percentage) or 
gas plant product (GPM) content of the gas stream;
    (ii) Second, calculate the theoretical volumes of residue gas and of 
gas plant products delivered from all leases by summing the theoretical 
volumes of residue gas and of gas plant products delivered from each 
lease; and
    (iii) Third, calculate the theoretical quantities of net plant 
output of residue gas and of gas plant products attributable to each 
lease by multiplying the net plant output of residue gas, or gas plant 
products, by the ratio in which the theoretical volumes of residue gas, 
or gas plant products, is the numerator and the theoretical volume of 
residue gas, or gas plant products, delivered from all leases is the 
denominator.
    (4) You may request MMS approval of other methods for determining 
the quantity of residue gas and gas plant products allocable to each 
lease. If MMS approves a different method, it will be applicable to all 
gas production from your Indian leases that is processed in the same 
plant.
    (e) You may not take any deductions from the royalty volume or 
royalty value for actual or theoretical losses. Any actual loss of 
unprocessed gas incurred prior to the facility measurement point will 
not be subject to royalty if BLM determines that the loss was 
unavoidable.



Sec. 206.176  How do I perform accounting for comparison?

    (a) This section applies if the gas produced from your Indian lease 
is processed and that Indian lease requires accounting for comparison 
(also referred to as actual dual accounting). Except as provided in 
paragraphs (b) and (c) of this section, the actual dual accounting 
value, for royalty purposes, is the greater of the following two values:
    (1) The combined value of the following products:
    (i) The residue gas and gas plant products resulting from processing 
the gas determined under either Sec. 206.172 or

[[Page 94]]

Sec. 206.174, less any applicable allowances; and
    (ii) Any drip condensate associated with the processed gas recovered 
downstream of the point of royalty settlement without resorting to 
processing determined under Sec. 206.52, less applicable allowances.
    (2) The value of the gas prior to processing determined under either 
Sec. 206.172 or Sec. 206.174, including any applicable allowances.
    (b) If you are required to account for comparison, you may elect to 
use the alternative dual accounting methodology provided for in 
Sec. 206.173 instead of the provisions in paragraph (a) of this section.
    (c) Accounting for comparison is not required for gas if no gas from 
the lease is processed until after the gas flows into a pipeline with an 
index located in an index zone or into a mainline pipeline not in an 
index zone. If you do not perform dual accounting, you must certify to 
MMS that gas flows into such a pipeline before it is processed.
    (d) Except as provided in paragraph (e) of this section, if you 
value any gas production from a lease for a month using the dual 
accounting provisions of this section or the alternative dual accounting 
methodology of Sec. 206.173, then the value of that gas is the minimum 
value for any other gas production from that lease for that month 
flowing through the same facility measurement point.
    (e) If the weighted-average Btu quality for your lease is less than 
1,000 Btu's per cubic foot, see Sec. 206.173(b)(4)(ii) to determine if 
you must perform a dual accounting calculation.

                        Transportation Allowances



Sec. 206.177  What general requirements regarding transportation allowances apply to me?

    (a) When you value gas under Sec. 206.174 at a point off the lease, 
unit, or communitized area (for example, sales point or point of value 
determination), you may deduct from value a transportation allowance to 
reflect the value, for royalty purposes, at the lease, unit, or 
communitized area. The allowance is based on the reasonable actual costs 
you incurred to transport unprocessed gas, residue gas, or gas plant 
products from a lease to a point off the lease, unit, or communitized 
area. This would include, if appropriate, transportation from the lease 
to a gas processing plant off the lease, unit, or communitized area and 
from the plant to a point away from the plant. You may not deduct any 
allowance for gathering costs.
    (b) You must allocate transportation costs among all products you 
produce and transport as provided in Sec. 206.178.
    (c)(1) Except as provided in paragraphs (c)(2) and (3) of this 
section, your transportation allowance deduction for each selling 
arrangement may not exceed 50 percent of the value of the unprocessed 
gas, residue gas, or gas plant product. For purposes of this section, 
natural gas liquids are considered one product.
    (2) If you ask MMS, MMS may approve a transportation allowance 
deduction in excess of the limitations in paragraph (c)(1) of this 
section. To receive this approval, you must demonstrate that the 
transportation costs incurred in excess of the limitations in paragraph 
(c)(1) of this section were reasonable, actual, and necessary. Under no 
circumstances may an allowance reduce the value for royalty purposes 
under any selling arrangement to zero.
    (3) Your application for exception (using Form MMS-4393, Request to 
Exceed Regulatory Allowance Limitation) must contain all relevant and 
supporting documentation necessary for MMS to make a determination.
    (d) If MMS conducts a review or audit and determines that you have 
improperly determined a transportation allowance authorized by this 
subpart, then you will be required to pay any additional royalties, plus 
interest determined in accordance with 30 CFR 218.54. Alternatively, you 
may be entitled to a credit, but you will not receive any interest on 
your overpayment.



Sec. 206.178  How do I determine a transportation allowance?

    (a) Determining a transportation allowance under an arm's-length 
contract. (1) This paragraph explains how to determine your allowance if 
you have an arm's-length transportation contract.

[[Page 95]]

    (i) If you have an arm's-length contract for transportation of your 
production, the transportation allowance is the reasonable, actual costs 
you incur for transporting the unprocessed gas, residue gas and/or gas 
plant products under that contract. Paragraphs (a)(1)(ii) and (iii) of 
this section provide a limited exception. You have the burden of 
demonstrating that your contract is arm's-length. Your allowances also 
are subject to paragraph (e) of this section. You are required to submit 
to MMS a copy of your arm's-length transportation contract(s) and all 
subsequent amendments to the contract(s) within 2 months of the date MMS 
receives your report which claims the allowance on the Form MMS-2014.
    (ii) When either MMS or a tribe conducts reviews and audits, they 
will examine whether or not the contract reflects more than the 
consideration actually transferred either directly or indirectly from 
you to the transporter of the transportation. If the contract reflects 
more than the total consideration, then MMS may require that the 
transportation allowance be determined under paragraph (b) of this 
section.
    (iii) If MMS determines that the consideration paid under an arm's-
length transportation contract does not reflect the value of the 
transportation because of misconduct by or between the contracting 
parties, or because you otherwise have breached your duty to the lessor 
to market the production for the mutual benefit of you and the lessor, 
then MMS will require that the transportation allowance be determined 
under paragraph (b) of this section. In these circumstances, MMS will 
notify you and give you an opportunity to provide written information 
justifying your transportation costs.
    (2) This paragraph explains how to allocate the costs to each 
product if your arm's-length transportation contract includes more than 
one product in a gaseous phase and the transportation costs attributable 
to each product cannot be determined from the contract.
    (i) If your arm's-length transportation contract includes more than 
one product in a gaseous phase and the transportation costs attributable 
to each product cannot be determined from the contract, the total 
transportation costs must be allocated in a consistent and equitable 
manner to each of the products transported. To make this allocation, use 
the same proportion as the ratio that the volume of each product 
(excluding waste products which have no value) bears to the volume of 
all products in the gaseous phase (excluding waste products which have 
no value). Except as provided in this paragraph, you cannot take an 
allowance for the costs of transporting lease production that is not 
royalty bearing without MMS approval, or without lessor approval on 
tribal leases.
    (ii) As an alternative to paragraph (a)(2)(i) of this section, you 
may propose to MMS a cost allocation method based on the values of the 
products transported. MMS will approve the method if we determine that 
it meets one of the two following requirements:
    (A) The methodology in paragraph (a)(2)(i) of this section cannot be 
applied; and
    (B) Your proposal is more reasonable than the methodology in 
paragraph (a)(2)(i) of this section.
    (3) This paragraph explains how to allocate costs to each product if 
your arm's-length transportation contract includes both gaseous and 
liquid products and the transportation costs attributable to each cannot 
be determined from the contract.
    (i) If your arm's-length transportation contract includes both 
gaseous and liquid products and the transportation costs attributable to 
each cannot be determined from the contract, you must propose an 
allocation procedure to MMS. You may use the transportation allowance 
determined in accordance with your proposed allocation procedure until 
MMS decides whether to accept your cost allocation.
    (ii) You are required to submit all relevant data to support your 
allocation proposal. MMS will then determine the gas transportation 
allowance based upon your proposal and any additional information MMS 
deems necessary.
    (4) If your payments for transportation under an arm's-length 
contract are not based on a dollar per unit price,

[[Page 96]]

you must convert whatever consideration is paid to a dollar value 
equivalent for the purposes of this section.
    (5) Where an arm's-length sales contract price includes a reduction 
for a transportation factor, MMS will not consider the transportation 
factor to be a transportation allowance. You may use the transportation 
factor to determine your gross proceeds for the sale of the product. 
However, the transportation factor may not exceed 50 percent of the base 
price of the product without MMS approval.
    (b) Determining a transportation allowance under a non-arm's-length 
or no contract. (1) This paragraph explains how to determine your 
allowance if you have a non-arm's-length transportation contract or no 
contract.
    (i) When you have a non-arm's-length transportation contract or no 
contract, including those situations where you perform transportation 
services for yourself, the transportation allowance is based upon your 
reasonable, allowable, actual costs for transportation as provided in 
this paragraph.
    (ii) All transportation allowances deducted under a non-arm's-length 
or no contract situation are subject to monitoring, review, audit, and 
adjustment. You must submit the actual cost information to support the 
allowance to MMS on Form MMS-4295, Gas Transportation Allowance Report, 
within 3 months after the end of the 12-month period to which the 
allowance applies. However, MMS may approve a longer time period. MMS 
will monitor the allowance deductions to ensure that deductions are 
reasonable and allowable. When necessary or appropriate, MMS may require 
you to modify your actual transportation allowance deduction.
    (2) This paragraph explains what actual transportation costs are 
allowable under a non-arm's-length contract or no contract situation. 
The transportation allowance for non-arm's-length or no-contract 
situations is based upon your actual costs for transportation during the 
reporting period. Allowable costs include operating and maintenance 
expenses, overhead, and either depreciation and a return on 
undepreciated capital investment (in accordance with paragraph 
(b)(2)(iv)(A) of this section), or a cost equal to the initial 
depreciable investment in the transportation system multiplied by a rate 
of return in accordance with paragraph (b)(2)(iv)(B) of this section. 
Allowable capital costs are generally those costs for depreciable fixed 
assets (including costs of delivery and installation of capital 
equipment) that are an integral part of the transportation system.
    (i) Allowable operating expenses include operations supervision and 
engineering, operations labor, fuel, utilities, materials, ad valorem 
property taxes, rent, supplies, and any other directly allocable and 
attributable operating expense that you can document.
    (ii) Allowable maintenance expenses include maintenance of the 
transportation system, maintenance of equipment, maintenance labor, and 
other directly allocable and attributable maintenance expenses that you 
can document.
    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the transportation system is an allowable expense. 
State and Federal income taxes and severance taxes and other fees, 
including royalties, are not allowable expenses.
    (iv) You may use either depreciation with a return on undepreciated 
capital investment or a return on depreciable capital investment. After 
you have elected to use either method for a transportation system, you 
may not later elect to change to the other alternative without MMS 
approval.
    (A) To compute depreciation, you may elect to use either a straight-
line depreciation method based on the life of equipment or on the life 
of the reserves that the transportation system services, or a unit of 
production method. Once you make an election, you may not change methods 
without MMS approval. A change in ownership of a transportation system 
will not alter the depreciation schedule that the original transporter/
lessee established for purposes of the allowance calculation. With or 
without a change in ownership, a transportation system may be 
depreciated only once. Equipment may not be depreciated below a 
reasonable salvage value. To compute a return on undepreciated capital 
investment, you will multiply the undepreciated capital

[[Page 97]]

investment in the transportation system by the rate of return determined 
under paragraph (b)(2)(v) of this section.
    (B) To compute a return on depreciable capital investment, you will 
multiply the initial capital investment in the transportation system by 
the rate of return determined under paragraph (b)(2)(v) of this section. 
No allowance will be provided for depreciation. This alternative will 
apply only to transportation facilities first placed in service after 
March 1, 1988.
    (v) The rate of return is the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return is the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month of the reporting period for which the allowance is 
applicable and is effective during the reporting period. The rate must 
be redetermined at the beginning of each subsequent transportation 
allowance reporting period that is determined under paragraph (b)(4) of 
this section.
    (3) This paragraph explains how to allocate transportation costs to 
each product and transportation system.
    (i) The deduction for transportation costs must be determined based 
on your cost of transporting each product through each individual 
transportation system. If you transport more than one product in a 
gaseous phase, the allocation of costs to each of the products 
transported must be made in a consistent and equitable manner. The 
allocation should be in the same proportion that the volume of each 
product (excluding waste products that have no value) bears to the 
volume of all products in the gaseous phase (excluding waste products 
that have no value). Except as provided in this paragraph, you may not 
take an allowance for transporting a product that is not royalty bearing 
without MMS approval.
    (ii) As an alternative to the requirements of paragraph (b)(3)(i) of 
this section, you may propose to MMS a cost allocation method based on 
the values of the products transported. MMS will approve the method upon 
determining that it meets one of the two following requirements:
    (A) The methodology in paragraph (b)(3)(i) of this section cannot be 
applied; and
    (B) Your proposal is more reasonable than the method in paragraph 
(b)(3)(i) of this section.
    (4) Your transportation allowance under this paragraph (b) must be 
determined based upon a calendar year or other period if you and MMS 
agree to an alternative.
    (5) If you transport both gaseous and liquid products through the 
same transportation system, you must propose a cost allocation procedure 
to MMS. You may use the transportation allowance determined in 
accordance with your proposed allocation procedure until MMS issues its 
determination on the acceptability of the cost allocation. You are 
required to submit all relevant data to support your proposal. MMS will 
then determine the transportation allowance based upon your proposal and 
any additional information MMS deems necessary.
    (c) Using the alternative transportation calculation when you have a 
non-arm's-length or no contract. (1) As an alternative to computing your 
transportation allowance under paragraph (b) of this section, you may 
use as the transportation allowance 10 percent of your gross proceeds 
but not to exceed 30 cents per MMBtu.
    (2) Your election to use the alternative transportation allowance 
calculation in paragraph (c)(1) of this section must be made at the 
beginning of a month and must remain in effect for an entire calendar 
year. Your first election will remain in effect until the end of the 
succeeding calendar year, except for elections effective January 1 that 
will be effective only for that calendar year.
    (d) Reporting your transportation allowance. (1) If MMS requests, 
you must submit all data used to determine your transportation 
allowance. The data must be provided within a reasonable period of time 
that MMS will determine.
    (2) You must report transportation allowances as a separate line 
item on Form MMS-2014. MMS may approve a different reporting procedure 
on allottee leases, and with lessor approval on tribal leases.

[[Page 98]]

    (e) Adjusting incorrect allowances. If for any month the 
transportation allowance you are entitled to is less than the amount you 
took on Form MMS-2014, you are required to report and pay additional 
royalties due, plus interest computed under 30 CFR 218.54 from the first 
day of the first month you deducted the improper transportation 
allowance until the date you pay the royalties due. If the 
transportation allowance you are entitled to is greater than the amount 
you took on Form MMS-2014 for any royalties during the reporting period, 
you are entitled to a credit. No interest will be paid on the 
overpayment.
    (f) Determining allowable costs for transportation allowances. 
Lessees may include, but are not limited to, the following costs in 
determining the arm's-length transportation allowance under paragraph 
(a) of this section or the non-arm's-length transportation allowance 
under paragraph (b) of this section:
    (1) Firm demand charges paid to pipelines. You must limit the 
allowable costs for the firm demand charges to the applicable rate per 
MMBtu multiplied by the actual volumes transported. You may not include 
any losses incurred for previously purchased but unused firm capacity. 
You also may not include any gains associated with releasing firm 
capacity. If you receive a payment or credit from the pipeline for 
penalty refunds, rate case refunds, or other reasons, you must reduce 
the firm demand charge claimed on the Form MMS-2014. You must modify the 
Form MMS-2014 by the amount received or credited for the affected 
reporting period.
    (2) Gas supply realignment (GSR) costs. The GSR costs result from a 
pipeline reforming or terminating supply contracts with producers to 
implement the restructuring requirements of FERC orders in 18 CFR part 
284.
    (3) Commodity charges. The commodity charge allows the pipeline to 
recover the costs of providing service.
    (4) Wheeling costs. Hub operators charge a wheeling cost for 
transporting gas from one pipeline to either the same or another 
pipeline through a market center or hub. A hub is a connected manifold 
of pipelines through which a series of incoming pipelines are 
interconnected to a series of outgoing pipelines.
    (5) Gas Research Institute (GRI) fees. The GRI conducts research, 
development, and commercialization programs on natural gas related 
topics for the benefit of the U.S. gas industry and gas customers. GRI 
fees are allowable provided such fees are mandatory in FERC-approved 
tariffs.
    (6) Annual Charge Adjustment (ACA) fees. FERC charges these fees to 
pipelines to pay for its operating expenses.
    (7) Payments (either volumetric or in value) for actual or 
theoretical losses. This paragraph does not apply to non-arm's-length 
transportation arrangements.
    (8) Temporary storage services. This includes short duration storage 
services offered by market centers or hubs (commonly referred to as 
``parking'' or ``banking''), or other temporary storage services 
provided by pipeline transporters, whether actual or provided as a 
matter of accounting. Temporary storage is limited to 30 days or less.
    (9) Supplemental costs for compression, dehydration, and treatment 
of gas. MMS allows these costs only if such services are required for 
transportation and exceed the services necessary to place production 
into marketable condition required under Sec. 206.174(h).
    (g) Determining nonallowable costs for transportation allowances. 
Lessees may not include the following costs in determining the arm's-
length transportation allowance under paragraph (a) of this section or 
the non-arm's-length transportation allowance under paragraph (b) of 
this section:
    (1) Fees or costs incurred for storage. This includes storing 
production in a storage facility, whether on or off the lease, for more 
than 30 days.
    (2) Aggregater/marketer fees. This includes fees you pay to another 
person (including your affiliates) to market your gas, including 
purchasing and reselling the gas, or finding or maintaining a market for 
the gas production.
    (3) Penalties you incur as shipper. These penalties include, but are 
not limited to the following:
    (i) Over-delivery cash-out penalties. This includes the difference 
between the price the pipeline pays you for

[[Page 99]]

over-delivered volumes outside the tolerances and the price you receive 
for over-delivered volumes within tolerances.
    (ii) Scheduling penalties. This includes penalties you incur for 
differences between daily volumes delivered into the pipeline and 
volumes scheduled or nominated at a receipt or delivery point.
    (iii) Imbalance penalties. This includes penalties you incur 
(generally on a monthly basis) for differences between volumes delivered 
into the pipeline and volumes scheduled or nominated at a receipt or 
delivery point.
    (iv) Operational penalties. This includes fees you incur for 
violation of the pipeline's curtailment or operational orders issued to 
protect the operational integrity of the pipeline.
    (4) Intra-hub transfer fees. These are fees you pay to hub operators 
for administrative services (e.g., title transfer tracking) necessary to 
account for the sale of gas within a hub.
    (5) Other nonallowable costs. Any cost you incur for services you 
are required to provide at no cost to the lessor.
    (h) Other transportation cost determinations. You must follow the 
provisions of this section to determine transportation costs when 
establishing value using either a net-back valuation procedure or any 
other procedure that allows deduction of actual transportation costs.

                          Processing Allowances



Sec. 206.179  What general requirements regarding processing allowances apply to me?

    (a) When you value any gas plant product under Sec. 206.174, you may 
deduct from value the reasonable actual costs of processing.
    (b) You must allocate processing costs among the gas plant products. 
You must determine a separate processing allowance for each gas plant 
product and processing plant relationship. Natural gas liquids are 
considered as one product.
    (c) The processing allowance deduction based on an individual 
product may not exceed 66 2/3 percent of the value of each gas plant 
product determined under Sec. 206.174. Before you calculate the 66 2/3 
percent limit, you must first reduce the value for any transportation 
allowances related to post-processing transportation authorized under 
Sec. 206.177.
    (d) Processing cost deductions will not be allowed for placing lease 
products in marketable condition. These costs include among others, 
dehydration, separation, compression upstream of the facility 
measurement point, or storage, even if those functions are performed off 
the lease or at a processing plant. Costs for the removal of acid gases, 
commonly referred to as sweetening, are not allowed unless the acid 
gases removed are further processed into a gas plant product. In such 
event, you will be eligible for a processing allowance determined under 
this subpart. However, MMS will not grant any processing allowance for 
processing lease production that is not royalty bearing.
    (e) You will be allowed a reasonable amount of residue gas royalty 
free for operation of the processing plant, but no allowance will be 
made for expenses incidental to marketing, except as provided in 30 CFR 
part 206. In those situations where a processing plant processes gas 
from more than one lease, only that proportionate share of your residue 
gas necessary for the operation of the processing plant will be allowed 
royalty free.
    (f) You do not owe royalty on residue gas, or any gas plant product 
resulting from processing gas, that is reinjected into a reservoir 
within the same lease, unit, or approved Federal agreement, until such 
time as those products are finally produced from the reservoir for sale 
or other disposition. This paragraph applies only when the reinjection 
is included in a BLM-approved plan of development or operations.
    (g) If MMS determines that you have determined an improper 
processing allowance authorized by this subpart, then you will be 
required to pay any additional royalties plus late payment interest 
determined under 30 CFR 218.54. Alternatively, you may be entitled to a 
credit, but you will not receive any interest on your overpayment.

[[Page 100]]



Sec. 206.180  How do I determine an actual processing allowance?

    (a) Determining a processing allowance if you have an arms's-length 
processing contract. (1) This paragraph explains how you determine an 
allowance under an arm's-length processing contract.
    (i) The processing allowance is the reasonable actual costs you 
incur to process the gas under that contract. Paragraphs (a)(1)(ii) and 
(iii) of this section provide a limited exception. You have the burden 
of demonstrating that your contract is arm's-length. You are required to 
submit to MMS a copy of your arm's-length contract(s) and all subsequent 
amendments to the contract(s) within 2 months of the date MMS receives 
your first report that deducts the allowance on the Form MMS-2014.
    (ii) When MMS conducts reviews and audits, we will examine whether 
the contract reflects more than the consideration actually transferred 
either directly or indirectly from you to the processor for the 
processing. If the contract reflects more than the total consideration, 
then MMS may require that the processing allowance be determined under 
paragraph (b) of this section.
    (iii) If MMS determines that the consideration paid under an arm's-
length processing contract does not reflect the value of the processing 
because of misconduct by or between the contracting parties, or because 
you otherwise have breached your duty to the lessor to market the 
production for the mutual benefit of you and the lessor, then MMS will 
require that the processing allowance be determined under paragraph (b) 
of this section. In these circumstances, MMS will notify you and give 
you an opportunity to provide written information justifying your 
processing costs.
    (2) If your arm's-length processing contract includes more than one 
gas plant product and the processing costs attributable to each product 
can be determined from the contract, then the processing costs for each 
gas plant product must be determined in accordance with the contract. 
You may not take an allowance for the costs of processing lease 
production that is not royalty-bearing.
    (3) If your arm's-length processing contract includes more than one 
gas plant product and the processing costs attributable to each product 
cannot be determined from the contract, you must propose an allocation 
procedure to MMS. You may use your proposed allocation procedure until 
MMS issues its determination. You are required to submit all relevant 
data to support your proposal. MMS will then determine the processing 
allowance based upon your proposal and any additional information MMS 
deems necessary. You may not take a processing allowance for the costs 
of processing lease production that is not royalty-bearing.
    (4) If your payments for processing under an arm's-length contract 
are not based on a dollar per unit price, you must convert whatever 
consideration is paid to a dollar value equivalent for the purposes of 
this section.
    (b) Determining a processing allowance if you have a non-arm's-
length contract or no contract. (1) This paragraph applies if you have a 
non-arm's-length processing contract or no contract, including those 
situations where you perform processing for yourself.
    (i) If you have a non-arm's-length contract or no contract, the 
processing allowance is based upon your reasonable actual costs of 
processing as provided in paragraph (b)(2) of this section.
    (ii) All processing allowances deducted under a non-arm's-length or 
no-contract situation are subject to monitoring, review, audit, and 
adjustment. You must submit the actual cost information to support the 
allowance to MMS on Form MMS-4109, Gas Processing Allowance Summary 
Report, within 3 months after the end of the 12-month period for which 
the allowance applies. MMS may approve a longer time period. MMS will 
monitor the allowance deduction to ensure that deductions are reasonable 
and allowable. When necessary or appropriate, MMS may require you to 
modify your processing allowance.
    (2) The processing allowance for non-arm's-length or no-contract 
situations is based upon your actual costs for processing during the 
reporting period. Allowable costs include operating and maintenance 
expenses, overhead, and

[[Page 101]]

either depreciation and a return on undepreciated capital investment (in 
accordance with paragraph (b)(2)(iv)(A) of this section), or a cost 
equal to the initial depreciable investment in the processing plant 
multiplied by a rate of return in accordance with paragraph 
(b)(2)(iv)(B) of this section. Allowable capital costs are generally 
those costs for depreciable fixed assets (including costs of delivery 
and installation of capital equipment) that are an integral part of the 
processing plant.
    (i) Allowable operating expenses include operations supervision and 
engineering, operations labor, fuel, utilities, materials, ad valorem 
property taxes, rent, supplies, and any other directly allocable and 
attributable operating expense that the lessee can document.
    (ii) Allowable maintenance expenses include maintenance of the 
processing plant, maintenance of equipment, maintenance labor, and other 
directly allocable and attributable maintenance expenses that you can 
document.
    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the processing plant is an allowable expense. State 
and Federal income taxes and severance taxes, including royalties, are 
not allowable expenses.
    (iv) You may use either depreciation with a return on undepreciable 
capital investment or a return on depreciable capital investment. After 
you elect to use either method for a processing plant, you may not later 
elect to change to the other alternative without MMS approval.
    (A) To compute depreciation, you may elect to use either a straight-
line depreciation method based on the life of equipment or on the life 
of the reserves that the processing plant services, or a unit-of-
production method. Once you make an election, you may not change methods 
without MMS approval. A change in ownership of a processing plant will 
not alter the depreciation schedule that the original processor/lessee 
established for purposes of the allowance calculation. However, for 
processing plants you or your affiliate purchase that do not have a 
previously claimed MMS depreciation schedule, you may treat the 
processing plant as a newly installed facility for depreciation 
purposes. A processing plant may be depreciated only once, regardless of 
whether there is a change in ownership. Equipment may not be depreciated 
below a reasonable salvage value. To compute a return on undepreciated 
capital investment, you must multiply the undepreciable capital 
investment in the processing plant by the rate of return determined 
under paragraph (b)(2)(v) of this section.
    (B) To compute a return on depreciable capital investment, you must 
multiply the initial capital investment in the processing plant by the 
rate of return determined under paragraph (b)(2)(v) of this section. No 
allowance will be provided for depreciation. This alternative will apply 
only to plants first placed in service after March 1, 1988.
    (v) The rate of return is the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return is the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month for which the allowance is applicable. The rate must be 
redetermined at the beginning of each subsequent calendar year.
    (3) Your processing allowance under this paragraph (b) must be 
determined based upon a calendar year or other period if you and MMS 
agree to an alternative.
    (4) The processing allowance for each gas plant product must be 
determined based on your reasonable and actual cost of processing the 
gas. You must base your allocation of costs to each gas plant product 
upon generally accepted accounting principles. You may not take an 
allowance for the costs of processing lease production that is not 
royalty-bearing.
    (c) Reporting your processing allowance. (1) If MMS requests, you 
must submit all data used to determine your processing allowance. The 
data must be provided within a reasonable period of time, as MMS 
determines.
    (2) You must report gas processing allowances as a separate line 
item on the Form MMS-2014. MMS may approve a different reporting 
procedure for allottee leases, and with lessor approval on tribal 
leases.

[[Page 102]]

    (d) Adjusting incorrect processing allowances. If for any month the 
gas processing allowance you are entitled to is less than the amount you 
took on Form MMS-2014, you are required to pay additional royalties, 
plus interest computed under 30 CFR 218.54 from the first day of the 
first month you deducted a processing allowance until the date you pay 
the royalties due. If the processing allowance you are entitled is 
greater than the amount you took on Form MMS-2014, you are entitled to a 
credit. However, no interest will be paid on the overpayment.
    (e) Other processing cost determinations. You must follow the 
provisions of this section to determine processing costs when 
establishing value using either a net-back valuation procedure or any 
other procedure that requires deduction of actual processing costs.



Sec. 206.181  How do I establish processing costs for dual accounting purposes when I do not process the gas?

    Where accounting for comparison (dual accounting) is required for 
gas production from a lease but neither you nor someone acting on your 
behalf processes the gas, and you have elected to perform actual dual 
accounting under Sec. 206.176, you must use the first applicable of the 
following methods to establish processing costs for dual accounting 
purposes:
    (a) The average of the costs established in your current arm's-
length processing agreements for gas from the lease, provided that some 
gas has previously been processed under these agreements.
    (b) The average of the costs established in your current arm's-
length processing agreements for gas from the lease, provided that the 
agreements are in effect for plants to which the lease is physically 
connected and under which gas from other leases in the field or area is 
being or has been processed.
    (c) A proposed comparable processing fee submitted to either the 
tribe and MMS (for tribal leases) or MMS (for allotted leases) with your 
supporting documentation submitted to MMS. If MMS does not take action 
on your proposal within 120 days, the proposal will be deemed to be 
denied and subject to appeal to the MMS Director under 30 CFR part 290.
    (d) Processing costs based on the regulations in Secs. 206.179 and 
206.180.



                         Subpart F--Federal Coal

    Source: 54 FR 1523, Jan. 13, 1989, unless otherwise noted.



Sec. 206.250  Purpose and scope.

    (a) This subpart is applicable to all coal produced from Federal 
coal leases. The purpose of this subpart is to establish the value of 
coal produced for royalty purposes, of all coal from Federal leases 
consistent with the mineral leasing laws, other applicable laws and 
lease terms.
    (b) If the specific provisions of any statute or settlement 
agreement between the United States and a lessee resulting from 
administrative or judicial litigation, or any coal lease subject to the 
requirements of this subpart, are inconsistent with any regulation in 
this subpart then the statute, lease provision, or settlement shall 
govern to the extent of that inconsistency.
    (c) All royalty payments made to the Minerals Management Service 
(MMS) are subject to later audit and adjustment.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5479, Feb. 12, 1996; 67 
FR 19111, Apr. 18, 2002]



Sec. 206.251  Definitions.

    Ad valorem lease means a lease where the royalty due to the lessor 
is based upon a percentage of the amount or value of the coal.
    Allowance means a deduction used in determining value for royalty 
purposes. Coal washing allowance means an allowance for the reasonable, 
actual costs incurred by the lessee for coal washing. Transportation 
allowance means an allowance for the reasonable, actual costs incurred 
by the lessee for moving coal to a point of sale or point of delivery 
remote from both the lease and mine or wash plant.
    Area means a geographic region in which coal has similar quality and 
economic characteristics. Area boundaries

[[Page 103]]

are not officially designated and the areas are not necessarily named.
    Arm's-length contract means a contract or agreement that has been 
arrived at in the marketplace between independent, nonaffiliated persons 
with opposing economic interests regarding that contract. For purposes 
of this subpart, two persons are affiliated if one person controls, is 
controlled by, or is under common control with another person. For 
purposes of this subpart, based on the instruments of ownership of the 
voting securities of an entity, or based on other forms of ownership:
    (a) Ownership in excess of 50 percent constitutes control;
    (b) Ownership of 10 through 50 percent creates a presumption of 
control; and
    (c) Ownership of less than 10 percent creates a presumption of 
noncontrol which MMS may rebut if it demonstrates actual or legal 
control, including the existence of interlocking directorates.

Notwithstanding any other provisions of this subpart, contracts between 
relatives, either by blood or by marriage, are not arm's-length 
contracts. The MMS may require the lessee to certify ownership control. 
To be considered arm's-length for any production month, a contract must 
meet the requirements of this definition for that production month as 
well as when the contract was executed.
    Audit means a review, conducted in accordance with generally 
accepted accounting and auditing standards, of royalty payment 
compliance activities of lessees or other interest holders who pay 
royalties, rents, or bonuses on Federal leases.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Coal means coal of all ranks from lignite through anthracite.
    Coal washing means any treatment to remove impurities from coal. 
Coal washing may include, but is not limited to, operations such as 
flotation, air, water, or heavy media separation; drying; and related 
handling (or combination thereof).
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that with due consideration creates an obligation.
    Gross proceeds (for royalty payment purposes) means the total monies 
and other consideration accruing to a coal lessee for the production and 
disposition of the coal produced. Gross proceeds includes, but is not 
limited to, payments to the lessee for certain services such as 
crushing, sizing, screening, storing, mixing, loading, treatment with 
substances including chemicals or oils, and other preparation of the 
coal to the extent that the lessee is obligated to perform them at no 
cost to the Federal Government. Gross proceeds, as applied to coal, also 
includes but is not limited to reimbursements for royalties, taxes or 
fees, and other reimbursements. Tax reimbursements are part of the gross 
proceeds accruing to a lessee even though the Federal royalty interest 
may be exempt from taxation. Monies and other consideration, including 
the forms of consideration identified in this paragraph, to which a 
lessee is contractually or legally entitled but which it does not seek 
to collect through reasonable efforts are also part of gross proceeds.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by the United States for a Federal 
coal resource under a mineral leasing law that authorizes exploration 
for, development or extraction of, or removal of coal--or the land 
covered by that authorization, whichever is required by the context.
    Lessee means any person to whom the United States issues a lease, 
and any person who has been assigned an obligation to make royalty or 
other payments required by the lease. This includes any person who has 
an interest in a lease as well as an operator or payor who has no 
interest in the lease but who has assumed the royalty payment 
responsibility.
    Like-quality coal means coal that has similar chemical and physical 
characteristics.
    Marketable condition means coal that is sufficiently free from 
impurities and otherwise in a condition that it will be accepted by a 
purchaser under a sales contract typical for that area.

[[Page 104]]

    Mine means an underground or surface excavation or series of 
excavations and the surface or underground support facilities that 
contribute directly or indirectly to mining, production, preparation, 
and handling of lease products.
    Net-back method means a method for calculating market value of coal 
at the lease or mine. Under this method, costs of transportation, 
washing, handling, etc., are deducted from the ultimate proceeds 
received for the coal at the first point at which reasonable values for 
the coal may be determined by a sale pursuant to an arm's-length 
contract or by comparison to other sales of coal, to ascertain value at 
the mine.
    Net output means the quantity of washed coal that a washing plant 
produces.
    Netting is the deduction of an allowance from the sales value by 
reporting a one line net sales value, instead of correctly reporting the 
deduction as a separate line item on the Form MMS-4430.
    Person means by individual, firm, corporation, association, 
partnership, consortium, or joint venture.
    Selling arrangement means the individual contractual arrangements 
under which sales or dispositions of coal are made to a purchaser.
    Spot market price means the price received under any sales 
transaction when planned or actual deliveries span a short period of 
time, usually not exceeding one year.

[54 FR 1523, Jan. 13, 1989, as amended at 55 FR 35433, Aug. 30, 1990; 61 
FR 5479, Feb. 12, 1996; 64 FR 43288, Aug. 10, 1999; 66 FR 45769, Aug. 
30, 2001]



Sec. 206.252  Information collection.

    The information collection requirements contained in this subpart 
have been approved by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. The forms, filing date, and approved OMB clearance 
numbers are identified in 30 CFR 210.10 and 30 CFR 216.10.



Sec. 206.253  Coal subject to royalties--general provisions.

    (a) All coal (except coal unavoidably lost as determined by BLM 
under 43 CFR part 3400) from a Federal lease subject to this part is 
subject to royalty. This includes coal used, sold, or otherwise disposed 
of by the lessee on or off the lease.
    (b) If a lessee receives compensation for unavoidably lost coal 
through insurance coverage or other arrangements, royalties at the rate 
specified in the lease are to be paid on the amount of compensation 
received for the coal. No royalty is due on insurance compensation 
received by the lessee for other losses.
    (c) If waste piles or slurry ponds are reworked to recover coal, the 
lessee shall pay royalty at the rate specified in the lease at the time 
the recovered coal is used, sold, or otherwise finally disposed of. The 
royalty rate shall be that rate applicable to the production method used 
to initially mine coal in the waste pile or slurry pond; i.e., 
underground mining method or surface mining method. Coal in waste pits 
or slurry ponds initially mined from Federal leases shall be allocated 
to such leases regardless of whether it is stored on Federal lands. The 
lessee shall maintain accurate records to determine to which individual 
Federal lease coal in the waste pit or slurry pond should be allocated. 
However, nothing in this section requires payment of a royalty on coal 
for which a royalty has already been paid.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5479, Feb. 12, 1996]



Sec. 206.254  Quality and quantity measurement standards for reporting and paying royalties.

    For all leases subject to this subpart, the quantity of coal on 
which royalty is due shall be measured in short tons (of 2,000 pounds 
each) by methods prescribed by the BLM. Coal quantity information shall 
be reported on appropriate forms required under 30 CFR part 216 and on 
the Solid Minerals Production and Royalty Report, Form MMS-4430, as 
required under 30 CFR part 210.

[54 FR 1523, Jan. 13, 1989, as amended at 57 FR 52720, Nov. 5, 1992; 66 
FR 45769, Aug. 30, 2001]



Sec. 206.255  Point of royalty determination.

    (a) For all leases subject to this subpart, royalty shall be 
computed on the

[[Page 105]]

basis of the quantity and quality of Federal coal in marketable 
condition measured at the point of royalty measurement as determined 
jointly by BLM and MMS.
    (b) Coal produced and added to stockpiles or inventory does not 
require payment of royalty until such coal is later used, sold, or 
otherwise finally disposed of. MMS may ask BLM to increase the lease 
bond to protect the lessor's interest when BLM determines that 
stockpiles or inventory become excessive so as to increase the risk of 
degradation of the resource.
    (c) The lessee shall pay royalty at a rate specified in the lease at 
the time the coal is used, sold, or otherwise finally disposed of, 
unless otherwise provided for at Sec. 206.256(d) of this subpart.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5480, Feb. 12, 1996]



Sec. 206.256  Valuation standards for cents-per-ton leases.

    (a) This section is applicable to coal leases on Federal lands which 
provide for the determination of royalty on a cents-per-ton (or other 
quantity) basis.
    (b) The royalty for coal from leases subject to this section shall 
be based on the dollar rate per ton prescribed in the lease. That dollar 
rate shall be applicable to the actual quantity of coal used, sold, or 
otherwise finally disposed of, including coal which is avoidably lost as 
determine by BLM pursuant to 43 CFR part 3400.
    (c) For leases subject to this section, there shall be no allowances 
for transportation, removal of impurities, coal washing, or any other 
processing or preparation of the coal.
    (d) When a coal lease is readjusted pursuant to 43 CFR part 3400 and 
the royalty valuation method changes from a cents-per-ton basis to an ad 
valorem basis, coal which is produced prior to the effective date of 
readjustment and sold or used within 30 days of the effective date of 
readjustment shall be valued pursuant to this section. All coal that is 
not used, sold, or otherwise finally disposed of within 30 days after 
the effective date of readjustment shall be valued pursuant to the 
provisions of Sec. 206.257 of this subpart, and royalties shall be paid 
at the royalty rate specified in the readjusted lease.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5480, Feb. 12, 1996]



Sec. 206.257  Valuation standards for ad valorem leases.

    (a) This section is applicable to coal leases on Federal lands which 
provide for the determination of royalty as a percentage of the amount 
of value of coal (ad valorem). The value for royalty purposes of coal 
from such leases shall be the value of coal determined under this 
section, less applicable coal washing allowances and transportation 
allowances determined under Secs. 206.258 through 206.262 of this 
subpart, or any allowance authorized by Sec. 206.265 of this subpart. 
The royalty due shall be equal to the value for royalty purposes 
multiplied by the royalty rate in the lease.
    (b)(1) The value of coal that is sold pursuant to an arm's-length 
contract shall be the gross proceeds accruing to the lessee, except as 
provided in paragraphs (b)(2), (b)(3), and (b)(5) of this section. The 
lessee shall have the burden of demonstrating that its contract is 
arm's-length. The value which the lessee reports, for royalty purposes, 
is subject to monitoring, review, and audit.
    (2) In conducting reviews and audits, MMS will examine whether the 
contract reflects the total consideration actually transferred either 
directly or indirectly from the buyer to the seller for the coal 
produced. If the contract does not reflect the total consideration, then 
the MMS may require that the coal sold pursuant to that contract be 
valued in accordance with paragraph (c) of this section. Value may not 
be based on less than the gross proceeds accruing to the lessee for the 
coal production, including the additional consideration.
    (3) If the MMS determines that the gross proceeds accruing to the 
lessee pursuant to an arm's-length contract do not reflect the 
reasonable value of the production because of misconduct by or between 
the contracting parties, or because the lessee otherwise has breached 
its duty to the lessor to market the production for the mutual benefit 
of the lessee and the lessor, then

[[Page 106]]

MMS shall require that the coal production be valued pursuant to 
paragraph (c)(2) (ii), (iii), (iv), or (v) of this section, and in 
accordance with the notification requirements of paragraph (d)(3) of 
this section. When MMS determines that the value may be unreasonable, 
MMS will notify the lessee and give the lessee an opportunity to provide 
written information justifying the lessee's reported coal value.
    (4) The MMS may require a lessee to certify that its arm's-length 
contract provisions include all of the consideration to be paid by the 
buyer, either directly or indirectly, for the coal production.
    (5) The value of production for royalty purposes shall not include 
payments received by the lessee pursuant to a contract which the lessee 
demonstrates, to MMS's satisfaction, were not part of the total 
consideration paid for the purchase of coal production.
    (c)(1) The value of coal from leases subject to this section and 
which is not sold pursuant to an arm's-length contract shall be 
determined in accordance with this section.
    (2) If the value of the coal cannot be determined pursuant to 
paragraph (b) of this section, then the value shall be determined 
through application of other valuation criteria. The criteria shall be 
considered in the following order, and the value shall be based upon the 
first applicable criterion:
    (i) The gross proceeds accruing to the lessee pursuant to a sale 
under its non-arm's-length contract (or other disposition of produced 
coal by other than an arm's-length contract), provided that those gross 
proceeds are within the range of the gross proceeds derived from, or 
paid under, comparable arm's-length contracts between buyers and sellers 
neither of whom is affiliated with the lessee for sales, purchases, or 
other dispositions of like-quality coal produced in the area. In 
evaluating the comparability of arm's-length contracts for the purposes 
of these regulations, the following factors shall be considered: Price, 
time of execution, duration, market or markets served, terms, quality of 
coal, quantity, and such other factors as may be appropriate to reflect 
the value of the coal;
    (ii) Prices reported for that coal to a public utility commission;
    (iii) Prices reported for that coal to the Energy Information 
Administration of the Department of Energy;
    (iv) Other relevant matters including, but not limited to, published 
or publicly available spot market prices, or information submitted by 
the lessee concerning circumstances unique to a particular lease 
operation or the saleability of certain types of coal;
    (v) If a reasonable value cannot be determined using paragraphs 
(c)(2) (i), (ii), (iii), or (iv) of this section, then a net-back method 
or any other reasonable method shall be used to determine value.
    (3) When the value of coal is determined pursuant to paragraph 
(c)(2) of this section, that value determination shall be consistent 
with the provisions contained in paragraph (b)(5) of this section.
    (d)(1) Where the value is determined pursuant to paragraph (c) of 
this section, that value does not require MMS's prior approval. However, 
the lessee shall retain all data relevant to the determination of 
royalty value. Such data shall be subject to review and audit, and MMS 
will direct a lessee to use a different value if it determines that the 
reported value is inconsistent with the requirements of these 
regulations.
    (2) Any Federal lessee will make available upon request to the 
authorized MMS or State representatives, to the Inspector General of the 
Department of the Interior or other persons authorized to receive such 
information, arm's-length sales value and sales quantity data for like-
quality coal sold, purchased, or otherwise obtained by the lessee from 
the area.
    (3) A lessee shall notify MMS if it has determined value pursuant to 
paragraphs (c)(2) (ii), (iii), (iv), or (v) of this section. The 
notification shall be by letter to the Associate Director for Minerals 
Revenue Management of his/her designee. The letter shall identify the 
valuation method to be used and contain a brief description of the 
procedure to be followed. The notification required by this section is a 
one-time notification due no later than the month the lessee first 
reports royalties

[[Page 107]]

on the Form MMS-4430 using a valuation method authorized by paragraphs 
(c)(2) (ii), (iii), (iv), or (v) of this section, and each time there is 
a change in a method under paragraphs (c)(2) (iv) or (v) of this 
section.
    (e) If MMS determines that a lessee has not properly determined 
value, the lessee shall be liable for the difference, if any, between 
royalty payments made based upon the value it has used and the royalty 
payments that are due based upon the value established by MMS. The 
lessee shall also be liable for interest computed pursuant to 30 CFR 
218.202. If the lessee is entitled to a credit, MMS will provide 
instructions for the taking of that credit.
    (f) The lessee may request a value determination from MMS. In that 
event, the lessee shall propose to MMS a value determination method, and 
may use that method in determining value for royalty purposes until MMS 
issues its decision. The lessee shall submit all available data relevant 
to its proposal. The MMS shall expeditiously determine the value based 
upon the lessee's proposal and any additional information MMS deems 
necessary. That determination shall remain effective for the period 
stated therein. After MMS issues its determination, the lessee shall 
make the adjustments in accordance with paragraph (e) of this section.
    (g) Notwithstanding any other provisions of this section, under no 
circumstances shall the value for royalty purposes be less than the 
gross proceeds accruing to the lessee for the disposition of produced 
coal less applicable provisions of paragraph (b)(5) of this section and 
less applicable allowances determined pursuant to Secs. 206.258 through 
206.262 and Sec. 206.265 of this subpart.
    (h) The lessee is required to place coal in marketable condition at 
no cost to the Federal Government. Where the value established under 
this section is determined by a lessee's gross proceeds, that value 
shall be increased to the extent that the gross proceeds has been 
reduced because the purchaser, or any other person, is providing certain 
services, the cost of which ordinarily is the responsibility of the 
lessee to place the coal in marketable condition.
    (i) Value shall be based on the highest price a prudent lessee can 
receive through legally enforceable claims under its contract. Absent 
contract revision or amendment, if the lessee fails to take proper or 
timely action to receive prices or benefits to which it is entitled, it 
must pay royalty at a value based upon that obtainable price or benefit. 
Contract revisions or amendments shall be in writing and signed by all 
parties to an arm's-length contract, and may be retroactively applied to 
value for royalty purposes for a period not to exceed two years, unless 
MMS approves a longer period. If the lessee makes timely application for 
a price increase allowed under its contract but the purchaser refuses, 
and the lessee takes reasonable measures, which are documented, to force 
purchaser compliance, the lessee will owe no additional royalties unless 
or until monies or consideration resulting from the price increase are 
received. This paragraph shall not be construed to permit a lessee to 
avoid its royalty payment obligation in situations where a purchaser 
fails to pay, in whole or in part or timely, for a quantity of coal.
    (j) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by MMS of value under this section 
shall be considered final or binding as against the Federal Government 
or its beneficiaries until the audit period is formally closed.
    (k) Certain information submitted to MMS to support valuation 
proposals, including transportation, coal washing, or other allowances 
under Sec. 206.265 of this subpart, is exempted from disclosure by the 
Freedom of Information Act, 5 U.S.C. 522. Any data specified by the Act 
to be privileged, confidential, or otherwise exempt shall be maintained 
in a confidential manner in accordance with applicable law and 
regulations. All requests for information about determinations made 
under this part are to be submitted in accordance with the Freedom of 
Information Act

[[Page 108]]

regulation of the Department of the Interior, 43 CFR part 2.

[54 FR 1523, Jan. 13, 1989, as amended at 55 FR 35433, Aug. 30, 1990; 57 
FR 52720, Nov. 5, 1992; 61 FR 5480, Feb. 12, 1996; 66 FR 45769, Aug. 30, 
2001]



Sec. 206.258  Washing allowances--general.

    (a) For ad valorem leases subject to Sec. 206.257 of this subpart, 
MMS shall, as authorized by this section, allow a deduction in 
determining value for royalty purposes for the reasonable, actual costs 
incurred to wash coal, unless the value determined pursuant to 
Sec. 206.257 of this subpart was based upon like-quality unwashed coal. 
Under no circumstances will the authorized washing allowance and the 
transportation allowance reduce the value for royalty purposes to zero.
    (b) If MMS determines that a lessee has improperly determined a 
washing allowance authorized by this section, then the lessee shall be 
liable for any additional royalties, plus interest determined in 
accordance with 30 CFR 218.202, or shall be entitled to a credit without 
interest.
    (c) Lessees shall not disproportionately allocate washing costs to 
Federal leases.
    (d) No cost normally associated with mining operations and which are 
necessary for placing coal in marketable condition shall be allowed as a 
cost of washing.
    (e) Coal washing costs shall only be recognized as allowances when 
the washed coal is sold and royalties are reported and paid.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5480, Feb. 12, 1996; 64 
FR 43288, Aug. 10, 1999]



Sec. 206.259  Determination of washing allowances.

    (a) Arm's-length contracts. (1) For washing costs incurred by a 
lessee under an arm's-length contract, the washing allowance shall be 
the reasonable actual costs incurred by the lessee for washing the coal 
under that contract, subject to monitoring, review, audit, and possible 
future adjustment. The lessee shall have the burden of demonstrating 
that its contract is arm's-length. MMS' prior approval is not required 
before a lessee may deduct costs incurred under an arm's-length 
contract. The lessee must claim a washing allowance by reporting it as a 
separate line entry on the Form MMS-4430.
    (2) In conducting reviews and audits, MMS will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the washer for the 
washing. If the contract reflects more than the total consideration 
paid, then the MMS may require that the washing allowance be determined 
in accordance with paragraph (b) of this section.
    (3) If the MMS determines that the consideration paid pursuant to an 
arm's-length washing contract does not reflect the reasonable value of 
the washing because of misconduct by or between the contracting parties, 
or because the lessee otherwise has breached its duty to the lessor to 
market the production for the mutual benefit of the lessee and the 
lessor, then MMS shall require that the washing allowance be determined 
in accordance with paragraph (b) of this section. When MMS determines 
that the value of the washing may be unreasonable, MMS will notify the 
lessee and give the lessee an opportunity to provide written information 
justifying the lessee's washing costs.
    (4) Where the lessee's payments for washing under an arm's-length 
contract are not based on a dollar-per-unit basis, the lessee shall 
convert whatever consideration is paid to a dollar value equivalent. 
Washing allowances shall be expressed as a cost per ton of coal washed.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length contract or has no contract, including those situations 
where the lessee performs washing for itself, the washing allowance will 
be based upon the lessee's reasonable actual costs. All washing 
allowances deducted under a non-arm's-length or no contract situation 
are subject to monitoring, review, audit, and possible future 
adjustment. The lessee must claim a washing allowance by reporting it as 
a separate line entry on the Form MMS-4430. When

[[Page 109]]

necessary or appropriate, MMS may direct a lessee to modify its 
estimated or actual washing allowance.
    (2) The washing allowance for non-arm's-length or no contract 
situations shall be based upon the lessee's actual costs for washing 
during the reported period, including operating and maintenance 
expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph (b)(2)(iv) 
(A) of this section, or a cost equal to the depreciable investment in 
the wash plant multiplied by the rate of return in accordance with 
paragraph (b)(2)(iv)(B) of this section. Allowable capital costs are 
generally those for depreciable fixed assets (including costs of 
delivery and installation of capital equipment) which are an integral 
part of the wash plant.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes, rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the wash 
plant; maintenance of equipment; maintenance labor; and other directly 
allocable and attributable maintenance expenses which the lessee can 
document.
    (iii) Overhead attributable and allocable to the operation and 
maintenance of the wash plant is an allowable expense. State and Federal 
income taxes and severance taxes, including royalities, are not 
allowable expenses.
    (iv) A lessee may use either paragraph (b)(2)(iv)(A) or (B) of this 
section. After a lessee has elected to use either method for a wash 
plant, the lessee may not later elect to change to the other alternative 
without approval of the MMS.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the wash plant services, whichever is 
appropriate, or a unit of production method. After an election is made, 
the lessee may not change methods without MMS approval. A change in 
ownership of a wash plant shall not alter the depreciation schedule 
established by the original operator/lessee for purposes of the 
allowance calculation. With or without a change in ownership, a wash 
plant shall be depreciated only once. Equipment shall not be depreciated 
below a reasonable salvage value.
    (B) The MMS shall allow as a cost an amount equal to the allowable 
capital investment in the wash plant multiplied by the rate of return 
determined pursuant to paragraph (b)(2)(v) of this section. No allowance 
shall be provided for depreciation. This alternative shall apply only to 
plants first placed in service or acquired after March 1, 1989.
    (v) The rate of return must be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return must be the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month for which the allowance is applicable. The rate must be 
redetermined at the beginning of each subsequent calendar year.
    (3) The washing allowance for coal shall be determined based on the 
lessee's reasonable and actual cost of washing the coal. The lessee may 
not take an allowance for the costs of washing lease production that is 
not royalty bearing.
    (c) Reporting requirements--(1) Arm's-length contracts. (i) The 
lessee must notify MMS of an allowance based on incurred costs by using 
a separate line entry on the Form MMS-4430.
    (ii) The MMS may require that a lessee submit arm's-length washing 
contracts and related documents. Documents shall be submitted within a 
reasonable time, as determined by MMS.
    (2) Non-arm's-length or no contract. (i) The lessee must notify MMS 
of an allowance based on the incurred costs by using a separate line 
entry on the Form MMS-4430.
    (ii) For new washing facilities or arrangements, the lessee's 
initial washing deduction shall include estimates of the allowable coal 
washing costs for the applicable period. Cost estimates shall be based 
upon the most recently available operations data for the washing system 
or, if such data are not

[[Page 110]]

available, the lessee shall use estimates based upon industry data for 
similar washing systems.
    (iii) Upon request by MMS, the lessee shall submit all data used to 
prepare the allowance deduction. The data shall be provided within a 
reasonable period of time, as determined by MMS.
    (d) Interest and assessments. (1) If a lessee nets a washing 
allowance on the Form MMS-4430, then the lessee shall be assessed an 
amount up to 10 percent of the allowance netted not to exceed $250 per 
lease selling arrangement per sales period.
    (2) If a lessee erroneously reports a washing allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with 30 CFR 218.202.
    (e) Adjustments. (1) If the actual coal washing allowance is less 
than the amount the lessee has taken on Form MMS-4430 for each month 
during the allowance reporting period, the lessee shall pay additional 
royalties due plus interest computed under 30 CFR 218.202 from the date 
when the lessee took the deduction to the date the lessee repays the 
difference to MMS. If the actual washing allowance is greater than the 
amount the lessee has taken on Form MMS-4430 for each month during the 
allowance reporting period, the lessee shall be entitled to a credit 
without interest.
    (2) The lessee must submit a corrected Form MMS-4430 to reflect 
actual costs, together with any payment, in accordance with instructions 
provided by MMS.
    (f) Other washing cost determinations. The provisions of this 
section shall apply to determine washing costs when establishing value 
using a net-back valuation procedure or any other procedure that 
requires deduction of washing costs.

[54 FR 1523, Jan. 13, 1989, as amended at 57 FR 52720, Nov. 5, 1992; 61 
FR 5480, Feb. 12, 1996; 64 FR 43288, Aug. 10, 1999; 66 FR 45769, Aug. 
30, 2001]



Sec. 206.260  Allocation of washed coal.

    (a) When coal is subjected to washing, the washed coal must be 
allocated to the leases from which it was extracted.
    (b) When the net output of coal from a washing plant is derived from 
coal obtained from only one lease, the quantity of washed coal allocable 
to the lease will be based on the net output of the washing plant.
    (c) When the net output of coal from a washing plant is derived from 
coal obtained from more than one lease, unless determined otherwise by 
BLM, the quantity of net output of washed coal allocable to each lease 
will be based on the ratio of measured quantities of coal delivered to 
the washing plant and washed from each lease compared to the total 
measured quantities of coal delivered to the washing plant and washed.



Sec. 206.261  Transportation allowances--general.

    (a) For ad valorem leases subject to Sec. 206.257 of this subpart, 
where the value for royalty purposes has been determined at a point 
remote from the lease or mine, MMS shall, as authorized by this section, 
allow a deduction in determining value for royalty purposes for the 
reasonable, actual costs incurred to:
    (1) Transport the coal from a Federal lease to a sales point which 
is remote from both the lease and mine; or
    (2) Transport the coal from a Federal lease to a wash plant when 
that plant is remote from both the lease and mine and, if applicable, 
from the wash plant to a remote sales point. In-mine transportation 
costs shall not be included in the transportation allowance.
    (b) Under no circumstances will the authorized washing allowance and 
the transportation allowance reduce the value for royalty purposes to 
zero.
    (c)(1) When coal transported from a mine to a wash plant is eligible 
for a transportation allowance in accordance with this section, the 
lessee is not required to allocate transportation costs between the 
quantity of clean coal output and the rejected waste material. The 
transportation allowance shall be authorized for the total production 
which is transported. Transportation allowances shall be expressed as a 
cost per ton of cleaned coal transported.

[[Page 111]]

    (2) For coal that is not washed at a wash plant, the transportation 
allowance shall be authorized for the total production which is 
transported. Transportation allowances shall be expressed as a cost per 
ton of coal transported.
    (3) Transportation costs shall only be recognized as allowances when 
the transported coal is sold and royalties are reported and paid.
    (d) If, after a review and/or audit, MMS determines that a lessee 
has improperly determined a transportation allowance authorized by this 
section, then the lessee shall pay any additional royalties, plus 
interest, determined in accordance with 30 CFR 218.202, or shall be 
entitled to a credit, without interest.
    (e) Lessees shall not disproportionately allocate transportation 
costs to Federal leases.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5481, Feb. 12, 1996; 64 
FR 43288, Aug. 10, 1999]



Sec. 206.262  Determination of transportation allowances.

    (a) Arm's-length contracts. (1) For transportation costs incurred by 
a lessee pursuant to an arm's-length contract, the transportation 
allowance shall be the reasonable, actual costs incurred by the lessee 
for transporting the coal under that contract, subject to monitoring, 
review, audit, and possible future adjustment. The lessee shall have the 
burden of demonstrating that its contract is arm's-length. The lessee 
must claim a transportation allowance by reporting it as a separate line 
entry on the Form MMS-4430.
    (2) In conducting reviews and audits, MMS will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the transporter for the 
transportation. If the contract reflects more than the total 
consideration paid, then the MMS may require that the transportation 
allowance be determined in accordance with paragraph (b) of this 
section.
    (3) If the MMS determines that the consideration paid pursuant to an 
arm's-length transportation contract does not reflect the reasonable 
value of the transportation because of misconduct by or between the 
contracting parties, or because the lessee otherwise has breached its 
duty to the lessor to market the production for the mutual benefit of 
the lessee and the lessor, then MMS shall require that the 
transportation allowance be determined in accordance with paragraph (b) 
of this section. When MMS determines that the value of the 
transportation may be unreasonable, MMS will notify the lessee and give 
the lessee an opportunity to provide written information justifying the 
lessee's transportation costs.
    (4) Where the lessee's payments for transportation under an arm's-
length contract are not based on a dollar-per-unit basis, the lessee 
shall convert whatever consideration is paid to a dollar value 
equivalent for the purposes of this section.
    (b) Non-arm's-length or no contract--(1) If a lessee has a non-
arm's-length contract or has no contract, including those situations 
where the lessee performs transportation services for itself, the 
transportation allowance will be based upon the lessee's reasonable 
actual costs. All transportation allowances deducted under a non-arm's-
length or no contract situation are subject to monitoring, review, 
audit, and possible future adjustment. The lessee must claim a 
transportation allowance by reporting it as a separate line entry on the 
Form MMS-4430. When necessary or appropriate, MMS may direct a lessee to 
modify its estimated or actual transportation allowance deduction.
    (2) The transportation allowance for non-arm's-length or no-contract 
situations shall be based upon the lessee's actual costs for 
transportation during the reporting period, including operating and 
maintenance expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the depreciable 
investment in the transportation system multiplied by the rate of return 
in accordance with paragraph (b)(2)(iv)(B) of this section. Allowable 
capital costs are generally those for depreciable fixed assets 
(including costs of delivery and installation of capital equipment) 
which are

[[Page 112]]

an integral part of the transportation system.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the 
transportation system; maintenance of equipment; maintenance labor; and 
other directly allocable and attributable maintenance expenses which the 
lessee can document.
    (iii) Overhead attributable and allocable to the operation and 
maintenance of the transportation system is an allowable expense. State 
and Federal income taxes and severance taxes and other fees, including 
royalties, are not allowable expenses.
    (iv) A lessee may use either paragraph (b)(2)(iv)(A) or paragraph 
(b)(2)(iv)(B) of this section. After a lessee has elected to use either 
method for a transportation system, the lessee may not later elect to 
change to the other alternative without approval of the MMS.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the transportation system services, 
whichever is appropriate, or a unit of production method. After an 
election is made, the lessee may not change methods without MMS 
approval. A change in ownership of a transportation system shall not 
alter the depreciation schedule established by the original transporter/
lessee for purposes of the allowance calculation. With or without a 
change in ownership, a transportation system shall be depreciated only 
once. Equipment shall not be depreciated below a reasonable salvage 
value.
    (B) The MMS shall allow as a cost an amount equal to the allowable 
capital investment in the transportation system multiplied by the rate 
of return determined pursuant to paragraph (b)(2)(B)(v) of this section. 
No allowance shall be provided for depreciation. This alternative shall 
apply only to transportation facilities first placed in service or 
acquired after March 1, 1989.
    (v) The rate of return must be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return must be the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month for which the allowance is applicable. The rate must be 
redetermined at the beginning of each subsequent calendar year.
    (3) A lessee may apply to MMS for exception from the requirement 
that it compute actual costs in accordance with paragraphs (b)(1) and 
(b)(2) of this section. MMS will grant the exception only if the lessee 
has a rate for the transportation approved by a Federal agency or by a 
State regulatory agency (for Federal leases). MMS shall deny the 
exception request if it determines that the rate is excessive as 
compared to arm's-length transportation charges by systems, owned by the 
lessee or others, providing similar transportation services in that 
area. If there are no arm's-length transportation charges, MMS shall 
deny the exception request if:
    (i) No Federal or State regulatory agency costs analysis exists and 
the Federal or State regulatory agency, as applicable, has declined to 
investigate under MMS timely objections upon filing; and
    (ii) The rate significantly exceeds the lessee's actual costs for 
transportation as determined under this section.
    (c) Reporting requirements--(1) Arm's-length contracts. (i) The 
lessee must notify MMS of an allowance based on incurred costs by using 
a separate line entry on the Form MMS-4430.
    (ii) The MMS may require that a lessee submit arm's-length 
transportation contracts, production agreements, operating agreements, 
and related documents. Documents shall be submitted within a reasonable 
time, as determined by MMS.
    (2) Non-arm's-length or no contract-- (i) The lessee must notify MMS 
of an allowance based on the incurred costs by using a separate line 
entry on Form MMS-4430.
    (ii) For new transportation facilities or arrangements, the lessee's 
initial deduction shall include estimates of the

[[Page 113]]

allowable coal transportation costs for the applicable period. Cost 
estimates shall be based upon the most recently available operations 
data for the transportation system or, if such data are not available, 
the lessee shall use estimates based upon industry data for similar 
transportation systems.
    (iii) Upon request by MMS, the lessee shall submit all data used to 
prepare the allowance deduction. The data shall be provided within a 
reasonable period of time, as determined by MMS.
    (iv) If the lessee is authorized to use its Federal- or State-
agency-approved rate as its transportation cost in accordance with 
paragraph (b)(3) of this section, it shall follow the reporting 
requirements of paragraph (c)(1) of this section.
    (d) Interest and assessments. (1) If a lessee nets a transportation 
allowance on Form MMS-4430, the lessee shall be assessed an amount of up 
to 10 percent of the allowance netted not to exceed $250 per lease 
selling arrangement per sales period.
    (2) If a lessee erroneously reports a transportation allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with 30 CFR 218.202.
    (e) Adjustments. (1) If the actual coal transportation allowance is 
less than the amount the lessee has taken on Form MMS-4430 for each 
month during the allowance reporting period, the lessee shall pay 
additional royalties due plus interest computed under 30 CFR 218.202 
from the date when the lessee took the deduction to the date the lessee 
repays the difference to MMS. If the actual transportation allowance is 
greater than amount the lessee has taken on Form MMS-4430 for each month 
during the allowance reporting period, the lessee shall be entitled to a 
credit without interest.
    (2) The lessee must submit a corrected Form MMS-4430 to reflect 
actual costs, together with any payments, in accordance with 
instructions provided by MMS.
    (f) Other transportation cost determinations. The provisions of this 
section shall apply to determine transportation costs when establishing 
value using a net-back valuation procedure or any other procedure that 
requires deduction of transportation costs.

[54 FR 1523, Jan. 13, 1989, as amended at 57 FR 41864, Sept. 14, 1992; 
57 FR 52720, Nov. 5, 1992; 61 FR 5481, Feb. 12, 1996; 64 FR 43288, Aug. 
10, 1999; 66 FR 45769, Aug. 30, 2001]



Sec. 206.263  [Reserved]



Sec. 206.264  In-situ and surface gasification and liquefaction operations.

    If an ad valorem Federal coal lease is developed by in-situ or 
surface gasification or liquefaction technology, the lessee shall 
propose the value of coal for royalty purposes to MMS. The MMS will 
review the lessee's proposal and issue a value determination. The lessee 
may use its proposed value until MMS issues a value determination.

[54 FR 1523, Jan. 13, 1989, as amended at 65 FR 43289, Aug. 10, 1999]



Sec. 206.265  Value enhancement of marketable coal.

    If, prior to use, sale, or other disposition, the lessee enhances 
the value of coal after the coal has been placed in marketable condition 
in accordance with Sec. 206.257(h) of this subpart, the lessee shall 
notify MMS that such processing is occurring or will occur. The value of 
that production shall be determined as follows:
    (a) A value established for the feedstock coal in marketable 
condition by application of the provisions of Sec. 206.257(c)(2)(i-iv) 
of this subpart; or,
    (b) In the event that a value cannot be established in accordance 
with subsection (a), then the value of production will be determined in 
accordance with Sec. 206.257(c)(2)(v) of this subpart and the value 
shall be the lessee's gross proceeds accruing from the disposition of 
the enhanced product, reduced by MMS-approved processing costs and 
procedures including a rate of return on investment equal to two times 
the Standard and Poor's BBB bond rate applicable under 
Sec. 206.259(b)(2)(v) of this subpart.

[[Page 114]]



                     Subpart G--Other Solid Minerals



Sec. 206.301  Value basis for royalty computation.

    (a) The gross value for royalty purposes shall be the sale or 
contract unit price times the number of units sold, Provided, however, 
That where the authorized officer determines:
    (1) That a contract of sale or other business arrangement between 
the lessee and a purchaser of some or all of the commodities produced 
from the lease is not a bona fide transaction between independent 
parties because it is based in whole or in part upon considerations 
other than the value of the commodities, or
    (2) That no bona fide sales price is received for some or all of 
such commodities because the lessee is consuming them, the authorized 
officer shall determine their gross value, taking into account: (i) All 
prices received by the lessee in all bona fide transactions, (ii) Prices 
paid for commodities of like quality produced from the same general 
area, and (iii) Such other relevant factors as the authorized officer 
may deem appropriate; and Provided further, That in a situation where an 
estimated value is used, the authorized officer shall require the 
payment of such additional royalties, or allow such credits or refunds 
as may be necessary to adjust royalty payment to reflect the actual 
gross value.
    (b) The lessee is required to certify that the values reported for 
royalty purposes are bona fide sales not involving considerations other 
than the sale of the mineral, and he may be required by the authorized 
officer to supply supporting information.

[43 FR 10341, Mar. 13, 1978. Redesignated at 48 FR 36588, Aug. 12, 1983, 
and amended at 48 FR 44795, Sept. 30, 1983. Further redesignated at 51 
FR 15212, Apr. 22, 1986. Redesignated at 53 FR 39461, Oct. 7, 1988]



                     Subpart H--Geothermal Resources

    Source: 56 FR 57276, Nov. 8, 1991, unless otherwise noted.



Sec. 206.350  Purpose and scope.

    (a) This subpart is applicable to all geothermal resources produced 
from Federal geothermal leases issued pursuant to the Geothermal Steam 
Act of 1970, as amended (30 U.S.C. 1001 et seq.). The purpose of this 
subpart is to establish the value of geothermal production for royalty 
purposes.
    (b) All royalty payments made to MMS are subject to audit and 
adjustment.



Sec. 206.351  Definitions.

    For purposes of this subpart:
    Arm's-length contract means a contract or agreement that has been 
arrived at in the marketplace between independent, nonaffiliated persons 
with opposing economic interests regarding that contract. For purposes 
of this subpart, two persons are affiliated if one person controls, is 
controlled by, or is under common control with, another person. For 
purposes of this subpart, based on the instruments of ownership of the 
voting securities of an entity, or based on other forms of ownership:
    (1) Ownership in excess of 50 percent constitutes control;
    (2) Ownership of 10 through 50 percent creates a rebuttable 
presumption of control; and
    (3) Ownership of less than 10 percent creates a presumption of 
noncontrol which MMS may rebut if it demonstrates actual or legal 
control, including the existence of interlocking directorates.

Notwithstanding any other provisions of this subpart, contracts between 
relatives, either by blood or by marriage, are not arm's-length 
contracts. The MMS may require the lessee to certify the claimed nature 
of ownership control. To be considered arm's-length for any production 
month, a contract must meet the requirements of this definition for the 
production month as well as when the contract was executed.
    Audit means a procedure having the same meaning and effect as that 
described at 30 CFR part 217 for verifying royalty payment compliance 
activities of lessees or other authorized persons who pay royalties, 
rents, or bonuses on Federal geothermal leases.
    Byproduct means:

[[Page 115]]

    (1) Any mineral or minerals (exclusive of oil, hydrocarbon gas, and 
helium) which are found in solution or developed in association with 
geothermal fluids and which have a value of less than 75 per centum of 
the value of the geothermal energy or are not, because of quantity, 
quality, or technical difficulties in extraction and production, of 
sufficient value to warrant extraction and production by themselves, and
    (2) Commercially demineralized water.
    Byproduct recovery facility means the facility or facilities at 
which byproducts are placed in marketable condition.
    Byproduct transportation allowance means an approved allowance for 
the lessee's reasonable, actual costs, excluding gathering, incurred for 
moving byproducts, including commercially demineralized water, to a 
point of sale or point of delivery off the lease, unit area, or 
communitized area.
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that with due consideration creates an obligation.
    Deduction means a subtraction used in the geothermal netback 
procedure for determining the value of geothermal resources utilized by 
the lessee to generate electricity. Transmission deduction means a 
deduction for the lessee's reasonable actual costs incurred to wheel or 
transmit the electricity from the lessee's powerplant to the purchaser's 
delivery point. Generating deduction means a deduction for the lessee's 
reasonable, actual costs of generating plant tailgate electricity.
    Delivered electricity means the amount of electricity in 
kilowatthours delivered to the purchaser.
    Direct utilization means any process other than electrical 
generation in which the thermal energy of the geothermal resource is 
utilized, including, but not limited to, space heating, greenhouse 
operations, and industrial or agricultural process heat.
    Field means the land surface vertically projected over a subsurface 
geothermal reservoir encompassing at least the outermost boundaries of 
all geothermal accumulations known to be within that reservoir. 
Geothermal fields are usually given names and their official boundaries 
are often designated by regulatory agencies in the respective States in 
which the fields are located.
    Gathering means the efficient movement of lease production from the 
wellhead to the point of utilization.
    Geothermal netback procedure means the method of determining the 
value of geothermal resources that are utilized in a lessee-owned 
powerplant for the generation and sale of electricity by deducting the 
lessee's reasonable, actual transmission and generating costs from the 
sales price or value of the electricity to derive the value of the 
geothermal resource at the powerplant inlet.
    Geothermal resources means:
    (1) All products of geothermal processes, including indigenous 
steam, hot water, and hot brines;
    (2) Steam and other gases, hot water, and hot brines resulting from 
water, gas, or other fluids artificially introduced into geothermal 
formations;
    (3) Heat or other associated energy found in geothermal formations; 
and
    (4) Any byproducts.
    Geothermal utilization facility means a powerplant or direct 
utilization facility that utilizes the heat or other energy of the 
geothermal resource.
    Gross proceeds (for royalty purposes) means the total monies and 
other consideration accruing to a geothermal lessee for any disposition 
of geothermal resources, including total payments for the sale of 
electricity generated by the lessee from lease-produced geothermal 
resources. Gross proceeds includes, but is not limited to, payments to 
the lessee for certain services such as effluent injection, field 
operation and maintenance, drilling or workover of wells, and/or field 
gathering to the extent that the lessee is obligated to perform them at 
no cost to the Federal Government. Gross proceeds also includes, but is 
not limited to, reimbursements for production taxes and other taxes. Tax 
reimbursements are part of gross proceeds accruing to a lessee even 
though the Federal royalty interest may be exempt from

[[Page 116]]

taxation. Monies and other consideration, including the forms of 
consideration identified in this paragraph, to which a lessee is 
contractually or legally entitled but which it does not seek to collect 
through reasonable efforts are also part of gross proceeds.
    Lease means a geothermal lease issued under authority of the 
Geothermal Steam Act of 1970, as amended (30 U.S.C. 1001 et seq.), 
unless the context indicates otherwise.
    Lessee means any person to whom the United States issues a 
geothermal lease, and any person who has been assigned an obligation to 
make royalty or other payments required by the lease. This includes any 
person who has an interest in a geothermal lease as well as an operator 
or payor who has no interest in the lease but who has assumed the 
royalty payment responsibility. This also includes any affiliate of the 
lessee that utilizes the geothermal resource to generate electricity, in 
a direct utilization process, or to recover byproducts, or any affiliate 
that transports lease production.
    Like-quality lease products means lease products that have similar 
chemical, physical, and legal characteristics.
    Marketable condition means lease products that are sufficiently free 
from impurities and otherwise in a condition that they will be accepted 
by a purchaser under a sales contract typical for the field.
    Minimum royalty means the minimum amount of annual royalty as 
specified in the lease or in applicable leasing regulations that the 
lessee must pay after commencement of geothermal production in 
commercial quantities.
    No sales means the utilization or disposal of geothermal resources 
without the benefit of a sale.
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture (when established as a 
separate entity).
    Plant tailgate electricity means the amount of electricity in 
kilowatthours generated by the powerplant exclusive of plant parasitic 
electricity, but inclusive of any electricity generated by the 
powerplant and returned to the lease for lease operations. Plant 
tailgate electricity should be measured at, or calculated for, the high 
voltage side of the transformer in the plant switchyard.
    Point of utilization means the powerplant or direct utilization 
facility in which the geothermal resource (steam or hot water) is 
utilized.
    Reasonable alternative fuel means a conventional fuel (such as coal, 
oil, gas, or wood) that would normally be used as a source of heat in 
direct utilization operations.
    Secretary means the Secretary of the Department of the Interior or 
any person duly authorized to exercise the powers vested in that office.
    Selling arrangement means the individually contracted arrangements 
under which sales or dispositions of geothermal resources are made, 
including sales or dispositions of byproducts and electricity sales 
where the lessee generates electricity from lease geothermal production.
    Spot market price means the price received under any sales 
transaction when planned or actual deliveries span a short period of 
time, usually not exceeding 1 year.
    Wheeling means the transmission of electricity from a powerplant to 
the point of delivery.



Sec. 206.352  Valuation standards for electrical generation.

    (a) The value of geothermal resources produced from leases subject 
to this subpart and used to generate electricity shall be determined 
pursuant to this section.
    (b)(1)(i) The value of geothermal resources that are sold pursuant 
to an arm's-length contract shall be the gross proceeds accruing to the 
lessee, except as provided in paragraphs (b)(1)(ii) and (b)(1)(iii) of 
this section. The lessee shall have the burden of demonstrating that its 
contract is arm's-length. The value that the lessee reports for royalty 
purposes is subject to monitoring, review, and audit.
    (ii) In conducting reviews and audits, MMS will examine whether the 
contract reflects the total consideration actually transferred, either 
directly or indirectly, from the buyer to the seller for the geothermal 
resource. If the contract does not reflect the total consideration, MMS 
may require that the

[[Page 117]]

geothermal resource sold pursuant to that contract be valued in 
accordance with paragraph (d) of this section. Value shall not be less 
than the gross proceeds accruing to the lessee, including any additional 
consideration received.
    (iii) If MMS determines that the gross proceeds accruing to the 
lessee pursuant to an arm's-length contract do not reflect the 
reasonable value of the production because of misconduct by or between 
the contracting parties, or because the lessee otherwise has breached 
its duty to the lessor to market the production for the mutual benefit 
of the lessee and the lessor, MMS shall require the geothermal resource 
to be valued pursuant to paragraph (d) of this section, and notification 
provided to MMS in accordance with paragraph (e)(3) of this section. If 
MMS determines that the value may be unreasonable, MMS will notify the 
lessee and give the lessee an opportunity to provide written information 
justifying the lessee's value.
    (2) The MMS may require a lessee to certify that the provisions in 
its arm's-length contract include all of the consideration to be paid by 
the buyer, either directly or indirectly, for the geothermal resource.
    (c)(1) The value of geothermal resources subject to this section 
that are sold under a non-arm's-length contract shall be determined in 
accordance with the first applicable of the following paragraphs:
    (i) The gross proceeds accruing to the lessee pursuant to a sale 
under its non-arm's-length contract provided that those gross proceeds 
are not less than the gross proceeds derived from or paid under the 
lowest-priced available comparable arm's-length contract for sales of 
geothermal resources to the lessee-affiliate's same powerplant (the 
``minimum value''). If the gross proceeds under the lessee's non-arm's-
length contract are less than the ``minimum value'' under available 
comparable arm's-length contracts, or if there are no available 
comparable arm's-length contracts, value will be determined by the 
weighted average of the gross proceeds established under arm's-length 
contracts for the sale of significant quantities of geothermal resources 
to the same powerplant. Available contracts will mean contracts in the 
possession of the lessee, the lessee's affiliate, or MMS. In evaluating 
the comparability of arm's-length contracts for the purposes of these 
regulations, the following factors shall be considered: Time of 
execution, duration, terms, quality of the geothermal resource, volume, 
dedication to the same powerplant, and other factors that may be 
appropriate to reflect the value of the resource;
    (ii) The value determined by the geothermal netback procedure. Under 
the geothermal netback procedure, the lessee's reasonable actual costs 
for the generation and transmission of electricity shall be deducted 
from the lessee's gross proceeds received for the sale of electricity to 
determine the value of the geothermal resource. Transmission deductions 
shall be determined pursuant to Sec. 206.353 of this part. Generating 
deductions shall be determined pursuant to Sec. 206.354 of this part; or
    (iii) A value determined by any other reasonable valuation method 
approved by MMS.
    (2) Value determinations made pursuant to this paragraph are subject 
to the notification requirements of paragraph (e) of this section.
    (d)(1) The value of geothermal resources subject to this section 
that are not subject to a sales transaction (``no sales'' geothermal 
resources) but are instead utilized directly by the lessee in its own 
powerplant for the generation and sale of electricity shall be 
determined in accordance with the first applicable of the following 
paragraphs:
    (i) The weighted average of the gross proceeds established in arm's-
length contracts for the purchase of significant quantities of 
geothermal resources to operate the lessee's same powerplant. In 
evaluating the acceptability of arm's-length contracts, the following 
factors shall be considered: Time of execution, duration, terms, volume, 
quality of resource, and such other factors as may be appropriate to 
reflect the value of the resource;
    (ii) The value determined by the geothermal netback procedure. Under 
the geothermal netback procedure, the lessee's reasonable actual costs 
for the

[[Page 118]]

generation and transmission of electricity shall be deducted from the 
lessee's gross proceeds received for the sale of electricity to 
determine the value of the geothermal resource. Transmission deductions 
shall be determined pursuant to Sec. 206.353 of this part. Generating 
deductions shall be determined pursuant to Sec. 206.354 of this part; or
    (iii) A value determined by any other reasonable valuation method 
approved by MMS.
    (2) Value determinations made pursuant to this paragraph are subject 
to the notification requirements of paragraph (e) of this section.
    (e)(1) Pursuant to subpart H of 30 CFR part 212, the lessee shall 
retain all data relevant to the determination of royalty value, 
particularly where the value is determined pursuant to paragraph (c) or 
(d) of this section. Such data shall be subject to review and audit, and 
MMS will direct a lessee to use a different value if it determines that 
the reported value is inconsistent with the requirements of these 
regulations.
    (2) Upon request, lessees shall make available to authorized MMS 
representatives or to other authorized persons any and all contracts for 
the sale or other disposition of the lease production; contracts for the 
sale, generation, and/or transmission of electricity attributable to 
lease production; and any arm's-length sales and other data for like-
quality production sold, purchased, or otherwise obtained by the lessee 
from the field as may be necessary to support a value determination.
    (3) A lessee shall notify MMS if it has determined value pursuant to 
paragraph (c) or (d) of this section. The notification shall be by 
letter to the MMS Associate Director for Minerals Revenue Management or 
his/her designee. The letter shall identify the valuation method to be 
used and contain a brief description of the procedure to be followed. 
The notification required by this paragraph is a one-time notification 
due no later than the end of the month following the month the lessee 
first reports royalties on a Form MMS-2014 using a valuation method 
authorized by paragraph (c) or (d) of this section.
    (f) If MMS determines that a lessee has not properly determined 
value, the lessee shall pay the difference, if any, between royalty 
payments made based upon the value it has used and the royalty payments 
that are due based upon the value established by MMS. The lessee shall 
also pay interest on that difference computed pursuant to 30 CFR 
218.302. If the lessee is entitled to a credit, MMS will provide 
instructions for the taking of that credit.
    (g) The lessee may request a value determination from MMS. In that 
event, the lessee shall propose to MMS a value determination method and 
may use that method in determining value, for royalty purposes, until 
MMS issues its decision. The lessee shall submit all available data 
relevant to its proposal. The MMS shall expeditiously determine the 
value based upon the lessee's proposal and any additional information 
MMS deems necessary. In making a value determination, MMS may use any of 
the valuation criteria consistent with this subpart. That determination 
shall remain effective for the period stated therein. After MMS issues 
its determination, the lessee shall make the adjustments in accordance 
with paragraph (f) of this section.
    (h) Notwithstanding any other provision of this section, under no 
circumstances shall the value of production for royalty purposes be less 
than the gross proceeds accruing to the lessee where geothermal 
resources are directly sold.
    (i) The lessee is required to place geothermal resources in 
marketable condition and to deliver geothermal resources to the 
powerplant at no cost to the Federal lessor. Where the value established 
pursuant to this section is determined by a lessee's gross proceeds, 
that value shall be increased to the extent that the gross proceeds have 
been reduced because the purchaser, or any other person, is providing 
certain services the cost of which ordinarily is the responsibility of 
the lessee to place the geothermal resource in marketable condition or 
deliver it to the powerplant.
    (j) Value shall be based on the highest price a prudent lessee can 
receive

[[Page 119]]

through legally enforceable claims under its contract. Absent contract 
revision or amendment, if the lessee fails to take proper or timely 
action to receive prices or benefits to which it is entitled, it must 
pay royalty at a value based upon that obtainable price or benefit. 
Contract revisions or amendments shall be in writing and signed by all 
parties to the contract. If the lessee makes timely application for a 
price increase or benefit allowed under its contract but the purchaser 
refuses and the lessee takes reasonable measures, which are documented, 
to force purchaser compliance, the lessee will owe no additional 
royalties unless or until monies or consideration resulting from the 
price increase or additional benefits are received. This paragraph shall 
not be construed to permit a lessee to avoid its royalty payment 
obligation in situations where a purchaser fails to pay, in whole or in 
part or timely, for a quantity of geothermal resources.
    (k) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by MMS of value under this section 
shall be considered final or binding as against the Federal Government 
or its beneficiaries until the audit period is formally closed.
    (l) Certain information submitted to MMS to support value 
determinations is exempted from disclosure by the Freedom of Information 
Act, 5 U.S.C. 552, or other Federal law. Any data specified by law to be 
privileged, confidential, or otherwise exempt will be maintained in a 
confidential manner in accordance with applicable law and regulations. 
All requests for information about determinations made under this 
subpart are to be submitted in accordance with the Freedom of 
Information Act regulations of the Department, 43 CFR part 2.



Sec. 206.353  Determination of transmission deductions.

    (a) Where the value of geothermal energy is determined by the 
geothermal netback procedure pursuant to paragraphs (c)(1)(ii) and 
(d)(1)(ii) of Sec. 206.352 of this subpart, a transmission deduction 
shall be subtracted from the lessee's gross proceeds received for the 
sale of electricity to determine the plant tailgate value of the 
electricity. The transmission deduction consists of either or both of 
two components:
    (1) Transmission line costs as determined pursuant to paragraph (b) 
of this section, and
    (2) Wheeling costs if the electricity is transmitted across a third-
party's transmission line under an arm's-length wheeling agreement. 
Transmission deductions are subject to the limitation prescribed in 
paragraph (c) of this section.
    (b)(1) Transmission-line costs shall be based on the lessee's actual 
costs associated with the construction and operation of a transmission 
line for the purpose of transmitting electricity attributable and 
allocable to the lessee's powerplant utilizing Federal geothermal 
resources. The monthly transmission line cost component of the 
transmission deduction is determined by multiplying the annual 
transmission line cost rate (in dollars per kilowatthour) by the amount 
of electricity delivered for the reporting month. The transmission line 
cost rate shall be redetermined annually at the beginning of the same 
month of the year in which the transmission line was placed into 
service, the same month of the year in which the powerplant was placed 
into service, or, at the lessee's option, at a time concurrent with the 
beginning of the lessee's annual corporate accounting period; Provided, 
however, the period selected must coincide with the same period chosen 
for the generating deduction pursuant to Sec. 206.354(b)(1). After a 
deduction period is chosen, the lessee may not later elect to use a 
different deduction period without MMS approval.
    (2) Allowable transmission-line costs include operating and 
maintenance expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the capital investment 
in the transmission line multiplied by a rate of return in accordance

[[Page 120]]

with paragraph (b)(2)(iv)(B) of this section. Allowable capital costs 
are generally those costs for depreciable assets, including costs of 
delivery and installation of capital equipment, that are an integral 
part of the transmission line. A return on capital invested in the 
purchase of real estate for transmission facilities may be allowed 
provided that the lessee demonstrates the necessity for such purchase, 
the purchased land is not on a Federal geothermal lease, and MMS 
approves the deduction; the rate of return shall be the same rate 
determined in paragraph (b)(2)(v) of this section.
    (i) Allowable operating expenses include operations supervision and 
engineering, operations labor, materials, ad valorem property taxes, 
rent, supplies, and any other directly allocable and attributable 
operating expenses that the lessee can document.
    (ii) Allowable maintenance expenses include maintenance of the 
transmission line, maintenance of equipment, maintenance labor, and 
other directly allocable and attributable maintenance expenses that the 
lessee can document.
    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the transmission line is an allowable expense. State 
and Federal income taxes and severance taxes and other fees, including 
royalties, are not allowable expenses.
    (iv) To compute costs associated with capital investment, a lessee 
may use either depreciation with a return on undepreciated capital 
investment, or a return on capital investment. After a lessee has 
elected to use either method, the lessee may not later elect to change 
to the other alternative without MMS approval.
    (A) To compute depreciation, the lessee must use a straight-line 
depreciation method based on the expected life of the geothermal 
project, usually the term of the electricity sales contract or other 
depreciation period acceptable to MMS. A change in ownership of a 
transmission line shall not alter the depreciation schedule established 
by the original lessee-owner for purposes of computing transmission line 
costs. With or without a change in ownership, a transmission line shall 
be depreciated only once. The rate of return used to compute the return 
on undepreciated capital investment shall be determined pursuant to 
paragraph (b)(2)(v) of this section.
    (B) To compute a return on capital investment, the allowed cost 
shall be the amount equal to the allowable capital investment in the 
transmission line multiplied by the rate of return determined pursuant 
to paragraph (b)(2)(v) of this section. No allowance shall be provided 
for depreciation. This alternative shall apply only to transmission 
lines first placed into service on or after March 1, 1988.
    (v) The rate of return shall be 2 times Standard and Poor's 
industrial BBB bond rate. The rate of return shall be 2 times the 
monthly average rate as published in Standard and Poor's Bond Guide for 
the first month of the annual deduction period and shall be effective 
during the following deduction period. The rate shall be redetermined 
annually at the beginning of the same month beginning the annual 
deduction period chosen pursuant to paragraph (b)(1) of this section.
    (3) Transmission-line cost rates, determined annually, are computed 
by dividing the sum of the operating, maintenance, overhead, and capital 
costs by the annual amount of delivered electricity.
    (4) For new transmission lines, the lessee's costs for the first 
deduction period shall be based on estimated expenses (including 
overhead) for operating and maintaining the transmission line. For 
subsequent deduction periods, the transmission line costs shall be 
estimated based on the lessee's actual operating and maintenance 
expenses for the previous period adjusted for decreases or increases 
that the lessee knows will affect the deduction in the current period.
    (c) Under no circumstances shall the transmission deduction plus the 
generating deduction determined pursuant to Sec. 206.354 of this subpart 
reduce the royalty value of the geothermal resource to zero.
    (d)(1) If the actual transmission deduction determined at the end of 
the annual reporting period is less than the amount the lessee estimated 
and used

[[Page 121]]

in the netback procedure during the reporting period, the lessee shall 
be required to pay additional royalties retroactive to the first month 
of the reporting period, plus interest computed pursuant to 30 CFR 
218.302. If the actual transmission deduction is greater than the amount 
applied in the netback calculation, the lessee shall be entitled to a 
credit.
    (2) Lessees must submit corrected Forms MMS-2014 to reflect 
adjustments to royalty payments in accordance with MMS instructions.
    (e)(1) All transmission deductions are subject to review, audit, and 
adjustment. When necessary or appropriate, MMS may direct a lessee to 
modify its estimated or actual transmission deduction and adjust royalty 
values accordingly.
    (2) Pursuant to subpart H of 30 CFR part 212, the lessee must 
maintain all data and records supporting its transmission deduction, 
including wheeling and other transmission-related agreements. These data 
and records must be made available to MMS and other authorized personnel 
upon request, and shall be maintained in a confidential manner in 
accordance with applicable laws and regulations pursuant to Sec. 206.352 
of this subpart.
    (f) A one-time refund of royalties equal to the royalty amount of 
actual dismantlement costs attributable to the transmission line that 
are in excess of actual income attributable to the salvage of the 
transmission line will be allowed at the completion of the dismantlement 
and salvage operations.



Sec. 206.354  Determination of generating deductions.

    (a) Where the value of geothermal energy is determined by the 
geothermal netback procedure pursuant to paragraphs (c)(1)(ii) and 
(d)(1)(ii) of Sec. 206.352 of this subpart, that value shall be 
determined by deducting the lessee's reasonable actual costs incurred to 
generate electricity from the plant tailgate value of the electricity 
(usually the transmission-reduced value of the delivered electricity). 
Generating deductions are subject to the limitation prescribed in 
paragraph (c) of this section.
    (b)(1) Generating costs shall be based on the lessee's actual annual 
costs associated with the construction and operation of a geothermal 
powerplant. The monthly generating deduction is determined by 
multiplying the annual generating cost rate (in dollars per 
kilowatthour) by the amount of plant tailgate electricity measured (or 
computed) for the reporting month. The generating cost rate is 
determined from the annual amount of plant tailgate electricity and must 
be redetermined annually at the beginning of the same month of the year 
in which the powerplant was placed into service or, at the lessee's 
option, at a time concurrent with the beginning of the lessee's annual 
corporate accounting period; Provided, however, the period selected must 
coincide with the same period chosen for the transmission deduction 
pursuant to Sec. 206.353(b)(1). After a deduction period is chosen, the 
lessee may not later elect to use a different deduction period without 
MMS approval.
    (2) Allowable generating costs include operating and maintenance 
expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the capital investment 
in the powerplant multiplied by a rate of return in accordance with 
paragraph (b)(2)(iv)(B) of this section. Allowable capital costs are 
generally those costs for depreciable assets, including costs of 
delivery and installation of capital equipment, that are an integral 
part of the powerplant or are required by the design specifications of 
the power conversion cycle. A return on capital invested in the purchase 
of real estate for a powerplant site may be allowed provided that the 
lessee demonstrates the necessity for such purchase, the purchased land 
is not on a Federal geothermal lease, and MMS approves the deduction; 
the rate of return shall be the same rate determined in paragraph 
(b)(2)(v) of this section. The costs of gathering systems and other 
production-related facilities are not allowed.
    (i) Allowable operating expenses include operations supervision and 
engineering, operations labor, materials, ad

[[Page 122]]

valorem property taxes, rent, supplies, auxiliary fuel and/or utilities 
used to operate the powerplant during down time, and any other directly 
allocable and attributable operating expense that the lessee can 
document.
    (ii) Allowable maintenance expenses include maintenance of the 
powerplant, maintenance of equipment, maintenance labor, and other 
directly allocable and attributable maintenance expenses that the lessee 
can document.
    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the powerplant is an allowable expense. State and 
Federal income taxes and severance taxes, including royalties, are not 
allowable expenses.
    (iv) To compute costs associated with capital investment, a lessee 
may use either depreciation with a return on undepreciated capital 
investment, or a return on capital investment. After a lessee has 
elected to use either method, the lessee may not later elect to change 
to the other alternative without MMS approval.
    (A) To compute depreciation, the lessee must use a straight-line 
depreciation method based on the life of the geothermal project, usually 
the term of the electricity sales contract or other depreciation period 
acceptable to MMS. A change in ownership of a powerplant shall not alter 
the depreciation schedule established by the original lessee-owner for 
computing the generating costs. With or without a change in ownership, a 
powerplant shall be depreciated only once. The rate of return used to 
compute the return on undepreciated capital investment shall be 
determined pursuant to paragraph (b)(2)(v) of this section.
    (B) To compute a return on capital investment, the allowed cost 
shall be the amount equal to the allowable capital investment in the 
powerplant multiplied by the rate of return determined pursuant to 
paragraph (b)(2)(v) of this section. No allowance shall be provided for 
depreciation. This alternative shall apply only to powerplants first 
placed into service on or after March 1, 1988.
    (v) The rate of return shall be 2 times Standard and Poor's 
industrial BBB bond rate. The rate of return shall be 2 times the 
monthly average rate as published in Standard and Poor's Bond Guide for 
the first month of the annual deduction period and shall be effective 
during the following deduction period. The rate shall be redetermined 
annually at the beginning of the same month beginning the annual 
deduction period chosen pursuant to paragraph (b)(1) of this section.
    (3) Generating cost rates, determined annually, shall be computed by 
dividing the sum of the operating, maintenance, overhead, and capital 
costs by the annual amount of plant tailgate electricity.
    (4) For new powerplants, the lessee's generating costs for the first 
deduction period shall be based on estimated expenses (including 
overhead) for operating and maintaining the powerplant. For subsequent 
deduction periods, the generating costs shall be estimated based on the 
lessee's actual operating and maintenance expenses for the previous 
period adjusted for decreases or increases that the lessee knows will 
affect the deduction in the current period.
    (c) Under no circumstances shall the generating deduction plus the 
transmission deduction determined pursuant to Sec. 206.353 of this 
subpart reduce the royalty value of the geothermal resource to zero.
    (d)(1) If the actual generating deduction determined at the end of 
the annual reporting period is less than the amount the lessee estimated 
and used in the netback procedure during the reporting period, the 
lessee shall be required to pay additional royalties retroactive to the 
first month of the reporting period, plus interest computed pursuant to 
30 CFR 218.302. If the actual generating deduction is greater than the 
amount applied in the netback calculation, the lessee shall be entitled 
to a credit.
    (2) Lessees must submit corrected Forms MMS-2014 to reflect 
adjustments to royalty payments in accordance with MMS instructions.
    (e)(1) All generating deductions are subject to review, audit, and 
adjustment. When necessary or appropriate, MMS may direct a lessee to 
modify its

[[Page 123]]

estimated or actual generating deduction and adjust royalty values 
accordingly.
    (2) Pursuant to subpart H of 30 CFR part 212, the lessee must 
maintain all data and records supporting its generating deduction. These 
data and records must be made available to MMS and other authorized 
personnel upon request, and shall be maintained in a confidential manner 
in accordance with applicable laws and regulations pursuant to 
Sec. 206.352 of this subpart.
    (f) A one-time refund of royalties equal to the royalty amount of 
actual dismantlement costs attributable to the powerplant that are in 
excess of actual income attributable to the salvage of the powerplant 
will be allowed at the completion of the dismantlement and salvage 
operations.



Sec. 206.355  Valuation standards for direct utilization.

    (a) The value of geothermal resources produced for leases subject to 
this subpart and used in direct utilization processes shall be 
determined pursuant to this section.
    (b)(1)(i) The value of geothermal resources that are sold pursuant 
to an arm's-length contract shall be the gross proceeds accruing to the 
lessee, except as provided in paragraphs (b)(1)(ii) and (b)(1)(iii) of 
this section. The lessee shall have the burden of demonstrating that its 
contract is arm's-length. The value that the lessee reports for royalty 
purposes is subject to monitoring, review, and audit.
    (ii) In conducting these reviews and audits, MMS will examine 
whether or not the contract reflects the total consideration actually 
transferred either directly or indirectly from the buyer to the seller 
for the geothermal resource. If the contract does not reflect the total 
consideration, MMS may require that the geothermal resource sold 
pursuant to that contract be valued in accordance with paragraph (d) of 
this section. Value shall not be less than the gross proceeds accruing 
to the lessee, including any additional consideration received.
    (iii) If MMS determines that the gross proceeds accruing to the 
lessee pursuant to an arm's-length contract do not reflect the 
reasonable value of the geothermal resource because of misconduct by or 
between the contracting parties, or because the lessee otherwise has 
breached its duty to the lessor to market the production for the mutual 
benefit of the lessee and the lessor, MMS shall require the geothermal 
resource to be valued pursuant to paragraph (d) of this section and in 
accordance with the notification requirements of paragraph (e) of this 
section. When MMS determines that the value may be unreasonable, MMS 
will notify the lessee and give the lessee an opportunity to provide 
written information justifying the lessee's value.
    (2) The MMS may require a lessee to certify that its arm's-length 
contract provisions include all of the consideration to be paid by the 
buyer, either directly or indirectly, for the geothermal resource.
    (c)(1) The value of geothermal resources subject to this section 
that are sold under a non-arm's-length contract shall be determined in 
accordance with the first applicable of the following paragraphs:
    (i) The gross proceeds accruing to the lessee pursuant to a sale 
under its non-arm's-length contract provided that those gross proceeds 
are not less than the gross proceeds derived from or paid under the 
lowest-priced available comparable arm's-length contract for sales of 
geothermal resources to the lessee-affiliate's same direct utilization 
facility (the ``minimun value''). If the gross proceeds under the 
lessee's non-arm's-length contract are less than the ``minimum value'' 
under available comparable arm's-length contracts, or if there are no 
available comparable arm's-length contracts, value will be determined by 
the weighted average of the gross proceeds established under arm's-
length contracts for the sale of significant quantities of geothermal 
resources to the same direct utilization facility. Available contracts 
will mean contracts in the possession of the lessee, the lessee's 
affiliate, or MMS. In evaluating the comparability of arm's-length 
contracts for the purposes of these regulations, the following factors 
shall be considered: Time of execution, duration, terms, quality of the 
geothermal resource, volume, dedication to the same direct utilization 
facility,

[[Page 124]]

and other factors that may be appropriate to reflect the value of the 
resource;
    (ii) The equivalent value of the least expensive, reasonable 
alternative energy source (fuel). The equivalent value of the least 
expensive, reasonable alternative energy source shall be based on the 
amount of thermal energy that would otherwise be used by the direct 
utilization process in place of the geothermal resource. That amount of 
thermal energy (in Btu's) displaced by the geothermal resource shall be 
determined by the equation

thermal energy displaced =
[GRAPHIC] [TIFF OMITTED] TC15NO91.017


where hin is the enthalpy in Btu's/lb at the utilization 
facility inlet (based on measured inlet temperature), hout is 
the enthalpy in Btu's/lb at the facility outlet (based on measured 
outlet temperature), density is in lbs/cu ft based on inlet temperature, 
the factor 0.133681 (cu ft/gal) converts gallons to cubic feet, and 
volume is the quantity of geothermal fluid in gallons produced at the 
wellhead or measured at an approved point. The efficiency of the 
alternative energy source shall be 0.7 for coal and 0.8 for oil, natural 
gas, and other fuels derived from oil and natural gas, or an efficiency 
factor proposed by the lessee and approved by MMS. The methods of 
measuring resource parameters (temperature, volume, etc.) and the 
frequency of computing and accumulating the amount of thermal energy 
displaced shall be determined and approved by BLM; or
    (iii) A value determined by any other reasonable valuation method 
approved by MMS.
    (2) Valuations made pursuant to this paragraph are subject to the 
notification requirements of paragraph (e) of this section.
    (d)(1) The value of geothermal resources subject to this section 
that are not subject to a sales transaction but are instead used by the 
lessee in its own direct utilization facility (``no sales'' geothermal 
resources) shall be determined in accordance with the first applicable 
of the following paragraphs:
    (i) The weighted average of the gross proceeds established in arm's-
length contracts for the purchase of significant quantities of 
geothermal resources to operate the lessee's same direct utilization 
facility. In evaluating the acceptability of arm's-length contracts, the 
following factors shall be considered: Time of execution, duration, 
terms, volume, quality of resource, and such other factors as may be 
appropriate to reflect the value of the resource;
    (ii) The equivalent value of the least expensive, reasonable 
alternative energy source (fuel). The equivalent value of the least 
expensive, reasonable alternative energy source shall be based on the 
amount of thermal energy that would otherwise be used by the direct 
utilization process in place of the geothermal resource. That amount of 
thermal energy (in Btu's) displaced by the geothermal resource shall be 
determined by the equation

thermal energy displaced =
[GRAPHIC] [TIFF OMITTED] TC15NO91.018


where hin is the enthalpy in Btu's/lb at the utilization 
facility inlet (based on measured inlet temperature), hout is 
the enthalpy in Btu's/lb at the facility outlet (based on measured 
outlet temperature), density is in lbs/cu ft based on inlet temperature, 
the factor 0.133681 (cu ft/gal) converts gallons to cubic feet, and 
volume is the quantity of geothermal fluid in gallons produced at the 
wellhead or measured at an approved point. The efficiency of the 
alternative energy source shall be 0.7 for coal and 0.8 for oil, natural 
gas, and other fuels derived from oil and natural gas, or an efficiency 
factor proposed by the lessee and approved by MMS. The methods of 
measuring resource parameters (temperature, volume, etc.) and the 
frequency of computing and accumulating the amount of thermal energy 
displaced shall be determined and approved by BLM; or
    (iii) A value determined by any other reasonable valuation method 
approved by MMS.

[[Page 125]]

    (2) Valuations made pursuant to this paragraph are subject to the 
notification requirements of paragraph (e) of this section.
    (e)(1) Pursuant to subpart H of 30 CFR part 212, the lessee shall 
retain all data relevant to the determination of royalty value, 
particularly where the value is determined pursuant to paragraph (c) or 
(d) of this section. Such data shall be subject to review and audit, and 
MMS will direct a lessee to use a different value if it determines that 
the reported value is inconsistent with the requirements of these 
regulations.
    (2) Upon request, lessees shall make available to authorized MMS 
representatives or to other authorized persons any and all contracts for 
the sale or other disposition of the lease production, and any arm's-
length sales and other data for like-quality production sold, purchased, 
or otherwise obtained by the lessee from the field as may be necessary 
to support a value determination.
    (3) A lessee shall notify MMS if it has determined value pursuant to 
paragraph (c) or (d) of this section. The notification shall be by 
letter to the MMS Associate Director for Minerals Revenue Management or 
his/her designee. The letter shall identify the valuation method to be 
used and contain a brief description of the procedure to be followed. 
The notification required by this paragraph is a one-time notification 
due no later than the end of the month following the month the lessee 
first reports royalties on a Form MMS-2014 using a valuation method 
authorized by paragraph (c) or (d) of this section.
    (f) If MMS determines that a lessee has not properly determined 
value, the lessee shall pay the difference, if any, between royalty 
payments made based upon the value it has used and the royalty payments 
that are due based upon the value established by MMS. The lessee shall 
also pay interest on that difference computed pursuant to 30 CFR 
218.302. If the lessee is entitled to a credit, MMS will provide 
instructions for the taking of that credit.
    (g) The lessee may request a value determination from MMS. In that 
event, the lessee shall propose to MMS a value determination method and 
may use that method in determining value, for royalty purposes, until 
MMS issues its decision. The lessee shall submit all available data 
relevant to its proposal. The MMS shall expeditiously determine the 
value based upon the lessee's proposal and any additional information 
MMS deems necessary. In making a value determination, MMS may use any of 
the valuation criteria consistent with this subpart. That determination 
shall remain effective for the period stated therein. After MMS issues 
its determination, the lessee shall make adjustments in accordance with 
paragraph (f) of this section.
    (h) Notwithstanding any other provision of this section, under no 
circumstances shall the value of production, for royalty purposes, be 
less than the gross proceeds accruing to the lessee where geothermal 
energy is directly sold.
    (i) The lessee is required to place geothermal resources in 
marketable condition and to deliver geothermal resources to the direct 
utilization facility at no cost to the Federal lessor. Where the value 
established pursuant to this section is determined by a lessee's gross 
proceeds, that value shall be increased to the extent that the gross 
proceeds have been reduced because the purchaser, or any other person, 
is providing certain services the cost of which ordinarily is the 
responsibility of the lessee to place the geothermal resource in 
marketable condition or to deliver it to the direct utilization 
facility.
    (j) Value shall be based on the highest price a prudent lessee can 
receive through legally enforceable claims under its contract. Absent 
contract revision or amendment, if the lessee fails to take proper or 
timely action to receive prices or benefits to which it is entitled, it 
must pay royalty at a value based upon that obtainable price or benefit. 
Contract revisions or amendments shall be in writing and signed by all 
parties to the contract. If the lessee makes timely application for a 
price increase or benefit allowed under its contract but the purchaser 
refuses and the lessee takes reasonable measures, which are documented, 
to force purchaser compliance, the lessee shall owe

[[Page 126]]

no additional royalties unless or until monies or consideration 
resulting from the price increase or additional benefits are received. 
This paragraph shall not be construed to permit a lessee to avoid its 
royalty payment obligation in situations where a purchaser fails to pay, 
in whole or in part or timely, for a quantity of geothermal resources.
    (k) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by MMS of value under this section 
shall be considered final or binding against the Federal Government or 
its beneficiaries until the audit period is formally closed.
    (l) Certain information submitted to MMS to support value 
determinations is exempted from disclosure by the Freedom of Information 
Act, 5 U.S.C. 552, or other Federal law. Any data specified by law to be 
privileged, confidential, or otherwise exempt will be maintained in a 
confidential manner in accordance with applicable laws and regulations. 
All requests for information about determinations made under this 
subpart are to be submitted in accordance with the Freedom of 
Information Act regulation of the Department, 43 CFR part 2.

[56 FR 57276, Nov. 8, 1991; 57 FR 12376, Apr. 9, 1992]



Sec. 206.356  Valuation standards for byproducts.

    (a) The value of geothermal byproducts, including commercially 
demineralized water, shall be determined pursuant to this section, less 
applicable byproducts transportation allowances determined pursuant to 
Secs. 206.357 and 206.358 of this subpart.
    (b)(1)(i) The value of byproducts that are sold pursuant to an 
arm's-length contract shall be the gross proceeds accruing to the 
lessee, except as provided in paragraphs (b)(1)(ii) and (b)(1)(iii) of 
this section. The lessee shall have the burden of demonstrating that its 
contract is arm's-length. The value that the lessee reports for royalty 
purposes is subject to monitoring, review, and audit.
    (ii) In conducting reviews and audits, MMS will examine whether the 
contract reflects the total consideration actually transferred, either 
directly or indirectly, from the buyer to the seller for the byproducts. 
If the contract does not reflect the total consideration, MMS may 
require that the byproducts sold pursuant to that contract be valued in 
accordance with paragraph (c) of this section. Value may not be less 
than the gross proceeds accruing to the lessee, including any additional 
consideration received .
    (iii) If MMS determines that the gross proceeds accruing to the 
lessee pursuant to an arm's-length contract do not reflect the 
reasonable value of the production because of misconduct by or between 
the contracting parties, or because the lessee otherwise has breached 
its duty to the lessor to market the production for the mutual benefit 
of the lessee and the lessor, MMS shall require that the byproduct 
production be valued pursuant to paragraph (c) of this section and in 
accordance with the notification requirements of paragraph (d) of this 
section. If MMS determines that the value may be unreasonable, MMS will 
notify the lessee and give the lessee an opportunity to provide written 
information justifying the lessee's reported byproduct value.
    (2) The MMS may require a lessee to certify that the provisions in 
its arm's-length contract include all of the consideration to be paid by 
the buyer, either directly or indirectly, for the byproduct.
    (c) The value of byproducts that are sold pursuant to a non-arm's-
length contract or that are utilized by the lessee (no sales), except 
demineralized water used for the benefit of the lease pursuant to 
paragraph (b)(2) of Sec. 202.351 of this subpart, shall be determined in 
accordance with the first applicable of the following paragraphs:
    (1) The gross proceeds accruing to the lessee pursuant to a sale 
under its non arm's-length contract (or other disposition by other than 
an arm's-length contract), provided that those gross proceeds are not 
less than the gross proceeds derived from or paid under the lowest-
priced available comparable arm's-length contract for sales, purchases, 
or other dispositions of like-quality byproducts in the field or, if 
necessary to obtain a representative

[[Page 127]]

sample, from the same area (the ``minimum value''). If the gross 
proceeds under the lessee's non-arm's-length contract are less than the 
``minimum value'' under available comparable arms length contracts, or 
if there are no available comparable arm's-length contracts, value will 
be determined by the weighted average of the gross proceeds established 
under arm's-length contracts for the sale of like-quality products in 
the field or, if necessary to obtain a representative sample, from the 
same area. Available contracts will mean contracts in the possession of 
the lessee, the lessee's affiliate, or MMS. In evaluating the 
comparability of arm's-length contracts for the purposes of these 
regulations, the following factors shall be considered: Field or area, 
price, time of execution, duration, terms, quality of the byproduct, 
volume, market or markets served, and other factors that may be 
appropriate to reflect the value of the byproduct;
    (2) Other relevant matters including, but not limited to, published 
or publicly available spot-market prices, or information submitted by 
the lessee concerning circumstances unique to a particular lease 
operation or the saleability of certain byproducts; or
    (3) A netback method or any other reasonable method used to 
determine value.
    (d)(1) Pursuant to subpart H of 30 CFR part 212, the lessee shall 
retain all data relevant to the determination of royalty value, 
particularly where the value is determined pursuant to paragraph (c) of 
this section. Such data shall be subject to review and audit, and MMS 
will direct a lessee to use a different value if it determines that the 
reported value is inconsistent with the requirements of these 
regulations.
    (2) Upon request, lessees shall make available to authorized MMS 
representatives or to other authorized persons any and all contracts 
and/or invoices for the sale or other disposition of the byproducts, and 
any arm's-length sales and other data for like-quality production sold, 
purchased, or otherwise obtained by the lessee from the field or other 
area as may be necessary to support a value determination.
    (3) A lessee shall notify MMS if it has determined value pursuant to 
paragraph (c) of this section. The notification shall be by letter to 
the MMS Associate Director for Minerals Revenue Management or his/her 
designee. The letter shall identify the valuation method to be used and 
contain a brief description of the procedure to be followed. The 
notification required by this paragraph is a one-time notification due 
no later than the end of the month following the month the lessee first 
reports royalties on a Form MMS-2014 using a valuation method authorized 
by paragraph (c) of this section, and each time there is a change in a 
method under paragraph (c) of this section.
    (e) If MMS determines that a lessee has not properly determined 
value, the lessee shall pay the difference, if any, between royalty 
payments made based upon the value it has used and the royalty payments 
that are due based upon the value established by MMS. The lessee shall 
also pay interest on that difference computed pursuant to 30 CFR 
218.302. If the lessee is entitled to a credit, MMS will provide 
instructions for the taking of that credit.
    (f) The lessee may request a value determination from MMS. In that 
event, the lessee shall propose to MMS a value determination method and 
may use that method in determining value, for royalty purposes, until 
MMS issues its decision. The lessee shall submit all available data 
relevant to its proposal. The MMS shall expeditiously determine the 
value based upon the lessee's proposal and any additional information 
MMS deems necessary. In making a value determination, MMS may use any of 
the valuation criteria consistent with this subpart. That determination 
shall remain effective for the period stated therein. After MMS issues 
its determination, the lessee shall make the adjustments in accordance 
with paragraph (e) of this section.
    (g) Notwithstanding any other provisions of the section, under no 
circumstances shall the value of byproducts for royalty purposes be less 
than the gross proceeds accruing to the lessee, less applicable 
byproduct transportation allowances determined pursuant to Secs. 206.357 
and 206.358 of this subpart.

[[Page 128]]

    (h) The lessee is required to place the byproducts in marketable 
condition at no cost to the Federal Government. Where the value 
established pursuant to this section is determined by a lessee's gross 
proceeds, that value shall be increased to the extent that the gross 
proceeds have been reduced because the purchaser, or any other person, 
is providing certain services the cost of which ordinarily is the 
responsibility of the lessee to place the byproducts in marketable 
condition.
    (i) Value shall be based on the highest price a prudent lessee can 
receive through legally enforceable claims under its contract. Absent 
contract revision or amendment, if the lessee fails to take proper or 
timely action to receive prices or benefits to which it is entitled, it 
must pay royalty at a value based upon that obtainable price or benefit. 
Contract revisions or amendments shall be in writing and signed by all 
parties to the contract, and may be retroactively applied to value 
byproducts, for royalty purposes, for a period not to exceed 2 years, 
unless MMS approves a longer period. If the lessee makes timely 
application for a price increase allowed under its contract but the 
purchaser refuses and the lessee takes reasonable measures, which are 
documented, to force purchaser compliance, the lessee will owe no 
additional royalties unless or until monies or consideration resulting 
from the price increase are received. This paragraph shall not be 
construed to permit a lessee to avoid its royalty payment obligation in 
situations where a purchaser fails to pay, in whole or in part or 
timely, for a quantity of byproducts.
    (j) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by MMS of value under this section 
shall be considered final or binding against the Federal Government or 
its beneficiaries until the audit period is formally closed.
    (k) Certain information submitted to MMS to support valuation 
proposals, including byproduct transportation allowances pursuant to 
Secs. 206.357 and 206.358 of this subpart, is exempted from disclosure 
by the Freedom of Information Act, 5 U.S.C. 552. Any data specified by 
the act to be privileged, confidential, or otherwise exempt shall be 
maintained in a confidential manner in accordance with applicable laws 
and regulations. All requests for information about determinations made 
under this subpart are to be submitted in accordance with the Freedom of 
Information Act regulation of the Department, 43 CFR part 2.



Sec. 206.357  Byproduct transportation allowances--general.

    (a) Where the value of byproducts has been determined at a point off 
the geothermal lease, unit, or participating area, MMS shall allow a 
deduction in determining value, for royalty purposes, for the lessee's 
reasonable, actual costs incurred to:
    (1) Transport the byproducts from a Federal lease, unit, or 
participating area to a sales point or point of delivery that is off the 
lease, unit, or participating area; or
    (2) Transport the byproducts from a Federal lease, unit, or 
participating area, or from a geothermal utilization facility to a 
byproduct recovery facility when that byproduct recovery facility is off 
the lease, unit, or participating area and, if applicable, from the 
recovery facility to a sales point or point of delivery off the lease, 
unit, or participating area. Costs for transporting geothermal fluids 
from the lease to the geothermal utilization facility, whether on or off 
the lease, shall not be included in the transportation allowance.
    (b) Under no circumstances shall the byproduct transportation 
allowance authorized by paragraph (a) of this section reduce the value 
of the byproducts under any selling arrangement to zero.
    (c)(1) When byproducts are transported from a lease, unit, 
participating area, or geothermal utilization facility to a byproduct 
recovery facility, the lessee is not required to allocate transportation 
costs between the quantity of marketable byproducts and the rejected 
waste material. The byproduct transportation allowance shall be 
authorized for the total production that is transported. Byproduct 
transportation allowances shall be expressed as a cost per unit of 
marketable byproducts transported.

[[Page 129]]

    (2) For byproducts that are extracted on the lease, unit, or 
participating area, or at the geothermal utilization facility, the 
byproduct transportation allowance shall be authorized for the total 
production that is transported to a point of sale off the lease, unit, 
or participating area. Byproduct transportation allowances shall be 
expressed as a cost per unit of byproduct transported.
    (3) Transportation costs shall be authorized as allowances only when 
the transported byproduct is sold, delivered, or otherwise utilized by 
the lessee and royalties are reported and paid.
    (d) Byproduct transportation allowances are subject to monitoring, 
review, and audit. If, after a review and/or audit, MMS determines that 
a lessee has improperly determined a byproduct transportation allowance 
authorized by this section, then the lessee shall pay any additional 
royalties plus interest determined in accordance with 30 CFR 218.302, or 
shall be entitled to a credit without interest.
    (e) If byproducts produced from Federal and non-Federal leases are 
commingled for transportation, lessees shall not disproportionately 
allocate transportation costs to Federal lease production.
    (f) Upon request, the lessee shall make available to authorized MMS 
representatives or to other authorized persons all transportation 
contracts and all other information as may be necessary to support a 
byproduct transportation allowance.
    (g) Byproduct transportation allowances are to be reported as 
separate lines on Form MMS-2014.



Sec. 206.358  Determination of byproduct transportation allowances.

    (a) Arm's-length contracts. (1) For transportation costs incurred by 
a lessee pursuant to an arm's-length contract, the transportation 
allowance shall be the reasonable, actual costs incurred by the lessee 
for transporting the byproducts under that contract, subject to 
monitoring, review, audit, and possible future adjustments. The MMS's 
prior approval is not required before a lessee may deduct costs incurred 
under an arm's-length transportation contract.
    (2) In conducting reviews and audits, MMS will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the transporter for the 
transportation. If the contract reflects more than the total 
consideration paid, MMS may require that the byproduct transportation 
allowance be determined in accordance with paragraph (b) of this 
section.
    (3) If MMS determines that the consideration paid pursuant to an 
arm's-length byproduct transportation contract does not reflect the 
reasonable value of the transportation because of misconduct by or 
between the contracting parties, or because the lessee otherwise has 
breached its duty to the lessor to market the production for the mutual 
benefit of the lessee and the lessor, MMS shall require that the 
byproduct transportation allowance be determined in accordance with 
paragraph (b) of this section. When MMS determines that the value of the 
transportation may be unreasonable, MMS will notify the lessee and give 
the lessee an opportunity to provide written information justifying the 
lessee's transportation costs.
    (4) Where the lessee's payments for transportation under an arm's-
length contract are not established on a dollars-per-unit basis, the 
lessee shall convert whatever consideration is paid to a dollar value 
equivalent for the purposes of this section.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length transportation contract or has no contract, including those 
situations where the lessee performs transportation services for itself, 
the byproduct transportation allowance shall be based upon the lessee's 
reasonable actual costs. All byproduct transportation allowances 
deducted under a non-arm's-length or no-contract situation are subject 
to monitoring, review, audit, and possible future adjustment. Prior MMS 
approval of byproduct transportation allowances is not required for non-
arm's-length or no-contract situations.
    (2) The byproduct transportation allowance for non-arm's-length or 
no-contract situations shall be based upon

[[Page 130]]

the lessee's actual costs for transportation during the reporting 
period, including operating and maintenance expenses, overhead, and 
either depreciation and a return on undepreciated capital investment in 
accordance with paragraph (b)(2)(iv)(A) of this section, or a cost equal 
to the capital investment in the transportation system multiplied by the 
rate of return in accordance with paragraph (b)(2)(iv)(B) of this 
section. Allowable capital costs are generally those for depreciable 
assets, including costs of delivery and installation of capital 
equipment, that are an integral part of the transportation system. A 
return on capital invested in the purchase of real estate to locate the 
byproduct transportation facilities may be allowed provided that the 
lessee demonstrates the necessity for such purchase, the purchased land 
is not on a Federal geothermal lease, and MMS approves the deduction; 
the rate of return shall be the same rate determined in paragraph 
(b)(2)(v) of this section.
    (i) Allowable operating expenses include operations supervision and 
engineering, operations labor, fuel, utilities, materials, ad valorem 
property taxes, rent, supplies, and any other allocable and attributable 
operating expenses that the lessee can document.
    (ii) Allowable maintenance expenses include maintenance of the 
transportation system, maintenance of equipment, maintenance labor, and 
other directly allocable and attributable maintenance expenses that the 
lessee can document.
    (iii) Overhead attributable and allocable to the operation and 
maintenance of the transportation system is an allowable expense. State 
and Federal income taxes and severance taxes and other fees, including 
royalties, are not allowable expenses.
    (iv) To compute costs associated with capital investment, a lessee 
may use either paragraph (b)(2)(iv)(A) or (b)(2)(iv)(B) of this section. 
After a lessee has elected to use either method for a transportation 
system, the lessee may not later elect to change to the other 
alternative without MMS approval.
    (A) To compute depreciation, the lessee must use a straight-line 
depreciation method based on, as appropriate, either the life of 
equipment or the life of the geothermal project that the transportation 
system services. After an election is made, the lessee may not change 
methods. A change in ownership of a transportation system shall not 
alter the depreciation schedule established by the original transporter/
lessee for purposes of the allowance calculation. With or without a 
change in ownership, a transportation system shall be depreciated only 
once. Equipment shall not be depreciated below a reasonable salvage 
value. The rate of return used to compute the return on undepreciated 
capital investment shall be determined pursuant to paragraph (b)(2)(v) 
of this section.
    (B) To compute a return on capital investment, the allowed cost 
shall be the amount equal to the allowable capital investment in the 
transportation system multiplied by the rate of return determined 
pursuant to paragraph (b)(2)(v) of this section. No allowance shall be 
provided for depreciation.
    (v) The rate of return shall be Standard and Poor's industrial BBB 
bond rate. The rate of return shall be the monthly average rate as 
published in Standard and Poor's Bond Guide for the first month of the 
annual reporting period for which the allowance is applicable and shall 
be effective during the reporting period. The rate shall be redetermined 
at the beginning of each subsequent transportation allowance reporting 
period.

Subpart I--OCS Sulfur [Reserved]



                         Subpart J--Indian Coal

    Source: 61 FR 5481, Feb. 12, 1996, unless otherwise noted.



Sec. 206.450  Purpose and scope.

    (a) This subpart prescribes the procedures to establish the value, 
for royalty purposes, of all coal from Indian Tribal and allotted leases 
(except leases on the Osage Indian Reservation, Osage County, Oklahoma).
    (b) If the specific provisions of any statute, treaty, or settlement 
agreement between the Indian lessor and a lessee resulting from 
administrative or judicial litigation, or any coal lease

[[Page 131]]

subject to the requirements of this subpart, are inconsistent with any 
regulation in this subpart, then the statute, treaty, lease provision, 
or settlement shall govern to the extent of that inconsistency.
    (c) All royalty payments are subject to later audit and adjustment.
    (d) The regulations in this subpart are intended to ensure that the 
trust responsibilities of the United States with respect to the 
administration of Indian coal leases are discharged in accordance with 
the requirements of the governing mineral leasing laws, treaties, and 
lease terms.



Sec. 206.451  Definitions.

    Ad valorem lease means a lease where the royalty due to the lessor 
is based upon a percentage of the amount or value of the coal.
    Allowance means an approved, or an MMS-initially accepted deduction 
in determining value for royalty purposes. Coal washing allowance means 
an allowance for the reasonable, actual costs incurred by the lessee for 
coal washing, or an approved or MMS-initially accepted deduction for the 
costs of washing coal, determined pursuant to this subpart. 
Transportation allowance means an allowance for the reasonable, actual 
costs incurred by the lessee for moving coal to a point of sale or point 
of delivery remote from both the lease and mine or wash plant, or an 
approved MMS-initially accepted deduction for costs of such 
transportation, determined pursuant to this subpart.
    Area means a geographic region in which coal has similar quality and 
economic characteristics. Area boundaries are not officially designated 
and the areas are not necessarily named.
    Arm's-length contract means a contract or agreement that has been 
arrived at in the marketplace between independent, nonaffiliated persons 
with opposing economic interests regarding that contract. For purposes 
of this subpart, two persons are affiliated if one person controls, is 
controlled by, or is under common control with another person. For 
purposes of this subpart, based on the instruments of ownership of the 
voting securities of an entity, or based on other forms of ownership: 
ownership in excess of 50 percent constitutes control; ownership of 10 
through 50 percent creates a presumption of control; and ownership of 
less than 10 percent creates a presumption of noncontrol which MMS may 
rebut if it demonstrates actual or legal control, including the 
existence of interlocking directorates. Notwithstanding any other 
provisions of this subpart, contracts between relatives, either by blood 
or by marriage, are not arm's-length contracts. MMS may require the 
lessee to certify ownership control. To be considered arm's-length for 
any production month, a contract must meet the requirements of this 
definition for that production month, as well as when the contract was 
executed.
    Audit means a review, conducted in accordance with generally 
accepted accounting and auditing standards, of royalty payment 
compliance activities of lessees or other interest holders who pay 
royalties, rents, or bonuses on Indian leases.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Coal means coal of all ranks from lignite through anthracite.
    Coal washing means any treatment to remove impurities from coal. 
Coal washing may include, but is not limited to, operations such as 
flotation, air, water, or heavy media separation; drying; and related 
handling (or combination thereof).
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that with due consideration creates an obligation.
    Gross proceeds (for royalty payment purposes) means the total monies 
and other consideration accruing to a coal lessee for the production and 
disposition of the coal produced. Gross proceeds includes, but is not 
limited to, payments to the lessee for certain services such as 
crushing, sizing, screening, storing, mixing, loading, treatment with 
substances including chemicals or oils, and other preparation of the 
coal to the extent that the lessee is obligated to perform them at no 
cost to

[[Page 132]]

the Indian lessor. Gross proceeds, as applied to coal, also includes but 
is not limited to reimbursements for royalties, taxes or fees, and other 
reimbursements. Tax reimbursements are part of the gross proceeds 
accruing to a lessee even though the Indian royalty interest may be 
exempt from taxation. Monies and other consideration, including the 
forms of consideration identified in this paragraph, to which a lessee 
is contractually or legally entitled but which it does not seek to 
collect through reasonable efforts are also part of gross proceeds.
    Indian allottee means any Indian for whom land or an interest in 
land is held in trust by the United States or who holds title subject to 
Federal restriction against alienation.
    Indian Tribe means any Indian Tribe, band, nation, pueblo, 
community, rancheria, colony, or other group of Indians for which any 
land or interest in land is held in trust by the United States or which 
is subject to Federal restriction against alienation.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by the United States for an Indian 
coal resource under a mineral leasing law that authorizes exploration 
for, development or extraction of, or removal of coal--or the land 
covered by that authorization, whichever is required by the context.
    Lessee means any person to whom the Indian Tribe or an Indian 
allottee issues a lease, and any person who has been assigned an 
obligation to make royalty or other payments required by the lease. This 
includes any person who has an interest in a lease as well as an 
operator or payor who has no interest in the lease but who has assumed 
the royalty payment responsibility.
    Like-quality coal means coal that has similar chemical and physical 
characteristics.
    Marketable condition means coal that is sufficiently free from 
impurities and otherwise in a condition that it will be accepted by a 
purchaser under a sales contract typical for that area.
    Mine means an underground or surface excavation or series of 
excavations and the surface or underground support facilities that 
contribute directly or indirectly to mining, production, preparation, 
and handling of lease products.
    MMS means the Minerals Management Service of the Department of the 
Interior.
    Net-back method means a method for calculating market value of coal 
at the lease or mine. Under this method, costs of transportation, 
washing, handling, etc., are deducted from the ultimate proceeds 
received for the coal at the first point at which reasonable values for 
the coal may be determined by a sale pursuant to an arm's-length 
contract or by comparison to other sales of coal, to ascertain value at 
the mine.
    Net output means the quantity of washed coal that a washing plant 
produces.
    Person means by individual, firm, corporation, association, 
partnership, consortium, or joint venture.
    Selling arrangement means the individual contractual arrangements 
under which sales or dispositions of coal are made to a purchaser.
    Spot market price means the price received under any sales 
transaction when planned or actual deliveries span a short period of 
time, usually not exceeding one year.

[61 FR 5481, Feb. 12, 1996, as amended at 64 FR 43289, Aug. 10, 1999]



Sec. 206.452  Coal subject to royalties--general provisions.

    (a) All coal (except coal unavoidably lost as determined by BLM 
pursuant to 43 CFR group 3400) from an Indian lease subject to this part 
is subject to royalty. This includes coal used, sold, or otherwise 
disposed of by the lessee on or off the lease.
    (b) If a lessee receives compensation for unavoidably lost coal 
through insurance coverage or other arrangements, royalties at the rate 
specified in the lease are to be paid on the amount of compensation 
received for the coal. No royalty is due on insurance compensation 
received by the lessee for other losses.
    (c) If waste piles or slurry ponds are reworked to recover coal, the 
lessee shall pay royalty at the rate specified in the lease at the time 
the recovered coal is used, sold, or otherwise finally disposed of. The 
royalty rate shall be that rate applicable to the production

[[Page 133]]

method used to initially mine coal in the waste pile or slurry pond; 
i.e., underground mining method or surface mining method. Coal in waste 
pits or slurry ponds initially mined from Indian leases shall be 
allocated to such leases regardless of whether it is stored on Indian 
lands. The lessee shall maintain accurate records to determine to which 
individual Indian lease coal in the waste pit or slurry pond should be 
allocated. However, nothing in this section requires payment of a 
royalty on coal for which a royalty has already been paid.



Sec. 206.453  Quality and quantity measurement standards for reporting and paying royalties.

    For all leases subject to this subpart, the quantity of coal on 
which royalty is due shall be measured in short tons (of 2,000 pounds 
each) by methods prescribed by the BLM. Coal quantity information shall 
be reported on appropriate forms required under 30 CFR part 216 and on 
the Solid Minerals Production and Royalty Report, Form MMS-4430, as 
required under 30 CFR part 210.

[61 FR 5481, Feb. 12, 1996, as amended at 66 FR 45769, Aug. 30, 2001]



Sec. 206.454  Point of royalty determination.

    (a) For all leases subject to this subpart, royalty shall be 
computed on the basis of the quantity and quality of Indian coal in 
marketable condition measured at the point of royalty measurement as 
determined jointly by BLM and MMS.
    (b) Coal produced and added to stockpiles or inventory does not 
require payment of royalty until such coal is later used, sold, or 
otherwise finally disposed of. MMS may ask BLM or BIA to increase the 
lease bond to protect the lessor's interest when BLM determines that 
stockpiles or inventory become excessive so as to increase the risk of 
degradation of the resource.
    (c) The lessee shall pay royalty at a rate specified in the lease at 
the time the coal is used, sold, or otherwise finally disposed of, 
unless otherwise provided for at Sec. 206.455(d) of this subpart.



Sec. 206.455  Valuation standards for cents-per-ton leases.

    (a) This section is applicable to coal leases on Indian Tribal and 
allotted Indian lands (except leases on the Osage Indian Reservation, 
Osage County, Oklahoma) which provide for the determination of royalty 
on a cents-per-ton (or other quantity) basis.
    (b) The royalty for coal from leases subject to this section shall 
be based on the dollar rate per ton prescribed in the lease. That dollar 
rate shall be applicable to the actual quantity of coal used, sold, or 
otherwise finally disposed of, including coal which is avoidably lost as 
determined by BLM pursuant to 43 CFR part 3400.
    (c) For leases subject to this section, there shall be no allowances 
for transportation, removal of impurities, coal washing, or any other 
processing or preparation of the coal.
    (d) When a coal lease is readjusted pursuant to 43 CFR part 3400 and 
the royalty valuation method changes from a cents-per-ton basis to an ad 
valorem basis, coal which is produced prior to the effective date of 
readjustment and sold or used within 30 days of the effective date of 
readjustment shall be valued pursuant to this section. All coal that is 
not used, sold, or otherwise finally disposed of within 30 days after 
the effective date of readjustment shall be valued pursuant to the 
provisions of Sec. 206.456 of this subpart, and royalties shall be paid 
at the royalty rate specified in the readjusted lease.



Sec. 206.456  Valuation standards for ad valorem leases.

    (a) This section is applicable to coal leases on Indian Tribal and 
allotted Indian lands (except leases on the Osage Indian Reservation, 
Osage County, Oklahoma) which provide for the determination of royalty 
as a percentage of the amount of value of coal (ad valorem). The value 
for royalty purposes of coal from such leases shall be the value of coal 
determined pursuant to this section, less applicable coal washing 
allowances and transportation allowances determined pursuant to 
Secs. 206.457 through 206.461 of this subpart, or any allowance 
authorized by Sec. 206.464 of this subpart. The royalty due shall be 
equal

[[Page 134]]

to the value for royalty purposes multiplied by the royalty rate in the 
lease.
    (b)(1) The value of coal that is sold pursuant to an arm's-length 
contract shall be the gross proceeds accruing to the lessee, except as 
provided in paragraphs (b)(2), (b)(3), and (b)(5) of this section. The 
lessee shall have the burden of demonstrating that its contract is 
arm's-length. The value which the lessee reports, for royalty purposes, 
is subject to monitoring, review, and audit.
    (2) In conducting reviews and audits, MMS will examine whether the 
contract reflects the total consideration actually transferred either 
directly or indirectly from the buyer to the seller for the coal 
produced. If the contract does not reflect the total consideration, then 
MMS may require that the coal sold pursuant to that contract be valued 
in accordance with paragraph (c) of this section. Value may not be based 
on less than the gross proceeds accruing to the lessee for the coal 
production, including the additional consideration.
    (3) If MMS determines that the gross proceeds accruing to the lessee 
pursuant to an arm's-length contract do not reflect the reasonable value 
of the production because of misconduct by or between the contracting 
parties, or because the lessee otherwise has breached its duty to the 
lessor to market the production for the mutual benefit of the lessee and 
the lessor, then MMS shall require that the coal production be valued 
pursuant to paragraphs (c)(2)(ii), (c)(2)(iii), (c)(2)(iv), or (c)(2)(v) 
of this section, and in accordance with the notification requirements of 
paragraph (d)(3) of this section. When MMS determines that the value may 
be unreasonable, MMS will notify the lessee and give the lessee an 
opportunity to provide written information justifying the lessee's 
reported coal value.
    (4) MMS may require a lessee to certify that its arm's-length 
contract provisions include all of the consideration to be paid by the 
buyer, either directly or indirectly, for the coal production.
    (5) The value of production for royalty purposes shall not include 
payments received by the lessee pursuant to a contract which the lessee 
demonstrates, to MMS' satisfaction, were not part of the total 
consideration paid for the purchase of coal production.
    (c)(1) The value of coal from leases subject to this section and 
which is not sold pursuant to an arm's-length contract shall be 
determined in accordance with this section.
    (2) If the value of the coal cannot be determined pursuant to 
paragraph (b) of this section, then the value shall be determined 
through application of other valuation criteria. The criteria shall be 
considered in the following order, and the value shall be based upon the 
first applicable criterion:
    (i) The gross proceeds accruing to the lessee pursuant to a sale 
under its non-arm's-length contract (or other disposition of produced 
coal by other than an arm's-length contract), provided that those gross 
proceeds are within the range of the gross proceeds derived from, or 
paid under, comparable arm's-length contracts between buyers and sellers 
neither of whom is affiliated with the lessee for sales, purchases, or 
other dispositions of like-quality coal produced in the area. In 
evaluating the comparability of arm's-length contracts for the purposes 
of these regulations, the following factors shall be considered: price, 
time of execution, duration, market or markets served, terms, quality of 
coal, quantity, and such other factors as may be appropriate to reflect 
the value of the coal;
    (ii) Prices reported for that coal to a public utility commission;
    (iii) Prices reported for that coal to the Energy Information 
Administration of the Department of Energy;
    (iv) Other relevant matters including, but not limited to, published 
or publicly available spot market prices, or information submitted by 
the lessee concerning circumstances unique to a particular lease 
operation or the salability of certain types of coal;
    (v) If a reasonable value cannot be determined using paragraphs 
(c)(2)(i), (c)(2)(ii), (c)(2)(iii), or (c)(2)(iv) of this section, then 
a net-back method or any other reasonable method shall be used to 
determine value.
    (3) When the value of coal is determined pursuant to paragraph 
(c)(2) of this section, that value determination shall be consistent 
with the provisions

[[Page 135]]

contained in paragraph (b)(5) of this section.
    (d)(1) Where the value is determined pursuant to paragraph (c) of 
this section, that value does not require MMS' prior approval. However, 
the lessee shall retain all data relevant to the determination of 
royalty value. Such data shall be subject to review and audit, and MMS 
will direct a lessee to use a different value if it determines that the 
reported value is inconsistent with the requirements of these 
regulations.
    (2) An Indian lessee will make available upon request to the 
authorized MMS or Indian representatives, or to the Inspector General of 
the Department of the Interior or other persons authorized to receive 
such information, arm's-length sales and sales quantity data for like-
quality coal sold, purchased, or otherwise obtained by the lessee from 
the area.
    (3) A lessee shall notify MMS if it has determined value pursuant to 
paragraphs (c)(2)(ii), (c)(2)(iii), (c)(2)(iv), or (c)(2)(v) of this 
section. The notification shall be by letter to the Associate Director 
for Minerals Revenue Management or his/her designee. The letter shall 
identify the valuation method to be used and contain a brief description 
of the procedure to be followed. The notification required by this 
section is a one-time notification due no later than the month the 
lessee first reports royalties on the Form MMS-4430 using a valuation 
method authorized by paragraphs (c)(2)(ii), (c)(2)(iii), (c)(2)(iv), or 
(c)(2)(v) of this section, and each time there is a change in a method 
under paragraphs (c)(2)(iv) or (c)(2)(v) of this section.
    (e) If MMS determines that a lessee has not properly determined 
value, the lessee shall be liable for the difference, if any, between 
royalty payments made based upon the value it has used and the royalty 
payments that are due based upon the value established by MMS. The 
lessee shall also be liable for interest computed pursuant to 30 CFR 
218.202. If the lessee is entitled to a credit, MMS will provide 
instructions for the taking of that credit.
    (f) The lessee may request a value determination from MMS. In that 
event, the lessee shall propose to MMS a value determination method, and 
may use that method in determining value for royalty purposes until MMS 
issues its decision. The lessee shall submit all available data relevant 
to its proposal. MMS shall expeditiously determine the value based upon 
the lessee's proposal and any additional information MMS deems 
necessary. That determination shall remain effective for the period 
stated therein. After MMS issues its determination, the lessee shall 
make the adjustments in accordance with paragraph (e) of this section.
    (g) Notwithstanding any other provisions of this section, under no 
circumstances shall the value for royalty purposes be less than the 
gross proceeds accruing to the lessee for the disposition of produced 
coal less applicable provisions of paragraph (b)(5) of this section and 
less applicable allowances determined pursuant to Secs. 206.457 through 
206.461 and Sec. 206.464 of this subpart.
    (h) The lessee is required to place coal in marketable condition at 
no cost to the Indian lessor. Where the value established pursuant to 
this section is determined by a lessee's gross proceeds, that value 
shall be increased to the extent that the gross proceeds has been 
reduced because the purchaser, or any other person, is providing certain 
services, the cost of which ordinarily is the responsibility of the 
lessee to place the coal in marketable condition.
    (i) Value shall be based on the highest price a prudent lessee can 
receive through legally enforceable claims under its contract. Absent 
contract revision or amendment, if the lessee fails to take proper or 
timely action to receive prices or benefits to which it is entitled, it 
must pay royalty at a value based upon that obtainable price or benefit. 
Contract revisions or amendments shall be in writing and signed by all 
parties to an arm's-length contract, and may be retroactively applied to 
value for royalty purposes for a period not to exceed two years, unless 
MMS approves a longer period. If the lessee makes timely application for 
a price increase allowed under its contract but the purchaser refuses, 
and the lessee takes reasonable measures, which are documented, to force 
purchaser compliance, the lessee will owe no additional

[[Page 136]]

royalties unless or until monies or consideration resulting from the 
price increase are received. This paragraph shall not be construed to 
permit a lessee to avoid its royalty payment obligation in situations 
where a purchaser fails to pay, in whole or in part or timely, for a 
quantity of coal.
    (j) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by MMS of value under this section 
shall be considered final or binding as against the Indian Tribes or 
allottees until the audit period is formally closed.
    (k) Certain information submitted to MMS to support valuation 
proposals, including transportation, coal washing, or other allowances 
pursuant to Secs. 206.457 through 206.461 and Sec. 206.464 of this 
subpart, is exempted from disclosure by the Freedom of Information Act, 
5 U.S.C. 522. Any data specified by the Act to be privileged, 
confidential, or otherwise exempt shall be maintained in a confidential 
manner in accordance with applicable law and regulations. All requests 
for information about determinations made under this part are to be 
submitted in accordance with the Freedom of Information Act regulation 
of the Department of the Interior, 43 CFR part 2. Nothing in this 
section is intended to limit or diminish in any manner whatsoever the 
right of an Indian lessor to obtain any and all information as such 
lessor may be lawfully entitled from MMS or such lessor's lessee 
directly under the terms of the lease or applicable law.

[61 FR 5481, Feb. 12, 1996, as amended at 66 FR 45769, Aug. 30, 2001]



Sec. 206.457  Washing allowances--general.

    (a) For ad valorem leases subject to Sec. 206.456 of this subpart, 
MMS shall, as authorized by this section, allow a deduction in 
determining value for royalty purposes for the reasonable, actual costs 
incurred to wash coal, unless the value determined pursuant to 
Sec. 206.456 of this subpart was based upon like-quality unwashed coal. 
Under no circumstances will the authorized washing allowance and the 
transportation allowance reduce the value for royalty purposes to zero.
    (b) If MMS determines that a lessee has improperly determined a 
washing allowance authorized by this section, then the lessee shall be 
liable for any additional royalties, plus interest determined in 
accordance with 30 CFR 218.202, or shall be entitled to a credit, 
without interest.
    (c) Lessees shall not disproportionately allocate washing costs to 
Indian leases.
    (d) No cost normally associated with mining operations and which are 
necessary for placing coal in marketable condition shall be allowed as a 
cost of washing.
    (e) Coal washing costs shall only be recognized as allowances when 
the washed coal is sold and royalties are reported and paid.

[61 FR 5481, Feb. 12, 1996, as amended at 64 FR 43289, Aug. 10, 1999]



Sec. 206.458  Determination of washing allowances.

    (a) Arm's-length contracts. (1) For washing costs incurred by a 
lessee pursuant to an arm's-length contract, the washing allowance shall 
be the reasonable actual costs incurred by the lessee for washing the 
coal under that contract, subject to monitoring, review, audit, and 
possible future adjustment. MMS' prior approval is not required before a 
lessee may deduct costs incurred under an arm's-length contract. 
However, before any deduction may be taken, the lessee must submit a 
completed page one of Form MMS-4292, Coal Washing Allowance Report, in 
accordance with paragraph (c)(1) of this section. A washing allowance 
may be claimed retroactively for a period of not more than 3 months 
prior to the first day of the month that Form MMS-4292 is filed with 
MMS, unless MMS approves a longer period upon a showing of good cause by 
the lessee.
    (2) In conducting reviews and audits, MMS will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the washer for the 
washing. If the contract reflects more than the total consideration 
paid, then MMS may require

[[Page 137]]

that the washing allowance be determined in accordance with paragraph 
(b) of this section.
    (3) If MMS determines that the consideration paid pursuant to an 
arm's-length washing contract does not reflect the reasonable value of 
the washing because of misconduct by or between the contracting parties, 
or because the lessee otherwise has breached its duty to the lessor to 
market the production for the mutual benefit of the lessee and the 
lessor, then MMS shall require that the washing allowance be determined 
in accordance with paragraph (b) of this section. When MMS determines 
that the value of the washing may be unreasonable, MMS will notify the 
lessee and give the lessee an opportunity to provide written information 
justifying the lessee's washing costs.
    (4) Where the lessee's payments for washing under an arm's-length 
contract are not based on a dollar-per-unit basis, the lessee shall 
convert whatever consideration is paid to a dollar value equivalent. 
Washing allowances shall be expressed as a cost per ton of coal washed.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length contract or has no contract, including those situations 
where the lessee performs washing for itself, the washing allowance will 
be based upon the lessee's reasonable actual costs. All washing 
allowances deducted under a non-arm's-length or no contract situation 
are subject to monitoring, review, audit, and possible future 
adjustment. Prior MMS approval of washing allowances is not required for 
non-arm's-length or no contract situations. However, before any 
estimated or actual deduction may be taken, the lessee must submit a 
completed Form MMS-4292 in accordance with paragraph (c)(2) of this 
section. A washing allowance may be claimed retroactively for a period 
of not more than 3 months prior to the first day of the month that Form 
MMS-4292 is filed with MMS, unless MMS approves a longer period upon a 
showing of good cause by the lessee. MMS will monitor the allowance 
deduction to ensure that deductions are reasonable and allowable. When 
necessary or appropriate, MMS may direct a lessee to modify its actual 
washing allowance.
    (2) The washing allowance for non-arm's-length or no contract 
situations shall be based upon the lessee's actual costs for washing 
during the reported period, including operating and maintenance 
expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the depreciable 
investment in the wash plant multiplied by the rate of return in 
accordance with paragraph (b)(2)(iv)(B) of this section. Allowable 
capital costs are generally those for depreciable fixed assets 
(including costs of delivery and installation of capital equipment) 
which are an integral part of the wash plant.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the wash 
plant; maintenance of equipment; maintenance labor; and other directly 
allocable and attributable maintenance expenses which the lessee can 
document.
    (iii) Overhead attributable and allocable to the operation and 
maintenance of the wash plant is an allowable expense. State and Federal 
income taxes and severance taxes, including royalties, are not allowable 
expenses.
    (iv) A lessee may use either paragraph (b)(2)(iv)(A) or 
(b)(2)(iv)(B) of this section. After a lessee has elected to use either 
method for a wash plant, the lessee may not later elect to change to the 
other alternative without approval of MMS.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the wash plant services, whichever is 
appropriate, or a unit of production method. After an election is made, 
the lessee may not change methods without MMS approval. A change in 
ownership of a wash plant shall not

[[Page 138]]

alter the depreciation schedule established by the original operator/
lessee for purposes of the allowance calculation. With or without a 
change in ownership, a wash plant shall be depreciated only once. 
Equipment shall not be depreciated below a reasonable salvage value.
    (B) MMS shall allow as a cost an amount equal to the allowable 
capital investment in the wash plant multiplied by the rate of return 
determined pursuant to paragraph (b)(2)(v) of this section. No allowance 
shall be provided for depreciation. This alternative shall apply only to 
plants first placed in service or acquired after March 1, 1989.
    (v) The rate of return shall be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return shall be the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month of the reporting period for which the allowance is 
applicable and shall be effective during the reporting period. The rate 
shall be redetermined at the beginning of each subsequent washing 
allowance reporting period (which is determined pursuant to paragraph 
(c)(2) of this section).
    (3) The washing allowance for coal shall be determined based on the 
lessee's reasonable and actual cost of washing the coal. The lessee may 
not take an allowance for the costs of washing lease production that is 
not royalty bearing.
    (c) Reporting requirements. (1) Arm's-length contracts. (i) With the 
exception of those washing allowances specified in paragraphs (c)(1)(v) 
and (c)(1)(vi) of this section, the lessee shall submit page one of the 
initial Form MMS-4292 prior to, or at the same time, as the washing 
allowance determined pursuant to an arm's-length contract is reported on 
Form MMS-4430, Solid Minerals Production and Royalty Report. A Form MMS-
4292 received by the end of the month that the Form MMS-4430 is due 
shall be considered to be received timely.
    (ii) The initial Form MMS-4292 shall be effective for a reporting 
period beginning the month that the lessee is first authorized to deduct 
a washing allowance and shall continue until the end of the calendar 
year, or until the applicable contract or rate terminates or is modified 
or amended, whichever is earlier.
    (iii) After the initial reporting period and for succeeding 
reporting periods, lessees must submit page one of Form MMS-4292 within 
3 months after the end of the calendar year, or after the applicable 
contract or rate terminates or is modified or amended, whichever is 
earlier, unless MMS approves a longer period (during which period the 
lessee shall continue to use the allowance from the previous reporting 
period).
    (iv) MMS may require that a lessee submit arm's-length washing 
contracts and related documents. Documents shall be submitted within a 
reasonable time, as determined by MMS.
    (v) Washing allowances which are based on arm's-length contracts and 
which are in effect at the time these regulations become effective will 
be allowed to continue until such allowances terminate. For the purposes 
of this section, only those allowances that have been approved by MMS in 
writing shall qualify as being in effect at the time these regulations 
become effective.
    (vi) MMS may establish, in appropriate circumstances, reporting 
requirements that are different from the requirements of this section.
    (2) Non-arm's-length or no contract. (i) With the exception of those 
washing allowances specified in paragraphs (c)(2)(v) and (c)(2)(vii) of 
this section, the lessee shall submit an initial Form MMS-4292 prior to, 
or at the same time as, the washing allowance determined pursuant to a 
non-arm's-length contract or no contract situation is reported on Form 
MMS-4430, Solid Minerals Production and Royalty Report. A Form MMS-4292 
received by the end of the month that the Form MMS-4430 is due shall be 
considered to be timely received. The initial reporting may be based on 
estimated costs.
    (ii) The initial Form MMS-4292 shall be effective for a reporting 
period beginning the month that the lessee first is authorized to deduct 
a washing allowance and shall continue until the end of the calendar 
year, or until the washing under the non-arm's-length contract or the no 
contract situation terminates, whichever is earlier.

[[Page 139]]

    (iii) For calendar-year reporting periods succeeding the initial 
reporting period, the lessee shall submit a completed Form MMS-4292 
containing the actual costs for the previous reporting period. If coal 
washing is continuing, the lessee shall include on Form MMS-4292 its 
estimated costs for the next calendar year. The estimated coal washing 
allowance shall be based on the actual costs for the previous period 
plus or minus any adjustments which are based on the lessee's knowledge 
of decreases or increases which will affect the allowance. Form MMS-4292 
must be received by MMS within 3 months after the end of the previous 
reporting period, unless MMS approves a longer period (during which 
period the lessee shall continue to use the allowance from the previous 
reporting period).
    (iv) For new wash plants, the lessee's initial Form MMS-4292 shall 
include estimates of the allowable coal washing costs for the applicable 
period. Cost estimates shall be based upon the most recently available 
operations data for the plant, or if such data are not available, the 
lessee shall use estimates based upon industry data for similar coal 
wash plants.
    (v) Washing allowances based on non-arm's-length or no contract 
situations which are in effect at the time these regulations become 
effective will be allowed to continue until such allowances terminate. 
For the purposes of this section, only those allowances that have been 
approved by MMS in writing shall qualify as being in effect at the time 
these regulations become effective.
    (vi) Upon request by MMS, the lessee shall submit all data used by 
the lessee to prepare its Forms MMS-4292. The data shall be provided 
within a reasonable period of time, as determined by MMS.
    (vii) MMS may establish, in appropriate circumstances, reporting 
requirements which are different from the requirements of this section.
    (3) MMS may establish coal washing allowance reporting dates for 
individual leases different from those specified in this subpart in 
order to provide more effective administration. Lessees will be notified 
of any change in their reporting period.
    (4) Washing allowances must be reported as a separate line on the 
Form MMS-4430, unless MMS approves a different reporting procedure.
    (d) Interest assessments for incorrect or late reports and failure 
to report. (1) If a lessee deducts a washing allowance on its Form MMS-
4430 without complying with the requirements of this section, the lessee 
shall be liable for interest on the amount of such deduction until the 
requirements of this section are complied with. The lessee also shall 
repay the amount of any allowance which is disallowed by this section.
    (2) If a lessee erroneously reports a washing allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with 30 CFR 218.202.
    (e) Adjustments. (1) If the actual coal washing allowance is less 
than the amount the lessee has taken on Form MMS-4430 for each month 
during the allowance form reporting period, the lessee shall be required 
to pay additional royalties due plus interest computed pursuant to 30 
CFR 218.202, retroactive to the first month the lessee is authorized to 
deduct a washing allowance. If the actual washing allowance is greater 
than the amount the lessee has estimated and taken during the reporting 
period, the lessee shall be entitled to a credit, without interest.
    (2) The lessee must submit a corrected Form MMS-4430 to reflect 
actual costs, together with any payment, in accordance with instructions 
provided by MMS.
    (f) Other washing cost determinations. The provisions of this 
section shall apply to determine washing costs when establishing value 
using a net-back valuation procedure or any other procedure that 
requires deduction of washing costs.

[61 FR 5481, Feb. 12, 1996, as amended at 66 FR 45769, Aug. 30, 2001]



Sec. 206.459  Allocation of washed coal.

    (a) When coal is subjected to washing, the washed coal must be 
allocated to the leases from which it was extracted.

[[Page 140]]

    (b) When the net output of coal from a washing plant is derived from 
coal obtained from only one lease, the quantity of washed coal allocable 
to the lease will be based on the net output of the washing plant.
    (c) When the net output of coal from a washing plant is derived from 
coal obtained from more than one lease, unless determined otherwise by 
BLM, the quantity of net output of washed coal allocable to each lease 
will be based on the ratio of measured quantities of coal delivered to 
the washing plant and washed from each lease compared to the total 
measured quantities of coal delivered to the washing plant and washed.



Sec. 206.460  Transportation allowances--general.

    (a) For ad valorem leases subject to Sec. 206.456 of this subpart, 
where the value for royalty purposes has been determined at a point 
remote from the lease or mine, MMS shall, as authorized by this section, 
allow a deduction in determining value for royalty purposes for the 
reasonable, actual costs incurred to:
    (1) Transport the coal from an Indian lease to a sales point which 
is remote from both the lease and mine; or
    (2) Transport the coal from an Indian lease to a wash plant when 
that plant is remote from both the lease and mine and, if applicable, 
from the wash plant to a remote sales point. In-mine transportation 
costs shall not be included in the transportation allowance.
    (b) Under no circumstances will the authorized washing allowance and 
the transportation allowance reduce the value for royalty purposes to 
zero.
    (c)(1) When coal transported from a mine to a wash plant is eligible 
for a transportation allowance in accordance with this section, the 
lessee is not required to allocate transportation costs between the 
quantity of clean coal output and the rejected waste material. The 
transportation allowance shall be authorized for the total production 
which is transported. Transportation allowances shall be expressed as a 
cost per ton of cleaned coal transported.
    (2) For coal that is not washed at a wash plant, the transportation 
allowance shall be authorized for the total production which is 
transported. Transportation allowances shall be expressed as a cost per 
ton of coal transported.
    (3) Transportation costs shall only be recognized as allowances when 
the transported coal is sold and royalties are reported and paid.
    (d) If, after a review and/or audit, MMS determines that a lessee 
has improperly determined a transportation allowance authorized by this 
section, then the lessee shall pay any additional royalties, plus 
interest, determined in accordance with 30 CFR 218.202, or shall be 
entitled to a credit, without interest.
    (e) Lessees shall not disproportionately allocate transportation 
costs to Indian leases.

[61 FR 5481, Feb. 12, 1996, as amended at 64 FR 43289, Aug. 10, 1999]



Sec. 206.461  Determination of transportation allowances.

    (a) Arm's-length contracts. (1) For transportation costs incurred by 
a lessee pursuant to an arm's-length contract, the transportation 
allowance shall be the reasonable, actual costs incurred by the lessee 
for transporting the coal under that contract, subject to monitoring, 
review, audit, and possible future adjustment. MMS' prior approval is 
not required before a lessee may deduct costs incurred under an arm's-
length contract. However, before any deduction may be taken, the lessee 
must submit a completed page one of Form MMS-4293, Coal Transportation 
Allowance Report, in accordance with paragraph (c)(1) of this section. A 
transportation allowance may be claimed retroactively for a period of 
not more than 3 months prior to the first day of the month that Form 
MMS-4293 is filed with MMS, unless MMS approves a longer period upon a 
showing of good cause by the lessee.
    (2) In conducting reviews and audits, MMS will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the transporter for the 
transportation. If the contract reflects more than the total 
consideration paid, then MMS

[[Page 141]]

may require that the transportation allowance be determined in 
accordance with paragraph (b) of this section.
    (3) If MMS determines that the consideration paid pursuant to an 
arm's-length transportation contract does not reflect the reasonable 
value of the transportation because of misconduct by or between the 
contracting parties, or because the lessee otherwise has breached its 
duty to the lessor to market the production for the mutual benefit of 
the lessee and the lessor, then MMS shall require that the 
transportation allowance be determined in accordance with paragraph (b) 
of this section. When MMS determines that the value of the 
transportation may be unreasonable, MMS will notify the lessee and give 
the lessee an opportunity to provide written information justifying the 
lessee's transportation costs.
    (4) Where the lessee's payments for transportation under an arm's-
length contract are not based on a dollar-per-unit basis, the lessee 
shall convert whatever consideration is paid to a dollar value 
equivalent for the purposes of this section.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length contract or has no contract, including those situations 
where the lessee performs transportation services for itself, the 
transportation allowance will be based upon the lessee's reasonable 
actual costs. All transportation allowances deducted under a non-arm's-
length or no contract situation are subject to monitoring, review, 
audit, and possible future adjustment. Prior MMS approval of 
transportation allowances is not required for non-arm's-length or no 
contract situations. However, before any estimated or actual deduction 
may be taken, the lessee must submit a completed Form MMS-4293 in 
accordance with paragraph (c)(2) of this section. A transportation 
allowance may be claimed retroactively for a period of not more than 3 
months prior to the first day of the month that Form MMS-4293 is filed 
with MMS, unless MMS approves a longer period upon a showing of good 
cause by the lessee. MMS will monitor the allowance deductions to ensure 
that deductions are reasonable and allowable. When necessary or 
appropriate, MMS may direct a lessee to modify its estimated or actual 
transportation allowance deduction.
    (2) The transportation allowance for non-arm's-length or no contract 
situations shall be based upon the lessee's actual costs for 
transportation during the reporting period, including operating and 
maintenance expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the depreciable 
investment in the transportation system multiplied by the rate of return 
in accordance with paragraph (b)(2)(iv)(B) of this section. Allowable 
capital costs are generally those for depreciable fixed assets 
(including costs of delivery and installation of capital equipment) 
which are an integral part of the transportation system.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the 
transportation system; maintenance of equipment; maintenance labor; and 
other directly allocable and attributable maintenance expenses which the 
lessee can document.
    (iii) Overhead attributable and allocable to the operation and 
maintenance of the transportation system is an allowable expense. State 
and Federal income taxes and severance taxes and other fees, including 
royalties, are not allowable expenses.
    (iv) A lessee may use either paragraph (b)(2)(iv)(A) or paragraph 
(b)(2)(iv)(B) of this section. After a lessee has elected to use either 
method for a transportation system, the lessee may not later elect to 
change to the other alternative without approval of MMS.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the transportation system services, 
whichever is appropriate,

[[Page 142]]

or a unit of production method. After an election is made, the lessee 
may not change methods without MMS approval. A change in ownership of a 
transportation system shall not alter the depreciation schedule 
established by the original transporter/lessee for purposes of the 
allowance calculation. With or without a change in ownership, a 
transportation system shall be depreciated only once. Equipment shall 
not be depreciated below a reasonable salvage value.
    (B) MMS shall allow as a cost an amount equal to the allowable 
capital investment in the transportation system multiplied by the rate 
of return determined pursuant to paragraph (b)(2)(B)(v) of this section. 
No allowance shall be provided for depreciation. This alternative shall 
apply only to transportation facilities first placed in service or 
acquired after March 1, 1989.
    (v) The rate of return shall be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return shall be the monthly 
average as published in Standard and Poor's Bond Guide for the first 
month of the reporting period of which the allowance is applicable and 
shall be effective during the reporting period. The rate shall be 
redetermined at the beginning of each subsequent transportation 
allowance reporting period (which is determined pursuant to paragraph 
(c)(2) of this section).
    (3) A lessee may apply to MMS for exception from the requirement 
that it compute actual costs in accordance with paragraphs (b)(1) and 
(b)(2) of this section. MMS will grant the exception only if the lessee 
has a rate for the transportation approved by a Federal agency for 
Indian leases. MMS shall deny the exception request if it determines 
that the rate is excessive as compared to arm's-length transportation 
charges by systems, owned by the lessee or others, providing similar 
transportation services in that area. If there are no arm's-length 
transportation charges, MMS shall deny the exception request if:
    (i) No Federal regulatory agency cost analysis exists and the 
Federal regulatory agency has declined to investigate pursuant to MMS 
timely objections upon filing; and
    (ii) The rate significantly exceeds the lessee's actual costs for 
transportation as determined under this section.
    (c) Reporting requirements. (1) Arm's-length contracts. (i) With the 
exception of those transportation allowances specified in paragraphs 
(c)(1)(v) and (c)(1)(vi) of this section, the lessee shall submit page 
one of the initial Form MMS-4293 prior to, or at the same time as, the 
transportation allowance determined pursuant to an arm's-length contract 
is reported on Form MMS-4430, Solid Minerals Production and Royalty 
Report.
    (ii) The initial Form MMS-4293 shall be effective for a reporting 
period beginning the month that the lessee is first authorized to deduct 
a transportation allowance and shall continue until the end of the 
calendar year, or until the applicable contract or rate terminates or is 
modified or amended, whichever is earlier.
    (iii) After the initial reporting period and for succeeding 
reporting periods, lessees must submit page one of Form MMS-4293 within 
3 months after the end of the calendar year, or after the applicable 
contract or rate terminates or is modified or amended, whichever is 
earlier, unless MMS approves a longer period (during which period the 
lessee shall continue to use the allowance from the previous reporting 
period). Lessees may request special reporting procedures in unique 
allowance reporting situations, such as those related to spot sales.
    (iv) MMS may require that a lessee submit arm's-length 
transportation contracts, production agreements, operating agreements, 
and related documents. Documents shall be submitted within a reasonable 
time, as determined by MMS.
    (v) Transportation allowances that are based on arm's-length 
contracts and which are in effect at the time these regulations become 
effective will be allowed to continue until such allowances terminate. 
For the purposes of this section, only those allowances that have been 
approved by MMS in writing shall qualify as being in effect at the time 
these regulations become effective.

[[Page 143]]

    (vi) MMS may establish, in appropriate circumstances, reporting 
requirements that are different from the requirements of this section.
    (2) Non-arm's-length or no contract. (i) With the exception of those 
transportation allowances specified in paragraphs (c)(2)(v) and 
(c)(2)(vii) of this section, the lessee shall submit an initial Form 
MMS-4293 prior to, or at the same time as, the transportation allowance 
determined pursuant to a non-arm's-length contract or no contract 
situation is reported on Form MMS-4430, Solid Minerals Production and 
Royalty Report. The initial report may be based on estimated costs.
    (ii) The initial Form MMS-4293 shall be effective for a reporting 
period beginning the month that the lessee first is authorized to deduct 
a transportation allowance and shall continue until the end of the 
calendar year, or until the transportation under the non-arm's-length 
contract or the no contract situation terminates, whichever is earlier.
    (iii) For calendar-year reporting periods succeeding the initial 
reporting period, the lessee shall submit a completed Form MMS-4293 
containing the actual costs for the previous reporting period. If the 
transportation is continuing, the lessee shall include on Form MMS-4293 
its estimated costs for the next calendar year. The estimated 
transportation allowance shall be based on the actual costs for the 
previous reporting period plus or minus any adjustments that are based 
on the lessee's knowledge of decreases or increases that will affect the 
allowance. Form MMS-4293 must be received by MMS within 3 months after 
the end of the previous reporting period, unless MMS approves a longer 
period (during which period the lessee shall continue to use the 
allowance from the previous reporting period).
    (iv) For new transportation facilities or arrangements, the lessee's 
initial Form MMS-4293 shall include estimates of the allowable 
transportation costs for the applicable period. Cost estimates shall be 
based upon the most recently available operations data for the 
transportation system, or, if such data are not available, the lessee 
shall use estimates based upon industry data for similar transportation 
systems.
    (v) Non-arm's-length contract or no contract-based transportation 
allowances that are in effect at the time these regulations become 
effective will be allowed to continue until such allowances terminate. 
For purposes of this section, only those allowances that have been 
approved by MMS in writing shall qualify as being in effect at the time 
these regulations become effective.
    (vi) Upon request by MMS, the lessee shall submit all data used to 
prepare its Form MMS-4293. The data shall be provided within a 
reasonable period of time, as determined by MMS.
    (vii) MMS may establish, in appropriate circumstances, reporting 
requirements that are different from the requirements of this section.
    (viii) If the lessee is authorized to use its Federal-agency-
approved rate as its transportation cost in accordance with paragraph 
(b)(3) of this section, it shall follow the reporting requirements of 
paragraph (c)(1) of this section.
    (3) MMS may establish reporting dates for individual lessees 
different than those specified in this paragraph in order to provide 
more effective administration. Lessees will be notified as to any change 
in their reporting period.
    (4) Transportation allowances must be reported as a separate line 
item on Form MMS-4430, unless MMS approves a different reporting 
procedure.
    (d) Interest assessments for incorrect or late reports and failure 
to report. (1) If a lessee deducts a transportation allowance on its 
Form MMS-4430 without complying with the requirements of this section, 
the lessee shall be liable for interest on the amount of such deduction 
until the requirements of this section are complied with. The lessee 
also shall repay the amount of any allowance which is disallowed by this 
section.
    (2) If a lessee erroneously reports a transportation allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with 30 CFR 218.202.

[[Page 144]]

    (e) Adjustments. (1) If the actual transportation allowance is less 
than the amount the lessee has taken on Form MMS-4430 for each month 
during the allowance form reporting period, the lessee shall be required 
to pay additional royalties due plus interest, computed pursuant to 30 
CFR 218.202, retroactive to the first month the lessee is authorized to 
deduct a transportation allowance. If the actual transportation 
allowance is greater than the amount the lessee has estimated and taken 
during the reporting period, the lessee shall be entitled to a credit, 
without interest.
    (2) The lessee must submit a corrected Form MMS-4430 to reflect 
actual costs, together with any payment, in accordance with instructions 
provided by MMS.
    (f) Other transportation cost determinations. The provisions of this 
section shall apply to determine transportation costs when establishing 
value using a net-back valuation procedure or any other procedure that 
requires deduction of transportation costs.

[61 FR 5481, Feb. 12, 1996, as amended at 64 FR 43289, Aug. 10, 1999; 66 
FR 45769, Aug. 30, 2001]



Sec. 206.462  [Reserved]



Sec. 206.463  In-situ and surface gasification and liquefaction operations.

    If an ad valorem Federal coal lease is developed by in-situ or 
surface gasification or liquefaction technology, the lessee shall 
propose the value of coal for royalty purposes to MMS. MMS will review 
the lessee's proposal and issue a value determination. The lessee may 
use its proposed value until MMS issues a value determination.

[61 FR 5481, Feb. 12, 1996, as amended at 64 FR 43289, Aug. 10, 1999]



Sec. 206.464  Value enhancement of marketable coal.

    If, prior to use, sale, or other disposition, the lessee enhances 
the value of coal after the coal has been placed in marketable condition 
in accordance with Sec. 206.456(h) of this subpart, the lessee shall 
notify MMS that such processing is occurring or will occur. The value of 
that production shall be determined as follows:
    (a) A value established for the feedstock coal in marketable 
condition by application of the provisions of Sec. 206.456(c)(2) (i) 
through (iv) of this subpart; or,
    (b) In the event that a value cannot be established in accordance 
with paragraph (a) of this section, then the value of production will be 
determined in accordance with Sec. 206.456(c)(2)(v) of this subpart and 
the value shall be the lessee's gross proceeds accruing from the 
disposition of the enhanced product, reduced by MMS-approved processing 
costs and procedures including a rate of return on investment equal to 
two times the Standard and Poor's BBB bond rate applicable under 
Sec. 206.458(b)(2)(v) of this subpart.

[61 FR 5481, Feb. 12, 1996, as amended 64 FR 43289, Aug. 10, 1999]



PART 207--SALES AGREEMENTS OR CONTRACTS GOVERNING THE DISPOSAL OF LEASE PRODUCTS--Table of Contents




                      Subpart A--General Provisions

Sec.
207.1  Required recordkeeping.
207.2  Definitions.
207.3  Contracts made pursuant to new form leases.
207.4  Contracts made pursuant to old form leases.
207.5  Contract and sales agreement retention.

Subpart B--Oil, Gas and OCS Sulfur, General [Reserved]

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals, General [Reserved]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal Resources [Reserved]

Subpart I--OCS Sulfur [Reserved]

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq.; 25 U.S.C. 
396a et seq.; 25 U.S.C. 2101 et

[[Page 145]]

seq.; 30 U.S.C. 181 et seq.; 30 U.S.C. 351 et seq.; 30 U.S.C. 1001 et 
seq.; 30 U.S.C. 1701 et seq.; 31 U.S.C. 3716 et seq.; 31 U.S.C. 9701; 43 
U.S.C. 1301 et seq.; 43 U.S.C. 1331 et seq.; and 43 U.S.C. 1801 et seq.

    Source: 53 FR 1225, Jan. 15, 1988, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 207.1  Required recordkeeping.

    (a) The information collection and recordkeeping requirements 
contained in this part have been approved by OMB under 44 U.S.C. 3501 et 
seq. and assigned OMB Clearance Number 1010-0061. The information 
collected will be used to determine a proper transportation allowance 
for the cost of transporting royalty oil from the lease to a delivery 
point remote from the lease. The information is required in order to 
obtain a benefit and is collected in accordance with the Federal Oil and 
Gas Royalty Management Act of 1982, 30 U.S.C. 1701 et seq.
    (b) Public reporting burden is estimated to average 30 minutes per 
year for each record keeper to maintain copies of sales contracts, 
agreements, or other documents relevant to the valuation of production. 
Send any comments regarding this burden estimate or any other aspect of 
this requirement to the Information Collection Clearance Officer, 
Minerals Management Service, 381 Elden Street, Herndon, VA 22070, and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, Paperwork Reduction Project 1010-0061, Washington, DC 20503.

[57 FR 41864, Sept. 14, 1992, as amended at 58 FR 64901, Dec. 10, 1994]



Sec. 207.2  Definitions.

    The definitions in part 206 of this title are applicable to this 
part.



Sec. 207.3  Contracts made pursuant to new form leases.

    On November 29, 1950 (15 FR 8585), a new lease form was adopted 
(Form 4-1158, 15 FR 8585) containing provisions whereby the lessee 
agrees that nothing in any contract or other arrangement made for the 
sale or disposal of oil, gas, natural gasoline, and other products of 
the leased land, shall be construed as modifying any of the provisions 
of the lease, including, but not limited to, provisions relating to gas 
waste, taking royalty-in-kind, and the method of computing royalties due 
as based on a minimum valuation and in accordance with the oil and gas 
valuation regulations. A contract or agreement pursuant to a lease 
containing such provisions may be made without obtaining prior approval 
of the United States as lessor, but must be retained as provided in 
Sec. 207.5 of this subpart.



Sec. 207.4  Contracts made pursuant to old form leases.

    (a) Old form leases are those containing provisions prohibiting 
sales or disposal of oil, gas, natural gasoline, and other products of 
the lease except in accordance with a contract or other arrangement 
approved by the Secretary of the Interior, or by the Director of the 
Minerals Management Service or his/her representative. A contract or 
agreement made pursuant to an old form lease may be made without 
obtaining approval if the contract or agreement contains either the 
substance of or is accompanied by the stipulation set forth in paragraph 
(b) of this section, signed by the seller (lessee or operator).
    (b) The stipulation, the substance of which must be included in the 
contract, or be made the subject matter of a separate instrument 
properly identifying the leases affected thereby, is as follows:

    It is hereby understood and agreed that nothing in the written 
contract or in any approval thereof shall be construed as affecting any 
of the relations between the United States and its lessee, particularly 
in matters of gas waste, taking royalty in kind, and the method of 
computing royalties due as based on a minimum valuation and in 
accordance with the terms and provisions of the oil and gas valuation 
regulations applicable to the lands covered by said contract.



Sec. 207.5  Contract and sales agreement retention.

    Copies of all sales contracts, posted price bulletins, etc., and 
copies of all agreements, other contracts, or other documents which are 
relevant to the valuation of production are to be maintained by the 
lessee and made available upon request during normal working

[[Page 146]]

hours to authorized MMS, State or Indian representatives, other MMS or 
BLM officials, auditors of the General Accounting Office, or other 
persons authorized to receive such documents, or shall be submitted to 
MMS within a reasonable period of time, as determined by MMS. Any oral 
sales arrangement negotiated by the lessee must be placed in written 
form and retained by the lessee. Records shall be retained in accordance 
with 30 CFR part 212.

Subpart B--Oil, Gas, and OCS Sulfur, General [Reserved]

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals, General [Reserved]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal Resources [Reserved]

Subpart I--OCS Sulfur [Reserved]



PART 208--SALE OF FEDERAL ROYALTY OIL--Table of Contents




                      Subpart A--General Provisons

Sec.
208.1  General.
208.2  Definitions.
208.3  Information collection.
208.4  Royalty oil sales to eligible refiners.
208.5  Notice of royalty oil sale.
208.6  General application procedures.
208.7  Determination of eligibility.
208.8  Transportation and delivery.
208.9  Agreements.
208.10  Notices.
208.11  Surety requirements.
208.12  Payment requirements.
208.13  Reporting requirements.
208.14  Civil and criminal penalties.
208.15  Audits.
208.16  How to appeal a contracting officer's decision that you receive.
208.17  Suspensions for national emergencies.

    Authority: 5 U.S.C. 301 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 
1701 et seq.; 31 U.S.C. 9701; 41 U.S.C. 601 et seq.; 43 U.S.C. 1301 et 
seq., 1331 et seq., and 1801 et seq.

    Source: 52 FR 41913, Oct. 30, 1987, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 208.1  General.

    The regulations in this part govern the sale of royalty oil by the 
United States to eligible refiners. The regulations apply to royalty oil 
from leases on Federal lands onshore and on the Outer Continental Shelf 
(OCS).



Sec. 208.2  Definitions.

    Allotment means the quantity of royalty oil that DOI determines is 
available to each eligible refiner that has applied for a portion of the 
total volume of royalty oil offered in a given royalty oil sale.
    Application means the formal written request to DOI on Form MMS-4070 
by an eligible refiner interested in purchasing a quantity of royalty 
oil from the approximate volume announced by DOI in a given ``Notice of 
Availability of Royalty Oil.''
    Area or Region means the geographic territory having Federal oil and 
gas leases over which MMS has jurisdiction, unless the context in which 
those words are used indicates that a different meaning is intended.
    Contracting officer means the Director, his or her delegate, or the 
person designated under a royalty oil purchase contract.
    Contracting officer's decision means an MMS order or decision that a 
contracting officer issues under this part to a purchaser of oil under a 
royalty oil purchase contract.
    Delivery point means the point where the lessor, in accordance with 
lease terms, directs the lessee to deliver royalty oil to a purchaser. 
Title to the royalty oil, or to the quantity thereof in a commingled 
stream, passes from the Federal Government to the purchaser at this 
designated point, which is specified in the royalty oil contract. For 
onshore leases, the delivery point

[[Page 147]]

will be on or adjacent to the lease, except as provided in Sec. 208.8(a) 
of this part. In instances where an onshore delivery point is designated 
for offshore royalty oil, such point generally will be the first onshore 
point where the price of the oil, including transportation costs, can be 
determined and where the purchaser can either exchange or take delivery 
of the oil. The Government does not guarantee physical access to the oil 
at such point.
    Director means the Director of MMS, who is responsible for its 
overall direction, or his or her delegate(s).
    DOI means the Department of the Interior, including the Secretary or 
his or her delegate(s).
    Eligible refiner means a refiner of crude oil that meets the 
following criteria for eligibility to purchase royalty oil:
    (1) For the purchase of royalty oil from onshore leases, it means a 
refiner that qualifies as a small and independent refiner as those terms 
are defined in sections 3(3) and 3(4) of the Emergency Petroleum 
Allocation Act, 15 U.S.C. 751 et seq., except that the time period for 
determination contained in section 3(3)(A) would be the calendar quarter 
immediately preceding the date of the applicable ``Notice of 
Availability of Royalty Oil.'' A refiner that, together with all persons 
controlled by, in control of, under common control with, or otherwise 
affiliated with the refiner, inputs a volume of domestic crude oil from 
its own production exceeding 30 percent of its total refinery input of 
crude oil is ineligible to participate in royalty oil sales under this 
part. Crude oil received in exchange for such refiner's own production 
is considered to be that refiner's own production for purposes of this 
section.
    (2) For the purchase of royalty oil from leases on the OCS, it means 
a refiner that qualifies as a small business enterprise under the rules 
of the Small Business Administration (13 CFR part 121).
    Entitlement means the volume of royalty oil from the Federal 
Government's share of production from a Federal lease which a purchaser 
is entitled to receive under a royalty oil contract.
    Exchange agreement means a written agreement between the purchaser 
and another person for the exchange of royalty oil purchased under this 
part for other oil on a volume or equivalent value basis.
    Fair market value means the value of oil--(1) Computed at a unit 
price equivalent to the average unit price at which oil was sold 
pursuant to a lease during the period for which any royalty or net 
profit share is accrued or reserved to the United States pursuant to 
such lease, or
    (2) If there were no such sales, or if the Secretary finds that 
there were an insufficient number of such sales to equitably determine 
such value, computed at the average unit price at which oil was sold 
pursuant to other leases in the same region of the OCS during such 
period, or
    (3) If there were no sales of oil from such region during such 
period, or if the Secretary finds that there are an insufficient number 
of such sales to equitably determine such value, at an appropriate price 
determined by the Secretary.
    Federal lease means a contractual agreement with the Federal 
Government which authorizes the exploration, development, and production 
of oil and gas on Federal lands onshore or on the OCS.
    Interim sale means a sale conducted as a result of substantial 
additional royalty oil becoming available in a specific area prior to 
the scheduled expiration date of royalty oil contracts in effect for 
that area.
    Lessee means any person to whom the United States issues a lease, or 
any person who has been assigned an obligation to make royalty or other 
payments required by the lease.
    MMS means the Minerals Management Service of the Department of the 
Interior.
    Notice of Availability of Royalty Oil means a notice published by 
DOI in the Federal Register (and in other printed media when 
appropriate, such as a newspaper or magazine of general or specialized 
circulation) to advise interested parties of the availability of royalty 
oil for purchase by eligible refiners and the approximate volume of 
royalty oil available to the applicants.

[[Page 148]]

    OCS means the Outer Continental Shelf, as defined in 43 U.S.C. 
1331(a).
    OCSLA means the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et 
seq., as amended by 43 U.S.C. 1801 et seq.).
    Oil means a mixture of hydrocarbons that existed in the liquid phase 
in natural underground reservoirs and remains liquid at atmospheric 
pressure after passing through surface separating facilities and is 
marketed or used as such. Condensate recovered in lease separators or 
field facilities is considered to be oil.
    Operator means any person, including a lessee, who has control of or 
who manages operations on an oil and gas lease site on Federal onshore 
lands or on the OCS.
    Payor means any person responsible for reporting royalties from a 
Federal lease or leases on Form MMS-2014.
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture.
    Preference eligible refiner means an eligible refiner with at least 
one operating refinery which is located within the area designated as 
the preference eligible area in the ``Notice of Availability of Royalty 
Oil.'' A refiner may be deemed to be a preference eligible refiner if it 
owns a refinery located in the preference eligible area which is not 
operational if the refiner meets the requirements of Sec. 208.7(g) of 
this part.
    Purchaser means anyone who acquires royalty oil sold by DOI under 
the Federal Government's Royalty-in-Kind (RIK) Program and who has a 
contractual obligation under an agreement to purchase royalty oil.
    Reallocation means an offering of royalty oil previously allocated 
in a specific sale but subsequently turned back to MMS. A reallocation 
would only be made if substantial amounts of royalty oil are turned 
back.
    Refined petroleum product means gasoline, kerosene, distillates 
(including Number 2 fuel oil), refined lubricating oils, or diesel fuel.
    Royalty oil means that amount of oil that DOI takes in kind in 
partial or full satisfaction of a lessee's royalty or net profit share 
obligations as determined by whatever lease interest the lessee holds 
under an applicable mineral leasing law.
    Secretary means the Secretary of the Department of the Interior or 
his/her delegate(s).
    Section 6 lease means an oil and gas lease originally issued by any 
State and currently maintained in effect pursuant to section 6 of the 
OCSLA.
    Section 8 lease means an oil and gas lease originally issued by the 
United States pursuant to section 8 of the OCSLA.

[52 FR 41913, Oct. 30, 1987; 52 FR 45528, Nov. 30, 1987, as amended at 
58 FR 64901, Dec. 10, 1993; 64 FR 26251, May 13, 1999]



Sec. 208.3  Information collection.

    The information collection requirements contained in this part have 
been approved by OMB under 44 U.S.C. 3501 et seq. The form, filing date, 
and approved OMB clearance number are identified in 30 CFR 210.10.

[58 FR 64901, Dec. 10, 1993]



Sec. 208.4  Royalty oil sales to eligible refiners.

    (a) Determination to take royalty oil in kind. The Secretary may 
evaluate crude oil market conditions from time to time. The evaluation 
will include, among other things, the availability of crude oil and the 
crude oil requirements of the Federal Government, primarily those 
requirements concerning matters of national interest and defense. The 
Secretary will review these items and will determine whether eligible 
refiners have access to adequate supplies of crude oil and whether such 
oil is available to eligible refiners at equitable prices. Such 
determinations may be made on a regional basis. The determination by the 
Secretary shall be published in the Federal Register concurrent with or 
included in the ``Notice of Availability of Royalty Oil'' required by 30 
CFR 208.5.
    (b) Sale to eligible refiners. (1) Upon a determination by the 
Secretary under paragraph (a) of this section that eligible refiners do 
not have access to adequate supplies of crude oil at equitable prices, 
the Secretary, at his or her discretion, may elect to take in kind some 
or all of the royalty oil accruing to the United States from oil and gas 
leases on Federal lands onshore and on the OCS. The Secretary may 
authorize

[[Page 149]]

MMS to offer royalty oil for sale to eligible refiners only for use in 
their refineries and not for resale (other than under an exchange 
agreement).
    (2) All sales of royalty oil from onshore leases will be priced at 
the royalty value that would have been determined for that oil pursuant 
to 30 CFR part 206 had the royalties been paid in value rather than 
taken in kind. All sales of royalty oil from OCS leases will be priced 
at the fair market value of the oil including associated transportation 
costs to the designated delivery point, if applicable.
    (3) An eligible refiner must have a representative at a sale in 
order to participate. The Secretary may, at his or her discretion, 
establish purchase limitations and withhold any royalty oil from any 
offering.
    (c) Upon a determination by the Secretary under paragraph (a) of 
this section that eligible refiners do have access to adequate supplies 
of crude oil at equitable prices, MMS will not take royalties in kind 
from oil and gas leases for exclusive sale to such refiners. Such 
determinations may be made on a regional basis.
    (d) Interim sales. The MMS generally will not conduct interim sales. 
However, interim sales may be held at the discretion of the Secretary if 
substantial addition royalty oil becomes available. The potentially 
eligible refiners, individually or collectively, must submit 
documentation demonstrating that adequate supplies of crude oil at 
equitable prices are not available for purchase. Although sufficient 
documentation must be submitted, it is not mandatory for each 
potentially eligible refiner to participate in a submission of such 
documentation to be determined eligible. The documentation must be 
submitted to MMS for a determination as to whether an interim sale is 
needed.

[52 FR 41913, Oct. 30, 1987, as amended at 66 FR 28657, May 24, 2001]



Sec. 208.5  Notice of royalty oil sale.

    If the Secretary decides to take royalty oil in kind for sale to 
eligible refiners, MMS will issue a ``Notice of Availability of Royalty 
Oil'' specifying the manner in which the sale is to be effected, the 
approximate quantity of royalty oil to be offered, information required 
in applications, the closing date for the receipt of applications for 
royalty oil, and other general administrative details concerning the 
application, allocation, and contract award process for the royalty oil. 
The Notice will describe generally the terms under which the royalty oil 
contracts will be awarded and will specify which applicants will be 
deemed preference eligible refiners in the sale proceedings. The Notice 
will also contain guidelines for reallocation procedures in the event 
substantial quantities of royalty oil sold in that specific sale are 
subsequently turned back to MMS. Only those purchasers that hold ongoing 
contracts from that specific sale will be allowed to participate in any 
reallocation, which would be voluntary, and then only if they continue 
to meet eligibility requirements as set forth in 30 CFR 208.2 and 208.7. 
If a reallocation is held prior to the effective date of the contracts 
as specified in the ``Notice of Availability of Royalty Oil'', all 
eligible refiners that selected a lease or leases in that specific sale 
would be allowed to participate, pursuant to the procedures in the 
Notice.



Sec. 208.6  General application procedures.

    (a) To apply for the purchase of royalty oil, an applicant must file 
a Form MMS-4070 with MMS in accordance with instructions provided in the 
``Notice of Availability of Royalty Oil'' and in accordance with any 
instructions issued by MMS for completion of Form MMS-4070. The 
applicant will be required to submit a letter of intent from a qualified 
financial institution stating that it would be granted surety coverage 
for the royalty oil for which it is applying, or other such proof of 
surety coverage, as deemed acceptable by MMS. The letter of intent must 
be submitted with a completed Form MMS-4070.
    (b) In addition to any other application requirements specified in 
the Notice, the following information is required on Form MMS-4070 at 
the time of application:
    (1) Name and address of the applicant, the location of the 
applicant's refinery or refineries, and disclosure of

[[Page 150]]

the applicant's affiliation with any other persons.
    (2) The capacity of the applicant's refineries in barrels of crude 
oil throughput per calendar day and a tabulation for the past 12 months 
of oil processed for each refinery, identified as to source (from own 
production or from other sources).
    (3) Identification of any Government royalty oil contracts under 
which the applicant is currently receiving royalty oil.
    (4) Identification of the locations (area/region and State) where 
the applicant proposes to purchase royalty oil, the volume of oil 
requested, and the specific refineries in which the oil will be refined.
    (5) A certification from the applicant that it is an eligible 
refiner for the purchase of Government royalty oil, as defined in 
Sec. 208.2 of this part.

[52 FR 41913, Oct. 30, 1987, as amended at 58 FR 64901, Dec. 10, 1993]



Sec. 208.7  Determination of eligibility.

    (a) The MMS will examine each application and may request additional 
information if the information in the application is inadequate. An 
application received after the close of the application period will be 
rejected. If additional information is requested by MMS, it must be 
received by the time specified or the application will be rejected.
    (b) After the close of the application period and the receipt of any 
additional requested information, MMS will determine which applicants 
may participate in the royalty oil sale and the quantity of royalty oil 
which each applicant is authorized to purchase.
    (c) When applications are filed by two or more eligible refiners for 
the same royalty oil, the oil will be allocated among such applicants on 
an equitable basis as determined by MMS. Preference eligible refiners 
will be given priority in the allocation procedures in sales and 
subsequent reallocations of royalty oil.
    (d) No eligible refiner shall be awarded contracts for volumes of 
royalty oil that, when added to volumes of other Federal royalty oil 
being received, are in excess of 60 percent of the combined refinery 
capacity of that refiner.
    (e) The MMS may exclude any section 6 lease from a royalty oil sale.
    (f) If two or more eligible refiners are related through common 
ownership or control or otherwise affiliated, only one of them shall be 
entitled to an allotment of royalty oil from a specific sale.
    (g) Any applicant whose refinery is not in operation during the 60-
day period prior to the date of the royalty oil sale shall not be 
entitled to participate in the sale unless such applicant self-certifies 
and demonstrates to the satisfaction of MMS that it will begin 
operations by the first month in which oil becomes available under a 
royalty oil contract. If operations do not begin by that month, MMS will 
terminate the contract.
    (h) Applicants or purchasers that have delinquent balances with MMS 
as of the date of a royalty oil sale or subsequent reallocation will not 
be allowed to participate in that sale or reallocation. If a person 
which is controlled by, in control of, under common control with, or 
otherwise affiliated with an applicant or purchaser has such delinquent 
balances, the applicant or purchaser will not be allowed to participate 
in a royalty oil sale or reallocation. To the extent a purchaser or 
affiliated person has appealed a billing and posted a surety instrument 
in accordance with the contract terms and applicable MMS regulations or 
other law, the balance shall not be considered delinquent.
    (i) A purchaser must meet the eligibility criteria on the date of 
contract issuance. However, a change in a purchaser's eligibility status 
during the term of the contract will not affect the purchaser's right to 
continue that contract until its term expires, including any extensions 
thereof.

[52 FR 41913, Oct. 30, 1987, as amended at 58 FR 64901, Dec. 10, 1993]



Sec. 208.8  Transportation and delivery.

    (a) The lessee shall deliver royalty oil from onshore leases to the 
purchaser at a point on or adjacent to the lease pursuant to the terms 
of the lease. If the purchaser does not have access to its onshore 
royalty oil entitlement at facilities on or adjacent to the lease, the 
operator of the lease

[[Page 151]]

must designate an alternate delivery point at no additional cost to the 
purchaser or the Government. The purchaser must have physical access to 
the oil at the alternate delivery point and such point must be approved 
by MMS.
    (b) The lessee shall deliver royalty oil from section 8 offshore 
leases issued after September 1969 at a delivery point to be designated 
by MMS. The lessee shall deliver royalty oil from section 8 offshore 
leases issued before October 1969 or from section 6 leases at a delivery 
point to be designated by the lessee. If the delivery point is on or 
immediately adjacent to the lease, the royalty oil will be delivered 
without cost to the Federal Government as an undivided portion of 
production in marketable condition at pipeline connections or other 
facilities provided by the lessee, unless other arrangements are 
approved by MMS. If the delivery point is not on or immediately adjacent 
to the lease, MMS will reimburse the lessee for the reasonable cost of 
transportation to such point in an amount not to exceed the 
transportation allowance determined pursuant to 30 CFR part 206. The MMS 
will include such transportation costs in the price charged for the oil 
taken in kind to reflect the value of the oil at the delivery point. 
Arrangements for delivery of the royalty oil from, or exchange of the 
oil at, the delivery point, and related transportation costs, are the 
responsibility of the purchaser of the royalty oil. In addition, quality 
differentials between the royalty oil to which a purchaser is entitled 
and the oil which is made available at the delivery point are matters to 
be resolved between the purchaser and the operator.
    (c) When the purchaser has physical access to the royalty oil at the 
delivery point, the lessee shall deliver such oil in marketable 
condition at pipeline connections or other facilities designated by MMS. 
If the lessee is unable to provide the royalty portion of actual 
production from the lease, the lessee must provide crude oil to the 
purchaser which is equivalent in volume or value to the royalty oil to 
which the purchaser is entitled. The lessee will deliver the royalty oil 
to the purchaser during normal operating hours and in reasonable 
quantities and intervals. The lessee will make available and the 
purchaser will accept delivery of the royalty oil entitlement no later 
than the last day of the calendar month immediately following the 
calendar month in which the oil was produced. Failure to accept 
deliveries shall constitute grounds for the termination of the contract.
    (d) Upon termination of deliveries under a royalty oil contract, the 
transportation allowance and delivery point designation authorized by 
this section no longer will remain in effect.



Sec. 208.9  Agreements.

    (a) A purchaser must submit to MMS two copies of any written third-
party agreements, or two copies of a full written explanation of any 
oral third-party agreements, relating to the method and costs of 
delivery of royalty oil, or crude oil exchanged for the royalty oil, 
from the point of delivery under the contract to the purchaser's 
refinery. In addition, the purchaser must submit copies of agreements 
pertaining to quality differentials which may occur between leases and 
delivery points.
    (b) A purchaser may not sell royalty oil which it purchases pursuant 
to this part except for purposes of an exchange for other crude oil on a 
volume or equivalent value basis.
    (c) Royalty oil purchased under this part, or crude oil received in 
exchange for such royalty oil, must be processed into refined petroleum 
products in the purchaser's refinery.



Sec. 208.10  Notices.

    (a) The MMS shall notify each operator, by certified mail, of the 
Secretary's decision to take royalty oil in kind. This notice shall be 
mailed at least 45 days in advance of the effective date of delivery and 
will specify delivery points for offshore oil for OCS leases issued 
after September 1969.
    (b) Deliveries of royalty oil may be partially terminated only with 
the written approval of the Director, MMS.

[[Page 152]]

    (c) Before terminating the delivery of royalty oil taken in kind, 
MMS, if possible, will notify each operator by certified mail of the 
change in requirements at least 30 days in advance of the effective 
date.
    (d) After MMS notification that royalty oil will be taken in kind, 
the operator shall be responsible for notifying each working interest on 
the Federal lease. As soon as practicable after the date of each royalty 
oil sale, MMS will publish in the Federal Register a notice of the 
leases from which royalty oil will be taken, the purchasers of the 
royalty oil, and the leases from which royalty oil deliveries will be 
discontinued on terminated contracts.
    (e) A purchaser cannot transfer, assign, or sell its rights or 
interest in a royalty oil contract without written approval of the 
Director, MMS. If the purchaser changes ownership or its assets are sold 
or liquidated for any reason, it cannot transfer, assign, or sell its 
rights or interest in the royalty oil contract without written approval 
of the Director, MMS. Without express written consent from MMS for a 
change in ownership, the royalty oil contract shall be terminated. The 
successor company must meet the definition of an eligible refiner in 
Sec. 208.2 of this part for MMS to consider assignment of the royalty 
oil contract.



Sec. 208.11  Surety requirements.

    (a) The eligible purchaser, prior to execution of the contract, 
shall furnish an ``MMS-specified surety instrument,'' in an amount equal 
to the estimated value of royalty oil that could be taken by the 
purchaser in a 99-day period, plus related administrative charges. The 
MMS may require the purchaser to increase the amount of the surety 
instrument when necessary to protect the Government's interest or may 
allow the purchaser to decrease the amount of the surety instrument 
where necessary to further the purposes of the Royalty-in-Kind Program.
    (b) If a letter of credit is furnished as the surety instrument, it 
must be effective for a 9-month period beginning the first day the 
royalty oil contract is effective, with a clause providing for automatic 
renewal monthly for a new 9-month period. The purchaser or its surety 
company may elect not to renew the letter of credit at any monthly 
anniversary date, but must notify MMS of its intent not to renew at 
least 30 days prior to the anniversary date. The MMS may grant the 
purchaser 45 days to obtain a new surety instrument. If no replacement 
surety instrument is provided, MMS will terminate the contract effective 
at least 6 months prior to the expiration date of the letter of credit. 
Notwithstanding the above provisions, the letter of credit also may 
contain a clause providing for automatic termination 6 months after the 
royalty oil contract terminates. If a certificate of deposit is 
furnished as the surety instrument, it must be effective for the life of 
the contract plus 6 months after the royalty oil contract terminates.
    (c) For the purposes of this section, an ``MMS-specified surety 
instrument'' means either: an MMS-specified surety bond, an MMS-
specified irrevocable letter of credit, or a financial institution book-
entry certificate of deposit.
    (d) The ``MMS-specified surety instrument'' shall be in a form 
specified by MMS instructions or approved by MMS. A bond must be issued 
by a qualified surety company that has been approved by the Department 
of the Treasury. An irrevocable letter of credit or a certificate of 
deposit must be from a financial institution acceptable to MMS. The MMS 
will use a bank rating service to determine whether a financial 
institution has an acceptable rating to provide a surety instrument 
deemed adequate to indemnify the Government from loss or damage.
    (e) All surety instruments must be in a form acceptable to MMS and 
must include such other specific requirements as MMS may require 
adequately to protect the Government's interests.

[58 FR 64901, Dec. 10, 1993]



Sec. 208.12  Payment requirements.

    (a) All payments to MMS by a purchaser of royalty oil will be due on 
the date and at the location specified in the contract, or, if there is 
no contractual provision, as specified by MMS. The purchaser shall 
tender all payments to MMS in accordance with 30 CFR 218.51. Payments 
made by a payor

[[Page 153]]

pursuant to the requirements of paragraph (b) of this section and 
Sec. 208.13 also shall be tendered in accordance with 30 CFR 218.51.
    (b)(1) Payments from a purchaser of royalty oil not received by MMS 
when due, or that portion of the payment less than the full amount due, 
will be subject to a late payment charge equivalent to an interest 
assessment on the amount past due for the number of days that the 
payment is late at the underpayment rate applicable under section 6621 
of the Internal Revenue Code of 1954.
    (2) The MMS may assess interest to a payor for any underpayments 
which are the result of the payor's late or underreporting, or for 
adjustments reported by the payor, or made as a result of audit, 
reconciliation, or other procedures. The interest for late payment and 
underpayment will be assessed pursuant to 30 CFR 218.54.
    (c) If payment for royalty oil is not received by the due date 
specified in the contract, a notice of nonreceipt will be sent to the 
purchaser by certified mail. If payment is not received by MMS within 15 
days from the date of such notice, MMS may cancel the contract and 
collect under the MMS-specified surety instrument. See Sec. 208.11.
    (d) If the purchaser disagrees with the amount of payment due, it 
must pay the amount due as computed by MMS, unless the purchaser appeals 
the amount and posts an MMS-specified surety instrument pursuant to the 
provisions of 30 CFR part 243. The MMS may, at its discretion, waive the 
appeal surety requirements if it determines that the contract surety 
instrument is sufficient protection for an amount under appeal.

[52 FR 41913, Oct. 30, 1987, as amended at 64901, Dec. 10, 1993]



Sec. 208.13  Reporting requirements.

    If MMS underbills a purchaser under a royalty oil contract because 
of a payor's underreporting or failure to report on Form MMS-2014 
pursuant to 30 CFR 210.52, the payor will be liable for payment of such 
underbilled amounts plus interest if they are unrecoverable from the 
purchaser or the surety instrument related to the contract.

[58 FR 64902, Dec. 10, 1993]



Sec. 208.14  Civil and criminal penalties.

    Failure to abide by the regulations in this part may result in civil 
and criminal penalties being levied on that person as specified in 
sections 109 and 110 of the Federal Oil and Gas Royalty Management Act 
of 1982, 30 U.S.C. 1719-20, and regulations at 30 CFR part 241. Civil 
penalties applicable under the OCSLA and the Mineral Leasing Act of 1920 
may also be imposed.



Sec. 208.15  Audits.

    Audits of the accounts and books of lessees, operators, payors, and/
or purchasers of royalty oil taken in kind may be made annually or at 
such other times as may be directed by MMS. Such audits will be for the 
purpose of determining compliance with applicable statutes, regulations, 
and royalty oil contracts.



Sec. 208.16  How to appeal a contracting officer's decision that you receive.

    If you receive a contracting officer's decision, you may:
    (a) Appeal that decision to the Board of Contract Appeals in the 
Office of Hearings and Appeals, Office of the Secretary, in accordance 
with the procedures provided in 43 CFR part 4, subpart C; or
    (b) File an action in the United States Court of Federal Claims.

[64 FR 26251, May 13, 1999]



Sec. 208.17  Suspensions for national emergencies.

    The Secretary of the Department of the Interior, upon a 
recommendation by the Secretary of Defense or the Secretary of Energy 
and with the approval of the President, may suspend operations under 
these regulations and suspend royalty oil contracts during a national 
emergency declared by the Congress or the President.

[[Page 154]]



PART 210--FORMS AND REPORTS--Table of Contents




                      Subpart A--General Provisions

Sec.
210.10  Information collection.
210.20  When is electronic reporting required?
210.21  How do you report electronically?
210.22  What are the exceptions to the electronic reporting 
          requirements?

              Subpart B--Oil, Gas, and OCS Sulfur--General

210.50  Required recordkeeping.
210.51  Payor information form.
210.52  Report of sales and royalty remittance.
210.53  Reporting instructions.
210.54  Definitions.
210.55  Special forms or reports.

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

                   Subpart E--Solid Minerals, General

210.200  What is the purpose of this subpart?
210.201  How do I submit Form MMS-4430, Solid Minerals Production and 
          Royalty Report?
210.202  How do I submit sales summaries?
210.203  How do I submit sales contracts?
210.204  How do I submit facility data?
210.205  Will I need to submit additional documents or evidence to MMS?
210.206  How will information submissions be kept confidential?

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

                     Subpart H--Geothermal Resources

210.350  Definitions.
210.351  Required recordkeeping.
210.352  Payor information forms.
210.353  Special forms and reports.
210.354  Monthly report of sales and royalty.
210.355  Reporting instructions.

Subpart I--OCS Sulfur [Reserved]

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396, 2107; 30 U.S.C. 189, 
190, 359, 1023, 1751(a); 31 U.S.C. 3716, 9701; 43 U.S.C. 1334, 1801 et 
seq.; and 44 U.S.C. 3506(a).



                      Subpart A--General Provisions



Sec. 210.10  Information collection.

    (a) Forms--This section identifies required MMS Minerals Revenue 
Management forms for reporting sales and royalties, production 
information, claiming a processing or transportation allowance, or 
claiming a reward for providing original information. The information 
collection requirements associated with the forms identified in this 
section have been approved by OMB under 44 U.S.C. 3501 et seq. The 
forms, filing dates, and approved OMB clearance numbers are summarized 
below:

------------------------------------------------------------------------
               Form No., name, and filing date                  OMB No.
------------------------------------------------------------------------
MMS-2014--Report of Sales and Royalty Remittance--Due by the   1010-0022
 end of first month following production month for royalty
 payment and for rentals no later than anniversary date of
 the lease..................................................
MMS-3160--Monthly Report of Operations--Due by the 15th day    1010-0040
 of the second month following the production month.........
MMS-4025--Oil and Gas Payor Information Form--Due 30 days      1010-0033
 after issuance of a new lease or change to an existing
 lease......................................................
MMS-4051--Facility and Measurement Information Form and        1010-0040
 Supplement--Due at the request of MMS during the initial
 conversion of the facility and measurement device operators
MMS-4053--First Purchaser Report--Due at the request of MMS.   1010-0040
MMS-4054--Oil and Gas Operations Report--Due by the 15th day   1010-0040
 of the second month following the production month.........
MMS-4055--Gas Analysis Report--Due by the 15th day of the      1010-0040
 second month following the production month................
MMS-4056--Gas Plant Operations Report--Due by the 15th day     1010-0040
 of the second month following the production month.........
MMS-4058--Production Allocation Schedule Report--Due by the    1010-0040
 15th day of the second month following the production month
MMS-4070--Application of the Purchase of Royalty Oil--Due      1010-0042
 prior to the date of sale in accordance with the
 instructions in the Notice of Availability of Royalty Oil..
MMS-4109--Gas Processing Allowance Summary Report--Initial     1010-0075
 report due within 3 months following the last day of the
 month for which an allowance is first claimed, unless a
 longer period is approved by MMS...........................
MMS-4110--Oil Transportation Allowance Report--Initial         1010-0061
 report due within 3 months following the last day of the
 month for which an allowance is first claimed, unless a
 longer period is approved by MMS...........................
MMS-4280--Application for Reward for Original Information--    1010-0076
 Due when a reward is claimed for information provided which
 may lead to the recovery of royalty or other payments owed
 to the United States.......................................

[[Page 155]]

 
MMS-4292--Coal Washing Allowance Report--Due prior to or at    1010-0074
 the same time that the allowance is first reported on Form
 MMS-4430 and annually thereafter if the allowance does not
 change.....................................................
MMS-4293--Coal Transportation Allowance Report--Due prior to   1010-0074
 or at the same time that the allowance is first reported on
 Form MMS-4430 and annually thereafter if the allowance does
 not change.................................................
MMS-4295--Gas Transportation Allowance Report--Initial         1010-0075
 report due within 3 months following the last day of month
 for which an allowance is first claimed unless a longer
 period is approved by MMS..................................
MMS-4377--Stripper Royalty Rate Reduction Notification--Due    1010-0090
 for each 12-month qualifying period that a reduced royalty
 rate is granted by the Bureau of Land Management...........
MMS-4430--Solid Minerals Production and Royalty Report--Due    1010-0120
 by the end of the month following the month of production
 or sale and for other lease financial obligations no later
 than the payment date specified in your lease..............
Facility Data--Due monthly or as requested for specific        1010-0120
 solid mineral products and lease types; see Sec.  210.204..
Sales Contracts--Due semi-annually or as requested on          1010-0120
 certain solid mineral products and lease types; see Sec.
 210.203....................................................
Sales Summaries--Due monthly or as requested for specific      1010-0120
 solid mineral products and lease types; see Sec.  210.202..
------------------------------------------------------------------------


The information required on the forms identified in the table above is 
being collected by the Department of the Interior to meet its 
congressionally mandated accounting and auditing responsibilities 
relating to Federal and Indian mineral royalty management. The purpose 
of the forms and the estimated public reporting burden associated with 
each form are described in paragraph (c) of this section. With the 
exception of Forms MMS-4109, MMS-4110, MMS-4280, MMS-4292, MMS-4293, and 
MMS-4295, the forms are mandatory. Information on Forms MMS-4109, MMS-
4110, MMS-4292, MMS-4293, and MMS-4295 is required to receive a benefit. 
Information required on Form MMS-4280 must be provided voluntarily to 
claim a reward. Information collected relative to production, royalties, 
and other payments due the Government from activities on leased Federal 
or Indian land is authorized by the Federal Oil and Gas Royalty 
Management Act of 1982, 30 U.S.C. 1701 et seq. for oil and gas 
production, and by 30 U.S.C. 189, 30 U.S.C. 359, and 30 U.S.C. 396d for 
solid mineral production.
    (b) MMS mailing addresses--This paragraph identifies the MMS 
address(es) to be used for requesting forms and/or for mailing completed 
forms to MMS.
    (1) Requests for Forms MMS-2014 or MMS-4070 should be addressed to 
the Minerals Management Service, Minerals Revenue Management, P.O. Box 
5760, Denver, Colorado 80217-5760. The completed Form MMS-2014 should be 
mailed to the Minerals Management Service, Minerals Revenue Management, 
P.O. Box 5810, Denver, Colorado 80217-5810. The address to which a 
completed Form MMS-4070 should be mailed will be identified in a Federal 
Register Notice of Availability of Royalty Oil. (See 30 CFR 208.5.)
    (2) Requests for Forms MMS-4025 should be addressed to the Minerals 
Management Service, Minerals Revenue Management, P.O. Box 5760, Denver, 
Colorado 80217-5760. The completed forms should be mailed to the same 
address.
    (3) Requests for Forms MMS-3160, MMS-4051, MMS-4052, MMS-4053, MMS-
4054, MMS-4055, MMS-4056, MMS-4057, MMS-4058, or MMS-4061 should be 
addressed to the Minerals Management Service, Minerals Revenue 
Management, P.O. Box 17110, Denver, Colorado 80217-0110. The completed 
forms should be mailed to the same address.
    (4) Requests for processing or transportation allowance forms (Forms 
MMS-4109, MMS-4110, MMS-4292, MMS-4293, or MMS-4295) should be addressed 
to the Minerals Management Service, Minerals Revenue Management, P.O. 
Box 25165, Denver, Colorado 80225-0165. The completed allowance forms 
should be mailed to the Minerals Management Service, Minerals Revenue 
Management, P.O. Box 5200, Denver, Colorado 80217-5200.
    (5) Requests for Form MMS-4280 should be addressed to the Minerals 
Management Service, Minerals Revenue Management, P.O. Box 25165, Denver, 
Colorado 80225-0165. The completed form should be mailed to the same 
address. (See 30 CFR 218.57(b)).
    (6) If you are not reporting Form MMS-4430 electronically, you may 
request blank copies of the form by calling 1-888-201-6416. You must 
submit completed Forms MMS-4430 to the address given in Sec. 210.201(c).

[[Page 156]]

    (7) If you are not reporting solid minerals sales contracts, sales 
summaries, and facility data electronically, you must submit paper 
copies to the address given in Sec. 210.202(c).
    (8) Reports for oil, gas, and geothermal leases sent by special 
courier or overnight mail (excluding U.S. Postal Service Express Mail) 
should be addressed to: Minerals Management Service, Minerals Revenue 
Management, Building 85, Room A-614, Denver Federal Center, Denver, 
Colorado 80225.
    (c) Purpose of forms and estimated public reporting burden--This 
paragraph describes the purpose of the information being collected and 
the estimated public reporting burden associated with the OMB approved 
forms identified in paragraph (a) of this section.
    (1) MMS-2014--Used monthly to report lease-related transactions 
essential for royalty management to determine the correct royalty amount 
due, reconcile or audit data, and distribute payments to appropriate 
accounts. Public reporting burden for paper submission is estimated to 
average 7 minutes to complete each line item on the form, including the 
time necessary to assemble data, calculate value and royalty, and enter 
data on the form. Companies reporting electronically may average 2 
minutes to complete each line item on the form. Comments submitted 
relative to this information collection should reference the information 
collection titled Report of Sales and Royalty Remittance, OMB Control 
Number 1010-0022.
    (2) MMS-3160--Used by onshore oil and gas lease operators to report 
monthly oil and gas production to MMS. Public reporting burden for paper 
submission is estimated to average 15 minutes per form, including the 
time necessary to assemble data, ensure that production and disposition 
numbers are accurate, and enter data on the form. Companies reporting 
electronically may average 7.5 minutes per month to complete the form. 
Comments submitted relative to this information collection should 
reference the information collection titled PAAS Oil and Gas Reports, 
OMB Control Number 1010-0040.
    (3) MMS-4025--This form is used to establish a data base of payor 
accounts for oil and gas leases on Federal or Indian lands, reporting 
changes in payor accounts, and notifying MMS of the products on which 
royalties will be paid. Public reporting burden is estimated to average 
30 minutes per form, including time spent reading instructions, 
completing, and mailing the form. Comments submitted relative to this 
information collection should reference Paperwork Reduction Project 
1010-0033.
    (4) MMS-4051--Used to establish a reference data base identifying 
the facilities where oil and gas production is stored or processed and 
the metering points where production is measured for sale or transfer. 
Public reporting burden is estimated to average 30 minutes per form for 
facility operators to review and update the data base. Comments 
submitted relative to this information collection should reference 
Paperwork Reduction Project 1010-0040.
    (5) MMS-4053--Designed as an audit tool to be used to confirm sales 
data. Public reporting burden is estimated to average 30 minutes per 
form, including time spent reading instructions, completing, and mailing 
the form. Comments submitted relative to this information collection 
should reference Paperwork Reduction Project 1010-0040.
    (6) MMS-4054--This three-part form identifies all oil and gas lease 
production from Federal and Indian lands. MMS uses information from this 
form to track oil and gas from the point of production to the point of 
first sale or other disposition. Respondents will generally not use all 
three parts of the form. Public reporting burden for paper submission is 
estimated to average 30 minutes per month, including the time necessary 
to assemble data, ensure that production and disposition numbers are 
accurate, and enter data on the form. Companies reporting electronically 
may average 15 minutes per month to complete the form. Comments 
submitted relative to this information collection should reference the 
information collection titled PAAS Oil and Gas Reports, OMB Control 
Number 1010-0040.
    (7) MMS-4055--This report identifies the separate components of 
natural gas production. It is submitted quarterly or semiannually by 
lease operators

[[Page 157]]

when gas production is processed before royalty value has been 
determined. Public reporting burden is estimated to average 15 minutes 
per form including time required gathering data, completing, and mailing 
the form. Comments submitted relative to this information collection 
should reference Paperwork Reduction Project 1010-0040.
    (8) MMS-4056--Submitted monthly by gas plant operators to identify 
components and disposition of natural gas from Federal and Indian 
leases. Public reporting burden is estimated to average 30 minutes per 
form, including time required gathering data, completing, and mailing 
the form. Comments submitted relative to this information collection 
should reference Paperwork Reduction Project 1010-0040.
    (9) MMS-4058--Submitted monthly by operators of the facilities and 
measurement points where production from a Federal or Indian lease is 
commingled with production from other sources before it is measured for 
royalty determination. The data reported is used to determine whether 
sales reported by lessees are reasonable. Public reporting burden is 
estimated to average 15 minutes per form, including time required 
gathering data, completing, and mailing the form. Comments submitted 
relative to this information collection should reference Paperwork 
Reduction Project 1010-0040.
    (10) MMS-4070--After publication in the Federal Register of a Notice 
of Availability of Royalty Oil, refiners interested in the purchase of 
royalty oil should submit their applications using this form. The 
information collected is used by MMS to determine if the applicant meets 
eligibility requirements to contract to purchase the oil. Public 
reporting burden is estimated to average 1 hour per form, including time 
required gathering data, completing, and mailing the form. Comments 
submitted relative to this information collection should reference 
Paperwork Reduction Project 1010-0042.
    (11) MMS-4109--Used to claim an allowance for the reasonable, actual 
costs of removing hydrocarbon and nonhydrocarbon elements or compounds 
from the gas streams. Public reporting burden varies depending on the 
type of contract involved. Under an arm's-length contract, burden is 
estimated to average 1 hour for the submission of page 1 and schedule 1 
of the form requiring the lessee's name and address, payor code, plant 
name, accounting identification number, product code, and selling 
arrangement. Nonarm's-length contract claims require completion of all 
pages of the form including calculations of allowable operating and 
maintenance costs, overhead, depreciation, and return on undepreciated 
capital investment. Public reporting burden is estimated to average 10 
hours to complete the entire form. Comments submitted relative to this 
information collection should reference Paperwork Reduction Project 
1010-0075.
    (12) MMS-4110--Used to claim an allowance for expenses incurred by a 
lessee in transporting oil from the lease site to a point remote from 
the lease where value is determined. Public reporting burden varies 
depending on the type of contract involved. Under an arm's-length 
contract, burden is estimated to average 2 hours for the submission of 
page 1 and schedule 1 of the form requiring the lessee's name and 
address, payor code, accounting identification number, product code, and 
selling arrangement. Nonarm's-length contract claims require completion 
of all pages of the form including calculations of allowable operating 
and maintenance costs, overhead, depreciation, and return on 
undepreciated capital investment. Public reporting burden is estimated 
to average 5 hours to complete the entire form. Comments submitted 
relative to this information collection should reference Paperwork 
Reduction Project 1010-0061.
    (13) MMS-4280--This form is used to claim a reward for information 
leading to the recovery of payments owed to the United States from oil 
and gas leases on Federal land or the Outer Continental Shelf. Claimants 
must provide name, address, Social Security number, and a brief 
description of the violation being reported. Public reporting burden is 
estimated to average 30 minutes to complete this form. Comments 
submitted relative to this information collection should reference 
Paperwork Reduction Project 1010-0076.

[[Page 158]]

    (14) MMS-4292--This form is used to claim an allowance for the 
reasonable, actual costs incurred to wash coal. Public reporting burden 
varies depending on the type of contract involved. Under an arm's-length 
contract, burden is estimated to average 1 hour for the submission of 
page 1 of the form requiring the lessee's name and address, payor code, 
accounting identification number, product code, and selling arrangement. 
Nonarm's-length contract claims require completion of all pages of the 
form including calculations of allowable operating and maintenance 
costs, overhead, depreciation, and return on undepreciated capital 
investment. Public reporting burden is estimated to average 40 hours to 
complete the entire form. Comments submitted relative to this 
information collection should reference Paperwork Reduction Project 
1010-0074.
    (15) MMS-4293--Used to claim an allowance for the reasonable, actual 
costs of transporting coal to a sales point or a washing facility remote 
from the mine or lease. Public reporting burden varies depending on the 
type of contract involved. Under an arm's-length contract, burden is 
estimated to average 1 hour for the submission of page 1 of the form 
requiring the lessee's name and address, payor code, accounting 
identification number, product code, and selling arrangement. Nonarm's-
length contract claims require completion of all pages of the form 
including calculations of allowable operating and maintenance costs, 
overhead, depreciation, and return on undepreciated capital investment. 
Public reporting burden is estimated to average 40 hours to complete the 
entire form. Comments submitted relative to this information collection 
should reference Paperwork Reduction Project 1010-0074.
    (16) MMS-4295-- This form is used to claim an allowance for the 
reasonable, actual costs of transporting gas from the lease to the point 
of first sale. Public reporting burden varies depending on the type of 
contract involved. Under an arm's-length contract, burden is estimated 
to average 1 hour for the submission of page 1 and schedule 1 of the 
form requiring the lessee's name and address, payor code, accounting 
identification number, product code, and selling arrangement. Nonarm's-
length contract claims require completion of all pages of the form 
including calculations of allowable operating and maintenance costs, 
overhead, depreciation, and return on undepreciated capital investment. 
Public reporting burden is estimated to average 3 hours to complete the 
entire form. Comments submitted relative to this information collection 
should reference Paperwork Reduction Project 1010-0075.
    (17) MMS-4377-- This form must be submitted by operators of stripper 
oil properties to notify MMS of reduced royalty rates granted by the 
Bureau of Land Management under 43 CFR 3103.4-1 for each 12-month 
qualifying period. Reporting burden is estimated to require an average 
of 30 minutes per form to supply the operator name, lease and agreement 
numbers, calculated and current royalty rate, and the period covered. 
Comments submitted relative to this information collection should 
reference Paperwork Reduction Project 1010-0090.
    (18) MMS-4430--Submitted monthly to report production from and 
royalty due on all Federal and Indian solid minerals leases (see 
Sec. 210.201). MMS uses the data to distribute payments to appropriate 
recipients and to determine if lessees properly paid lease obligations. 
Public reporting burden is estimated to be 20 minutes per month per 
reporter. Comments relating to this information collection should 
reference OMB Control Number 1010-0120.
    (19) Facility data--Submitted monthly by operators of wash plant, 
refining, ore concentration, or other processing facilities for specific 
solid minerals produced from specific Federal and Indian lease types or 
when otherwise requested by MMS (see Sec. 210.204). MMS uses the data to 
assure that Federal or Indian lease processed production (the output of 
process plants) is consistent with the input of raw production. Public 
reporting burden is estimated to be approximately 15 minutes per 
reporter per month to compile in-house formatted information and submit 
that information electronically. Comments relating to this information 
collection should reference OMB Control Number 1010-0120.

[[Page 159]]

    (20) Sales contracts--Submitted semi-annually by producers of 
specific solid mineral products on specific Federal and Indian lease 
types or when otherwise requested by MMS (see Sec. 210.203). MMS uses 
contracts, agreements and contract amendments for compliance purposes 
including, but not limited to, identifying valuation issues and 
establishing selling arrangement relationships. Public reporting burden 
is estimated to be 2 hours per reporter per year to compile and submit 
contracts and contract amendments. Comments relating to this information 
collection should reference OMB Control Number 1010-0120.
    (21) Sales summaries--Submitted monthly by producers of specific 
solid minerals from specific Federal and Indian lease types or when 
otherwise requested by MMS (see Sec. 210.202). The MMS uses these data 
for compliance purposes including, but not limited to, assuring that 
sales volumes and values are properly attributed or allocated to Federal 
or Indian leases. Public reporting burden is estimated to be 15 minutes 
per month for each reporter to compile in-house formatted sales 
information and submit that information electronically. Comments 
relating to this information collection should reference OMB Control 
Number 1010-0120.
    (d) Comments on burden estimates. Send comments on the accuracy of 
this burden estimate or suggestions on reducing this burden to the 
Minerals Management Service, Attention: Information Collection Clearance 
Officer, (OMB Control Number 1010-0120 (insert appropriate OMB Control 
Number), Mail Stop 4230, 1849 C Street, NW., Washington, DC 20240. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB Control Number.

[57 FR 41864, Sept. 14, 1992, as amended at 64 FR 38122, July 15, 1999; 
66 FR 45769, Aug. 30, 2001]



Sec. 210.20  When is electronic reporting required?

    (a) You must submit Forms MMS-2014 and MMS-4054 to MMS 
electronically. You must begin reporting electronically according to the 
following timetable unless you qualify for the exceptions to electronic 
reporting listed in Sec. 210.22:

------------------------------------------------------------------------
                                             Then, you must submit that
   If you report the following number of         form electronically
 lines each month on a required form . . .         beginning . . .
------------------------------------------------------------------------
(1) 6 or more.............................  November 1, 1999.
(2) 4-5...................................  November 1, 2000.
(3) 1-3...................................  November 1, 2001.
------------------------------------------------------------------------

    (b) See Sec. 218.40(c) for the definition of a royalty report line 
on Form MMS-2014 and Sec. 216.40(c) for the definition of a production 
report line on Form MMS-4054; and
    (c) For purposes of this part, multiple submissions of the same form 
in one month equals one form.

[64 FR 38122, July 15, 1999]



Sec. 210.21  How do you report electronically?

    (a) You may use any of the following electronic media types, unless 
MMS instructs you differently:
    (1) Electronic Data Interchange (EDI) 1--The inter-
organizational, computer-to-computer exchange of structured information 
in a standard, machine-processable format;
---------------------------------------------------------------------------

    \1\ MMS has developed security measures, authentication procedures, 
and automated acknowledgments for this electronic media type.
---------------------------------------------------------------------------

    (2) Electronic Mail (e-mail) 1--Any communication service 
used to electronically transmit and store messages and attach files. MMS 
has three electronic file options:
    (i) Template--MMS-provided software that generates blank forms on a 
personal computer to assist companies in preparing MMS regulatory 
reports (this option is not available for Form MMS-4054);
    (ii) Comma Separated Values (CSV)--A file format where attribute 
fields are separated by commas; and
    (iii) American Standard Code for Information Interchange (ASCII)--A 
file format of fixed-length records with fixed-length attribute fields;
    (3) Reporter-Prepared Diskette (3\1/2\ inch)--A data storage medium 
used to transmit report data using one of the following file formats:
    (i) Template;
    (ii) CSV; and
    (iii) ASCII;

[[Page 160]]

    (4) Magnetic or Cartridge Tape--A data storage medium used to 
transmit report data in an ASCII file format.
    (b) MMS prefers that you use the media types in the order presented 
in paragraph (a) of this section to the extent it is cost effective and 
practical. As technology changes, MMS will consider other media types 
and the order of MMS preference may change. Refer to our electronic 
commerce brochure for the most current reporting options. You can 
receive a copy of our brochure by calling your MMS representative or by 
accessing our Internet site at www.rmp.mms.gov.
    (c) Before you may begin reporting electronically:
    (1) You must submit an electronic sample of your report for MMS 
approval using the MMS-supplied electronic reporting guidelines;
    (2) MMS must notify you that your sample report has been approved;
    (3) MMS must assign you a sender identification number and security 
code for any EDI transmissions; and
    (4) MMS must assign you an originating address and compression 
software password for any e-mail transmissions.

[64 FR 38123, July 15, 1999]



Sec. 210.22  What are the exceptions to the electronic reporting requirements?

    MMS will allow the following grace periods and exceptions to the 
electronic reporting requirements in Sec. 210.20:
    (a) If you become a new MMS reporter after any of the dates you are 
required to submit electronic reports under Sec. 210.20(a), you have 3 
months from the day your first report is due to begin reporting 
electronically;
    (b) If you exceed the maximum number of lines you are allowed to 
report on paper under Sec. 210.20(a), you have 3 months from the last 
day of the month in which you exceeded the line limit to begin reporting 
electronically;
    (c) You are not required to report electronically if you report only 
rent, minimum royalty, or other annual obligations on the Form MMS-2014; 
and
    (d) You are not required to report electronically if you are a small 
business as defined by the U.S. Small Business Administration, and you 
have no computer, no resources to purchase a computer or contract with 
an electronic reporting service, nor access to a computer at a local 
library or other public facility.

[64 FR 38123, July 15, 1999]



              Subpart B--Oil, Gas, and OCS Sulfur--General

    Authority: The Federal Oil and Gas Royalty Management Act of 1982 
(30 U.S.C. 1701 et seq.).

    Source: 49 FR 37345, Sept. 21, 1984, unless otherwise noted.



Sec. 210.50  Required recordkeeping.

    Information required by the MMS shall be filed using the forms 
prescribed in this subpart, which are available from MMS. Records may be 
maintained in microfilm, microfiche, or other recorded media that is 
easily reproducible and readable.



Sec. 210.51  Payor information form.

    The Payor Information Form (Form MMS-4025) must be filed for each 
Federal or Indian lease on which royalties are paid. Where specifically 
determined by MMS, Form MMS-4025 is also required for all Federal leases 
on which rent is due. The completed form must be filed by the party who 
is making the rent or royalty payment (payor) for each revenue source. 
Form MMS-4025 must be filed no later than 30 days after issuance of a 
new lease or a modification to an existing lease which changes the 
paying responsibility on the lease.



Sec. 210.52  Report of sales and royalty remittance.

    (a) You must submit a completed Form MMS-2014 (Report of Sales and 
Royalty Remittance) to MMS with:
    (1) All royalty payments; and,
    (2) Rents on nonproducing leases, where specified.
    (b) When you submit Form MMS-2014 data electronically, you must not 
submit the form itself.
    (c) Completed Forms MMS-2014 for royalty payments are due by the end 
of the month following the production month.

[[Page 161]]

    (d) Where applicable, completed Forms MMS-2014 for rental payments 
are due no later than the anniversary date of the lease.
    (e) This section does not prohibit you from making early payments 
voluntarily.

[64 FR 38123, July 15, 1999]



Sec. 210.53  Reporting instructions.

    (a) Specific guidance on how to prepare and submit required 
information collection reports and forms to MMS is contained in an MMS 
``Oil and Gas Payor Handbook,'' a ``Production Accounting and Auditing 
System Reporter Handbook,'' and a ``PAAS Onshore Oil and Gas Reporter 
Handbook.'' The Payor Handbook is available from the Minerals Management 
Service, Royalty Management Program, P.O. Box 5760, Denver, Colorado 
80217-5760. The Reporter Handbooks are available from the Minerals 
Management Service, Royalty Management Program, P.O. Box 17110, Denver, 
Colorado 80217-0110.
    (b) Royalty payors or production reporters should refer to these 
handbooks for specific guidance with respect to oil and gas reporting 
requirements. If additional information is required, the payor or 
reporter should contact the MMS at the above address. The appropriate 
telephone numbers are listed in the handbooks.

[51 FR 45882, Dec. 23, 1986, as amended at 53 FR 16412, May 9, 1988; 57 
FR 41867, Sept. 14, 1992; 58 FR 64902, Dec. 10, 1993]



Sec. 210.54  Definitions.

    Terms used in this subpart shall have the same meaning as in 30 
U.S.C. 1702.

[49 FR 37345, Sept. 21, 1984. Redesignated at 51 FR 45882, Dec. 23, 
1986]



Sec. 210.55  Special forms or reports.

    (a) MMS may require you to submit additional information, forms, or 
reports other than those specifically referred to in this subpart. MMS 
will give you instructions for providing such information or filing such 
reports or forms. MMS will make requests for additional information, 
forms, or reports under this section in conformity with the Paperwork 
Reduction Act of 1995, 44 U.S.C. 3501, and other applicable laws.
    (b) If you file a Form MMS-4025, Payor Information Form (PIF) under 
Sec. 210.51, you must provide the following information to MMS upon 
request for each PIF:
    (1) The AID number for the lease;
    (2) The name, address, Taxpayer Identification Number (TIN), and 
phone number of the person for whom you are reporting and paying 
royalties or making other payments under the PIF;
    (3) Whether the person you named in paragraph (b)(2) of this section 
with respect to the lease for which you filed the PIF is a:
    (i) Lessee of record (record title owner);
    (ii) Operating rights owner (working interest owner); or
    (iii) Operator;
    (4) The name, address, and phone number of the individual to contact 
for the person you named in paragraph (b)(2) of this section;
    (5) Your TIN; and
    (6) Whether you are the Designee of the person you named in 
paragraph (b)(2) of this section under 30 U.S.C. 1712(a), and, if so:
    (i) The date your designation became effective; and
    (ii) The date your designation terminates, if applicable; and
    (iii) A copy of the written designation;
    (c) If you have been identified under paragraph (b)(2) of this 
section, you must provide the following information to MMS upon request:
    (1) Confirmation that you are the person identified under paragraph 
(b)(2) of this section;
    (2) Confirmation that the person identified in paragraph (b)(6) of 
this section is your designee; and
    (3) A designation under Sec. 218.52 of this title if the person 
identified in paragraph (b)(6) of this section is not your Designee, and 
if you are not reporting and paying royalties and making other payments 
to MMS.

[62 FR 42066, Aug. 5, 1997]

Subpart C--Federal and Indian Oil [Reserved]

[[Page 162]]

Subpart D--Federal and Indian Gas [Reserved]



                   Subpart E--Solid Minerals, General

    Source: 66 FR 45771, Aug. 30, 2001, unless otherwise noted.



Sec. 210.200  What is the purpose of this subpart?

    This subpart explains your reporting requirements if you produce 
coal or other solid minerals from Federal or Indian leases. Included are 
your requirements for reporting production, sales, and royalties.



Sec. 210.201  How do I submit Form MMS-4430, Solid Minerals Production and Royalty Report?

    (a) What to submit. (1) You must submit a completed Form MMS-4430 
for--
    (i) Production of all coal and other solid minerals from any Federal 
or Indian lease;
    (ii) Sale of any such mineral;
    (iii) Any such mineral held in stockpile or inventory; and
    (iv) Payment of rents (other than those for which you receive from 
MMS a Courtesy Notice as defined in Sec. 218.51(a) of this chapter), 
minimum royalty, deferred bonus, advance royalty, minimum royalty 
payable in advance, settlements, recoupments, and other financial 
obligations.
    (2) You must submit a completed Form MMS-4430 for any product you 
sell from a remote storage site. If you sell from five or fewer remote 
storage sites, you must report sales from each site on separate Forms 
MMS-4430. If you sell from more than five remote storage sites, you must 
total the data from all sites and report the summarized data on one Form 
MMS-4430.
    (3) Instructions for completing and submitting Form MMS-4430 are 
available on our Internet reporting web site or you may contact us toll 
free at 1-888-201-6416.
    (b) When to submit. (1) Unless your lease terms specify a different 
frequency for royalty payments, you must submit your Form MMS-4430 on or 
before the end of the month following the month in which you produce any 
solid mineral, sell any solid mineral, or hold any solid mineral 
production in stockpile or inventory. However, if the last day of the 
month falls on a weekend or holiday, your Form MMS-4430 is due on the 
next business day.
    (2) If your lease terms specify a different frequency for royalty 
payment, then you must submit your Form MMS-4430 on or before the date 
on which you must pay royalty under the terms of the lease.
    (3) You must submit your Form MMS-4430 for payment of rents (other 
than those for which you receive from MMS a Courtesy Notice as defined 
in Sec. 218.51(a) of this chapter), minimum royalty, deferred bonus, 
advance royalty, minimum royalty payable in advance, settlements, 
recoupments, and other financial obligations on or before the date on 
which you must pay those obligations under the terms of the lease.
    (4) If the information on a previously reported Form MMS-4430 is no 
longer correct, you must submit a revised Form MMS-4430 by the last day 
of the month in which you learn that the previously reported information 
is no longer correct, except when the last day of the month falls on a 
weekend or holiday. If the last day of the month falls on a weekend or 
holiday, your revised Form MMS-4430 is due on the first business day of 
the following month.
    (c) How to submit. (1) You must submit Form MMS-4430 electronically 
using our Internet reporting web site unless you meet the conditions in 
paragraph (c)(2). We will provide written instructions and a valid login 
and password before you begin reporting.
    (2) You are not required to report electronically if you are a small 
business as defined by the U.S. Small Business Administration (13 CFR 
121.201) and you have no computer, no plans to purchase a computer, and 
no contract with an electronic reporting service.
    (3) If you do not report electronically, you must submit the 
completed Form MMS-4430 to us at one of the following addresses, unless 
MMS publishes notice in the Federal Register giving a different address:
    (i) For U.S. Postal Service regular mail or Express Mail: Minerals 
Management

[[Page 163]]

Service, Minerals Revenue Management, P.O. Box 5810, Denver, Colorado 
80217-5810; or
    (ii) For courier service or overnight mail (excluding Express Mail): 
Minerals Management Service, Minerals Revenue Management, Building 85, 
Denver Federal Center, Room A-614, Denver, Colorado 80225.

[66 FR 45771, Aug. 30, 2001; 66 FR 50827, Oct. 5, 2001]



Sec. 210.202  How do I submit sales summaries?

    (a) What to submit. (1) You must submit sales summaries for all coal 
and other solid minerals produced from Federal and Indian leases and for 
any remote storage site from which you sell Federal or Indian solid 
minerals. You do not have to submit a sales summary for those months in 
which you do not sell any Federal or Indian production.
    (2) If you sell from five or fewer remote storage sites, you must 
submit a sales summary for each site. If you sell from more than five 
remote storage sites, you may total the data from all sites and submit 
the summarized data as one sales summary. The details you report on the 
sales summary are for the same sales reported on Form MMS-4430.
    (3) Use the following table to determine the time frames for 
submitting sales summaries and the data elements you must include. Your 
submitted sales summaries must include the following data but may be 
internally generated documents from your own records. You do not need to 
re-format them before submitting them to us:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              All other
                                                                                                                                             leases with
                                                                                                                         All other leases       no ad
           Data element                    Coal           Sodium/potassium    Western  phosphate         Metals          with ad valorem       valorem
                                                                                                                          royalty terms        royalty
                                                                                                                                                terms
--------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Purchaser Name or Unique       Monthly............  Monthly............  Monthly............  Monthly............  Monthly............  As
 Identification.                                                                                                                             Requested.
(ii) Sales Units.................  Monthly............  Monthly............  Monthly............  Monthly............  Monthly............  Monthly.
(iii) Gross Proceeds.............  Monthly............  Monthly............  Not Required.......  Monthly............  Monthly............  Not
                                                                                                                                             Required.
(iv) Processing or washing costs.  Monthly............  Monthly............  Not Required.......  Monthly............  Monthly............  Not
                                                                                                                                             Required.
(v) Transportation costs.........  Monthly............  Monthly............  Not Required.......  Monthly............  Monthly............  Not
                                                                                                                                             Required.
(vi) Name of product type sold...  Not Required.......  Monthly............  Not Required.......  Monthly............  Monthly............  As
                                                                                                                                             Requested.
(vii) Btu/lb.....................  Monthly............  Not Required.......  Not Required.......  Not Required.......  Not Required.......  Not
                                                                                                                                             Required.
(viii) Ash %.....................  Monthly............  Not Required.......  Not Required.......  Not Required.......  Not Required.......  Not
                                                                                                                                             Required.
(ix) Sulfur %....................  Monthly............  Not Required.......  Not Required.......  Not Required.......  Not Required.......  Not
                                                                                                                                             Required.
(x) lbs SO2......................  Monthly............  Not Required.......  Not Required.......  Not Required.......  Not Required.......  Not
                                                                                                                                             Required.
(xi) Moisture %..................  Monthly............  Not Required.......  Monthly............  Not Required.......  Not Required.......  Not
                                                                                                                                             Required.
(xii) By-product Units...........  Not Required.......  As Requested.......  Monthly............  As Requested.......  As Requested.......  Not
                                                                                                                                             Required.
(xiii) P2O5 %....................  Not Required.......  Not Required.......  Monthly............  Not Required.......  Not Required.......  Not
                                                                                                                                             Required.
(xiv) Size.......................  Not Required.......  Not Required.......  Not Required.......  Not Required.......  As Requested.......  Not
                                                                                                                                             Required.
(xv) Net Smelter Return data.....  Not Required.......  Not Required.......  Not Required.......  Monthly............  Not Required.......  Not
                                                                                                                                             Required.
(xvi) Other Data e.g., Royalty     As Requested.......  Monthly............  As Requested.......  As Requested.......  As Requested.......  As
 Calculation Worksheet.                                                                                                                      Requested.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 164]]

    (b) When to submit. (1) For leases with ad valorem royalty terms 
(that is, leases for which royalty is a percentage of the value of 
production), you must submit your sales summaries monthly at the same 
time you submit Form MMS-4430. You do not have to submit a sales summary 
for any month in which you did not sell Federal or Indian production.
    (2) For leases with no ad valorem royalty terms (that is, leases in 
which the royalty due is not a function of the value of production, such 
as cents-per-ton or dollars-per-unit), you must submit monthly sales 
summaries only if we specifically request you to do so.
    (c) How to submit. (1) You should provide the sales summary data via 
electronic mail where possible. We will provide instructions and the 
proper email address for these submissions.
    (2) If you submit sales summaries by paper copy, mail them to one of 
the following addresses, unless MMS publishes notice in the Federal 
Register giving a different address:
    (i) For U.S. Postal Service regular mail or Express Mail: Minerals 
Management Service, Minerals Revenue Management, Solid Minerals and 
Geothermal Compliance and Asset Management, P.O. Box 25165, MS 390G1, 
Denver, Colorado 80225-0165.
    (ii) For courier service or overnight mail (excluding Express Mail): 
Minerals Management Service, Solid Minerals and Geothermal Compliance 
and Asset Management, 12600 West Colfax Avenue, Suite C-100, Lakewood, 
Colorado 80215.



Sec. 210.203  How do I submit sales contracts?

    (a) What to submit. You must submit sales contracts, agreements, and 
contract amendments for the sale of all coal and other solid minerals 
produced from Federal and Indian leases with ad valorem royalty terms.
    (b) When to submit. (1) For coal and metal production, you must 
submit the required documents semi-annually, no later than March 30 and 
September 30 of each year.
    (2) For sodium, potassium, and phosphate production, and production 
from any other lease with ad valorem royalty terms, you must submit the 
required documents only if you are specifically requested to do so.
    (c) How to submit. You must submit complete copies of the sales 
contracts and amendments to us at the applicable address given in 
Sec. 210.202(c)(2), unless MMS publishes notice in the Federal Register 
giving a different address.



Sec. 210.204  How do I submit facility data?

    (a) What to submit. (1) You must submit facility data if you operate 
a wash plant, refining, ore concentration, or other processing facility 
for any coal, sodium, potassium, metals, or other solid minerals 
produced from Federal or Indian leases with ad valorem royalty terms, 
regardless of whether the facility is located on or off the lease.
    (2) You do not have to submit facility data for those months in 
which you do not process solid minerals produced from Federal or Indian 
leases and do not have any such minerals in stockpile inventory.
    (3) You must include in your facility data all production processed 
in the facility from all properties, not just production from Federal 
and Indian leases.
    (4) Facility data submissions must include the following minimum 
information:
    (i) Identification of your facility;
    (ii) Mines served;
    (iii) Input quantity;
    (iv) Input quality or ore grade (except for coal);
    (v) Output quantity; and
    (vi) Output quality or product grades.
    (5) Your submitted facility data may be internally generated 
documents from your own records. You do not need to re-format them 
before submitting them to us.
    (b) When to submit. You must submit your facility data monthly at 
the same time you submit your Form MMS-4430.
    (c) How to submit. (1) You should provide the facility data via 
electronic mail where possible. We will provide instructions and the 
proper email address for these submissions before you begin reporting.
    (2) If you submit facility data by paper copy, send it to the 
applicable address given in Sec. 210.202(c)(2).

[[Page 165]]



Sec. 210.205  Will I need to submit additional documents or evidence to MMS?

    (a) Federal and Indian lease terms allow us to request detailed 
statements, documents, or other evidence necessary to verify compliance 
with lease terms and conditions and applicable rules.
    (b) We will request this additional information as we need it, not 
as a regular submission.



Sec. 210.206  How will information submissions be kept confidential?

    Information submitted under this part that constitutes trade secrets 
or commercial and financial information that is identified as privileged 
or confidential, or that is exempt from disclosure under the Freedom of 
Information Act, 5 U.S.C. 552, shall not be available for public 
inspection or made public or disclosed without the consent of the 
lessee, except as otherwise provided by law or regulation.

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]



                     Subpart H--Geothermal Resources

    Source: 56 FR 57286, Nov. 8, 1991, unless otherwise noted.



Sec. 210.350  Definitions.

    Terms used in this subpart shall have the same meaning as in 30 CFR 
206.351.



Sec. 210.351  Required recordkeeping.

    Information required by MMS shall be filed using the forms 
prescribed in this subpart, which are available from MMS. Records may be 
maintained on microfilm, microfiche, or other recorded media that are 
easily reproducible and readable. See subpart H of 30 CFR part 212.



Sec. 210.352  Payor information forms.

    The Payor Information Form (Form MMS-4025) must be filed for each 
Federal lease on which geothermal royalties (including byproduct 
royalties) are paid. Where specifically determined by MMS, Form MMS-4025 
is also required for all Federal leases on which rent is due. The 
completed form must be filed by the party who is making the rent or 
royalty payment (payor) for each revenue source. Form MMS-4025 must be 
filed no later than 30 days after issuance of a new lease or a 
modification to an existing lease that changes the paying responsibility 
on the lease. The Form MMS-4025 shall identify the payor of production 
royalty, and identify revenue sources and selling arrangements for all 
leased geothermal resources (including byproducts). After filing the 
initial form, a new Form MMS-4025 must be filed no later than 30 days 
after the occurrence of any of the following:
    (a) Assignment of all or any part of the lease;
    (b) Production of new product;
    (c) A change in a selling arrangement;
    (d) Change in royalty rate;
    (e) Change of payor; or
    (f) Abandonment of a lease.



Sec. 210.353  Special forms and reports.

    The MMS may require submission of additional information on special 
forms or reports. When special forms or reports other than those 
referred to in this subpart are necessary, MMS will give instructions 
for the filing of such forms or reports. Requests for the submission of 
such forms will be made in conformity with the requirements of the 
Paperwork Reduction Act of 1980 and other applicable laws.



Sec. 210.354  Monthly report of sales and royalty.

    A completed Report of Sales and Royalty Remittance (Form MMS-2014) 
must be submitted each month once sales or utilization of production 
occur, even though sales may be intermittent, unless otherwise 
authorized by MMS. This report is due on or before the last day of the 
month following the month in which production was sold or utilized, 
together with the royalties due the United States.



Sec. 210.355  Reporting instructions.

    (a) Specific guidance on how to prepare and submit required 
information collection reports and forms to MMS is

[[Page 166]]

contained in an MMS Oil and Gas Payor Handbook which is available from 
the Minerals Management Service, Royalty Management Program, P.O. Box 
5760, Denver, Colorado 80217-5760.
    (b) Royalty payors should refer to this handbook for specific 
guidance with respect to geothermal resources reporting requirements. If 
additional information is required, the payor should contact the MMS at 
the above address. The appropriate telephone numbers are listed in the 
handbook.

[56 FR 57286, Nov. 8, 1991, as amended at 58 FR 64902, Dec. 10, 1993]

Subpart I--OCS Sulfur [Reserved]



PART 212--RECORDS AND FILES MAINTENANCE--Table of Contents




Subpart A--General Provisions [Reserved]

              Subpart B--Oil, Gas, and OCS Sulphur--General

Sec.
212.50  Required recordkeeping and reports.
212.51  Records and files maintenance.
212.52  Definitions.

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

                   Subpart E--Solid Minerals--General

212.200  Maintenance of and access to records.

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

                     Subpart H--Geothermal Resources

212.350  Definitions.
212.351  Required recordkeeping and reports.

Subpart I--OCS Sulfur [Reserved]

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq., 396a et 
seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et seq., 
1701 et seq.; 31 U.S.C. 9701; 43 U.S.C. 1301 et seq., 1331 et seq., and 
1801 et seq.

Subpart A--General Provisions [Reserved]



              Subpart B--Oil, Gas, and OCS Sulphur--General



Sec. 212.50  Required recordkeeping and reports.

    All records pertaining to offshore and onshore Federal and Indian 
oil and gas leases shall be maintained by a lessee, operator, revenue 
payor, or other person for 6 years after the records are generated 
unless the recordholder is notified, in writing, that records must be 
maintained for a longer period. When an audit or investigation is 
underway, records shall be maintained until the recordholder is released 
by written notice of the obligation to maintain records.

[49 FR 37345, Sept. 21, 1984]



Sec. 212.51  Records and files maintenance.

    (a) Records. Each lessee, operator, revenue payor, or other person 
shall make and retain accurate and complete records necessary to 
demonstrate that payments of rentals, royalties, net profit shares, and 
other payments related to offshore and onshore Federal and Indian oil 
and gas leases are in compliance with lease terms, regulations, and 
orders. Records covered by this section include those specified by lease 
terms, notices and orders, and by the various parts of this chapter. 
Records also include computer programs, automated files, and supporting 
systems documentation used to produce automated reports or magnetic tape 
submitted to the Minerals Management Service (MMS).
    (b) Period for keeping records. Lessees, operators, revenue payors, 
or other persons required to keep records under this section shall 
maintain and preserve them for 6 years from the day on which the 
relevant transaction recorded occurred unless the Secretary notifies the 
record holder of an audit or investigation involving the records and 
that they must be maintained for a longer period. When an audit or 
investigation is underway, records shall be maintained until the 
recordholder is released in writing from the obligation

[[Page 167]]

to maintain the records. Lessees, operators, revenue payors, or other 
persons shall maintain the records generated during the period for which 
they have paying or operating responsibility on the lease for a period 
of 6 years.
    (c) Inspection of records. The lessee, operator, revenue payor, or 
other person required to keep records shall be responsible for making 
the records available for inspection. Records shall be provided at a 
business location of the lessee, operator, revenue payor, or other 
person during normal business hours upon the request of any officer, 
employee or other party authorized by the Secretary. Lessees, operators, 
revenue payors, and other persons will be given a reasonable period of 
time to produce historical records.

[49 FR 37345, Sept. 21, 1984; 49 FR 40576, Oct. 17, 1984, as amended at 
67 FR 19111, Apr. 18, 2002]



Sec. 212.52  Definitions.

    Terms used in this subpart shall have the same meaning as in 30 
U.S.C. 1702.

[49 FR 37345, Sept. 21, 1984]

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals--General



Sec. 212.200  Maintenance of and access to records.

    (a) All records pertaining to Federal and Indian solid minerals 
leases shall be maintained by a lessee, operator, revenue payor, or 
other person for 6 years after the records are generated unless the 
record holder is notified, in writing, that records must be maintained 
for a longer period. When an audit or investigation is underway, records 
shall be maintained until the record holder is released by written 
notice of the obligation to maintain records.
    (b) The MMS shall have access to all records of the operator/lessee 
pertaining to compliance to Federal royalties, including, but not 
limited to:
    (1) Qualities and quantities of all products mined, processed, sold, 
delivered, or used by the operator/lessee.
    (2) Prices received for mined or processed products, prices paid for 
like or similar products, and internal transfer prices.
    (3) Costs of mining, processing, handling, and transportation.

[47 FR 33193, July 30, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
and amended at 51 FR 15767, Apr. 28, 1986; 54 FR 1532, Jan. 13, 1989]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]



                     Subpart H--Geothermal Resources

    Source: 56 FR 57286, Nov. 8, 1991, unless otherwise noted.



Sec. 212.350  Definitions.

    Terms used in this subpart shall have the same meaning as in 30 CFR 
206.351.



Sec. 212.351  Required recordkeeping and reports.

    (a) Records. Each lessee, operator, revenue payor, or other person 
shall make and retain accurate and complete records necessary to 
demonstrate that payments of royalties, rentals, and other amounts due 
under Federal geothermal leases are in compliance with laws, lease 
terms, regulations, and orders. Records covered by this section include 
those specified by lease terms, notices, and orders, and those 
identified in paragraph (c) of this section. Records also include 
computer programs, automated files, and supporting systems documentation 
used to produce automated reports or magnetic tapes submitted to MMS.
    (b) Period for keeping records. All records pertaining to Federal 
geothermal leases shall be maintained by a lessee, operator, revenue 
payor, or other person for 6 years after the records are generated 
unless the recordholder is notified, in writing, before the expiration 
of that 6-year period that records must be maintained for a longer 
period for purposes of audit

[[Page 168]]

or investigation. When an audit or investigation is underway, records 
shall be maintained until the recordholder is released by written notice 
of the obligation to maintain records.
    (c) Access to records. The Associate Director for Minerals Revenue 
Management shall have access to all records in the possession of the 
lessee, operator, revenue payor, or other person pertaining to 
compliance with royalty obligations under Federal geothermal leases 
(regardless of whether such records were generated more than 6 years 
before a request or order to produce them and they otherwise were not 
disposed of), including, but not limited to:
    (1) Qualities and quantities of all products extracted, processed, 
sold, delivered, or used by the operator/lessee;
    (2) Prices received for products, prices paid for like or similar 
products, and internal transfer prices; and
    (3) Costs of extraction, power generation, electrical transmission, 
and byproduct transportation.
    (d) Inspection of Records. The lessee, operator, revenue payor, or 
other person required to keep records shall be responsible for making 
the records available for inspection. Records shall be made available at 
a business location of the lessee, operator, revenue payor, or other 
person during normal business hours upon the request of any officer, 
employee, or other party authorized by the Secretary. Lessees, 
operators, revenue payors, and other persons will be given a reasonable 
period of time to produce records.

[56 FR 57286, Nov. 8, 1991, as amended at 67 FR 19111, Apr. 18, 2002]

Subpart I--OCS Sulfur [Reserved]

         PART 215--ACCOUNTING AND AUDITING STANDARDS [RESERVED]



PART 216--PRODUCTION ACCOUNTING--Table of Contents




                      Subpart A--General Provisions

Sec.
216.1  Purpose.
216.2  Scope.
216.6  Definitions.
216.10  Information collection.
216.11  Electronic reporting.
216.15  Reporting instructions.
216.16  Where to report.
216.20  Applicability.
216.21  General obligations of the reporter.
216.25  Confidentiality.
216.30  Special forms and reports.
216.40  Assessments for incorrect or late reports and failure to report.

                     Subpart B--Oil and Gas, General

216.50  Monthly report of operations.
216.51  Facility and Measurement Information Form.
216.52  First Purchaser Report.
216.53  Oil and Gas Operations Report.
216.54  Gas Analysis Report.
216.55  Gas Plant Operations Report.
216.56  Production Allocation Schedule Report.
216.57  Stripper royalty rate reduction notification.

Subpart C--Oil and Gas, Onshore [Reserved]

Subpart D--Oil, Gas, and Sulphur, Offshore [Reserved]

Subpart E--Solid Minerals, General [Reserved]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal Resources [Reserved]

Subpart I--Indian Land [Reserved]

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396, 2107; 30 U.S.C. 189, 
190, 359, 1023, 1751(a); 31 U.S.C. 3716, 9701; 43 U.S.C. 1334, 1801 et 
seq.; and 44 U.S.C. 3506(a).

    Source: 51 FR 8175, Mar. 7, 1986, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 216.1  Purpose.

    The purpose of this part is to ensure that the Federal Government 
receives proper information regarding energy and mineral resources 
removed from Federal and Indian leases and federally approved 
agreements, including the Outer Continental Shelf (OCS).

[[Page 169]]



Sec. 216.2  Scope.

    This part governs the reporting of oil or gas operations information 
on Federal and Indian leases or federally-approved agreements including 
leases or agreements on the OCS. This part also governs the reporting of 
other operational information associated with production from Federal 
and Indian leases or federally-approved agreements when such operations 
occur prior to the point of sale or royalty determination, whichever is 
applicable. Reporters are required to submit certain production reports 
to MMS as set forth in this part.

[58 FR 45254, Aug. 27, 1993, as amended at 66 FR 45773, Aug. 30, 2001]



Sec. 216.6  Definitions.

    For purposes of this part:
    Agreement means a binding arrangement between two or more parties 
purporting to the act of agreeing or of coming to a mutual arrangement 
that is accepted by all parties to a transaction (e.g., 
communitizations, unitization, gas storage, or compensatory royalty 
agreements.).
    Alaska Native Corporation means a corporation created pursuant to 
the provisions of the Alaska Native Claims Settlement Act (43 U.S.C. 
1601 et seq.).
    Associate Director means the Associate Director for Minerals Revenue 
Management of the MMS.
    Facility means a structure(s) used to store or process Federal or 
Indian mineral production prior to or at the point of royalty 
determination.
    Federal lease means a lease concerning minerals owned by the United 
States and includes a lease where an Alaska Native Corporation receives 
all or part of the royalties accruing from that lease, and the MMS has 
not waived administration of that lease.
    First purchaser means any entity receiving the lease production in a 
first transfer for value transaction.
    Gas means any fluid, either combustible or noncombustible, which is 
extracted from a reservoir and which has neither independent shape nor 
volume, but tends to expand indefinitely; a substance that exists in a 
gaseous or rarefied state under standard temperature and pressure 
conditions.
    Indian lease means a lease concerning lands or interest in lands of 
an Indian Tribe or an Indian allottee, his heirs or devisees, held in 
trust by the United States or which is subject to Federal restriction 
against alienation, including mineral resources and mineral estates 
reserved to an Indian Tribe or an Indian allottee, his heirs or devisees 
thereto in the conveyance of a surface or non-mineral estate, except 
that such term does not include any lands subject to the provisions of 
section 3 of the Act of June 28, 1906 (34 Stat. 539).
    Lease means any contract, profit-share arrangement, joint venture, 
permit, or other agreement issued or approved by the United States under 
a mineral leasing law that authorizes exploration for, extraction of, or 
removal of oil or gas--or the land area covered by that authorization, 
whichever is covered by the context.
    Lessee means any person to whom the United States, an Indian Tribe, 
or an Indian allottee, issues a lease, or any person who has been 
assigned an obligation to make royalty or other payments required by the 
lease.
    Measurement device means a mechanical or electrical device that is 
used to measure production of oil or gas for sales, transfers, and/or 
royalty determination.
    Mineral leasing law means any Federal law administered by the 
Secretary authorizing the disposition under lease of oil or gas.
    Oil means any fluid hydrocarbon substance other than gas which is 
extracted in a fluid state from a reservoir and which exists in a fluid 
state under the existing temperature and pressure conditions of the 
reservoir. Oil includes liquefiable hydrocarbon substances such as drip 
gasoline or other natural condensates recovered in a liquid state from 
gas.
    Operator means any person, including a lessee who has control of, or 
who manages operations on, any oil and gas lease site on Federal 
(including the OCS) or Indian lands. ``Operator'' also means any entity 
engaged in the business of developing, drilling for, producing, 
transporting, purchasing, selling, or processing oil or gas and/or

[[Page 170]]

which has the responsibility of reporting production from a lease or a 
portion thereof.
    Outer Continental Shelf (OCS) has the same meaning as provided in 
section 2 of the Outer Continental Shelf Lands Act, 43 U.S.C. 1331.
    Person means any individual, firm, corporation, association, 
partnership, consortium or joint venture.
    Raw make means natural gas liquids (NGL's) that are extracted from 
the wet gas stream at a gas plant (e.g., ethane through natural 
gasoline) which sometimes is transferred to a fractionation plant for 
further processing.
    Reporter means any reporting entity required to submit a production 
report or form to the MMS.
    Secretary means the Secretary of the Interior or his/her designee.

[51 FR 8175, Mar. 7, 1986, as amended at 58 FR 45254, Aug. 27, 1993; 66 
FR 45773, Aug. 30, 2001; 67 FR 19111, Apr. 18, 2002]



Sec. 216.10  Information collection.

    The information collection requirements contained in this part have 
been approved by OMB under 44 U.S.C. 3501 et seq. The forms, filing 
date, and approved OMB clearance numbers are identified in 30 CFR 
210.10.

[57 FR 41867, Sept. 14, 1992]



Sec. 216.11  Electronic reporting.

    You must submit your Oil and Gas Operations Report, Form MMS-4054, 
in accordance with electronic reporting requirements in 30 CFR part 210.

[64 FR 38123, July 15, 1999]



Sec. 216.15  Reporting instructions.

    (a) Specific guidance on how to prepare and submit required 
information collection reports and forms to MMS is contained in the 
production reporter handbook. The production reporter handbook is 
available from the Minerals Management Service, Minerals Revenue 
Management, P.O. Box 17110, Denver, Colorado 80217-0110.
    (b) Production reporters should refer to the handbook for specific 
guidance with respect to production reporting requirements. If 
additional information is required, the reporter should contact the MMS 
at the above address. The telephone number is listed in the handbook.

[53 FR 16412, May 9, 1988, as amended at 57 FR 41867, Sept. 14, 1992; 58 
FR 64903, Dec. 10, 1993; 67 FR 19111, Apr. 18, 2001]



Sec. 216.16  Where to report.

    (a) All reporting forms listed in this part that are mailed or sent 
by U.S. Postal Service express mail should be mailed to the Minerals 
Management Service, Minerals Revenue Management, P.O. Box 17110, Denver, 
Colorado 80217-0110.
    (b) Reports delivered to MMS by special couriers or overnight mail, 
except U.S. Postal Service express mail, shall be addressed as follows: 
Minerals Management Service, Minerals Revenue Management, Building 85, 
Denver Federal Center, Denver, Colorado 80225.
    (c) A report is considered received when it is delivered to MMS at 
the addresses specified in paragraphs (a) and (b) of this section. 
Reports received at the MMS addresses specified in paragraphs (a) and 
(b) of this section after 4 p.m. mountain time are considered received 
the following business day.

[56 FR 20127, May 2, 1991, as amended at 57 FR 41867, Sept. 14, 1992; 58 
FR 64903, Dec. 10, 1993; 67 FR 19111, Apr. 18, 2002]



Sec. 216.20  Applicability.

    The requirements of this part shall apply to all oil and gas 
operators reporting information on Federal and Indian leases or 
federally-approved agreements, including leases or agreements on the 
OCS.

[58 FR 45254, Aug. 27, 1994, as amended at 66 FR 45773, Aug. 30, 2001]



Sec. 216.21  General obligations of the reporter.

    The reporter shall submit accurately, completely and timely, 
pursuant to the requirements of this part, all information forms and 
other information required by MMS. Specific guidance on the use of the 
required forms is contained in the production reporter handbook. Copies 
of the handbook are available from the MMS.

[51 FR 8175, Mar. 7, 1986, as amended at 67 FR 19111, Apr. 18, 2002]

[[Page 171]]



Sec. 216.25  Confidentiality.

    (a) Information obtained by MMS pursuant to the rules of this part 
shall be open for public inspection and copying during regular office 
hours upon a written request, pursuant to rules at 43 CFR part 2, except 
that:
    (1) Notwithstanding any other provision of this part, information 
obtained from a reporter under this part relating to a minerals 
agreement approved pursuant to the Indian Mineral Development Act of 
1982, 25 U.S.C. 2101 et seq., the Tribal Leasing Act of 1938 (25 U.S.C. 
396a et seq.), or the Allotted Indian Mineral Development Act of 1909 
(25 U.S.C. 396), shall not be released without the written consent of 
the Indian Tribe(s) or individual Indian(s) who are parties to the 
mineral agreement.
    (2) Information obtained from a reporter pursuant to this part that 
constitutes a trade secret and/or commercial or financial information 
which is privileged or confidential, or other information that may be 
withheld under the Freedom of Information Act (5 U.S.C. 552(b)), such as 
geologic and geophysical data concerning wells, shall be available for 
public inspection in accordance with 43 CFR part 2. When such 
information is related to Indian lands, consent to release the 
information must also be obtained from the cognizant Tribe or allottee.
    (b) If any geologic and/or geophysical data is submitted under this 
part, these shall be made available to the public only in accordance 
with the provisions of 30 CFR 250.3, 250.4 and 252.7, if these relate to 
an offshore lease, and in accordance with 43 CFR 3162.8 if these relate 
to an onshore Federal or Indian lease.



Sec. 216.30  Special forms and reports.

    When special forms or reports other than those referred to in the 
regulations in this part are necessary, instructions for the filing of 
such forms or reports will be provided by the Associate Director. Such 
requests will be made in conformity with the requirements of the 
Paperwork Reduction Act of 1995, and are expected to involve less than 
10 respondents annually.

[51 FR 8175, Mar. 7, 1986, as amended at 67 FR 19112, Apr. 18, 2002]



Sec. 216.40  Assessments for incorrect or late reports and failure to report.

    (a) An assessment of an amount not to exceed $10 per day may be 
charged for each report not received by MMS by the designated due date.
    (b) An assessment of an amount not to exceed $10 may be charged for 
each incorrectly completed report.
    (c) For purposes of oil and gas reporting under the PAAS, a report 
is defined as each line of production information required on the 
Monthly Report of Operations (Form MMS-3160), Oil and Gas Operations 
Report (Form MMS-4054), Gas Analysis Report (Form MMS-4055), Gas Plant 
Operations Report (Form MMS-4056), and Production Allocation Schedule 
Report (Form MMS-4058).
    (d) The MMS will not make assessments for reporting problems which 
are beyond the control of the reporter (e.g., reports received late 
because of bad weather). The reporter shall have the burden of proving 
that a reporting problem was unavoidable.
    (e) An assessment under this section shall not be shared with a 
State, Indian tribe, Indian allottee, or Alaska Native Corporation.
    (f) The amount of the assessment to be imposed pursuant to 
paragraphs (a) and (b) of this section shall be established periodically 
by MMS. The assessment amount for each violation will be based on MMS's 
experience with costs and improper reporting. The MMS will publish a 
Notice of the assessment amount to be applied in the Federal Register.

[51 FR 8175, Mar. 7, 1986, as amended at 52 FR 27546, July 22, 1987; 53 
FR 16412, May 9, 1988; 58 FR 64903, Dec. 10, 1993; 59 FR 38905, Aug. 1, 
1994; 66 FR 45773, Aug. 30, 2001]



                     Subpart B--Oil and Gas, General



Sec. 216.50  Monthly report of operations.

    (a) You must submit a Monthly Report of Operations, Form MMS-3160, 
if you operate either an onshore Federal or Indian lease or an onshore 
federally-approved agreement that contains one

[[Page 172]]

or more wells that are not permanently plugged and abandoned. You may 
submit Form MMS-3160 electronically.
    (b) You must submit a Form MMS-3160 for each well for each calendar 
month, beginning with the month in which you complete drilling, unless 
you have only test production from a drilling well or MMS tells you in 
writing to do otherwise.
    (c) MMS must receive your completed Form MMS-3160 according to the 
following table:

------------------------------------------------------------------------
       If you submit your form . . .         We must receive it by . . .
------------------------------------------------------------------------
(1) Electronically........................  The 25th day of the second
                                             month following the month
                                             for which you are
                                             reporting.
(2) Other than electronically.............  The 15th day of the second
                                             month following the month
                                             for which you are
                                             reporting.
------------------------------------------------------------------------

    (d) You must continue reporting until either:
    (1) BLM approves all wells as permanently plugged or abandoned and 
you dispose of all inventory; or
    (2) The lease or agreement is terminated.
    (e) You are not required to submit Form MMS-3160 if:
    (1) You are authorized to submit an Oil and Gas Operations Report, 
Form MMS-4054, instead of a Form MMS-3160; or
    (2) You operate a gas storage agreement. You must report gas storage 
agreements to the appropriate BLM office.
    (f) Specific and detailed guidance on how to prepare and submit the 
required production data on the Form MMS-3160 are contained in the MMS 
PAAS Onshore Oil and Gas Reporter Handbook.See Sec. 216.15 of this part.
    (g)(1) Operators already reporting onshore lease production data to 
MMS in accordance with Sec. 216.53 of this part on the effective date of 
this rule may request to change to the provisions of this section. Any 
request to change to the requirements of this section must be made by 
advance written notice to MMS and have MMS approval.
    (2) An operator who reports production data to MMS for offshore 
leases in accordance with Sec. 216.53 of this part may request to report 
for its onshore leases in accordance with the requirements of that 
section. Any such request must be made by advance written notice to MMS 
and have MMS approval.
    (h)(1) Except where disclosure is required by law, information 
submitted on Form MMS-3160 that MMS classifies as confidential will be 
protected as such by both MMS and BLM for the period of 1 year. 
Operators must petition MMS for each lease or agreement to obtain a 
confidential classification and to extend the classification period 
beyond 1 year.
    (2) Except as provided by statute, information submitted on Form 
MMS-3160 in regard to Federal leases and Indian leases which are part of 
a unit containing non-Indian leases is not considered to be 
confidential.
    (3) Except where disclosure is required by law, all information 
submitted on Form MMS-3160 in regard to Indian leases, other than those 
included in paragraph (d)(2) of this section, will be considered to be 
confidential.
    (4) Except as provided in this subsection, all other information 
will be released.

[53 FR 16412, May 9, 1988, as amended at 58 FR 45254, Aug. 27, 1993; 58 
FR 64903, Dec. 10, 1993; 64 FR 38123, July 15, 1999]



Sec. 216.51  Facility and Measurement Information Form.

    A Facility and Measurement Information Form (Form MMS-4051) must be 
filed for each facility or measurement device which handles production 
from any Federal or Indian lease, or federally-approved agreement, 
through the point of first sale or the point of royalty computation, 
whichever is later. The completed form must be filed by any operator 
(reporting production on a Form MMS-4054) of an onshore Facility 
Measurement Point (FMP) that handles production from any Federal or 
Indian lease or federally-approved agreement prior to, or at the point 
of royalty determination, or any operator who acquires an onshore FMP 
that is currently reporting to the PAAS. The report must be filed no 
later than 30 days after the establishment of a new facility or 
measurement device, or 30 days after a change is

[[Page 173]]

made to an existing facility or measurement device.

[58 FR 45254, Aug. 27, 1993]



Sec. 216.52  First Purchaser Report.

    The First Purchaser Report (Form MMS-4053) must be filed by first 
purchasers only upon the specific request of MMS.

[51 FR 8175, Mar. 7, 1986. Redesignated at 58 FR 64903, Dec. 10, 1993]



Sec. 216.53  Oil and Gas Operations Report.

    (a) You must file an Oil and Gas Operations Report, Form MMS-4054, 
if you operate one of the following that contains one or more wells that 
are not permanently plugged or abandoned:
    (1) An OCS lease or federally-approved agreement; or
    (2) An onshore Federal or Indian lease or federally-approved 
agreement for which you elected to report on a Form MMS-4054 instead of 
a Form MMS-3160.
    (b) You must submit a Form MMS-4054 for each well for each calendar 
month, beginning with the month in which you complete drilling, unless 
you have only test production from a drilling well or MMS tells you in 
writing to do otherwise.
    (c) MMS must receive your completed Form MMS-4054 according to the 
following table:

------------------------------------------------------------------------
       If you submit your form . . .         We must receive it by . . .
------------------------------------------------------------------------
(1) Electronically........................  The 25th day of the second
                                             month following the month
                                             for which you are
                                             reporting.
(2) Other than electronically.............  The 15th day of the second
                                             month following the month
                                             for which you are
                                             reporting.
------------------------------------------------------------------------

    (d) You must continue reporting until either:
    (1) BLM or MMS approves all wells as permanently plugged or 
abandoned and you dispose of all inventory; or
    (2) The lease or agreement is terminated.

[64 FR 38124, July 15, 1999]



Sec. 216.54  Gas Analysis Report.

    When requested by MMS, any operator must file a Gas Analysis Report 
(GAR) (Form MMS-4055) for each royalty or allocation meter. The form 
must contain accurate and detailed gas analysis information. This 
requirement applies to offshore, onshore, or Indian leases.
    (a) MMS may request a GAR when you sell gas, or transfer gas for 
processing, before the point of royalty computation.
    (b) When MMS first requests this report, the report is due within 30 
days. If MMS requests subsequent reports, they will be due no later than 
45 days after the end of the month covered by the report.

[63 FR 26367, May 12, 1998]



Sec. 216.55  Gas Plant Operations Report.

    (a) You must submit a Gas Plant Operations Report, Form MMS-4056, if 
you operate either:
    (1) A gas plant that processes gas originating from an OCS lease or 
federally-approved agreement before the point of final royalty 
determination; or
    (2) A gas plant that processes gas from an onshore Federal or Indian 
lease or federally-approved agreement before the point of final royalty 
determination, and MMS has asked you to submit a Form MMS-4056.
    (b) You must submit a Form MMS-4056 for each calendar month 
beginning with the month gas processing is initiated.
    (c) MMS must receive your completed Form MMS-4056 according to the 
following table:

------------------------------------------------------------------------
                                              We must receive your Form
  If you submit your Form MMS-4054 . . .          MMS-4056 by . . .
------------------------------------------------------------------------
(1) Electronically........................  The 25th day of the second
                                             month following the month
                                             for which you are
                                             reporting.
(2) Other than electronically.............  The 15th day of the second
                                             month following the month
                                             for which you are
                                             reporting.
------------------------------------------------------------------------

    (d) Your report must show 100 percent of the gas.
    (e) You are not required to file a Form MMS-4056 if:
    (1) Your plant has not processed gas that originated from a Federal 
onshore, OCS, or Indian lease, or federally-approved agreement before 
the point of final royalty determination for 6 months; and
    (2) You notified MMS in writing within 30 days after the end of the 
6-month period.

[[Page 174]]

    (f) You must file a Form MMS-4056 when your plant resumes processing 
gas that originated from a Federal onshore, OCS, or Indian lease, or 
federally-approved agreement before the point of final royalty 
determination.

[64 FR 38124, July 15, 1999]



Sec. 216.56  Production Allocation Schedule Report.

    (a) Any operator of an offshore Facility Measurement Point (FMP) 
handling production from a Federal lease or federally-approved agreement 
that is commingled (with approval) with production from any other source 
prior to measurement for royalty determination must file a Production 
Allocation Schedule Report (Form MMS-4058). This report is not required 
whenever all of the following conditions are met:
    (1) All leases involved are Federal leases;
    (2) All leases have the same fixed royalty rate;
    (3) All leases are operated by the same operator;
    (4) The facility measurement device is operated by the same person 
as the leases/agreements;
    (5) Production has not been previously measured for royalty 
determination; and
    (6) The production is not subsequently commingled and measured for 
royalty determination at an FMP for which Form MMS-4058 is required 
under this part.
    (b) You must submit a Production Allocation Schedule Report, Form 
MMS-4058, for each calendar month beginning with the month in which you 
first handle production covered by this section.
    (c) MMS must receive your Form MMS-4058 according to the following 
table:

------------------------------------------------------------------------
                                              We must receive your Form
  If you submit your Form MMS-4054 . . .          MMS-4058 by . . .
------------------------------------------------------------------------
(1) Electronically........................  The 25th day of the second
                                             month following the month
                                             for which you are
                                             reporting.
(2) Other than electronically.............  The 15th day of the second
                                             month following the month
                                             for which you are
                                             reporting.
------------------------------------------------------------------------


[58 FR 45255, Aug. 27, 1993. Redesignated at 58 FR 64903, Dec. 10, 1993, 
as amended at 64 FR 38124, July 15, 1999]



Sec. 216.57  Stripper royalty rate reduction notification.

    In accordance with its regulations at 43 CFR 3103.4-1, titled 
``Waiver, suspension, or reduction of rental, royalty, or minimum 
royalty,'' the Bureau of Land Management (BLM) may grant reduced royalty 
rates to operators of low producing oil leases to encourage continued 
production. Operators who have been granted a reduced royalty rate(s) by 
BLM must submit a Stripper Royalty Rate Reduction Notification (Form 
MMS-4377) to MMS for each 12-month qualifying period that a reduced 
royalty rate(s) is granted.

[58 FR 64903, Dec. 10, 1993]

Subpart C--Oil and Gas, Onshore [Reserved]

Subpart D--Oil, Gas, and Sulfur, Offshore [Reserved]

Subpart E--Solid Minerals, General [Reserved]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal Resources [Reserved]

Subpart I--Indian Land [Reserved]



PART 217--AUDITS AND INSPECTIONS--Table of Contents




Subpart A--General Provisions [Reserved]

                     Subpart B--Oil and Gas, General

Sec.
217.50  Audits of records.
217.51  Lease account reconciliation.
217.52  Definitions.

Subpart C--Oil and Gas, Onshore [Reserved]

Subpart D--Oil, Gas and Sulfur, Offshore [Reserved]

                             Subpart E--Coal

217.200  Audits.

[[Page 175]]

                     Subpart F--Other Solid Minerals

217.250  Audits.

Subpart G--Geothermal [Reserved]

Subpart H--Indian Lands [Reserved]

    Authority: 35 Stat. 312; 35 Stat. 781, as amended; secs. 32, 6, 26, 
41 Stat. 450, 753, 1248; secs. 1, 2, 3, 44 Stat. 301, as amended; secs. 
6, 3, 44 Stat. 659, 710; secs. 1, 2, 3, 44 Stat. 1057; 47 Stat. 1487; 49 
Stat. 1482, 1250, 1967, 2026; 52 Stat. 347; sec. 10, 53 Stat. 1196, as 
amended; 56 Stat. 273; sec. 10, 61 Stat. 915; sec. 3, 63 Stat. 683; 64 
Stat. 311; 25 U.S.C. 396, 396a-f, 30 U.S.C. 189, 271, 281, 293, 359. 
Interpret or apply secs. 5, 5, 44 Stat. 302, 1058, as amended; 58 Stat. 
483-485; 5 U.S.C. 301, 16 U.S.C. 508b, 30 U.S.C. 189, 192c, 271, 281, 
293, 359, 43 U.S.C. 387, unless otherwise noted.

Subpart A--General Provisions [Reserved]



                     Subpart B--Oil and Gas, General

    Authority: The Federal Oil and Gas Royalty Management Act of 1982 
(30 U.S.C. 1701 et seq.).

    Source: 49 FR 37345, Sept. 21, 1984, unless otherwise noted.



Sec. 217.50  Audits of records.

    The Secretary, or his/her authorized representative, shall initiate 
and conduct audits relating to the scope, nature and extent of 
compliance by lessees, operators, revenue payors, and other persons with 
rental, royalty, net profit share and other payment requirements on a 
Federal or Indian oil and gas lease. Audits also will relate to 
compliance with applicable regulations and orders. All audits will be 
conducted in accordance with the notice and other requirements of 30 
U.S.C. 1717.



Sec. 217.51  Lease account reconciliation.

    Specific lease account reconciliations shall be performed with 
priority being given to reconciling those lease accounts specifically 
identified by a State or Indian tribe as having significant potential 
for underpayment.



Sec. 217.52  Definitions.

    Terms used in this subpart shall have the same meaning as in 30 
U.S.C. 1702.

Subpart C--Oil and Gas, Onshore [Reserved]

Subpart D--Oil, Gas and Sulfur, Offshore [Reserved]



                             Subpart E--Coal



Sec. 217.200  Audits.

    An audit of the accounts and books of operators/lessees for the 
purpose of determining compliance with Federal lease terms relating to 
Federal royalties may be required annually or at other times as directed 
by the Associate Director for Minerals Revenue Management. The audit 
shall be performed by a qualified independent certified public 
accountant or by an independent public accountant licensed by a State, 
territory, or insular possession of the United States or the District of 
Columbia, and at the expense of the operator/lessee. The operator/lessee 
shall furnish, free of charge, duplicate copies of audit reports that 
express opinions on such compliance to the Associate Director for 
Minerals Revenue Management within 30 days after the completion of each 
audit. Where such audits are required, the Associate Director for 
Minerals Revenue Management will specify the purpose and scope of the 
audit and the information which is to be verified or obtained.

[47 FR 33195, July 30, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
as amended at 67 FR 19112, Apr. 18, 2002]



                     Subpart F--Other Solid Minerals



Sec. 217.250  Audits.

    An audit of the lessee's accounts and books may be made annually or 
at such other times as may be directed by the mining supervisor, by 
certified public accountants, and at the expense of the lessee. The 
lessee shall furnish free of cost duplicate copies of such annual or 
other audits to the mining supervisor, within 30 days after the 
completion of each auditing.

[37 FR 11041, June 1, 1972. Redesignated at 48 FR 35641, Aug. 5, 1983]

Subpart G--Geothermal [Reserved]

[[Page 176]]

Subpart H--Indian Lands [Reserved]



PART 218--COLLECTION OF ROYALTIES, RENTALS, BONUSES AND OTHER MONIES DUE THE FEDERAL GOVERNMENT--Table of Contents




                      Subpart A--General Provisions

Sec.
218.10  Information collection.
218.40  Assessments for incorrect or late reports and failure to report.
218.41  Assessments for failure to submit payment of same amount as Form 
          MMS-2014 or bill document or to provide adequate information.
218.42  Cross-lease netting in calculation of late-payment interest.

                     Subpart B--Oil and Gas, General

218.50  Timing of payment.
218.51  How to make payments.
218.52  How does a lessee designate a Designee?
218.53  Recoupment of overpayments on Indian mineral leases.
218.54  Late payments.
218.55  Interest payments to Indians.
218.56  Definitions.
218.57  Providing information and claiming rewards.

                     Subpart C--Oil and Gas, Onshore

218.100  Royalty and rental payments.
218.101  Royalty and rental remittance (naval petroleum reserves).
218.102  Late payment or underpayment charges.
218.103  Payments to States.
218.104  Exemption of States from certain interest and penalties.
218.105  Definitions.

                Subpart D--Oil, Gas and Sulfur, Offshore

218.150  Royalties, net profit shares, and rental payments.
218.151  Rental fees.
218.152  Fishermen's Contingency Fund.
218.153  [Reserved]
218.154  Effect of suspensions on royalty and rental.
218.155  Method of payment.
218.156  Definitions.

                   Subpart E--Solid Minerals--General

218.200  Payment of royalties, rentals, and deferred bonuses.
218.201  Method of payment.
218.202  Late payment or underpayment charges.
218.203  Recoupment of overpayments on Indian mineral leases.

                     Subpart F--Geothermal Resources

218.300  Payment of royalties, rentals, and deferred bonuses.
218.301  Method of payment.
218.302  Late payment or underpayment charges.

Subpart G--Indian Lands [Reserved]

    Authority: 25 U.S.C. 396 et seq., 396a et seq., 2101 et seq.; 30 
U.S.C. 181 et seq., 351 et seq., 1001 et seq., 1701 et seq.; 31 U.S.C. 
3335; 43 U.S.C. 1301 et seq., 1331 et seq., and 1801 et seq.

    Source: 48 FR 35641, Aug. 5, 1983, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 218.10  Information collection.

    The information collection requirements contained in this part have 
been approved by OMB under 44 U.S.C. 3501 et seq. The forms, filing 
date, and approved OMB clearance numbers are identified in 30 CFR 
210.10.

[57 FR 41867, Sept. 14, 1992]



Sec. 218.40  Assessments for incorrect or late reports and failure to report.

    (a) An assessment of an amount not to exceed $10 per day may be 
charged for each report not received by MMS by the designated due date.
    (b) An assessment of an amount not to exceed $10 may be charged for 
each incorrectly completed report.
    (c) For purposes of assessments discussed in this section, a report 
is defined as follows:
    (1) For coal and other solid mineral leases, a report is each line 
on the Solid Minerals Production and Royalty Report, Form MMS-4430.
    (2) For oil and gas and geothermal leases, a report is each line on 
the Report of Sales and Royalty Remittance, Form MMS-2014.
    (d) An assessment under this section shall not be shared with a 
State, Indian tribe, or Indian allottee.
    (e) The amount of the assessment to be imposed pursuant to 
paragraphs (a) and (b) of this section shall be established periodically 
by MMS. The assessment amount for each violation will be based on MMS's 
experience with

[[Page 177]]

costs and improper reporting. The MMS will publish a Notice of the 
assessment amount to be applied in the Federal Register.

[49 FR 37346, Sept. 21, 1984. Redesignated and amended at 51 FR 15767, 
Apr. 28, 1986; 52 FR 27546, July 22, 1987; 52 FR 37452, Oct. 7, 1987; 57 
FR 52720, Nov. 5, 1992; 59 FR 38906, Aug. 1, 1994; 66 FR 45773, Aug. 30, 
2001]



Sec. 218.41  Assessments for failure to submit payment of same amount as Form MMS-2014 or bill document or to provide adequate information.

    (a) An assessment of an amount not to exceed $250 may be charged 
when the amount of a payment submitted by a payor is not equivalent in 
amount to the total of individual line items on the associated Form MMS 
2014 or bill document, unless the difference in amount has been 
authorized by MMS.
    (b) An assessment of an amount not to exceed $250 may be charged for 
each payment submitted by a payor that cannot be automatically applied 
by AFS to the associated Form MMS-2014 or bill document because of 
inadequate or erroneous information submitted by the payor. For purposes 
of this section, inadequate or erroneous information is defined as:
    (1) Absent or incorrect payor assigned document number, required to 
be identified by the payor in Block 3a on a Form MMS-2014, or the reuse 
of the same payor assigned document (``3a'') number in a subsequent 
reporting period.
    (2) Absent or incorrect bill document invoice number (to include the 
four character alpha prefix and the eight digit number) or the payor-
assigned 3a number required to be identified by the payor on the 
associated payment document, or the reuse of the same payor assigned 3a 
number in a subsequent reporting period.
    (3) Absent or incorrect name of the administering Bureau of Indian 
Affairs Agency/Area office and the word ``allotted'' or the tribe name 
on payment documents remitted to MMS for an Indian tribe or allottee. If 
the payment is made by EFT, the payor must identify the tribe/allottee 
on the EFT message by a pre-established five digit code.
    (4) Absent or incorrect MMS assigned payor code on a payment 
document.
    (c) For purposes of this section, the term ``Form MMS-2014'' 
includes submission of reports of royalty information by magnetic media. 
Magnetic media submissions include submissions by magnetic tape, 
magnetic cartridge, or floppy diskette.
    (d) For purposes of this section, a bill document is defined as any 
Bill of Collection (Form DI-1040b) that has been issued by MMS for 
assessments, late-payment interest charges, or other amounts owed.
    (e) For purposes of this section, a payment document is defined as 
one of the payment methods identified in Sec. 218.51(a)(3).
    (f) The amount of the assessment to be imposed pursuant to 
paragraphs (a) and (b) of this section shall be established periodically 
by MMS. The assessment amount will be based on MMS' experience with 
costs and improper reporting and/or payment as specified in this 
section. The MMS will publish a Notice in the Federal Register of the 
assessment amount to be applied with the effective date.

[58 FR 45438, Aug. 30, 1993]



Sec. 218.42  Cross-lease netting in calculation of late-payment interest.

    (a) Interest due from a payor on any underpayment for any Federal 
mineral lease or leases (onshore or offshore) and on any Indian tribal 
mineral lease or leases for any production month shall not be reduced by 
offsetting against that underpayment any overpayment made by the payor 
on any other lease or leases, except as provided in paragraph (b) of 
this section. Interest due from a payor or any underpayment on any 
Indian allotted lease shall not be reduced by offsetting against any 
overpayment on any other Indian allotted lease under any circumstances.
    (b) Royalties attributed to production from a lease or leases which 
should have been attributed to production from a different lease or 
leases may be offset to determine whether and to what extent an 
underpayment exists on which interest is due if the following conditions 
are met:
    (1) The error results from attributing and reporting an equal volume 
of production, produced from a lease or

[[Page 178]]

leases during a particular production month, to a different lease or 
leases from which it was not produced for the same or another production 
month;
    (2) The payor is the same for the lease or leases to which 
production was attributed and the lease or leases to which it should 
have been attributed;
    (3) The payor submits production reports, pipeline allocation 
reports, or other similar documentary evidence pertaining to the 
specific production involved which verifies the correct production 
information;
    (4) The lessor is the same for the leases involved (in the case of 
Indian tribal leases, the same tribe is the lessor); and
    (5) The ultimate recipients of any royalty or other lease revenues 
under any applicable permanent indefinite appropriations are the same 
for, and receive the same percentage of revenue from, the leases.
    (c) If MMS assesses late-payment interest and the payor asserts that 
some or all of the interest assessed is not owed pursuant to the 
exception set forth in paragraph (b) of this section, the burden is on 
the payor to demonstrate that the exception applies in the specific 
circumstances of the case.
    (d) The exception set forth in paragraph (b) of this section shall 
not operate to relieve any payor of liability imposed by statute or 
regulation for erroneous reporting.

[57 FR 62206, Dec. 30, 1992]



                     Subpart B--Oil and Gas, General

    Source: 49 FR 37346, Sept. 21, 1984, unless otherwise noted.



Sec. 218.50  Timing of payment.

    (a) Royalty payments are due at the end of the month following the 
month during which the oil and gas is produced and sold except when the 
last day of the month falls on a weekend or holiday. In such cases, 
payments are due on the first business day of the succeeding month. 
Rental payments are due as specified by the lease terms.
    (b) Payments made on a Bill for Collection (Form DI-1040b) are due 
as specified by the Bill. Bills for Collection will be issued and 
payable as final collection actions.
    (c) All payments to MMS are due as specified and are not deferred or 
suspended by reason of an appeal having been filed unless such deferral 
or suspension is approved in writing by an authorized MMS official.



Sec. 218.51  How to make payments.

    (a) Definitions.
    ACH--Automated Clearing House. A type of EFT using the ACH network.
    Courtesy Notice--An MMS-issued notice of rental or bonus due.
    Deferred Bonus Payment--Lease bonus paid in equal annual 
installments over a specified number of years.
    EFT--Electronic Funds Transfer. Any paperless transfer of funds a 
bank initiates through an electronic terminal. For MMS purposes, EFT is 
limited to FEDWIRE and ACH transfers.
    FEDWIRE--A type of EFT using the Federal Reserve Wire network.
    Invoice Document Identification--The MMS-assigned invoice document 
identification (four alpha and eight numeric characters).
    Payment--Any monies for royalty, bonus, rental, late payment charge, 
assessment, penalty, or other money sent to MMS.
    Person--Any individual, firm, corporation, association, partnership, 
consortium, or joint venture (when established as a separate entity). 
The term does not include Federal agencies.
    Report--Form MMS-2014, Report of Sales and Royalty Remittance.
    RIK--Royalty in kind.
    (b) General Instructions. You must make all payments to MMS 
electronically to the extent it is cost effective and practical. If you 
pay money to MMS or to an Indian tribe or allottee, you must follow 
these procedures:
    (1) If MMS instructs you to use EFT, you must use EFT for all 
payments to MMS and/or a tribe.
    (2) Contact MMS before using EFT. MMS will provide you with EFT 
payment instructions.
    (3) Separate any payments on a Federal lease from any payments on an 
Indian lease.
    (4) If you are not required to use EFT, use one of the following 
types of payment documents. MMS prefers that

[[Page 179]]

you use these payment documents in the order presented:
    (i) Commercial check drawn on a solvent bank;
    (ii) Certified check;
    (iii) Cashier's check;
    (iv) Money order;
    (v) Bank draft drawn on a solvent bank; or
    (vi) Federal Reserve check.
    (5) You must include your payor code on all payments.
    (6) You must pay in U.S. dollars.
    (c) How to complete a non-EFT payment. (1) Make any payment on a 
Federal lease payable to: ``Department of the Interior-Minerals 
Management Service'' or ``DOI-MMS.''
    (2) For an Indian allottee payment, send a separate payment for each 
Bureau of Indian Affairs (BIA) agency or area office represented by the 
leases on your report or invoice document. You must include the name of 
the applicable BIA agency or area office on your payment. Make your 
payment document payable to: ``Department of the Interior-Minerals 
Management Service for BIA [Name] Agency (allotted)'' or ``DOI-MMS for 
BIA [Name] Agency (allotted).''
    (3) For an Indian tribal payment other than a lockbox payment, send 
a separate payment for each tribe represented by the leases on your 
report or invoice document. You must include the name of the Indian 
tribe on your payment. Make it payable to: ``Department of the Interior-
Minerals Management Service for BIA [Name of Tribe]'' or ``DOI-MMS for 
BIA [Name of Tribe].''
    (4) For an Indian tribal lockbox payment, follow the instructions 
MMS provides you on how to report and make the lockbox payment. These 
instructions are specific to each tribe's lockbox written agreement with 
the bank authorized to receive payments on the tribe's mineral leases. 
You will receive these instructions from MMS when you are required to 
use a tribal lockbox for reports and payments.
    (d) Where to send a non-EFT payment when you use the U.S. Postal 
Service. (1) For a payment to an Indian tribal lockbox, send your 
payment to the appropriate tribal lockbox address.
    (2) For a Federal nonproducing lease rental or deferred bonus 
payment, send it to:

Minerals Management Service, Minerals Revenue Management, P.O. Box 5640, 
Denver, CO 80217-5640.

    (3) For all other Federal and Indian lease payments other than those 
going to an Indian tribal lockbox, send them to:

Minerals Management Service, Minerals Revenue Management, P.O. Box 5810, 
Denver, CO 80217-5810.

    (e) Where to send a non-EFT payment when you use a courier or 
overnight delivery service. You should send this type of payment to:

Minerals Management Service, Minerals Revenue Management, Building 85, 
Denver Federal Center, Room A-614, Denver, CO 80225-0165.

    (f) How to prepare and what to include on your payment document. (1) 
For Form MMS-2014 payments, you must include both your payor code (block 
2) and your payor-assigned document number (block 3a).
    (2) For invoice payments, including RIK invoice payments, you must 
include both your payor code and invoice document identification (four-
letter prefix and eight-digit number).
    (3) For bonus payments:
    (i) For one-fifth bonus payments for offshore oil, gas, and sulphur 
leases, follow the instructions in the Notice of Lease Offering.
    (ii) For payment of the four-fifths bonus for an offshore lease, use 
EFT and follow the instructions in Sec. 218.155(c).
    (iii) For the successful bidder's bonus in the competitive sale of a 
coal, geothermal, or offshore mineral (other than oil, gas or sulfur) 
lease, follow the instructions and terms of the Notice of Competitive 
Lease Sale.
    (iv) For installment payments of deferred bonuses, you must use EFT.
    (4) If you are paying a lease rental you must:
    (i) See 30 CFR 218.155(c) for instructions on how to pay first-year 
rentals of an offshore oil, gas, or sulfur lease;
    (ii) See the Notice of Lease Offering for instructions on how to pay 
first-

[[Page 180]]

year rentals other than those covered in paragraph (f)(4)(i) of this 
section.
    (iii) Include the MMS Courtesy Notice, when provided, or write your 
payor code and government-assigned lease number on the payment document 
when paying a rental that is not reported on Form MMS-2014 and not paid 
by EFT.
    (g) When is a payment to MMS due? (1) All payments are due to MMS at 
the time law, regulation, or lease terms require unless MMS approves a 
change according to part 243 of this chapter. If you file an appeal, and 
the requirement to submit payment is suspended, the original payment due 
date for purposes such as calculating late payment interest is not 
changed.
    (2) If you use the U.S. Postal Service, courier, or overnight mail 
to send your payment, it is due at the MMS addresses in paragraphs (d) 
and (e) of this section before 4 p.m. Mountain Time on the due date, 
regardless of when you sent it.
    (3) If you use EFT to send your payment, it is due in the MMS 
account by the payment due date. You are responsible for your actions or 
your bank's actions that cause a late or incorrect payment. You will not 
be held responsible for mechanical or system failures of EFT payments.
    (h) What happens if payments are late or overdue?
    (1) If MMS receives your payment late, MMS will impose a late-
payment interest charge under 30 CFR 218.54.
    (2) If you do not pay an amount you owe, MMS may assess civil 
penalties under part 241 of this chapter or other applicable 
regulations.

[62 FR 19498, Apr. 22, 1997, as amended at 66 FR 45773, Aug. 30, 2001; 
67 FR 19112, Apr. 18, 2002]



Sec. 218.52  How does a lessee designate a Designee?

    (a) If you are a lessee under 30 U.S.C. 1701(7), and you want to 
designate a person to make all or part of the payments due under a lease 
on your behalf under 30 U.S.C. 1712(a), you must notify MMS or the 
applicable delegated State in writing of such designation. Your 
notification for each lease must include the following:
    (1) The AID number for the lease;
    (2) The type of products you make payments for e.g., oil, gas.
    (3) The type of payments you are responsible for e.g., royalty, 
minimum royalty, rental.
    (4) Whether you are:
    (i) A lessee of record (record title owner) in the lease, and the 
percentage of your record title ownership in the lease; or
    (ii) An operating rights owner (working interest owner) in the 
lease, and the percentage of your operating rights ownership in the 
lease;
    (5) The name, address, Taxpayer Identification Number (TIN), and 
phone number of your Designee;
    (6) The name, address, and phone number of the individual to contact 
for the person you named in paragraph (a)(5) of this section;
    (7) Your TIN;
    (8) The date the designation is effective;
    (9) The date the designation terminates, if applicable, and
    (10) A copy of the written designation;
    (b) The person you designate under paragraph (a) of this section is 
your Designee under 30 U.S.C. 1701(24) and 30 U.S.C. 1712(a).
    (c) If you want to terminate a designation you made under paragraph 
(a) of this section, you must provide to MMS in writing before the 
termination:
    (1) The date the designation is due to terminate; and
    (2) If you are not reporting and paying royalties and making other 
payments to MMS, a new designation under paragraph (a) of this section.
    (d) MMS may require you to provide notice when there is a change in 
the percentage of your record title or operating rights ownership.

[62 FR 42066, Aug. 5, 1997]



Sec. 218.53  Recoupment of overpayments on Indian mineral leases.

    (a) Whenever an overpayment is made under an Indian oil and gas 
lease, a payor may recoup the overpayment through a recoupment on Form 
MMS-2014 against the current month's royalties or other revenues owed on 
the same lease. However, for any month a payor may not recoup more than 
50

[[Page 181]]

percent of the royalties or other revenues owed in that month under an 
individual allotted lease or more than 100 percent of the royalties or 
other revenues owed in that month under a tribal lease.
    (b) With written permission authorized by tribal statute or 
resolution, a payor may recoup an overpayment against royalties or other 
revenues owed in that month under other leases for which that tribe is 
the lessor. A copy of the tribe's written permission must be furnished 
to MMS pursuant to instructions for reporting recoupments in the MMS 
revenue reporter handbook. See part 210 of this chapter. Recouping 
overpayments on one allotted lease from royalties paid to another 
allotted lease is specifically prohibited.
    (c) Overpayments subject to recoupment under this section include 
all payments made in excess of the required payment for royalty, rental, 
bonus, or other amounts owed as specified by statute, regulation, order, 
or terms of an Indian mineral lease.
    (d) The MMS Director or his/her designee may order any payor to not 
recoup any amount for such reasonable period of time as may be necessary 
for MMS to review the nature and amount of any claimed overpayment.

[60 FR 3087, Jan. 13, 1995, as amended at 67 FR 19112, Apr. 18, 2002]



Sec. 218.54  Late payments.

    (a) An interest charge shall be assessed on unpaid and underpaid 
amounts from the date the amounts are due.
    (b) The interest charge on late payments shall be at the 
underpayment rate established by the Internal Revenue Code, 26 U.S.C. 
6621(a)(2) (Supp. 1987).
    (c) Interest will be charged only on the amount of the payment not 
received. Interest will be charged only for the number of days the 
payment is late.
    (d) A portion of the interest collected will be paid to a State 
where the State shares in mineral revenues from Federal leases.
    (e) An overpayment on a lease or leases may be offset against an 
underpayment on a different lease or leases to determine a net 
underpayment on which interest is due pursuant to conditions specified 
in Sec. 218.42.

[49 FR 37346, Sept. 21, 1984, as amended at 55 FR 37230, Sept. 10, 1990; 
57 FR 62206, Dec. 30, 1992]



Sec. 218.55  Interest payments to Indians.

    (a) All interest collected from unpaid or underpayments on Indian 
tribal or allotted leases will be paid to the tribe or allottee.
    (b) Any disbursement of Indian mineral revenues not made by the due 
date as required in Sec. 219.103 of this chapter shall accrue interest.
    (c) Interest shall be computed at the underpayment rate established 
by the Internal Revenue Code, 26 U.S.C. 6621(a)(2) (Supp. 1987).
    (d) The interest shall be payable only for the number of days the 
disbursement is late.

[49 FR 37346, Sept. 21, 1984, as amended at 55 FR 37230, Sept. 10, 1990]



Sec. 218.56  Definitions.

    Terms used in this subpart shall have the same meaning as in 30 
U.S.C. 1702.

[49 FR 37346, Sept. 21, 1984. Redesignated at 51 FR 15767, Apr. 28, 
1986]



Sec. 218.57  Providing information and claiming rewards.

    (a) General. (1) If a person has any information that could lead to 
the recovery of royalty or other payments owed to the United States with 
respect to any oil and gas lease on Federal lands or the Outer 
Continental Shelf, such information may be provided to the Minerals 
Management Service (MMS) in accordance with this paragraph. The MMS is 
authorized, under the Federal Oil and Gas Royalty Management Act of 1982 
(FOGRMA), 30 U.S.C. 1723, to pay a reward for information with respect 
to Federal oil and gas leases. Funds must be appropriated before payment 
of any reward. Criteria and procedures covering claims for and payment 
of rewards are provided in paragraphs (b), (c), and (d) of this section.
    (2) If a person has any information he or she believes would be 
valuable to MMS, that person (``informant'') should submit the 
information in writing, in the form of a letter, mailed or

[[Page 182]]

delivered in person to the Director, Minerals Management Service, 
Department of the Interior, 18th and C Street, NW., Washington, DC 
20240, or to the Director's designated representative. Although written 
communications are preferred, oral information will be accepted.
    (3) The informant should provide all data he or she has with respect 
to royalty or other payments owed. The information provided should 
include: identification of the alleged debtor; the source of the 
informant's knowledge of royalties or other payments owed; the date, if 
known, of the indebtedness; and any other information that could be used 
to establish indebtedness. All information received by MMS from persons 
providing information will be considered ``highly confidential'' and 
will not be disclosed to any individual except on a ``need to know'' 
basis in the performance of official duties.
    (b) Claim for reward. (1) Any informant who provides information 
that could lead to the recovery of royalty or other payments may file a 
claim for reward unless the person is an officer or employee of the 
United States, an officer or employee of a State or Indian tribe acting 
pursuant to a cooperative agreement or delegation under the FOGRMA, or 
any person acting pursuant to a contract authorized by the FOGRMA.
    (2) A claim for reward is not acceptable if filed on behalf of a 
claimant by his or her agent under power of attorney. However, an agent 
may provide MMS with information for an unidentified informant, to be 
evaluated and used by MMS as it deems appropriate. The informant's 
identity ultimately must be disclosed if the informant intends to file a 
claim for reward so that MMS can report the reward as taxable income to 
the Internal Revenue Service. An executor, administrator, or other legal 
representative of a deceased informant may file a claim on behalf of 
such deceased informant if, prior to his or her death, the informant was 
eligible to file a claim under this section. The representative must 
attach to the claim evidence of authority to file it.
    (3) To file a claim for reward the informant must:
    (i) Notify the Director, MMS, or the person to whom the information 
was reported, that he/she is claiming a reward.
    (ii) Request an ``Application for Reward for Original Information'' 
(Form MMS-4280). This form provides for information to enable MMS to 
determine and pay rewards, to control reward applications, and to report 
a claimant's reward as taxable income to the Internal Revenue Service.
    (iii) File a claim for reward by completing Form MMS-4280, sign it 
with his or her true name, and mail or deliver it in person to the 
Director or to the Director's designated representative. If the 
informant provided the information in person, the claim should include 
the name and title of the person to whom the information was reported 
and the date that it was reported.
    (4) If the informant used an identity other than his or true name 
when the information was originally reported, the person should attach 
proof to the claim that he or she is the person who gave the 
information. The MMS does not disclose the identity of its informants to 
unauthorized persons.
    (c) Basis for rejection of claims. No reward will be paid to a 
claimant:
    (1) Where the information originally furnished was deemed unworthy 
of initiating an investigation, but at some later date the records of 
the lessee are examined without reference to the information furnished. 
The claim will be rejected on the basis that the information did not 
cause the investigation nor did it, in itself, result in any recovery.
    (2) For information that would have been discovered during the 
normal course of an audit or investigation.
    (3) Unless the informant's true identity is disclosed.
    (4) Until after all of the royalties, penalties, or other payments 
discovered to be owed as a result of information provided are collected 
and no longer subject to dispute.
    (5) Unless funds are appropriated for the payment of rewards.
    (d) Basis for allowance of claims. (1) The value of the information 
furnished in relation to the facts developed by

[[Page 183]]

the investigation will be taken into account in determining whether a 
reward shall be paid and, if so, the amount thereof. Information must be 
voluntarily given and upon the informant's own initiative to warrant the 
allowance of a reward. Information secured by representatives of MMS 
from witnesses and others in the course of their investigative 
activities does not constitute a basis for reward.
    (2) In determining whether a reward will be allowed and, if so, the 
amount thereof, consideration will be given to any corresponding 
adjustment(s) which will result in potential savings to the lessee for 
other leases owned by the lessee or an affiliate of the lessee. An 
example of such an adjustment is a reduction in royalty payment on a 
different lease as the result of a revised allocation under a 
unitization or communitization agreement or from an offshore pipeline 
system. Rewards otherwise allowable will be reduced or rejected by 
reason of such offsetting adjustments.
    (3) If several claims filed by one informant are considered in one 
recommendation, the reward, if any, may be allowed on one claim and the 
others may be closed by reference.
    (4) Where an informant has provided information and filed a claim 
for reward with respect to royalty reports of one lessee for several 
leases, no reward will be granted with respect to an individual lease 
which has been examined until examination of all leases involved has 
been completed. Because the possibility exists that adjustments made to 
the reports for the open leases may result in offsetting adjustments, no 
reward will be allowed until the overall results of the information are 
evaluated.
    (e) Amount and payment of reward. (1) The Director, MMS will 
determine whether a reward will be paid and, if so, the amount thereof. 
In making this decision, the information provided will be evaluated in 
relation to the facts developed by the resulting investigation. Claims 
for reward will be paid in proportion to the value of information 
furnished voluntarily and on the informant's own initiative with respect 
to recovered royalties or other payments. The amount of reward will be 
determined as follows:
    (i) For specific and responsible information that caused the 
investigation and resulted in recovery, the reward will be 10 percent of 
the first $75,000 recovered, 5 percent of the next $25,000, and 1 
percent of any additional recovery. The total reward cannot exceed 
$100,000.
    (ii) For information that caused the examination and was of value in 
determining royalty or other payments due, although not specific, and 
for information that was a direct factor in recovering royalty or other 
payments, the reward will be 5 percent of the first $75,000 recovered, 
2\1/2\ percent of the next $25,000, and \1/2\ percent of any additional 
recovery. The total reward cannot exceed $100,000.
    (iii) For information that caused the investigation but was of no 
value in determining royalty or other payments due, the reward will be 1 
percent of the first $75,000 recovered and \1/2\ percent of any 
additional recovery. The total reward cannot exceed $100,000.
    (2) Rewards will be paid only if moneys are appropriated for that 
purpose. Subject to appropriations, payments will be made as soon as 
possible after collection of the amounts owed by the lessee, and after 
those amounts no longer are subject to dispute by the payor. The reward 
payment to an informant will be net of Federal and State income tax in 
accordance with withholding guidelines of the Internal Revenue Service 
and the applicable State(s).
    (3) A decision by the Director, MMS, either denying a reward or 
establishing the amount of any reward is a final departmental action and 
may not be appealed to the Interior Board of Land Appeals in accordance 
with the provisions of 30 CFR part 290.

(Approved by the Office of Management and Budget under control number 
1010-0076)

[52 FR 24451, July 1, 1987]



                     Subpart C--Oil and Gas, Onshore



Sec. 218.100  Royalty and rental payments.

    (a) Payment of royalties and rentals. As specified under the 
provisions of the lease, the lessee shall submit all rental

[[Page 184]]

payments when due and shall pay in value or deliver in production all 
royalties in the amounts of value or production determined by MMS to be 
due.
    (b) If the lessor elects to take royalty in oil or gas, unless 
otherwise agreed upon, such royalty shall be delivered on the leasehold, 
by the lessee to the order of and without cost to the lessor, as 
instructed by the Associate Director.
    (c) Method of payment. The payor shall tender all payments in 
accordance with 30 CFR 218.51.

[47 FR 47773, Oct. 27, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
and amended at 52 FR 23815, June 25, 1987]



Sec. 218.101  Royalty and rental remittance (naval petroleum reserves).

    Remittance covering payments of royalty or rental on naval petroleum 
reserves must be accomplished by necessary identification information 
and sent direct to the Director, Naval Petroleum Reserves in California.

[47 FR 47773, Oct. 27, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983]



Sec. 218.102  Late payment or underpayment charges.

    (a) The failure to make timely or proper payments of any monies due 
pursuant to leases, permits, and contracts subject to these regulations 
will result in the collection by the MMS of the full amount past due 
plus a late payment charge. Exceptions to this late payment charge may 
be granted when estimated payments on minerals production have already 
been made timely and otherwise in accordance with instructions provided 
by MMS to the payor. However, late payment charges assessed with respect 
to any Indian lease, permit, or contract shall be collected and paid to 
the Indian or tribe to which the amount overdue is owed.
    (b) Late payment charges will be assessed on any late payment or 
underpayment from the date that the payment was due until the date that 
the payment was received at the MMS addresses specified in Sec. 218.51. 
Payments received at the specified MMS addresses after 4 p.m. mountain 
time are considered received the following business day.
    (c) Late payment charges apply to all underpayments and payments 
received after the date due. The charges include production and minimum 
royalties; assessments for liquidated damages; administrative fees and 
payments by purchasers of royalty taken-in-kind; or any other payments, 
fees, or assessments that a lessee/operator/permittee/payor/royalty 
taken-in-kind purchaser is required to pay by a specified date. The 
failure to pay past due amounts, including late-payment charges, will 
result in the initiation of other enforcement proceedings.
    (d) An overpayment on a lease or leases may be offset against an 
underpayment on a different lease or leases to determine a net 
underpayment on which interest is due pursuant to conditions specified 
in Sec. 218.42.

[47 FR 47773, Oct. 27, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
and amended at 49 FR 37347, Sept. 21, 1984; 57 FR 41868, Sept. 14, 1992; 
57 FR 62206, Dec. 30, 1992; 67 FR 19112, Apr. 18, 2002]



Sec. 218.103  Payments to States.

    (a) Any amount that is payable by MMS to a State but is not paid on 
the due date, as specified in Sec. 219.100 of this chapter, or that is 
held in a suspense account pending resolution of a dispute as specified 
in Sec. 219.101 of this chapter, shall accrue interest payable to the 
State.
    (b) Interest shall be computed at the underpayment rate established 
by the Internal Revenue Code, 26 U.S.C. 6621(a)(2) (Supp. 1987).
    (c) Interest shall be computed only for the number of days the 
disbursement is late. In the case of suspended amounts subject to 
interest, it shall be computed beginning with the calendar day following 
the day that the monies normally would have been paid to the State had 
they not been in suspense.

[49 FR 37347, Sept. 21, 1984, as amended at 55 FR 37230, Sept. 10, 1990]



Sec. 218.104  Exemption of States from certain interest and penalties.

    (a) States are exempt from being assessed for any interest or 
penalties found to be due against the Department of the Interior for 
failure to comply with the Emergency Petroleum Allocation Act of 1973, 
as amended, or

[[Page 185]]

any regulation issued by the Secretary of Energy thereunder concerning 
the certification or processing of crude oil taken in-kind as royalty by 
the Secretary.
    (b) Any State shall be assessed for its share of any overcharge 
resulting from a determination that DOI failed to comply with the 
Emergency Petroleum Allocation Act of 1973, as amended. Each State's 
share shall be assessed against monies owed to the State. Such 
assessment shall be first against monies owed to such State as a result 
of royalty audits prior to January 12, 1983, the enactment date of the 
Federal Oil and Gas Royalty Management Act of 1982, then against other 
monies owed. The State shall be liable for any balance.
    (c) A State's liability for repayment of an overcharge under this 
section shall exist for any amounts resulting from a judgment in a civil 
suit or as the result of settlement of a claim through a negotiated 
agreement. State liability would be offset against future mineral 
revenue distributions to the State.

[49 FR 37347, Sept. 21, 1984]



Sec. 218.105  Definitions.

    Terms used in this subpart have the same meaning as in 30 U.S.C. 
1702.

[49 FR 37347, Sept. 21, 1984]



                Subpart D--Oil, Gas and Sulfur, Offshore



Sec. 218.150  Royalties, net profit shares, and rental payments.

    (a) As specified under the provisions of the lease, the lessee shall 
submit all rental payments when due and shall pay in value or deliver in 
production all royalties and net profit shares in the amounts of value 
or production determined by MMS to be due.
    (b) The failure to make timely or proper payments of any monies due 
pursuant to leases, permits, and contracts subject to these regulations 
will result in the collection of the amount past due plus a late payment 
charge. Exceptions to this late payment charge may be granted when 
estimated payments on minerals production have already been made timely 
and otherwise in accordance with instructions provided by MMS to the 
payor.
    (c) Late payment charges will be assessed on any late payment or 
underpayment from the date that the payment was due until the date that 
the payment was received at the MMS addresses specified in Sec. 218.51. 
Payments received at the specified MMS addresses after 4 p.m. mountain 
time are considered received the following business day.
    (d) Late payment charges apply to all underpayments and payments 
received after the date due. These charges include production and 
minimum royalties; assessments for liquidated damages; administrative 
fees and payments by purchasers of royalty taken-in-kind; or any other 
payments, fees, or assessments that a lessee/operator/payor/permittee/
royalty taken-in-kind purchaser is required to pay by a specified date. 
The failure to pay past due amounts, including late payment charges, 
will result in the initiation of other enforcement proceedings.
    (e) An overpayment on a lease or leases, excluding rental payments, 
may be offset against an underpayment on a different lease or leases to 
determine a net underpayment on which interest is due pursuant to 
conditions specified in Sec. 218.42.

[47 FR 22528, May 25, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
and amended at 49 FR 37347, Sept. 21, 1984; 52 FR 23815, June 25, 1987; 
57 FR 41868, Sept. 14, 1992; 57 FR 62206, Dec. 30, 1992; 67 FR 19112, 
Apr. 18, 2002]



Sec. 218.151  Rental fees.

    The annual rental paid in any year is in addition to, and is not 
credited against, any royalties due from production. The lessee must pay 
an annual rental as shown in paragraphs (a), (b), and (c) of this 
section. Discovery means one or more wells on the lease that meet the 
requirements in 250, subpart A of this title.
    (a) This paragraph applies to any lease not covered by paragraph (b) 
or paragraph (c) of this section.

[[Page 186]]



------------------------------------------------------------------------
                                   Issued as a
             For--               result of a sale   The lessee must pay
                                      held--              rental--
------------------------------------------------------------------------
(1) An oil and gas lease......  Before March 26,   On or before the
                                 2001.              first day of each
                                                    lease year before
                                                    the discovery of oil
                                                    or gas on the lease.
(2) An oil and gas lease......  After March 26,    On or before the
                                 2001.              first day of each
                                                    lease year before
                                                    the discovery of oil
                                                    or gas on the lease,
                                                    then on or before
                                                    the last day of each
                                                    lease year in any
                                                    full year in which
                                                    royalties on
                                                    production are not
                                                    due.
(3) A mineral lease for other   Before March 26,   On or before the
 than oil or gas.                2001.              first day of each
                                                    lease year before
                                                    the discovery of
                                                    paying quantities.
(4) A mineral lease for other   After March 26,    On or before the
 than oil or gas.                2001.              first day of each
                                                    lease year before
                                                    the date the first
                                                    royalty payment is
                                                    due on the lease,
                                                    then on or before
                                                    the last day of each
                                                    lease year in any
                                                    full year in which
                                                    royalties on
                                                    production are not
                                                    due.
------------------------------------------------------------------------

    (b) This paragraph applies to any lease created by segregating a 
portion of a producing lease when there is no actual or allocated 
production on the segregated portion. The lessee must pay an annual 
rental for the segregated portion at the rate specified in the lease. 
The lessee must pay the rental as shown in the following table.

------------------------------------------------------------------------
    If the lease results from a
           segregation--                The lessee must pay rental--
------------------------------------------------------------------------
(1) Before March 26, 2001.........  On or before the first day of each
                                     lease year before the discovery of
                                     oil or gas on the segregated
                                     portion.
(2) After March 26, 2001..........  On or before the first day of each
                                     lease year before the discovery of
                                     oil or gas on the lease, then on or
                                     before the last day of each lease
                                     year in any full year in which
                                     royalties on production are not
                                     due.
------------------------------------------------------------------------

    (c) For leases issued subject to the net profit sharing provisions, 
annual rental payments shall be due and payable in advance, on the first 
day of each lease year which commences prior to the date the first 
profit share payment becomes due. The owner of any lease created by the 
segregation of a portion of a lease subject to net profit sharing 
provisions, shall pay an annual rental for such segregated portion at 
the rate per acre or hectare specified in the lease. This rental shall 
be payable each year following the year in which the segregation becomes 
effective and shall continue to be due and payable, in advance, on the 
first day of each year which commences prior to the date the first 
profit share payment becomes due.

[44 FR 38276, June 29, 1979, as amended at 45 FR 69175, Oct. 17, 1980; 
47 FR 25972, June 16, 1982. Redesignated at 47 FR 47006, Oct. 22, 1982, 
and at 48 FR 35641, Aug. 5, 1983; 66 FR 11518, Feb. 23, 2001; 67 FR 
19112, Apr. 18, 2002]



Sec. 218.152  Fishermen's Contingency Fund.

    Upon the establishment of the Fishermen's Contingency Fund, any 
holder of a lease issued or maintained under the Outer Continental Shelf 
Lands Act and any holder of an exploration permit or of an easement or 
right-of-way for the construction of a pipeline, shall pay an amount 
specified by the Director, MMS, who shall assess and collect the 
specified amount from each holder and deposit it into the Fund. With 
respect to prelease exploratory drilling permits, the amount will be 
collected at the time of issuance of the permit.

[52 FR 5458, Feb. 23, 1987]



Sec. 218.153  [Reserved]



Sec. 218.154  Effect of suspensions on royalty and rental.

    (a) MMS will not relieve the lessee of the obligation to pay rental 
or minimum royalty for or during the suspension if the Regional 
Supervisor:
    (1) Grants a suspension of operations or production, or both, at the 
request of the lessee; or
    (2) Directs a suspension of operations or production, or both, under 
30 CFR 250.173(a).
    (b) MMS will not require a lessee to pay rental or minimum royalty 
for or during the suspension if the Regional

[[Page 187]]

Supervisor directs a suspension of operations or production, or both, 
except as provided in (a)(2) of this section.
    (c) If the lease anniversary date falls within a period of 
suspension for which no rental or minimum royalty payments are required 
under paragraph (a) of this section, the prorated rentals or minimum 
royalties are due and payable as of the date the suspension period 
terminates. These amounts shall be computed and notice thereof given the 
lessee. The lessee shall pay the amount due within 30 days after receipt 
of such notice. The anniversary date of a lease shall not change by 
reason of any period of lease suspension or rental or royalty relief 
resulting therefrom.

[44 FR 38276, June 29, 1979; 44 FR 55380, Sept. 26, 1979. Redesignated 
and amended at 47 FR 47006, 47007, Oct. 22, 1982. Further redesignated 
at 48 FR 35641, Aug. 5, 1983 and amended at 51 FR 19063, May 27, 1986; 
54 FR 50616, Dec. 8, 1989; 64 FR 72775, Dec. 28, 1999]



Sec. 218.155  Method of payment.

    (a) Payment of royalties and rentals. With the exception of first-
year rental, the payor shall tender all payments in accordance with 
Sec. 218.51. First-year rental shall be paid in accordance with 
paragraph (c) of this section.
    (b) Payment of the one-fifth bonus bid amount. (1) Each lease bid 
must include a payment for the one-fifth bonus bid deposit amount unless 
the bidder is otherwise directed by the Secretary. Further instructions 
on how to make payment with the bid will be included in the notice of 
each lease offering. EFT may be used as a method of payment for the one-
fifth bonus bid amount.
    (2) Beginning with lease offerings held after February 1, 1984, the 
one-fifth bonus amount received from a high bidder shall be deposited 
into an escrow account created pursuant to an agreement between the 
Departments of the Interior and Treasury, pending acceptance or 
rejection of the bid. The one-fifth bonus funds will be invested in 
public debt securities. Investment of this amount by the U.S. Government 
does not indicate acceptance of the bid. The one-fifth bonus checks 
submitted with bids other than the highest valid bid shall be returned 
to respective bidders after bids are opened, recorded, and ranked. 
Return of such checks will not affect the status, validity, or ranking 
of bids. The one-fifth bonus bid amount received from any high bidder 
and held by the Government pending acceptance or rejection, will be 
returned with actual interest earned, if the bid is subsequently 
rejected. The interest accrued during the period held in the account 
pending acceptance or rejection of the bid will accrue to the Government 
when the bid is accepted.
    (c) Payment of the four-fifths bonus bid amount and the first year's 
rental. Payment shall be made to MMS by EFT unless otherwise directed by 
the Secretary. The payment by EFT via the FRCS must be received by the 
Federal Reserve Bank of New York no later than noon, eastern standard 
time, on the 11th business day after receipt of the lease forms by the 
successful bidder. A ``business day'' is considered to be a day on which 
the OCS regional office issuing the lease is open for business. The 
lease will not be executed by the appropriate MMS official until payment 
is received. Failure to remit by EFT or as directed by the Secretary 
within the time specified above will result in forfeiture of the one-
fifth bonus bid amount and the lease will not be executed by the 
appropriate MMS official. Payors will not be held responsible for late 
payment due to actions beyond their control, such as mechanical or 
systems failure of FRCS or FDS. Payors will be held responsible for 
incorrect actions of their bank which result in late payments. A 2-day 
grace period will be allowed to make up a deficient payment, but a late 
payment charge will be assessed for this late payment and a penalty will 
also be assessed if appropriate. Late payment charges will be assessed 
in accordance with Subpart B of this part.
    (d) General. (1) Payors using the appropriate means of payment (EFT, 
check, etc.) may pay for multiple lease obligations with a single 
remittance but must ensure that the payment complies with subpart B of 
this part and the remittance advice adequately identifies the single 
payment. The format to be used for such identification will be provided 
by the MMS Accounting Center.

[[Page 188]]

    (2) Where to pay.
    (3) The MMS mailing addresses for payments to MMS are specified in 
Sec. 218.51.
    (4) Payments received at the MMS addresses after 4 p.m. mountain 
time are considered received the following business day.
    (e) Miscellaneous payments. Payments shall be made to the manager of 
the appropriate Outer Continental Shelf field office by cash, check or 
bank draft payable to ``Department of the Interior--MMS'' for 
miscellaneous payments such as:
    (1) Pipeline rights-of-way application filing fees and rentals, 
pipeline accessory site rentals and application fees, and other related 
costs.
    (2) Filing and approval fees for transfers of interest in leases.

[49 FR 8605, Mar. 8, 1984, as amended at 52 FR 23815, June 25, 1987; 53 
FR 43201, Oct. 26, 1988; 57 FR 41868, Sept. 14, 1992; 62 FR 19499, Apr. 
22, 1997; 67 FR 19112, Apr. 18, 2002]



Sec. 218.156  Definitions.

    Terms used in this subpart have the same meaning as in 30 U.S.C. 
1702.

[52 FR 23815, June 25, 1987]



                   Subpart E--Solid Minerals--General



Sec. 218.200  Payment of royalties, rentals, and deferred bonuses.

    As specified under the provisions of the lease, the lessee shall 
submit all rental and deferred bonus payments when due and shall pay in 
value all royalties in the amount determined by MMS to be due.

[52 FR 23815, June 25, 1987]



Sec. 218.201  Method of payment.

    You must tender all payments in accordance with Sec. 218.51, except 
as follows:
    (a) For purposes of this section, report means the Solid Minerals 
Production and Royalty Report, Form MMS-4430, rather than the Form MMS-
2014.
    (b) For Form MMS-4430 payments, include both your customer 
identification and your customer document identification numbers on your 
payment document, rather than the information required under 
Sec. 218.51(f)(1).
    (c) For a rental payment that is not reported on Form MMS-4430, 
include the MMS Courtesy Notice when provided or write your customer 
identification number and Government-assigned lease number on the 
payment document, rather than the information required under 
Sec. 218.51(f)(4)(iii).

[66 FR 45773, Aug. 30, 2001]



Sec. 218.202  Late payment or underpayment charges.

    (a) The failure to make timely or proper payment of any monies due 
pursuant to leases and contracts subject to these rules will result in 
the collection by MMS of the full amount past due plus a late payment 
charge. Exceptions to this late payment charge may be granted when 
estimated payments on minerals production have already been made timely 
and otherwise in accordance with instructions provided by MMS to the 
operator/lessee. However, late payment charges assessed with respect to 
any Indian lease, permit, or contract shall be collected and paid to the 
Indian or tribe to which the amount overdue is owed.
    (b) Late payment charges will be assessed on any late payment or 
underpayment from the date that the payment was due until the date that 
the payment was received at the MMS addresses specified in Sec. 218.51. 
Payments received at the specified MMS addresses after 4 p.m. mountain 
time are considered received the following business day.
    (c) Late payment charges are calculated on the basis of a percentage 
assessment rate. In the absence of a specific lease, permit, license or 
contract provision prescribing a different rate, this percentage 
assessment rate is prescribed by the Department of the Treasury as the 
``Treasury Current Value of Funds Rate.''
    (d) This rate is available in the Treasury Fiscal Requirements 
Manual Bulletins that are published prior to the first day of each 
calendar quarter for application to overdue payments or underpayments in 
the new calendar quarter. The rate is also published in the Notices 
section of the Federal Register and indexed under ``Fiscal Service/
Notices/Funds Rate; Treasury Current Value.''

[[Page 189]]

    (e) Late payment charges apply to all underpayments and payments 
received after the date due. These charges include production, minimum, 
or advance royalties; assessments for liquidated damages; or any other 
payments, fees, or assessments that an operator/lessee is required to 
pay by a specified date. The failure to pay past due payments, including 
late payment charges, will result in the initiation of other enforcement 
proceedings.
    (f) An overpayment on a lease or leases may be offset against an 
underpayment on a different lease or leases to determine a net 
underpayment on which interest is due pursuant to conditions specified 
in Sec. 218.42.

[47 FR 33195, July 30, 1982; 47 FR 53366, Nov. 26, 1982. Redesignated at 
48 FR 35641, Aug. 5, 1983, and further redesignated at 52 FR 23815, June 
25, 1987, as amended at 57 FR 41868, Sept. 14, 1992; 57 FR 62207, Dec. 
30, 1992; 59 FR 14559, Mar. 29, 1994; 65 FR 55189, Sept. 13, 2000; 67 FR 
19112, Apr. 18, 2002]



Sec. 218.203  Recoupment of overpayments on Indian mineral leases.

    (a) Whenever an overpayment is made under an Indian solid mineral 
lease, a payor may recoup the overpayment through a recoupment on Form 
MMS-4430 against the current month's royalties or other revenues owed on 
the same lease. However, for any month a payor may not recoup more than 
50 percent of the royalties or other revenues owed in that month under 
an individual allotted lease or more than 100 percent of the royalties 
or other revenues owed in that month under a tribal lease.
    (b) With written permission authorized by tribal statute or 
resolution, a payor may recoup an overpayment against royalties or other 
revenues owed in that month under other leases for which that tribe is 
the lessor. A copy of the tribe's written permission must be furnished 
to MMS for reporting recoupments. Call 1-888-201-6416 for instructions. 
Recouping overpayments on one allotted lease from royalties paid to 
another allotted lease is specifically prohibited.
    (c) Overpayments subject to recoupment under this section include 
all payments made in excess of the required payment for royalty, rental, 
bonus, or other amounts owed as specified by statute, regulation, order, 
or terms of an Indian mineral lease.
    (d) The MMS Director or his/her designee may order any payor to not 
recoup any amount for such reasonable period of time as may be necessary 
for MMS to review the nature and amount of any claimed overpayment.

[60 FR 3087, Jan. 13, 1995, as amended at 66 FR 45773, Aug. 30, 2001; 66 
FR 50827, Oct. 5, 2001]



                     Subpart F--Geothermal Resources



Sec. 218.300  Payment of royalties, rentals, and deferred bonuses.

    As specified under the provisions of the lease, the lessee shall 
submit all rental and deferred bonus payments when due and shall pay in 
value all royalties in the amount determined by MMS to be due.

[52 FR 23815, June 25, 1987]



Sec. 218.301  Method of payment.

    The payor shall tender all payments in accordance with 30 CFR 
218.51.

[52 FR 23815, June 25, 1987]



Sec. 218.302  Late payment or underpayment charges.

    (a) The failure to make timely or proper payment of any monies due 
pursuant to leases and contracts subject to these regulations will 
result in the collection by the Minerals Management Service (MMS) of the 
full amount past due plus a late payment charge. Exceptions to this late 
payment charge may be granted when estimated payments on minerals 
production have already been made timely and otherwise in accordance 
with the instructions provided by the MMS to the payor.
    (b) Late payment charges will be assessed on any late payment or 
underpayment from the date that the payment was due until the date that 
the payment was received at the MMS addresses specified in Sec. 218.51. 
Payments received at the specified MMS addresses after 4 p.m. Mountain 
Time are considered received the following business day.

[[Page 190]]

    (c) Late payment charges are calculated on the basis of a percentage 
assessment rate. In the absence of a specific lease, permit, license or 
contract provision prescribing a different rate, this percentage 
assessment rate is prescribed by the Department of the Treasury as the 
``Treasury Current Value of Funds Rate.''
    (d) This rate is available in the Treasury Fiscal Requirements 
Manual Bulletins that are published prior to the first day of each 
calendar quarter for application to overdue payments or underpayments in 
the new calendar quarter. The rate is also published in the Notices 
section of the Federal Register and indexed under ``Fiscal Service/
Notices/Funds Rate; Treasury Current Value.''
    (e) Late payment charges apply to all underpayments and payments 
received after the date due. These charges include production, minimum, 
and compensatory royalties; assessments for liquidated damages; 
administrative fees and payments by purchasers of royalty taken-in-kind; 
or any other payments, fees, or assessments that a lessee/operator/
payor/royalty taken-in-kind purchaser is required to pay by a specified 
date. The failure to pay past due payments, including late payment 
charges, will result in the initiation of other enforcement proceedings.
    (f) An overpayment on a lease or leases may be offset against an 
underpayment on a different lease or leases to determine a net 
underpayment on which interest is due pursuant to conditions specified 
in Sec. 218.42.

[47 FR 22528, May 25, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
and further redesignated at 51 FR 15767, Apr. 28, 1986 and 52 FR 23815, 
June 25, 1987, as amended at 57 FR 41868, Sept. 14, 1992; 57 FR 62207, 
Dec. 30, 1992; 59 FR 14559, Mar. 29, 1994; 65 FR 55189, Sept. 13, 2000; 
67 FR 19112, Apr. 18, 2002]

Subpart G--Indian Lands [Reserved]



PART 219--DISTRIBUTION AND DISBURSEMENT OF ROYALTIES, RENTALS, AND BONUSES--Table of Contents




Subpart A--General Provision [Reserved]

Subpart B--Oil and Gas, General [Reserved]

                     Subpart C--Oil and Gas, Onshore

Sec.
219.100  Timing of payment to States.
219.101  Receipts subject to an interest charge.
219.102  Method of payment.
219.103  Payments to Indian accounts.
219.104  Explanation of payments to States and Indian tribes.
219.105  Definitions.

    Authority: Section 104, Pub. L. 97-451, 96 Stat. 2451 (30 U.S.C. 
1714).

    Source: 49 FR 37347, Sept. 21, 1984, unless otherwise noted.

Subpart A--General Provisions [Reserved]

Subpart B--Oil and Gas, General [Reserved]



                     Subpart C--Oil and Gas, Onshore



Sec. 219.100  Timing of payment to States.

    A State's share of mineral leasing revenues shall be paid to the 
State not later than the last business day of the month in which the 
U.S. Treasury issues a warrant authorizing the disbursement, except for 
any portion of such revenues which is under challenge and placed in a 
suspense account pending resolution of a dispute.



Sec. 219.101  Receipts subject to an interest charge.

    (a) Subject to the availability of appropriations, the Minerals 
Management Service (MMS) shall pay the State its proportionate share of 
any interest charge for royalty and related monies that are placed in a 
suspense account pending resolution of matters which will allow 
distribution and disbursement. Such monies not disbursed by the last 
business day of the month following receipt by MMS shall accrue interest 
until paid.
    (b) Upon resolution, the suspended monies found due in paragraph (a) 
of this section, plus interest, shall be disbursed to the State under 
the provisions of Sec. 219.100.

[[Page 191]]

    (c) Paragraph (a) of this section shall apply to revenues which 
cannot be disbursed to the State because the payor/lessee provided 
incorrect, inadequate, or incomplete information to MMS which prevented 
MMS from properly identifying the payment to the proper recipient.



Sec. 219.102  Method of payment.

    The MMS shall disburse monies to a State either by Treasury check or 
by Electronic Funds Transfer (EFT). Should a State prefer to receive its 
payment by EFT, it should request this payment method in writing to the 
Minerals Management Service, Minerals Revenue Management, P.O. Box 5760, 
Denver, Colorado 80217-5760.

[57 FR 41868, Sept. 14, 1992, as amended at 58 FR 64903, Dec. 10, 1993; 
67 FR 19112, Apr. 18, 2002]



Sec. 219.103  Payments to Indian accounts.

    Mineral revenues received from Indian leases shall be transferred to 
the appropriate Indian accounts managed by the Bureau of Indian Affairs 
(BIA) for allotted and tribal revenues. These accounts are specifically 
designated Treasury accounts. Revenues shall be transferred to the 
Indian accounts at the earliest practicable date after such funds are 
received, but in no case later than the last business day of the month 
in which revenues are received by the MMS.



Sec. 219.104  Explanation of payments to States and Indian tribes.

    (a) Payments to States and BIA on behalf of Indian tribes or Indian 
allottees discussed in this part shall be described in Explanation of 
Payment reports prepared by the MMS. These reports will be at the lease 
level and shall include a description of the type of payment being made, 
the period covered by the payment, the source of the payment, sales 
amounts upon which the payment is based, the royalty rate, and the unit 
value. Should any State or Indian tribe desire additional information 
pertaining to mineral revenue payments, the State or tribe may request 
this information from the MMS.
    (b) The report shall be provided to: (1) States not later than the 
10th day of the month following the month in which MMS disburses the 
State's share of royalties and related monies; (2) the BIA on behalf of 
tribes and Indian allottees not later than the 10th day of the month 
following the month the funds are disbursed by MMS.
    (c) Revenues that cannot be distributed to States, tribes, or Indian 
allottees because the payor/lessee provided incorrect, inadequate, or 
incomplete information, preventing MMS from properly identifying the 
payment to the proper recipient, shall not be included in the reports 
until the problem is resolved.



Sec. 219.105  Definitions.

    Terms used in this subpart shall have the same meaning as in 30 
U.S.C. 1702.



PART 220--ACCOUNTING PROCEDURES FOR DETERMINING NET PROFIT SHARE PAYMENT FOR OUTER CONTINENTAL SHELF OIL AND GAS LEASES--Table of Contents




Sec.
220.001  Purpose and scope.
220.002  Definitions.
220.003  Information collection.
220.010  NPSL capital account.
220.011  Schedule of allowable direct and allocable joint costs and 
          credits.
220.012  Overhead allowance.
220.013  Unallowable costs.
220.014  Allocation of joint costs and credits.
220.015  Pricing of materiel purchases, transfers, and dispositions.
220.020  Calculation of the allowance for capital recovery.
220.021  Determination of net profit share base.
220.022  Calculation of net profit share payment.
220.030  Maintenance of records.
220.031  Reporting and payment requirements.
220.032  Inventories.
220.033  Audits.
220.034  Redetermination and appeals.

    Authority: Sec. 205, Pub. L. 95-372, 92 Stat. 643 (43 U.S.C. 1337).

    Source: 45 FR 36800, May 30, 1980, unless otherwise noted. 
Redesignated at 48 FR 1182, Jan. 11, 1983, and at 48 FR 35642, Aug. 5, 
1983.



Sec. 220.001  Purpose and scope.

    (a) This part 220 establishes accounting procedures for determining 
the net profit share base and calculating net profit share payments due 
the United

[[Page 192]]

States for the production of oil and gas from OCS leases.
    (b) The procedures established by this part 220 apply to any OCS 
lease issued by the Department of the Interior under any bidding system 
established by Sec. 260.110(a) of this chapter which has a net profit 
share component.

[45 FR 36800, May 30, 1980, as amended at 46 FR 29689, June 2, 1981. 
Redesignated at 48 FR 1182, Jan. 11, 1983, and at 48 FR 35642, Aug. 5, 
1983]



Sec. 220.002  Definitions.

    For purposes of this part 220:
    Allowance for capital recovery means the amount calculated according 
to procedures specified in Sec. 220.020. This amount allows a premium 
for risk initially undertaken by the lessee and a return on investment 
made during the capital recovery period. It is provided in lieu of 
interest on equipment and materiel charged to the NPSL capital account.
    Capital recovery period means the period of time that begins on the 
date of issuance of the NPSL and ends on the last day of the month 
during which the sooner of the following occurs:
    (1) The lessee completes the last well on the first platform 
specified in the development and production plan originally approved by 
the MMS, with any approved amendments thereto, and installation of 
wellhead equipment. In the event the last well is dry, then the capital 
recovery period shall be deemed to have ended with the determination 
that the last well is non-productive;
    (2) The balance in the NPSL capital account changes from a debit 
balance to a credit balance; or
    (3) The lessee, at his election, chooses to terminate the capital 
recovery period. A decision to terminate the capital recovery period 
prior to the events specified in paragraphs (a) (1) and (2) of this 
definition shall be communicated in writing to the Director and shall be 
irrevocable.
    Controllable materiel means materiel which at the time is so 
classified in the Materiel Classification Manual as most recently 
recommended by the Council of Petroleum Accountants Societies of North 
America.
    Cost means an expenditure or an accrual incurred by a lessee in 
conducting NPSL operations.
    Cost pool means a grouping of costs identified with more than one 
OCS lease, whether the leases are NPSLs or other types of leases.
    Credit means a payment, rebate, reimbursement to a lessee, or other 
reduction in cost or increase in revenue attributable to NPSL 
operations.
    Direct cost means any cost listed in Sec. 220.011 that benefits only 
NPSL operations.
    Director means the Director of MMS, Washington, DC, or his delegate.
    Field employee means an employee below a first level supervisor who 
is directly employed in the NPSL project area.
    First level supervisor means an employee whose primary function in 
NPSL operations is the direct supervision of other employees and/or 
contract labor directly employed on the NPSL project area in a field 
operating capacity.
    G & G means geological, geophysical, geochemical and other similar 
investigations carried out on the NPSL tract.
    Joint cost means any cost listed in Sec. 220.011 that benefits NPSL 
operations and one or more other operations of the lessee or an outside 
party.
    Lessee means a person authorized by an OCS lease, or an approved 
assignment thereof, to develop and produce oil and gas, including all 
parties holding such authority by or through the lessee, and the person 
designated to conduct NPSL operations.
    Lessee's cost of allowed employee absence means the lessee's cost of 
holiday, vacation, sickness, disability benefits, jury duty and other 
customary excused allowances.
    Materiel means equipment, apparatus, and supplies.
    Net profit share base means the end of the month credit balance in 
the NPSL capital account determined pursuant to Sec. 220.021. The net 
profit share base is the production revenue remaining after subtracting 
all allowable costs and adding all allowable credits (including 
production revenue) in accordance with the procedures established by 
this part 220.

[[Page 193]]

    Net profit share payment means the portion of the net profit share 
base payable to the United States.
    Net profit share rate means the percentage share of the net profit 
share base payable to the United States. The percentage share may be 
fixed in the notice of OCS lease sale or be the bid variable, depending 
upon the bidding system used, as established by Sec. 260.110(a) of this 
chapter.
    NPSL means a net profit share lease, which is an OCS lease that 
provides for payment to the United States of a percentage share of the 
net profits for production of oil and gas from the tract. This 
percentage share may be fixed in the notice of OCS lease sale or be the 
bid variable, depending on the bidding system used, as established by 
Sec. 260.110(a) of this chapter.
    NPSL operations means all activities subsequent to issuance of the 
NPSL necessary and proper for the exploration, development, operation, 
maintenance, and final abandonment of the NPSL property.
    NPSL project area means the NPSL tract, offshore facilities, and 
shore base facilities.
    NPSL property means the NPSL tract, and materiel and offshore 
facilities acquired for use in NPSL operations and that are installed 
and/or used on the NPSL tract.
    NPSL tract means a tract subject to an NPSL.
    OCS lease means a Federal lease for oil and gas issued under the 
OCSLA.
    OCS lease sale means the DOI proceeding by which leases for certain 
OCS tracts are offered for sale by competitive bidding and during which 
bids are received, announced, and recorded.
    Offshore facilities means platform and support systems located 
offshore that are necessary to conduct NPSL operations, e.g., oil and 
gas handling facilities, living quarters, offices, shops, cranes, 
electrical supply equipment and systems, fuel and water storage and 
piping, heliport, marine docking installations, communication 
facilities, and navigation aids.
    Outside party means any person who is not a lessee.
    Person means person as defined in part 260 of this chapter.
    Personal expenses means travel and other reasonable reimbursable 
expenses of lessee's employees.
    Production means all oil, gas, or other hydrocarbon products 
produced, removed, saved, or sold from the NPSL property. Gas and 
liquids of all kinds are included in production. Production includes the 
allocated share of production from a unit of which the NPSL is a part.
    Production revenue means the value of all production attributable to 
an NPSL property, which value is determined in accordance with 
Sec. 260.110(b) of this chapter.
    Railway receiving point or recognized barge terminal means the 
location that a vendor would use in determining the sale price to the 
lessee of new materiel to be delivered to the NPSL project area.
    Reliable supply store means a recognized source or common stock 
point for the particular materiel involved.
    Shore base facilities means onshore facilities necessary for NPSL 
operations, including:
    (1) Shore base support facilities, e.g., a receiving and trans-
shipment point for materiel, staging area for shuttling personnel to and 
from the NPSL tract, a communication, scheduling, and dispatching 
center; and
    (2) Shore base production facilities, e.g., pumps, separating 
facilities, gas plants, and tankage for production from the NPSL tract.
    Technical employees means those employees having special and 
specific engineering, geological or other professional skills, and whose 
primary function in NPSL operations is the handling and resolution of 
specific operating conditions and problems for the benefit of NPSL 
operations.
    Tract means land located on the OCS that is offered for lease 
through an OCS lease sale and that is identified by a leasing map or an 
official protraction diagram prepared by DOI.

[45 FR 36800, May 30, 1980, as amended at 46 FR 29689, June 2, 1981. 
Redesignated and amended at 48 FR 1182, Jan. 11, 1983. Redesignated at 
48 FR 35642, Aug. 5, 1983]

[[Page 194]]



Sec. 220.003  Information collection.

    (a) The information collection requirements of this part have been 
approved by OMB under 44 U.S.C. 3501 et seq. and assigned OMB Clearance 
Number 1010-0073. The information will be used to determine all 
allowable direct and allocable joint costs incurred during the term of 
the lease, appropriate overhead allowances permitted on these costs 
pursuant to Sec. 220.012, and allowances for capital recovery calculated 
pursuant to Sec. 220.020. The information collection is mandatory in 
accordance with the Federal Oil and Gas Royalty Management Act of 1982, 
30 U.S.C. 1701 et seq.
    (b) Public reporting burden is estimated to average 16 hours for 
each annual and monthly lease report, including time spent reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection of 
information. Send comments regarding the burden estimate or any other 
aspect of this collection of information, including suggestions for 
reducing burden, to the Information Collection Clearance Officer, 
Minerals Management Service, 281 Elden Street, Herndon, Virginia 22070; 
and to the Office of Information and Regulatory Affairs, Office of 
Management and Budget, Paperwork Reduction Project 1010-0073, 
Washington, DC 20503.

[57 FR 41868, Sept. 14, 1992, as amended at 58 FR 64903, Dec. 10, 1993]



Sec. 220.010  NPSL capital account.

    (a) For each NPSL tract, an NPSL capital account shall be 
established and maintained by the lessee for NPSL operations. The NPSL 
capital account shall include debit entries for all allowable direct and 
allocable joint costs incurred during the term of the lease, appropriate 
overhead allowances permitted on these costs pursuant to Sec. 220.012, 
and allowances for capital recovery calculated pursuant to Sec. 220.020. 
The NPSL capital account shall be credited with production revenues 
attributable to the NPSL and any other credits arising from NPSL 
activities.
    (b) The NPSL capital account shall be kept on an accrual basis.



Sec. 220.011  Schedule of allowable direct and allocable joint costs and credits.

    The costs and credits specified in paragraphs (a) through (p) of 
this section may be charged direct, or allocated to NPSL operations, as 
appropriate, in accordance with Sec. 220.014.
    (a) Lease rental. The rent paid by the lessee for the NPSL tract is 
allowable.
    (b) Labor. (1)(i) Salaries and wages of lessee's field employees, 
first level supervisors and technical employees employed in the NPSL 
project area in NPSL operations are allowable if such costs are not 
charged under paragraph (g) of this section.
    (ii) Salaries and wages of technical employees within technical 
branches of the lessee's organization who are either temporarily or 
permanently assigned to, and directly employed in NPSL operations are 
allowable provided that such employees work ``full time'' on some 
particular aspect of NPSL operations or some specific technical problem. 
Excluded from this category are employees assigned a role in NPSL 
operations as a duty collateral with other duties that do not directly 
benefit NPSL operations.
    (iii) Salaries and wages of technical employees within technical 
branches of the lessee's organization who are assigned technical tasks 
directly related to NPSL operations may be allowable. Costs may be 
charged to the NPSL if supported by adequate time records showing the 
nature of the task and the hours spent on that task.
    (2) Lessee's cost of allowed employee absence paid to employees 
whose salaries and wages are chargeable to NPSL operations under 
paragraphs (b)(1) (i) and (ii) of this section are allowable.
    (3) Expenditures or contributions made pursuant to assessments 
imposed by governmental authority that are applicable to lessee's costs 
chargeable to NPSL operations under paragraphs (b)(1) (i) and (ii) and 
(b)(2) of this section are allowable.
    (4) Reasonable personal expenses, including allowable relocation 
costs of employees whose salaries and wages are chargeable to NPSL 
operations under paragraphs (b)(1) (i) and (ii) of this section and that 
are paid by the lessee or for which the employees are

[[Page 195]]

reimbursed under the lessee's normal practice are allowable except as 
limited by Sec. 220.013(g).
    (i) Allowable relocation costs include:
    (A) Travel expenses, including transportation, lodging, subsistence, 
and reasonable incidental expenses of the employee and members of his 
immediate family and transportation of his household and personal 
effects to the new location.
    (B) Other necessary and reasonable expenses normally incident to 
relocation, such as costs of cancelling an unexpired lease, 
disconnecting and reinstalling household applicances, and purchases of 
insurance against damages to or loss of personal property are allowable. 
Costs of cancelling an unexpired lease shall not exceed three times the 
monthly rental.
    (C) Closing costs (i.e. brokerage fees, legal fees, appraisal fees, 
etc.) for the sale of the employee's actual residence when notified of 
the transfer are allowable; and
    (D) Continuing costs of ownership of the vacant former actual 
residence being sold, such as continuing mortgage principal and interest 
payments, maintenance of building and grounds (exclusive of fixing-up 
expenses), utilities, taxes, property insurance, etc., after settlement 
date of lease or date of new permanent residence are allowable.
    (ii) The combined total of costs listed in paragraphs (b)(4)(i) (C) 
through (D) of this section shall not exceed 8 percent of the sales 
price of the property sold.
    (iii) Section 220.013(g) specifies employee relocation expenses that 
are not allowable as a charge to NPSL operations.
    (5) Lessee's current costs of established plans for employee's group 
life insurance, hospitalization, pension, retirement, stock purchase, 
thrift, bonds, and other benefit plans of a like nature that are made 
available to all of lessee's employees on an equitable basis, applicable 
to lessee's labor cost chargeable to NPSL operations under paragraphs 
(b)(1) (i) and (ii) and (b)(2) of this section, are allowable. The 
amount of these charges shall be lessee's actual cost not to exceed 23 
percent of the total charges under paragraphs (b)(1) (i) and (ii) and 
(b)(2) except that the Director may from time to time establish a 
different maximum percentage.
    (6) Charges for expenses incurred under paragraphs (b)(2) through 
(b)(5) of this section may be made to NPSL accounts on a ``when and as 
paid'' basis or by a percentage assessment method. If the percentage 
assessment method is used, it shall be based upon the lessee's actual 
cost experience expressed as a percentage of costs chargeable under 
paragraphs (b)(1) (i) and (ii) and (b)(2) of this section. Under either 
method the lessee's own cost of administering the plans and paying the 
salaries and benefits defined in this paragraph shall be excluded. In 
determining actual cost experience of an employee benefit plan, any 
dividend or refunds received that are applicable to insurance or annuity 
policies shall be used to reduce the cost of such policies.
    (c) Materiel. (1) Materiel purchased or furnished by a lessee as 
NPSL property shall be charged or credited at amounts specified in 
Sec. 220.015. The purchase and inventorying of materiel is subject to 
the conditions and provisions in Sec. 220.032.
    (2) Charges to an NPSL account shall be made only for such materiel 
purchased or furnished as NPSL property as is reasonably practical and 
consistent with efficient and economical operations. The accumulation of 
surplus stocks shall be avoided.
    (3) Credit for salvaged or returned materiel shall be made to the 
NPSL capital account. When the amount originally charged qualifies for 
the allowance for capital recovery in Sec. 220.020, the credit shall be 
calculated pursuant to Sec. 220.021(a)(3).
    (d) Transportation. Transportation of employees and materiel 
necessary for NPSL operations to, from, and within the NPSL project 
area, are allowable, but subject to the following limitations:
    (1) If materiel is moved to the NPSL project area, no charge shall 
be made to NPSL operations for a distance greater than the distance from 
the nearest reliable supply store, recognized barge terminal, or railway 
receiving point where like materiel is

[[Page 196]]

normally available, unless agreed to by the Director.
    (2) If surplus materiel is moved from the NPSL project area, no 
charge shall be made to NPSL operations for a distance greater than the 
distance to the nearest reliable supply store, recognized barge 
terminal, or railway receiving point unless agreed to by the Director. 
No charge shall be made to NPSL operations for moving materiel to other 
properties owned by or under the control of a lessee, unless agreed to 
by the Director.
    (3) In the application of paragraphs (d)(1) and (d)(2) of this 
section, there shall be no equalization of actual gross trucking costs 
of $200 or less, excluding accessorial charges.
    (e) Contract services. Except when excluded by paragraph (f) of this 
section and/or Sec. 220.013(c), the cost of services and utilities 
provided under contract by outside parties to the lessee and which 
constitute proper and necessary NPSL operations or support for NPSL 
operations, and rental charges paid to outside parties for the use of 
equipment used in the NPSL project area in support of NPSL operations, 
may be charged to NPSL operations subject to the following conditions 
and limitations:
    (1) Contract services (including professional consulting services 
and contract services of technical personnel) that are entirely 
performed in the NPSL project area and benefit exclusively NPSL 
operations may be charged at the rates specified in the contract.
    (2) Contract services (including professional consulting services 
and contract services of technical personnel) that are entirely 
performed in the NPSL project area and benefit the NPSL operations and 
operations on other tracts must be allocated among all tracts benefited 
and only that portion representing services benefiting the NPSL tract 
charged to NPSL operations.
    (3) Contract services (including professional consulting services 
and contract services of technical personnel) that are performed at 
sites outside the NPSL project area may be charged to NPSL operations 
only if:
    (i) The contracted services charged to the NPSL operations benefit 
only the NPSL tract or support NPSL operations;
    (ii) The contract under which such services are provided deals 
exclusively with services benefiting the NPSL tract or NPSL operations, 
or the costs of the contract services which are applicable to the NPSL 
tract or NPSL operations are separately and specifically identified in 
the contract; and
    (iii) Services specified in the contract relate to the resolution of 
specific technical problems confronting NPSL operations, or specific 
engineering design problems related to equipment or facilities required 
for NPSL operations.
    (4) The cost of any contract service related to research and 
development is specifically excluded, as are contract services calling 
for feasibility studies not directly related to specific engineering 
design problems or alternatives for equipment and facilities required by 
NPSL operations.
    (f) Legal expenses. Expense of handling, investigating and settling 
litigation or claims, discharging of liens, payments of judgments and 
amounts paid for settlement of claims incurred in or resulting from NPSL 
operations, or necessary to protect or recover the NPSL property are 
allowable, except those costs listed in Sec. 220.013(f) as unallowable. 
This includes the salaries and wages of lessee's legal staff and the 
expense of outside attorneys who are assigned to matters described in 
this paragraph if supported by adequate time records showing the nature 
of the matter, its direct relationship to NPSL operations, and the hours 
spent on the matter.
    (g) Rental of equipment and facilities furnished by lessee. (1)(i) 
The NPSL capital account shall be charged for the use of equipment and 
facilities owned by a lessee that are proper and necessary for NPSL 
operations, including shore base and offshore facilities and pipelines 
from the tract to shore base production facilities, and that are not 
NPSL property. Rental charges shall be made at rates based upon actual 
costs of acquisition, construction, and operation. Such rates may 
include

[[Page 197]]

labor, the cost of setting up and dismantling equipment, maintenance, 
repairs, other operating expenses, insurance, taxes, depreciation 
(calculated using a method consistent with generally accepted accounting 
principles, consistently applied) and a return on the remaining 
undepreciated basis not to exceed 8 percent per year, except that the 
Director may from time to time establish a different maximum percentage. 
Any cost of acquiring real property in excess of that reasonably 
required to support the facilities furnished for NPSL operations shall 
not be included in the costs used to establish these rates. Rates 
charged shall not exceed average commercial rates for equipment and 
facilities of similar nature and capability currently prevailing in the 
vicinity of the NPSL project area.
    (ii) The term ``equipment and facilities'' is used in the broad 
sense to include equipment that may be mobile or semimobile and also 
installations that may be semipermanent or permanent in nature. Such 
equipment and facilities listed below shall be charged on the basis 
indicated.

------------------------------------------------------------------------
           Equipment/facilities                    Basis of charge
------------------------------------------------------------------------
A. Mobile equipment:
  Aircraft................................  Hour.
  Automobiles.............................  Mile or hour.
  Trucks..................................  Mile or hour.
  Tractors................................  Hour.
  Bulldozers..............................  Hour.
  Mobile cranes...........................  Hour.
  Trailer-mounted test separators.........  Hour.
  Truck-mounted cement mixers.............  Hour.
  Boats...................................  Day or hour.
  House trailers..........................  Day.
B. Semimobile equipment:
  Drill rigs..............................  Foot or day.
  Workover rigs...........................  Hour.
  Pulling units...........................  Hour.
  Derricks................................  Day.
  Drilling tender.........................  Day.
  Barges..................................  Day.
C. Semipermanent installations:
  Skid-mounted separators.................  Day or volume.
  Skid-mounted compressors................  Day or volume.
D. Permanent installations:
  Compressor stations.....................  Volume.
  Saltwater disposal wells................  Volume or wells.
  Source water wells and supply systems...  Volume.
  Roads...................................  Wells.
  Production/drilling platform............  Volume or wells.
  Canals..................................  Wells.
  Dock....................................  Wells.
  Oil storage and loading facilities......  Volume.
  Gathering systems and pipeline..........  Volume.
  ACT systems.............................  Volume.
  Laboratory services (excluding research   Hour or unit.
   work).
  Shore base production facilities........  Volume.
  Shore base support facilities...........  Wells.
E. Miscellaneous:
  Drill pipe..............................  Foot or day.
  Casing setting tools....................  Day.
  Well testing equipment..................  Day.
------------------------------------------------------------------------


Equipment and facilities that are not listed shall be charged on a basis 
consistent with the nature of the use.
    (2) In lieu of charges in paragraph (g)(1) of this section, the 
lessee may elect to use average commercial rates prevailing in the 
vicinity of the NPSL project area less 20 percent. For automotive 
equipment, the lessee may elect to use rates established by the 
Director. For other equipment for which no commercial rate exists, the 
lessee shall submit the basis for determining such costs to the Director 
for approval.
    (h) Damages and losses to NPSL property. All costs necessary for the 
repair or replacement of NPSL property made necessary because of damages 
or losses incurred by fire, flood, storm, theft, accident, or other 
causes not covered by insurance, except those resulting from lessee's 
negligence or willful misconduct may be charged to the NPSL capital 
account. Any settlement received from an insurance carrier should be 
credited to NPSL operations when received.
    (i) Taxes. All taxes, except income taxes, profit share payments, 
and taxes based upon income, that are assessed or levied upon or in 
connection with NPSL operations and which have been paid by the lessee 
are allowable. Allowed taxes shall include, but not be limited to, 
production, severance, excise, ad valorem, and mineral taxes.
    (j) Insurance. (1) Net premiums paid for insurance required to be 
carried for NPSL operations are allowable. For NPSL operations in which 
the lessee may act as self-insurer for Workmen's Compensation and 
Employer's Liability, the lessee may include the risk under its self-
insurance program in providing coverage under State and Federal laws and 
charge NPSL operations at lessee's cost not to exceed manual rates.
    (2) NPSL operations shall be credited for all reimbursements for 
costs of damage to NPSL property or personal injury. Reimbursements for 
damaged

[[Page 198]]

NPSL property shall be credited as follows:
    (i) If the damaged NPSL property is replaced or repaired, to the 
NPSL capital account charged for the cost of replacement or repair; or
    (ii) If the damaged NPSL property is not replaced or repaired, to 
the NPSL capital account except that if the cost of the property 
originally qualified for the allowance for capital recovery in 
Sec. 220.020, the credit shall be calculated pursuant to 
Sec. 220.021(a)(3).
    (k) Communications. Costs of leasing, acquiring, installing, 
operating, repairing and maintaining communication systems, including 
radio, microwave facilities, and computer production controls for the 
NPSL operations are allowable. If communication facilities systems 
serving the NPSL tract serve operations and/or facilities outside the 
NPSL project area, charges to NPSL operations shall be made as provided 
in paragraph (g) of this section or shall be allocated to NPSL 
operations in accordance with Sec. 220.014.
    (l) Ecological and environmental. Costs incurred in the NPSL project 
area as a result of statutory regulations for archeological and 
geophysical surveys relative to identification and protection of 
cultural resources and other environmental or ecological surveys 
required by the Bureau of Land Management or other regulatory authority, 
may be charged to the NPSL capital account. Also, the costs to provide 
or have available pollution containment and removal equipment, including 
payments to organizations and/or funds which provide equipment and/or 
assistance in the event of oil spills or other environmental damage are 
allowable. The costs of actual control and cleanup of oil spills and 
resulting responsibilities required by applicable laws and regulations 
are allowable, except that a charge shall not be allowed for any such 
costs attributable to the lessee's negligence or willful misconduct.
    (m) Dry or bottom hole contributions. The costs of dry or bottom 
hole contributions made to obtain information about the structure or 
other characteristics of the geology underlying the NPSL tract are 
allowable.
    (n) Abandonment costs. Actual costs incurred in the plugging of 
wells, dismantling of platforms and other facilities and in the 
restoration of the NPSL project area shall be charged to the NPSL 
capital account only when incurred (i.e., not on an accrual basis), 
except that costs incurred after the cessation of production shall not 
be charged to the NPSL capital account. Abandonment costs in excess of 
offsetting revenues shall not form the basis of any claim against the 
United States.
    (o) Other costs. Any other costs not covered in paragraphs (a)-(n) 
of this section and not disallowed by Sec. 220.013 that are incurred by 
the lessee in the necessary and proper conduct of NPSL operation and are 
approved by the Director, are allowable. Approval of a plan of 
development and production for the NPSL tract by the Director shall be 
considered sufficient approval for these other costs provided they are 
separately identified in said plan of development and production. Such 
separate identification shall note the nature of these other costs and 
may include an estimate of their magnitude. Any cost approvals under 
this paragraph for which the specific amounts have not been itemized are 
presumed to be approved provided they fall within the limits for a 
prudent operator. Approval of costs under this paragraph shall be 
approval solely for the purposes of determining allowable costs and 
shall not preclude a subsequent adjustment at audit of the amount of 
such costs.
    (p) Other credits. Credit shall be given to the NPSL capital 
account, depending on when it is incurred, for NPSL property leased or 
used in non-NPSL operations, for the sale of information derived from 
test wells and G & G, and for any and all amounts earned or otherwise 
due lessee as a result of NPSL operations.

[45 FR 36800, May 30, 1980. Redesignated at 48 FR 1182, Jan. 11, 1983, 
and at 48 FR 35642, Aug. 5, 1983, as amended at 67 FR 19112, Apr. 18, 
2002]



Sec. 220.012  Overhead allowance.

    (a) During the capital recovery period the overhead allowance shall 
be calculated on a percentage basis at the rate of 4 percent of 
allowable direct and allocable joint costs charged to the NPSL capital 
account, exclusive of costs specified in paragraph (c) of this

[[Page 199]]

section. This overhead allowance shall be debited to the NPSL capital 
account in accordance with Sec. 220.021(b)(2).
    (b) For each month after the end of the capital recovery period, an 
overhead allowance shall be calculated on a percentage basis at the rate 
of 10 percent of allowable direct and allocable joint costs charged to 
the NPSL capital account, exclusive of costs specified in paragraph (c) 
of this section. This overhead allowance shall be debited to the NPSL 
capital account in accordance with Sec. 220.021(c)(2).
    (c) Overhead shall not be charged on the value of:
    (1) Lease rental (Sec. 220.011(a));
    (2) Contract services (Sec. 220.011(e));
    (3) Taxes (Sec. 220.011(i));
    (4) Re-injected hydrocarbons, originally produced from the NPSL 
tract, that are charged under Sec. 220.011(c); and
    (5) Credits for materiel charged under Sec. 220.011(c) that are 
salvaged, returned, or used for the benefit of non-NPSL operations.



Sec. 220.013  Unallowable costs.

    The following costs shall not be charged as direct or joint costs to 
NPSL operations:
    (a) Bonus payments to the United States;
    (b) Interest (except as permitted under Sec. 220.011(g));
    (c) Depreciation, depletion, amortization, or any other charge for 
capital recovery for materiel charged to the NPSL capital account under 
Sec. 220.011(c), except as explicitly provided by the allowance for 
capital recovery calculated according to Sec. 220.020;
    (d) The cost of taking inventory;
    (e) Research and development costs;
    (f) The following legal expenses:
    (1) The costs of litigation against the Federal government;
    (2) Fines or penalties levied by any Federal agency;
    (3) Settlement of claims or other litigation resulting from the 
lessee's violation of regulatory requirements or negligence; and
    (4) The cost of the lessee's legal staff or expense of outside 
attorneys, except as explicitly allowed under Sec. 220.011(f);
    (g) The following employee relocation costs (whether incurred by the 
employee or the lessee):
    (1) Loss on the sale of a home;
    (2) Purchase price of a home in the new location;
    (3) Payments for employee income taxes incident to reimbursed 
relocation costs; and
    (4) Any relocation cost in connection with an employee move that is 
for the primary benefit of the lessee's non-NPSL operations;
    (h) The lessee's own cost of administering employee benefit plans;
    (i) The cost of acquiring or constructing shore base facilities and 
real property improvements that are charged to NPSL operations on a 
rental basis under Sec. 220.011(g);
    (j) Rentals on any facilities, the investment costs of which have 
been charged either directly or as allocable joint costs, to the NPSL 
capital account; and
    (k) Pre-NPSL expenditures.



Sec. 220.014  Allocation of joint costs and credits.

    (a) Joint costs shall be grouped in cost pools for allocation to 
NPSL and non-NPSL operations in reasonable proportion to the beneficial 
or causal relationships which exist between a specific cost pool and the 
operations. That portion of a joint cost pool that may be allocated to 
NPSL operations is called an allocable joint cost.
    (b) The following allocation principles apply in allocating joint 
costs:
    (1) G & G. G & G shall be allocated on a line mile per tract basis.
    (2) Wages and salaries. Wages and salaries that are not charged as 
direct on the basis of time spent on a particular job shall be allocated 
on a reasonable and equitable basis.
    (3) Compensated personal absence, payroll taxes and personal 
expenses. These items shall be allocated on the same basis as wages and 
salaries.
    (4) Transportation costs. Transportation costs for employees that 
are not charged direct shall be allocated on the same basis as their 
wages and salaries.
    (c) Joint credits shall be allocated in the same manner as joint 
costs.
    (d) When the NPSL is made a part of a unit, the allowed costs shall 
be charged to the NPSL capital account

[[Page 200]]

on the basis specified in the unit operating agreement as approved by 
the Director. Revenues and other credits shall be made to the NPSL 
accounts on the same basis as specified in the approved operating 
agreement. Joint costs of an NPSL and a non-NPSL tract that are adjacent 
to one another and are on the same structure shall be allocated on a 
basis approved by the Director.



Sec. 220.015  Pricing of materiel purchases, transfers, and dispositions.

    (a)(1) Purchased materiel. Except as provided in paragraph (a)(2)(i) 
of this section, materiel purchased for use in NPSL operations shall be 
charged to NPSL operations at the price paid, after deduction of any 
discounts received. Should any purchased materiel be defective or 
returned to a vendor for other reasons, the credit shall be allocated to 
NPSL operations when received by the lessee in accordance with 
Sec. 220.011(c)(3).
    (2) Transferred and disposal materiel. An item of materiel, which is 
acquired by the lessee for use in NPSL operations by means other than 
purchase or disposed of by any means, shall be priced according to this 
subparagraph:
    (i) Condition A (new) materiel. (A) Tubular goods, except line pipe, 
shall be priced at the current market price in effect on date of 
movement on a minimum carload or barge load weight basis, regardless of 
quantity transferred, equalized to the lowest published price ``free on 
board'' (f.o.b.) railway receiving point or recognized barge terminal 
nearest the NPSL tract where such materiel is normally available.
    (B) Line pipe. (1) Movement of less than 30,000 pounds shall be 
priced at the current price in effect at date of movement, as listed by 
a reliable supply store nearest the NPSL tract where such materiel is 
normally available.
    (2) Movement of 30,000 pounds or more shall be priced under the 
provisions for tubular goods pricing in paragraph (a)(2)(i)(A) of this 
section.
    (C) Other materiel shall be priced at the current price in effect at 
date of movement, as listed by a reliable supply store or f.o.b. railway 
receiving point nearest the NPSL tract where such materiel is normally 
available.
    (ii) Condition B (good used) materiel. Materiel in sound and 
serviceable condition and suitable for reuse without reconditioning:
    (A) Materiel transferred to the NPSL project area shall be priced at 
75 percent of current Condition A price.
    (B) Materiel transferred from the NPSL project area shall be priced:
    (1) At 75 percent of current Condition A price, if the materiel was 
originally charged to NPSL operations as Condition A materiel, or
    (2) At 65 percent of current Condition A price, if the materiel was 
originally charged to NPSL operations as Condition B materiel at 75 
percent of current Condition A price.
    (iii) Conditions C and D (other used) materiel--(A) Condition C. 
Materiel that is not in sound and serviceable condition and not suitable 
for its original function until after reconditioning shall be priced at 
50 percent of current Condition A price.
    (B) Condition D. Materiel no longer suitable for its original 
purposes but suitable for some other purpose shall be priced on a basis 
commensurate with its use and comparable with that of materiel normally 
used for such other purpose. If the materiel has no alternative use it 
should be priced at prevailing prices as scrap.
    (iv) Obsolete materiel. Materiel that is serviceable and usable for 
its original function and has a value less than Condition A, B, or C 
materiel may be valued at a price agreed to by the Director. Such price 
should be the equivalent of the value of the service rendered by such 
materiel.
    (b) Pricing conditions. (1) Loading and unloading costs shall be 
charged at a rate of 15 cents per hundred weight, or such other rate as 
may be set by the Director, on all tubular goods movements, in lieu of 
loading/unloading costs sustained, when the actual hauling costs of such 
tubular goods is equalized under provisions of Sec. 220.011(d).
    (2) Materiel involving erection costs shall be charged at the 
applicable percentage of the current knocked-down price of new materiel.

[[Page 201]]

    (c) When materiel subject to paragraphs (a)(2) (ii) and (iii) of 
this section is transferred, the cost of reconditioning shall be borne 
by the receiving party.



Sec. 220.020  Calculation of the allowance for capital recovery.

    (a) For purposes of this section, the cost base for the allowance 
for capital recovery in a particular month shall consist of the sum of:
    (1) All allowable direct and allocable joint costs chargeable to the 
NPSL capital account during the month less any costs specified in 
Sec. 220.012(c); plus
    (2) The value of contract services chargeable to the NPSL capital 
account during the month pursuant to Sec. 220.011(e); plus
    (3) The capital recovery period overhead allowance, calculated in 
accordance with Sec. 220.012(a), that is chargeable to the NPSL capital 
account for the month; less
    (4) Production revenues and other credits received during the month.
    (b) If the cost base for a month is greater than zero (that is, if 
the sum of the charges specified in paragraphs (a) (1) through (3) of 
this section exceeds the value of production revenues and other 
credits), the allowance for capital recovery shall be calculated by 
multiplying the cost base by the capital recovery factor, and shall be 
debited to the NPSL capital account as specified in Sec. 220.021(b).
    (c) If the cost base for a month is less than zero, the allowance 
for capital recovery for the NPSL capital account shall be calculated by 
multiplying the resulting negative cost base by the capital recovery 
factor. The negative product of this calculation shall be debited to the 
NPSL capital account as specified in Sec. 220.021(b).
    (d) No allowance for capital recovery shall be calculated on the 
charges or credits related to any time period after the end of the 
capital recovery period.



Sec. 220.021  Determination of net profit share base.

    (a) During each month of the lease term, the NPSL capital account 
shall be:
    (1) Debited with allowable direct and allocable joint costs;
    (2) Credited with an amount reflecting the production revenues for 
the month, calculated in accordance with Sec. 260.110(b) of this 
chapter.
    (3) Credited with amounts properly credited back to the NPSL capital 
account as specified in Sec. 220.011(p). Credits associated with charges 
to the NPSL capital account during the capital recovery period, however, 
shall first be increased by the value of the credit multiplied by the 
recovery factor, before crediting that sum to the NPSL capital account.
    (b) At the end of each month of the lease term during the capital 
recovery period:
    (1) The transactions specified in paragraph (a) of this section 
shall be made to the NPSL capital account.
    (2) The capital recovery period overhead allowance shall be 
calculated in accordance with Sec. 220.012(a) and debited to the NPSL 
capital account.
    (3) The allowance for capital recovery shall be calculated in 
accordance with Sec. 220.020 and the allowance debited (or the negative 
allowance debited, as appropriate) to the NPSL capital account. (A debit 
entry of a negative allowance for capital recovery shall have the same 
effect as a credit entry of the absolute value of the allowance for 
capital recovery.)
    (4) The balance in the NPSL capital account shall be calculated. If, 
as a result of the accounting transactions described in paragraphs (b) 
(1) through (3) of this section, there is a credit balance in the NPSL 
capital account, the capital recovery period will be considered 
terminated as of this month. The credit balance will be forwarded to the 
next month, which will be the first month for which a profit share 
payment is due.
    (c) At the end of each month of the lease term following the end of 
the capital recovery period:
    (1) The transaction specified in paragraph (a) of this section shall 
be made to the NPSL capital account.
    (2) An overhead allowance shall be calculated in accordance with 
Sec. 220.012(b) and debited to the NPSL capital account.
    (3) The balance in the NPSL capital account shall be calculated.

[[Page 202]]

    (d) If, as a result of the accounting transactions described in 
paragraph (c) of this section, there is a credit balance in the NPSL 
capital account, this credit balance is the net profit share base for 
that month. The opening debit and credit balances in the NPSL capital 
account for any month following a month in which there is a credit 
balance in the NPSL capital account (except as provided in paragraph 
(b)(4)) of this section shall be zero.
    (e) If, as a result of the accounting transactions described in 
paragraph (b) or (c) of this section, there is a debit balance in the 
NPSL capital account, this debit balance shall be the opening debit 
balance in the NPSL capital account for the following month.
    (f) Any credit balance in the NPSL capital account shall become the 
net profit share base as described in this section. Any debit balance in 
the NPSL capital account shall be maintained only insofar as necessary 
for the determination of profit share payments. Such debit balance shall 
not represent a claim against the United States.

[45 FR 36800, May 30, 1980. Redesignated at 48 FR 1182, Jan. 11, 1983, 
and at 48 FR 35642, Aug. 5, 1983, and amended at 55 FR 1210, Jan. 12, 
1990]



Sec. 220.022  Calculation of net profit share payment.

    The net profit share payment shall be calculated by multiplying the 
net profit share base calculated in accordance with Sec. 220.021 by the 
net profit share rate. The net profit share payment shall be paid to the 
United States in accordance with Sec. 220.031.



Sec. 220.030  Maintenance of records.

    (a) Each lessee subject to this part 220 shall establish and 
maintain such records as are necessary to determine for each NPSL:
    (1) The volume and disposition of all oil and gas production saved, 
removed or sold for each month;
    (2) The value of all oil and gas production saved, removed or sold 
for each month;
    (3) The amount and description of costs and credits to the NPSL 
capital account;
    (4) The amount and description of all costs of acquisition, 
construction, and operation of equipment and facilities furnished by the 
lessee and charged to the NPSL capital account under Sec. 220.011(g). 
Such records shall include worksheets or other documents that indicate 
the method used to calculate the amount of each charge made under 
Sec. 220.011(g);
    (5) The cumulative balance of costs and credits to the NPSL capital 
account; and
    (6) The inventory of materiel.
    (b) The ledger cards showing the charges and credits to the NPSL 
capital account shall be maintained until thirty-six months after the 
cessation of NPSL operations by the lessee. All other documents, 
journals and records shall be maintained for thirty-six months from the 
due date or date of mailing of the statement of account on an NPSL, 
whichever comes later, except that nothing in these regulations shall 
limit the time of investigation or the need to produce records when 
prima facie evidence of fraud or willful misconduct is obtained with 
respect to the government's interest in the NPSL.



Sec. 220.031  Reporting and payment requirements.

    (a) Each lessee subject to this part shall file an annual report 
during the period from issuance of the NPSL until the first month in 
which production revenues are credited to the NPSL capital account. Such 
report shall list the costs incurred, including allowances applied, 
credits received, and the balance of the NPSL capital account. Not later 
than 60 days after the end of the first month in which production 
revenues are credited to the NPSL capital account, a final report 
relating to the period shall be filed.
    (b) Beginning with the first month in which production revenues are 
credited to the NPSL capital account, each lessee subject to this part 
220 shall file a report for each NPSL, not later than 60 days following 
the end of each month, containing the following information for the 
month for which the report is filed:
    (1) The volume and disposition of all oil and gas production saved, 
removed or sold;
    (2) The production revenue;

[[Page 203]]

    (3) The amount and description of all costs and credits to the NPSL 
capital account;
    (4) The balance of the NPSL capital account; and
    (5) The net profit share base and net profit share payment due the 
United States and the monthly profit share of the lessee.
    (c) Each lessee subject to this part 220 shall submit, together with 
the report required by paragraph (b) of this section, any net profit 
share payment due the United States for the period covered by the 
report.
    (d) Each lessee subject to this part 220 shall file a report not 
later than 90 days after each inventory is taken, reporting the 
controllable materiel on hand, acquired, transferred or used.
    (e) Each lessee subject to this part 220 shall file a final report, 
not later than 60 days following the cessation of production, together 
with the appropriate net profit share payment, indicating the remaining 
balance and costs and credits to the NPSL capital account for the 
period.
    (f) Reports required by this section shall be filed with the 
Director, either separately or as part of the reports that are currently 
filed.
    (g) Interest shall be calculated at the prevailing rate or rates as 
published in the Bulletin to the Department of the Treasury Fiscal 
Requirement Manual, in effect for the period or periods over which the 
net profit share payment is owed, compounded monthly, on the amount of a 
net profit share payment, from the due date (60 days following the end 
of each month for which the payment was due) of a net profit share 
payment until such payment is received by the United States.



Sec. 220.032  Inventories.

    (a) The lessee is responsible for NPSL materiel and shall make 
proper and timely cost and credit notations for all materiel movements 
affecting NPSL property. The lessee shall provide only such materiel as 
may be required for immediate use or is consistent with practical, 
efficient, and economical operations. The accumulation of surplus stocks 
shall be avoided by proper materiel control, inventory and purchasing. 
The lessee shall make timely disposition of idle and surplus materiel 
through sale.
    (b) At reasonable intervals, but at least once every three years, 
inventories of controllable materiel shall be taken by the lessee. 
Written notice of intention to take inventory shall be given by the 
lessee at least 30 days before any inventory is to be taken so that the 
Director may be represented at the taking of inventory. Failure of the 
Director to be represented at an inventory shall bind the Director to 
accept the inventory taken by the lessee, except in the case of willful 
misrepresentation or fraud.
    (c) Inventory shall be valued with any generally accepted accounting 
method used by the lessee to value the same materiel for financial or 
income tax reporting purposes, provided that the method is consistently 
applied throughout the life of the materiel.
    (d) Reconciliation shall be made of a physical inventory with the 
NPSL capital account by the lessee, and a list of overages and shortages 
shall be available to the Director for audit as provided in 
Sec. 220.033. Inventory adjustments of controllable materiel shall be 
made by the lessee to the NPSL capital account for overages and 
shortages. Controllable materiel removed from physical inventory that 
has not been credited to NPSL operations under Sec. 220.015(a)(2) shall 
be credited to NPSL operations at its original value, except that when 
the cost of the materiel originally qualified for the allowance for 
capital recovery in Sec. 220.020, the credit shall be calculated 
pursuant to Sec. 220.021(a)(3).



Sec. 220.033  Audits.

    (a) The accounts of an NPSL lessee or of a contractor of the lessee 
which are related to NPSL operations shall be subject to audit by DOI or 
its appointed agent. Where possible, the auditor for DOI shall 
coordinate audit efforts with other nonoperators, if any. DOI shall have 
the right to initiate an audit any time within thirty-six months of the 
due date of the monthly statement that is to be audited or the date that 
the statement was mailed, whichever is later, provided, however, that 
audits may not be conducted any more frequently than once every year

[[Page 204]]

except upon a showing of fraud or willful misrepresentation.
    (b)(1) When nonoperators of an NPSL lease call an audit in 
accordance with the terms of their operating agreement, the Director 
shall be notified of the audit call in the same manner as the operator 
is notified. DOI may elect to send an auditor with the audit team 
specified by the nonoperators in lieu of calling for a separate audit by 
DOI.
    (2) If DOI determines to call for an audit, DOI shall notify the 
lessee of its audit call and set a time and place for the audit. Such a 
notice shall be sent at least thirty days before the suggested time for 
the audit to allow the nonoperators to join in DOI's audit in lieu of 
calling for their own audit. The place for the audit will normally be 
the place where the lessee maintains its records pertaining to the NPSL 
lease. The lessee shall send copies of the notice to the nonoperators on 
the lease. The lessee shall use reasonable effort to notify all 
nonoperators, but failure to include one or more nonoperators in the 
notification shall not void the notice.
    (3) When DOI calls for an audit, DOI may suggest the date and time 
when the audit may commence. The estimated duration of the audit may be 
mentioned to the lessee as well as to the other nonoperators who may 
elect to supply and auditor for their own audit purposes. The lessee's 
office where the audit will be held may be named or, if not known, 
inquired about. If a visit to a field plant or field office is 
contemplated by the government auditor, such a field trip may be 
mentioned. If DOI expresses a desire to review a period on which the 
thirty-six month time limitation has expired, it is the lessee's 
prerogative to allow the review or to request that DOI adhere to the 
time limitation specified in these regulations.
    (c)(1) Exceptions to the accounting by the lessee, whether in favor 
of the government or the lessee, shall be noted in a report to the 
lessee. The lessee shall have 60 days from the mailing of a notice of 
exceptions to agree to the adjustments proposed by the DOI auditor or to 
object to the proposed adjustments. If the lessee accepts the proposed 
adjustments, the adjustment shall be booked in the month in which the 
lessee agrees to the adjustment, except where such adjustment would have 
resulted in a change in any net profit share payment due the United 
States. In such a case, there shall be a redetermination of the NPSL 
capital account pursuant to Sec. 220.034.
    (2) If the lessee disagrees with the adjustment, the lessee shall 
have the right to appeal the adjustment to the Director.
    (d) Upon receipt of an agreement by the government auditor that 
there are no required audit adjustments, upon final determination with 
respect to any audit adjustment proposed by the government auditor, or 
upon the lapse of thirty-six months from the due date or date of mailing 
of the statement of account on an NPSL lease, whichever comes later, the 
books shall be closed for audit adjustment purposes, except upon a 
showing of fraud or willful misrepresentation.
    (e) Records required to be kept under Sec. 220.030(a) shall be made 
available for inspection by any authorized agent of DOI at any time 
during normal business hours upon the request of the Director or other 
authorized official.



Sec. 220.034  Redetermination and appeals.

    (a) If, as a result of an inspection of records or an audit under 
Sec. 220.033, the Director determines that there is an error in the NPSL 
capital account or an error in calculating the net profit share payment, 
whether in favor of the government or the lessee, the Director shall 
redetermine the net profit share base and recalculate the net profit 
share payment due the United States and notify the lessee of the 
recalculation.
    (b) The lessee shall pay any additional amount of net profit share 
payment owed plus interest, compounded monthly, from the date that the 
payment was due until the date it is actually paid. Interest shall be 
calculated at the prevailing rate or rates as published in the Bulletin 
to the Department of the Treasury Fiscal Requirements Manual, in effect 
for the period or periods over which the payment is owed.

[[Page 205]]

    (c) If the recalculated profit share payment is less than the amount 
paid the United States, the lessee shall apply such overpayment to the 
next profit share payment.
    (d) Within 30 days after receiving notice of the recalculation as 
provided in paragraph (a) of this section, the lessee may appeal the 
decision of the Director in accordance with the appeals provision of 30 
CFR part 290.



PART 227--DELEGATION TO STATES--Table of Contents




                   Delegation of MMS Royalty Functions

Sec.
227.1  What is the purpose of this part?
227.10  What is the authority for information collection?
227.101  What royalty management functions may MMS delegate to a State?
227.102  What royalty management functions will MMS not delegate?

                          Delegation Proposals

227.103  What must a State's delegation proposal contain?
227.104  What will MMS do when it receives a State's delegation 
          proposal?

                             Hearing Process

227.105  What are the hearing procedures?

                           Delegation Process

227.106  What statutory requirements must a State meet to receive a 
          delegation?
227.107  When will the MMS Director decide whether to approve a State's 
          delegation proposal?
227.108  How will MMS notify a State of its decision?
227.109  What if the MMS Director denies a State's delegation proposal?
227.110  When and for how long are delegation agreements effective?

                          Existing Delegations

227.111  Do existing delegation agreements remain in effect?

                              Compensation

227.112  What compensation will a State receive to perform delegated 
          functions?

         States' Responsibilities to Perform Delegated Functions

227.200  What are a State's general responsibilities if it accepts a 
          delegation?
227.201  What standards must a State comply with for performing 
          delegated functions?
227.300  What audit functions may a State perform?
227.301  What are a State's responsibilities if it performs audits?
227.400  What functions may a State perform in processing production 
          reports and royalty reports?
227.401  What are a State's responsibilities if it processes production 
          reports or royalty reports?
227.500  What functions may a State perform to ensure that reporters 
          correct erroneous report data?
227.501  What are a State's responsibilities to ensure that reporters 
          correct erroneous data?
227.600  What automated verification functions may a State perform?
227.601  What are a State's responsibilities if it performs automated 
          verification?
227.700  What enforcement documents may a State issue in support of its 
          delegated function?

                           Performance Review

227.800  How will MMS monitor a State's performance of delegated 
          functions?
227.801  What if a State does not adequately perform a delegated 
          function?
227.802  How will MMS terminate a State's delegation agreement?
227.803  What are the hearing procedures for terminating a State's 
          delegation agreement?
227.804  How else may a State's delegation agreement terminate?
227.805  How may a State obtain a new delegation agreement after 
          termination?

    Authority: 30 U.S.C. 1735; 30 U.S.C. 196; Pub L. 102-154.

    Source: 62 FR 43084, Aug. 12, 1997, unless otherwise noted.

                   Delegation of MMS Royalty Functions



Sec. 227.1  What is the purpose of this part?

    This part provides procedures to delegate Federal royalty management 
functions to States under section 205 of the Federal Oil and Gas Royalty 
Management Act of 1982 (the Act), 30 U.S.C. 1735, as amended by the 
Federal Oil and Gas Royalty Simplification and Fairness Act of 1996, 
Pub. L. 104-185, August 13, 1996, as corrected by Pub. L. 104-200. This 
part also provides procedures to delegate only audit and investigation 
functions to States under Pub. L. 102-154 for solid mineral leases, 
geothermal leases and leases subject to section 8(g) of the Outer 
Continental Shelf Lands Act, 43 U.S.C. 1337(g). This part does

[[Page 206]]

not apply to any inspection or enforcement responsibilities of the 
Bureau of Land Management for onshore leases or the MMS Offshore 
Minerals Management program for leases on the Outer Continental Shelf.



Sec. 227.10  What is the authority for information collection?

    (a) The information collection requirements contained in this part 
have been approved by Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. and assigned OMB Control Number 1010-0088. We will 
use the information collected to review and approve delegation proposals 
from States wishing to perform royalty management functions.
    (b) Public reporting burden is estimated as follows. MMS estimates 
400 annual burden hours per function for each State performing the 
delegated functions. The Federal Government will reimburse some of these 
costs as provided by statute. However, States could incur additional 
start-up costs, such as purchasing equipment necessary to perform a 
delegated function, that may not be reimbursable. MMS estimates that, if 
applicable, each payor or reporter would spend 50 burden hours annually 
coordinating their interactions and communications among the several 
States and with MMS. Send comments regarding this burden estimate or any 
other aspect of this collection of information, including suggestions 
for reducing burden, to the Information Collection Clearance Officer, 
Minerals Management Service, 1849 C Street, NW., Washington, DC 20240; 
and to the Office of Information and Regulatory Affairs, Office of 
Management and Budget, Attention: Desk Officer for the Interior 
Department, OMB Control Number 1010-0088, 725 17th Street, NW., 
Washington, DC 20503.



Sec. 227.101   What royalty management functions may MMS delegate to a State?

    (a) If there are oil and gas leases subject to the Act on Federal 
lands within your State, MMS may delegate the following royalty 
management functions for all such Federal oil and gas leases to you 
under this part:
    (1) Receiving and processing production or royalty reports;
    (2) Correcting erroneous report data; and
    (3) Performing automated verification.
    (b) If there are oil and gas leases subject to the Act on Federal 
lands within your State, MMS may delegate the following royalty 
management functions for some or all of the Federal oil and gas leases 
to you under this part:
    (1) Conducting audits and investigations; and
    (2) Issuing demands, subpoenas, and orders to perform restructured 
accounting, including related notices to lessees or their designees, and 
entering into tolling agreements under section 115(d)(1) of the Act, 30 
U.S.C. 1725(d)(1).
    (c) If there are oil and gas leases offshore of your State subject 
to section 8(g) of the Outer Continental Shelf Lands Act, 43 U.S.C. 1337 
(g), or solid mineral leases or geothermal leases on Federal lands 
within your State, MMS may delegate authority to conduct audits and 
investigations for some or all such Federal leases.

[64 FR 36784, July 8, 1999]



Sec. 227.102  What royalty management functions will MMS not delegate?

    This section lists the principal royalty management functions that 
MMS will not delegate to a State. MMS will not delegate to a State the 
following functions:
    (a) MMS must collect all moneys received from sales, bonuses, 
rentals, royalties, civil penalties, assessments and interest. MMS also 
must collect any moneys a lessee or its designee pays because of audits 
or other actions of a delegated State;
    (b) MMS must compare all cash and other payments it receives with 
payments shown on royalty reports or other documents, such as bills, to 
reconcile payor accounts. MMS also must disburse all appropriate moneys 
to States and other revenue recipients, including refunds and interest 
owed to lessees and their designees;
    (c) The Department of the Interior will receive, process, and decide 
all administrative appeals from demands or other orders issued to 
lessees, their

[[Page 207]]

designees, or any other person, including demands or orders a delegated 
State issues;
    (d) Only MMS may take enforcement actions other than issuing 
demands, subpoenas and orders to perform restructured accounting. MMS or 
the appropriate Federal agency will issue notices of non-compliance and 
civil penalties, collect debts, write off delinquent debts, pursue 
litigation, enforce subpoenas, and manage any alternative dispute 
resolution. MMS will conduct, coordinate and approve any settlement or 
other compromise of an obligation that a lessee or its designee owes;
    (e) MMS will decide all valuation policies, including issuing 
valuation regulations, determinations, and guidelines, and interpreting 
valuation regulations; and
    (f) MMS may reserve additional authorities and responsibilities not 
included in paragraphs (a) through (f) of this section.

                          Delegation Proposals



Sec. 227.103  What must a State's delegation proposal contain?

    If you want MMS to delegate royalty management functions to you, 
then you must submit a delegation proposal to the MMS Associate Director 
for Minerals Revenue Management. MMS will provide you with technical 
assistance and information to help you prepare your delegation proposal. 
Your proposal must contain the following minimum information:
    (a) The name and title of the State official authorized to submit 
the delegation proposal and execute the delegation agreement;
    (b) The name, address, and telephone number of the State contact for 
the proposal;
    (c) A copy of the legislation, State Attorney General opinion or 
other document that:
    (1) States which State entity or entities are responsible for 
performing delegated functions, and if more than one entity is delegated 
such responsibility, the position of the highest ranking State official 
having ultimate authority over the collection of royalties from leases 
on Federal lands within the State;
    (2) Demonstrates the State's authority to:
    (i) Accept a delegation from MMS; and
    (ii) Receive State or Federal appropriations to perform delegated 
functions;
    (d) The date you propose to begin performing delegated functions;
    (e) A detailed statement of the delegable functions that you propose 
to perform. For each function, describe the resources available in your 
State to perform each function, the procedures you will use to perform 
each function, and how you will assure that you will meet all Federal 
laws, lease terms, regulations and relevant performance standards. As 
evidence that you have or will have the resources to perform each 
delegable function, provide the following information:
    (1) A description of the personnel you have available to perform 
delegated functions, including:
    (i) How many persons you will assign full-time and part-time to each 
delegated function;
    (ii) The technical qualifications of the key personnel you will 
assign to each function, including academic field and degree, 
professional credentials, and quality and amount of experience with 
similar functions; and
    (iii) Whether these persons are currently State employees. If not, 
explain how you propose to hire these persons or obtain their services, 
and when you expect to have those persons available to perform delegated 
functions;
    (2) A description of the facilities you will use to perform 
delegated functions, including:
    (i) Whether you currently have the facilities in which you will 
physically locate the personnel and equipment you will need to perform 
the functions you propose to assume. If not, how you propose to acquire 
such facilities, and when you expect to have such facilities available; 
and
    (ii) How much office space is available;
    (3) Describe the equipment you will use to perform delegated 
functions, including:
    (i) Hardware and software you will use to perform each delegated 
function, including equipment for:

[[Page 208]]

    (A) Document processing, including compatibility with MMS automated 
systems, electronic commerce capabilities, and data storage 
capabilities;
    (B) Accessing reference data;
    (C) Contacting production or royalty reporters;
    (D) Issuing demands;
    (E) Maintaining accounting records;
    (F) Performing automated verification;
    (G) Maintaining security of confidential and proprietary 
information; and
    (H) Providing data to other Federal agencies;
    (ii) Whether you currently have the equipment you will need to 
perform the functions you propose to assume. If not, how you propose to 
acquire such equipment and when you expect to have such equipment 
available;
    (f) Your estimates of the costs to fund the following resources 
necessary to perform the delegation:
    (1) Personnel, including hiring, employee salaries and benefits, 
travel and training;
    (2) Facilities, including acquisition, upgrades, operation, and 
maintenance; and
    (3) Equipment, including acquisition, operation, and maintenance;
    (g) Your plans to fund the resources under paragraph (f) of this 
section, including any items you will ask MMS to fund under the 
delegation agreement;
    (h) A statement identifying any areas where State law, including 
State appropriation law, may limit your ability to perform delegated 
functions, and an explanation of how you propose to remove any such 
limitation;
    (i) A statement that in accordance with section 203 of the Act (30 
U.S.C. 1733) persons who have access to information received under 
delegated functions are subject to the same provisions of law regarding 
confidentiality and disclosure of that information as Federal employees. 
Applicable laws include the Freedom of Information Act (FOIA), the Trade 
Secrets Act, and relevant Executive Orders. In addition, your statement 
must acknowledge that all documents produced, received, and maintained 
as part of any delegation functions are agency records for purposes of 
FOIA. Therefore, persons who have access to information received under 
delegated functions may not use such information or provide such 
information to any other person, including State personnel, for purposes 
other than performing delegated functions. However, this limitation does 
not apply if the person submitting the information consents in writing 
to its use for other State purposes.

[62 FR 43084, Aug. 12, 1997, as amended at 67 FR 19112, Apr. 18, 2002]



Sec. 227.104  What will MMS do when it receives a State's delegation proposal?

    When MMS receives your delegation proposal, it will record the 
receipt date. MMS will notify you in writing within 15 business days 
whether your proposal is complete. If it is not complete, MMS will 
identify any missing items Sec. 227.103 requires. Once you submit all 
required information, MMS will notify you of the date your application 
is complete.

                             Hearing Process



Sec. 227.105  What are the hearing procedures?

    After MMS notifies you that your delegation proposal is complete, 
MMS will schedule a hearing on your proposal, if MMS determines a 
hearing is appropriate, as follows:
    (a) The MMS Director will appoint a hearing official to conduct one 
or more public hearings for fact finding regarding your ability to 
assume the delegated functions requested. The hearing official will not 
decide whether to approve your delegation request;
    (b) The hearing official will contact you about scheduling a hearing 
date and location;
    (c) The MMS will publish notice of the hearing in the Federal 
Register and other appropriate media within your State;
    (d) MMS will publish notice of the proposal in the Federal Register. 
MMS will also post the proposal on the MMS Website, and upon request, 
MMS will send a copy of the delegation proposal to the trade 
associations to distribute to their members, as necessary;
    (e) At the hearing, you will have an opportunity to present 
testimony and

[[Page 209]]

written information in support of your proposal;
    (f) Other persons may attend the hearing and may present testimony 
and written information for the record;
    (g) MMS will record the hearing;
    (h) MMS will maintain a record of all documents related to the 
proposal process;
    (i) After the hearing, MMS may require you to submit additional 
information in support of your delegation proposal.

                           Delegation Process



Sec. 227.106  What statutory requirements must a State meet to receive a delegation?

    The MMS Director will decide whether to approve your delegation 
request and will ask the Secretary of the Interior to concur in the 
decision. That decision is solely within the MMS Director's and the 
Secretary's discretion. The MMS Director's decision, which the Secretary 
concurs in, is the final decision for the Department of the Interior. 
The MMS Director may approve a State's request for delegation only if, 
based upon the State's delegation proposal and the hearing record, the 
MMS Director finds that:
    (a) It is likely that the State will provide adequate resources to 
achieve the purposes of the Act;
    (b) The State has demonstrated that it will effectively and 
faithfully administer the MMS regulations under the Act in accordance 
with subsections (c) and (d) of section 205 of the Act;
    (c) Such delegation will not create an unreasonable burden on any 
lessee;
    (d) The State agrees to adopt standardized reporting procedures MMS 
prescribes for royalty and production accounting purposes, unless the 
State and all affected parties (including MMS) otherwise agree;
    (e) The State agrees to follow and adhere to regulations and 
guidelines MMS issues under the mineral leasing laws regarding valuation 
of production; and
    (f) Where necessary for a State to carry out and enforce a delegated 
activity, the State agrees to enact such laws and promulgate such 
regulations as are consistent with relevant Federal laws and 
regulations.



Sec. 227.107  When will the MMS Director decide whether to approve a State's delegation proposal?

    The MMS Director will decide whether to approve your delegation 
proposal within 90 days after your delegation proposal is considered 
complete under Sec. 227.104. MMS may extend the 90-day period with your 
written consent.



Sec. 227.108  How will MMS notify a State of its decision?

    MMS will notify you in writing of its decision on your delegation 
proposal. If MMS approves your delegation proposal, then MMS will hold 
discussions with you to develop a delegation agreement detailing the 
functions that you will perform, the standards and requirements you must 
comply with to perform those functions, and any required transition 
period.



Sec. 227.109  What if the MMS Director denies a State's delegation proposal?

    If the MMS Director denies your delegation proposal, MMS will state 
the reasons for denial. MMS also will inform you in writing of the 
conditions you must meet to receive approval. You may submit a new 
delegation proposal at any time following a denial.



Sec. 227.110  When and for how long are delegation agreements effective?

    (a) Delegation agreements are effective for 3 years from the date 
the MMS Director signs the delegation agreement. However, during the 
development of the State's delegation proposal under Sec. 227.108 of 
this part, MMS, the delegated State, and any other affected person will 
determine an appropriate transition period for lessees and their 
designees to modify their systems to comply with any new requirements 
under a delegation agreement. MMS will publish notice of the effective 
date of a State's delegation agreement in the Federal Register and that 
notice will inform lessees and their designees of any transition period. 
MMS also will post the proposals on the MMS Website at www.mms.gov, and 
upon request, will send a copy of the delegation proposals to trade 
associations to distribute to their members.
    (b) You may ask MMS to renew the delegation for an additional 3 
years no

[[Page 210]]

less than 6 months before your 3-year delegation agreement expires. You 
must submit your renewal request to the MMS Associate Director for 
Minerals Revenue Management as follows:
    (1) If you do not want to change the terms of your delegation 
agreement for the renewal period, you need only ask to extend your 
existing agreement for the 3-year renewal period. MMS will not schedule 
a hearing unless you request one;
    (2) If you want to change the terms of your delegation agreement for 
the renewal period, you must submit a new delegation proposal under this 
part.
    (c) The MMS Director may approve your renewal request only if MMS 
determines that you are meeting the requirements of the applicable 
standards and regulations. If the MMS Director denies your renewal 
request, MMS will state the reasons for denial. MMS also will inform you 
in writing of the conditions you must meet to receive approval. You may 
submit a new renewal request any time after denial.
    (d) After the 3-year renewal period for your delegation agreement 
ends, if you wish to continue performing one or more delegated 
functions, you must request a new delegation agreement from MMS under 
this part. MMS will schedule a hearing on your request, if MMS 
determines a hearing is appropriate. As part of the decision whether to 
approve your request for a new delegation, the MMS Director will 
consider whether you are meeting the requirements of the applicable 
standards and regulations under your existing delegation agreement.
    (e) If you do not request a hearing under paragraphs (b)(1) or (d) 
of this section, any other affected person may submit a written request 
for a hearing under those paragraphs to the MMS Associate Director for 
Minerals Revenue Management.

[62 FR 43084, Aug. 12, 1997, as amended at 67 FR 19112, Apr. 18, 2002]

                          Existing Delegations



Sec. 227.111  Do existing delegation agreements remain in effect?

    This section explains your options if you have a delegation 
agreement in effect on the effective date of this regulation.
    (a) If you do not want to perform any royalty management functions 
in addition to those authorized under your existing agreement, you may 
continue your existing agreement until its expiration date. Before the 
agreement expires, if you wish to continue to perform one or more of the 
delegated functions you performed under the expired agreement, you must 
request a new delegation agreement meeting the requirements of this part 
and the applicable standards.
    (b) If you want to perform royalty management functions in addition 
to those authorized under your existing agreement, you must request a 
new delegation agreement under this part.
    (c) MMS may extend any delegation agreement in effect on the 
effective date of this regulation for up to 3 years beyond the date it 
is due to expire.

                              Compensation



Sec. 227.112  What compensation will a State receive to perform delegated functions?

    You will receive compensation for your costs to perform each 
delegated function subject to the following conditions:
    (a) Compensation for costs is subject to Congressional 
appropriations;
    (b) Compensation may not exceed the reasonably anticipated 
expenditures that MMS would incur to perform the same function;
    (c) The cost for which you request compensation must be directly 
related to your performance of a delegated function and necessary for 
your performance of that delegated function;
    (d) At a minimum, you must provide vouchers detailing your 
expenditures quarterly during the fiscal year. However, you may agree to 
provide vouchers on a monthly basis in your delegation agreement;
    (e) You must maintain adequate books and records to support your 
vouchers;
    (f) MMS will pay you quarterly or monthly during the fiscal year as 
stated in your delegation agreement; and

[[Page 211]]

    (g) MMS may withhold compensation to you for your failure to 
properly perform any delegated function as provided in section 227.801 
of this part.

         States' Responsibilities To Perform Delegated Functions



Sec. 227.200  What are a State's general responsibilities if it accepts a delegation?

    For each delegated function you perform, you must:
    (a) Operate in compliance with all Federal laws, regulations, and 
Secretarial and MMS determinations and orders relating to calculating, 
reporting, and paying mineral royalties and other revenues. You must 
seek information or guidance from MMS regarding new, complex, or unique 
issues. If MMS determines that written guidance or interpretation is 
appropriate, MMS will provide the guidance or interpretation in writing 
to you and you must follow the interpretation or guidance given;
    (b) Comply with Generally Accepted Accounting Principles (GAAP). You 
must:
    (1) Provide complete disclosure of financial results of activities;
    (2) Maintain correct and accurate records of all mineral-related 
transactions and accounts;
    (3) Maintain effective controls and accountability;
    (4) Maintain a system of accounts that includes a comprehensive 
audit trail so that all entries may be traced to one or more source 
documents; and
    (5) Maintain adequate royalty and production information for royalty 
management purposes;
    (c) Assist MMS in meeting the requirements of the Government 
Performance and Results Act (GPRA) as well as assisting in developing 
and endeavoring to comply with the MMS Strategic Plan and Performance 
Measurements;
    (d) Maintain all records you obtain or create under your delegated 
function, such as royalty reports, production reports, and other related 
information. You must maintain such records in a safe, secure manner, 
including taking appropriate measures for protecting confidential and 
proprietary information and assisting MMS in responding to Freedom of 
Information Act requests when necessary. You must maintain such records 
for at least 7 years;
    (e) Provide reports to MMS about your activities under your 
delegated functions. MMS will specify in your delegation agreement what 
reports you must submit and how often you must submit them. At a 
minimum, you must provide periodic statistical reports to MMS 
summarizing the activities you carried out, such as:
    (1) Production and royalty reports processed;
    (2) Erroneous reports corrected;
    (3) Results of automated verification findings;
    (4) Number of audits performed; and
    (5) Enforcement documents issued.
    (f) Assist MMS in maintaining adequate reference, royalty, and 
production databases as provided in the Standards issued under 
Sec. 227.201 of this part and the delegation agreement;
    (g) Develop annual work plans that:
    (1) Specify the work you will perform for each delegated function; 
and
    (2) Identify the resources you will commit to perform each delegated 
function;
    (h) Help MMS respond to requests for information from other Federal 
agencies, Congress, and the public;
    (i) Cooperate with MMS's monitoring of your delegated functions; and
    (j) Comply with the Standards as required under Sec. 227.201 of this 
part.



Sec. 227.201  What standards must a State comply with for performing delegated functions?

    (a) If MMS delegates royalty management functions to you, you must 
comply with the Standards. The Standards explain how you must carry out 
the activities under each of the delegable functions.
    (b) Your delegation agreement may include additional standards 
specifically applicable to the functions delegated to you.
    (c) Failure to comply with your delegation agreement, the Standards, 
or any of the specific standards and requirements in the delegation 
agreement, is grounds for termination of all or part of your delegation 
agreement, or other actions as provided under Secs. 227.801 and 227.802.

[[Page 212]]

    (d) MMS may revise the Standards and will provide notice of those 
changes in the Federal Register. You must comply with any changes to the 
Standards.



Sec. 227.300  What audit functions may a State perform?

    An audit consists of an examination of records to verify that 
royalty reports and payments accurately reflect actual production, 
sales, revenues and costs, and compliance with Federal statutes, 
regulations, lease terms, and MMS policy determinations.
    (a) If you request delegation of audit functions, you must perform 
at least the following:
    (1) Submitting requests for records;
    (2) Examining royalty and production reports;
    (3) Examining lessee production and sales records, including 
contracts, payments, invoices, and transportation and processing costs 
to substantiate production and royalty reporting;
    (4) Providing assistance to MMS for appealed demands or orders, 
including preparing field reports, performing remanded actions, 
modifying orders, and providing oral and written briefing and testimony 
as expert witnesses.
    (b) If necessary for a particular audit, you may also perform any of 
the following:
    (1) Issuing engagement letters;
    (2) Arranging for entrance conferences;
    (3) Scheduling site visits; and
    (4) Issuing record releases and audit closure letters; and
    (5) Holding closeout conferences.



Sec. 227.301  What are a State's responsibilities if it performs audits?

    If you perform audits you must:
    (a) Comply with the MMS Audit Procedures Manual and the Government 
Auditing Standards issued by the Comptroller General of the United 
States;
    (b) Follow the MMS Annual Audit Work Plan and 5-year Audit Strategy, 
which MMS will develop in consultation with States having delegated 
audit authority;
    (c) Agree to undertake special audit initiatives MMS identifies 
targeting specific royalty issues, such as valuation or volume 
determinations;
    (d) Prepare, construct, or compile audit work papers under the 
appropriate procedures, manuals, and guidelines;
    (e) Prepare and submit MMS Audit Work Plans. You may modify your 
Audit Work Plans with MMS approval; and
    (f) Comply with procedures for appealed demands or orders, including 
meeting timeframes, supplying information, and using the appropriate 
format.



Sec. 227.400  What functions may a State perform in processing production reports or royalty reports?

    Production reporters or royalty reporters provide production, sales, 
and royalty information on mineral production from leases that must be 
collected, analyzed, and corrected.
    (a) If you request delegation of either production report or royalty 
report processing functions, you must perform at least the following:
    (1) Receiving, identifying, and date stamping production reports or 
royalty reports;
    (2) Processing production or royalty data to allow entry into a data 
base;
    (3) Creating copies of reports by means such as electronic imaging;
    (4) Timely transmitting production report or royalty report data to 
MMS and other affected Federal agencies as provided in your delegation 
agreement and the Standards;
    (5) Providing training and assistance to production reporters or 
royalty reporters;
    (6) Providing production data or royalty data to MMS and other 
affected Federal agencies; and
    (7) Providing assistance to MMS for appealed demands or orders, 
including meeting timeframes, supplying information, using the 
appropriate format, performing remanded actions, modifying orders, and 
providing oral and written briefing and testimony as expert witnesses.
    (b) If you request delegation of either production report or royalty 
report processing functions, or both, you may perform the following 
functions:
    (1) Granting exceptions from reporting and payment requirements for 
marginal properties; and

[[Page 213]]

    (2) Approving alternative royalty and payment requirements for unit 
agreements and communitization agreements.
    (c) You must provide MMS with a copy of any exceptions from 
reporting and payment requirements for marginal properties and any 
alternative royalty and payment requirements for unit agreements and 
communitization agreements you approve.



Sec. 227.401  What are a State's responsibilities if it processes production reports or royalty reports?

    In processing production reports or royalty reports you must:
    (a) Process reports accurately and timely as provided in the 
Standards and your delegation agreement;
    (b) Identify and resolve fatal errors to use in subsequent error 
correction that the State or MMS performs;
    (c) Accept multiple forms of electronic media from reporters, as MMS 
specifies;
    (d) Timely transmit required production or royalty data to MMS and 
other affected Federal agencies;
    (e) Access well, lease, agreement, and reporter reference data from 
MMS and provide updated information to MMS;
    (f) For production reports, maintain adequate system software edits 
to ensure compliance with the provisions of 30 CFR part 216, the 
production reporter handbook, any interagency memorandums of 
understanding to which MMS is a party, and the Standards;
    (g) For royalty reports, maintain adequate system software edits to 
ensure compliance with the provisions of 30 CFR part 218, the Oil and 
Gas Payor Handbook, Volume II, ``Dear Payor'' letters, and the 
Standards; and
    (h) Comply with the procedures for appealed demands or orders, 
including meeting timeframes, supplying information, and using the 
appropriate format.

[62 FR 43084, Aug. 12, 1997, as amended at 67 FR 19112, Apr. 18, 2002]



Sec. 227.500  What functions may a State perform to ensure that reporters correct erroneous report data?

    Production data and royalty data must be edited to ensure that what 
is reported is correct, that disbursement is made to the proper 
recipient, and that correct data are used for other functions, such as 
automated verification and audits. If you request delegation of error 
correction functions for production reports or royalty reports, or both, 
you must perform at least the following:
    (a) Correcting all fatal errors and assigning appropriate 
confirmation indicators;
    (b) Verifying whether production reports are missing;
    (c) Contacting production reporters or royalty reporters about 
missing reports and resolving exceptions;
    (d) Documenting all corrections made, including providing production 
reporters or royalty reporters with confirmation reports of any changes;
    (e) Providing training and assistance to production reporters or 
royalty reporters;
    (f) Issuing notices, orders to report, and bills as needed, 
including, but not limited to, imposing assessments on a person who 
chronically submits erroneous reports; and
    (g) Providing assistance to MMS for appealed demands or orders, 
including preparing field reports, performing remanded actions, 
modifying orders, and providing oral and written briefing and testimony 
as expert witnesses.



Sec. 227.501  What are a State's responsibilities to ensure that reporters correct erroneous data?

    To ensure the correction of erroneous data, you must:
    (a) Ensure compliance with the provisions of 30 CFR parts 216 and 
218, any applicable handbook specified under 30 CFR 227.401 (f) and (g), 
interagency memorandums of understanding to which MMS is a party, and 
the Standards;
    (b) Ensure that reporters accurately and timely correct all fatal 
errors as designated in the Standards. These errors include, for 
example, invalid or incorrect reporter/payor codes, incorrect lease/
agreement numbers, and missing data fields;
    (c) Submit accepted and corrected lines to MMS to allow processing 
in a timely manner as provided in the Standards and 30 CFR part 219; and

[[Page 214]]

    (d) Comply with the procedures for appealed demands or orders, 
including meeting timeframes, supplying information, and using the 
appropriate format.

[62 FR 43064, Aug. 12, 1997, as amended at 67 FR 19112, Apr. 18, 2002]



Sec. 227.600  What automated verification functions may a State perform?

    Automated verification involves systematic monitoring of production 
and royalty reports to identify and resolve reporting or payment 
discrepancies. States may perform the following:
    (a) Automated comparison of sales volumes reported by royalty 
reporters to sales and transfer volumes reported by production 
reporters. If you request delegation of automated comparison of sales 
and production volumes, you must perform at least the following 
functions:
    (1) Performing an initial sales volume comparison between royalty 
and production reports;
    (2) Performing subsequent comparisons when reporters adjust royalty 
or production reports;
    (3) Checking unit prices for reasonable product valuation based on 
reference price ranges MMS provides;
    (4) Resolving volume variances using written correspondence, 
telephone inquiries, or other media;
    (5) Maintaining appropriate file documentation to support case 
resolution; and
    (6) Issuing orders to correct reports or payments;
    (b) Any one or more of the following additional automated 
verification functions:
    (1) Verifying compliance with lease financial terms, such as payment 
of rent, minimum royalty, and advance royalty;
    (2) Identifying and resolving improper adjustments;
    (3) Identifying late payments and insufficient estimates, including 
calculating interest owed to MMS and verifying payor-calculated interest 
owed to MMS;
    (4) Calculating interest due to a lessee or its designee for an 
adjustment or refund, including identifying overpayments and excessive 
estimates;
    (5) Verifying royalty rates; and
    (6) Verifying compliance with transportation and processing 
allowance limitations;
    (c) Issuing notices and bills associated with any of the functions 
under paragraphs (a) and (b) of this section; and
    (d) Providing assistance to MMS for any of these delegated functions 
on appealed demands or orders, including meeting timeframes, supplying 
information, using the appropriate format, taking remanded actions, 
modifying orders, and providing oral and written briefing and testimony 
as expert witnesses.



Sec. 227.601  What are a State's responsibilities if it performs automated verification?

    To perform automated verification of production reports or royalty 
reports, you must:
    (a) Verify through research and analysis all identified exceptions 
and prepare the appropriate billings, assessment letters, warning 
letters, notification letters, Lease Problem Reports, other internal 
forms required, and correspondence required to perform any required 
follow-up action for each function, as specified in the Standards or 
your delegation agreement;
    (b) Resolve and respond to all production reporter or royalty 
reporter inquiries;
    (c) Maintain all documentation and logging procedures as specified 
in the Standards or your delegation agreement;
    (d) Access well, lease, agreement, and production reporter or 
royalty reporter reference data from MMS and provide updated information 
to MMS; and
    (e) Comply with procedures for appealed demands and orders, 
including meeting time frames, supplying information, and using the 
appropriate format.



Sec. 227.700  What enforcement documents may a State issue in support of its delegated function?

    This section explains what enforcement actions you may take as part 
of your delegated functions.

[[Page 215]]

    (a) You may issue demands, subpoenas, and orders to perform 
restructured accounting, including related notices to lessees and their 
designees. You also may enter into tolling agreements under section 
15(d)(1) of the Act, 30 U.S.C. 1725(d)(1).
    (b) When you issue any enforcement document you must comply with the 
requirements of section 115 of the Act, 30 U.S.C. 1725.
    (c) When you issue a demand or enter into a tolling agreement under 
section 15(d)(1) of the Act, 30 U.S.C. 1725(d)(1), the highest State 
official having ultimate authority over the collection of royalties or 
the State official to whom that authority has been delegated must sign 
the demand or tolling agreement.
    (d) When you issue a subpoena or order to perform a restructured 
accounting you must:
    (1) Coordinate with MMS to ensure identification of issues that may 
concern more than one State before you issue subpoenas and orders to 
perform restructured accounting; and
    (2) Ensure that the highest State official having ultimate authority 
over the collection of royalties signs any subpoenas and orders to 
perform restructured accounting, as required under section 115 of the 
Act, 30 U.S.C. 1725. This official may not delegate signature authority 
to any other person.

                           Performance Review



Sec. 227.800  How will MMS monitor a State's performance of delegated functions?

    This section explains MMS's procedures for monitoring your 
performance of any of your delegated functions.
    (a) A monitoring team of MMS officials will annually review your 
performance of the delegated functions and compliance with your 
delegation agreement, the Standards, and 30 U.S.C. 1735, including 
conducting fiscal examination to verify your costs for reimbursement.
    (b) The monitoring team also will:
    (1) Periodically review your statistical reports required under 
Sec. 227.200(e) to verify your accuracy, timeliness, and efficiency;
    (2) Check for timely transmittal of production report or royalty 
report information to MMS and other affected agencies, as applicable, to 
allow for proper disbursement of funds and processing of information;
    (3) Coordinate on-site visits and Office of the Inspector General, 
General Accounting Office, and MMS audits of your performance of your 
delegated functions; and
    (4) Maintain reports of its monitoring activities.



Sec. 227.801  What if a State does not adequately perform a delegated function?

    If your performance of the delegated function does not comply with 
your delegation agreement, or the Standards, or if MMS finds that you 
can no longer meet the statutory requirements under Sec. 227.106, then 
MMS may:
    (a) Notify you in writing of your noncompliance or inability to 
comply. The notice will prescribe corrective actions you must take, and 
how long you have to comply. You may ask MMS for an extension of time to 
comply with the notice. In your extension request you must explain why 
you need more time; and
    (b) If you do not take the prescribed corrective actions within the 
time that MMS allows in a notice issued under paragraph (a) of this 
section, then MMS may:
    (1) Initiate proceedings under Sec. 227.802 to terminate all or a 
part of your delegation agreement;
    (2) Withhold compensation provided to you under Sec. 227.112; and
    (3) Perform the delegated function, before terminating or without 
terminating your delegation agreement, including, but not limited to, 
issuing a demand or order to a Federal lessee, or its designee, or any 
other person when:
    (i) Your failure to issue the demand or order would result in an 
underpayment of an obligation due MMS; and
    (ii) The underpayment would go uncollected without MMS intervention.



Sec. 227.802  How will MMS terminate a State's delegation agreement?

    This section explains the procedures MMS will use to terminate all 
or a part of your delegation agreement:

[[Page 216]]

    (a) MMS will notify you in writing that it is initiating procedures 
to terminate your delegation agreement;
    (b) MMS will provide you notice and opportunity for a hearing under 
Sec. 227.803 of this part;
    (c) The MMS Director, with concurrence from the Secretary, will 
decide whether to terminate your delegation agreement.
    (d) After the hearing, MMS may:
    (1) Terminate your delegation agreement; or
    (2) Allow you 30 days to correct any remaining deficiencies. If you 
do not correct the deficiency within 30 days, MMS will terminate all or 
a part of your delegation agreement.
    (e) MMS will determine the date your agreement is terminated and 
will notify you of that date in writing. MMS will determine the 
termination date based on the number of delegated functions and the 
impact of the termination on all affected parties.



Sec. 227.803  What are the hearing procedures for terminating a State's delegation agreement?

    (a) The MMS Director will appoint a hearing official to conduct one 
or more public hearings for fact finding and to determine any actions 
you must take to correct the noncompliance. The hearing official will 
not decide whether to terminate your delegation agreement;
    (b) The hearing official will contact you about scheduling a hearing 
date and location;
    (c) The hearing official will publish notice of the hearing in the 
Federal Register and other appropriate media within your State;
    (d) At the hearing, you will have an opportunity to present 
testimony and written information on your ability to perform your 
delegated functions as required under this part, your delegation 
agreement, and the Standards;
    (e) Other persons may attend the hearing and may present testimony 
and written information for the record;
    (f) MMS will record the hearing;
    (g) After the hearing, MMS may require you to submit additional 
information; and
    (h) Information presented at each public hearing will help MMS to 
determine whether:
    (1) You have complied with the terms and conditions of your 
delegation agreement; or
    (2) You have the capability to comply with the requirements under 
Sec. 227.106 of this part.



Sec. 227.804  How else may a State's delegation agreement terminate?

    You may request MMS to terminate your delegation at any time by 
submitting your written notice of intent 6 months prior to the date on 
which you want to terminate. MMS will determine the date your agreement 
is terminated and will notify you of that date in writing. MMS will 
determine the termination date based on the number of delegated 
functions and the impact of the termination on all affected parties.



Sec. 227.805  How may a State obtain a new delegation agreement after termination?

    After your delegation agreement is terminated, you may apply again 
for delegation by beginning with the proposal process under this part.



PART 228--COOPERATIVE ACTIVITIES WITH STATES AND INDIAN TRIBES--Table of Contents




                      Subpart A--General Provisions

Sec.
228.1  Purpose.
228.2  Policy.
228.3  Limitation on applicability.
228.4  Authority.
228.5  Delegation of authority.
228.6  Definitions.
228.10  Information collection.

Subpart B--Oil and Gas, General [Reserved]

                     Subpart C--Oil and Gas, Onshore

228.100  Entering into an agreement.
228.101  Terms of agreement.
228.102  Establishment of standards.
228.103  Maintenance of records.
228.104  Availability of information.
228.105  Funding of cooperative agreements.
228.107  Eligible cost of activities.

[[Page 217]]

228.108  Deduction of civil penalties accruing to the State or tribe 
          from the Federal share of a cooperative agreement.

    Authority: Sec. 202, Pub. L. 97-451, 96 Stat. 2457 (30 U.S.C. 1732).

    Source: 49 FR 37348, Sept. 21, 1984, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 228.1  Purpose.

    It is the purpose of cooperative agreements to effectively utilize 
the capabilities of the States and Indian tribes in developing and 
maintaining an efficient and effective Federal royalty management system 
as indicated at 30 U.S.C. 1701.



Sec. 228.2  Policy.

    It shall be the policy of DOI to enter into cooperative agreements 
with States and Indian tribes to carry out audits and related 
investigations and enforcement actions whenever a State or tribe 
initiates a request to enter into an agreement and a finding is made 
that a State or tribe has the ability to carry out cooperative 
activities in a timely and efficient manner.



Sec. 228.3  Limitation on applicability.

    As of the effective date of this rule, September 11, 1997, this part 
does not apply to Federal lands.

[62 FR 43091, Aug. 12, 1997]



Sec. 228.4  Authority.

    The Secretary of the Interior is authorized to enter into 
cooperative agreements with States and Indian tribes (30 U.S.C. 1732) to 
share oil or gas royalty management information, and to carry out 
auditing and related investigation or enforcement activities in 
cooperation with the Secretary.



Sec. 228.5  Delegation of authority.

    (a) Authority to enter into cooperative agreements to carry out 
audit and related investigation and enforcement activities with State 
and tribal governments has been delegated to the Director of the 
Minerals Management Service (MMS).
    (b) Authority to enter into cooperative agreements with State and 
tribal governments to carry out inspection and related investigation and 
enforcement activities has been delegated to the Director of the Bureau 
of Land Management (BLM) and is not covered by this part.
    (c) The entry into a cooperative agreement with either MMS or BLM 
will not affect the ability of a State or Indian tribe to choose to 
enter into such an agreement with the other agency. A State may enter 
into a delegation agreement (30 U.S.C. 1735) with MMS to perform certain 
functions without affecting its ability to enter into a cooperative 
agreement with either MMS or BLM, or both, to cooperate in the 
performance of those functions which are not delegated in this part.



Sec. 228.6  Definitions.

    For the purposes of this part, terms shall have the same meaning as 
in 30 U.S.C. 1702. In addition, the following definition shall apply:
    Audit means an examination of the financial accounting and lease 
related records of the lessee and other interest holders, who by lease 
or contract pay royalties or are obligated to pay royalties, rents, 
bonuses or other payments on Federal or Indian leases. An examination is 
to be conducted in accordance with generally accepted audit standards as 
adopted by the American Institute of Certified Public Accountants. 
Activities to be examined which are considered to be an audit function 
include reconciliation of lease accounts under the Royalty Accounting 
System; records of lease activities related to Federal leases located 
within the boundaries of the State entering into a cooperative 
agreement; records of lease activities related to leases located on 
Indian lands, and the review and resolution of exceptions processed by 
the official accounting systems for royalty reporters and payors 
maintained by the MMS.

[49 FR 37348, Sept. 21, 1984, as amended at 67 FR 19112, Apr. 18, 2002]



Sec. 228.10  Information collection.

    (a) The information collection requirements contained in this part 
have been approved by OMB under 44 U.S.C.

[[Page 218]]

3501 et seq. and assigned OMB Clearance Number 1010-0087. The 
information collected will be used to prepare a cooperative agreement 
with a State or Indian tribe wishing to perform royalty audits. The 
information should be submitted voluntarily in order to enter into a 
cooperative agreement authorized by 30 U.S.C. 1732.
    (b) Public reporting burden is estimated to average 136 hours for 
the preparation of the original request for consideration and 
application to enter into a cooperative agreement. Subsequent requests 
for renewal of the agreement may require about 40 hours for the 
preparation of an annual budget and work plan, and an estimated 8 hours 
per quarter for preparation of a reimbursement voucher and an audit 
progress report. Send comments regarding this burden estimate or any 
other aspect of this collection of information, including suggestions 
for reducing burden, to the Information Collection Clearance Officer, 
Minerals Management Service, 381 Elden Street, Herndon, Virginia 22070; 
and to the Office of Information and Regulatory Affairs, Office of 
Management and Budget, Paperwork Reduction Project 1010-0087, 
Washington, DC 20503.

[57 FR 41868, Sept. 14, 1992, as amended at 58 FR 64903, Dec. 10, 1993]

Subpart B--Oil and Gas, General [Reserved]



                     Subpart C--Oil and Gas, Onshore



Sec. 228.100  Entering into an agreement.

    (a) A State or Indian tribe may request the Department to enter into 
a cooperative agreement by sending a letter from the governor, tribal 
chairman, or other appropriate official with delegation authority, to 
the Director of MMS.
    (b) The request for an agreement shall be in a format prescribed by 
MMS and should include at a minimum the following information:
    (1) Type of eligible activities to be undertaken.
    (2) Proposed term of the agreement.
    (3) Evidence that the State or Indian tribe meets, or can meet by 
the time the agreement is in effect, the standards established by the 
Secretary for the types of activities to be conducted under the terms of 
the agreement.
    (4) If the State is proposing to undertake activities on Indian 
lands located within the State, a resolution from the appropriate tribal 
council indicating their agreement to delegate to the State 
responsibilities under the terms of the cooperative agreement for 
activities to be conducted on tribal or allotted land.
    (c) The eligible activities to be conducted under the terms of a 
cooperative agreement may be funded or unfunded by the Department. See 
Sec. 228.105 of this subpart for funding of cooperative agreements.

[49 FR 37348, Sept. 21, 1984, as amended at 56 FR 10512, Mar. 13, 1991]



Sec. 228.101  Terms of agreement.

    (a) Agreements entered into under this part shall be valid for a 
period of 3 years and shall be renewable or additional consecutive 3-
year periods upon request of the State or Indian tribe which is a party 
to the agreement.
    (b) An agreement may be terminated at any time by mutual agreement 
and upon any terms and conditions as agreed upon by the parties.
    (c) A State or Indian tribe may unilaterally terminate an agreement 
by giving a 120-day written notice of intent to terminate.
    (d) The MMS may commence termination of an agreement by giving a 
120-day written notice of intent to terminate. MMS shall provide the 
State or Indian tribe with the reasons for the proposed termination in 
writing if the termination is proposed because of alleged deficiencies 
by the State or Indian tribe in carrying out the provisions of the 
agreement. The State or Indian tribe will be given 60 days to respond to 
the notice of deficiencies and to provide a plan for correction of those 
deficiencies. No final action on termination shall be taken until any 
submission of the State or Indian tribe provided within the above 
prescribed 60 days has been reviewed by MMS for content or merit.
    (e) Termination of a cooperative agreement shall not bar a later 
request by a State or Indian tribe to enter into a subsequent 
cooperative agreement.

[[Page 219]]



Sec. 228.102  Establishment of standards.

    The MMS, after consultation with States and Indian tribes, shall 
establish standards for carrying out the activities under the provisions 
of this part. The standards will be incorporated into the agreement and 
shall be no more stringent than those applicable to similar activities 
of the MMS. The States and Indian tribes shall coordinate their planned 
auditing activities with MMS. Where an MMS audit team is permanently 
assigned to a lessee/payor, contact by State and Indian tribal auditors 
with the lessee/payor shall be through the MMS auditor in residence.



Sec. 228.103  Maintenance of records.

    (a) The State or Indian tribe entering into a cooperative agreement 
under this part must retain all records, reports, working papers, and 
any backup materials for a period specified by MMS. All records and 
support materials must be available for inspection and review by 
appropriate personnel of the Department including the Office of the 
Inspector General.
    (b) The State or Indian tribe shall maintain all books and records 
as may be necessary to assure compliance with the provisions of chapter 
1, 48 CFR 31.107 and 48 CFR subpart 31.6 (Contracts with State, local, 
and federally recognized Indian tribal Governments).

[56 FR 10512, Mar. 13, 1991]



Sec. 228.104  Availability of information.

    (a) Under the provisions of this part, information necessary to 
carry out the activities authorized under the terms of a cooperative 
agreement will be provided by DOI to the States and Indian tribes 
entering into such agreements. The information will consist of data 
provided from all relevant sources on a lease level basis for leases 
located within the boundaries of the State or Indian tribe which has 
entered into the agreement. This information will include any records or 
data held by the lessee or other person that have not been submitted to 
MMS, but that affect Federal lease interests and could be required to be 
submitted under the lease terms or Federal regulations.
    (b) None of the provisions of this subpart should be construed as 
limiting information already being provided to Indian tribes and 
allottees regarding their lease interests.
    (c) Information will be provided by MMS on a monthly basis and will 
include data on royalties, rents, and bonuses collected on the lease, 
volumes produced, sales made, value of products disposed of as a sale 
and used as a basis for royalty calculation, and other information 
necessary to allow the State or tribe to carry out its responsibilities 
under the cooperative agreement.
    (d) Proprietary data that is made available to a State or tribe 
under provisions of 30 U.S.C. 1733 shall be subject to the constraints 
of 18 U.S.C. 1905. To receive proprietary data, the State or tribe must-
-
    (1) Demonstrate what audit, investigation, or litigation under 
provisions of 30 U.S.C. 1734 is planned for or underway for which this 
data is essential;
    (2) Demonstrate why this particular data is necessary; and
    (3) Agree to safeguard proprietary data as provided.



Sec. 228.105  Funding of cooperative agreements.

    (a)(1) The Department may, under the terms of the cooperative 
agreement, reimburse the State or Indian tribe up to 100 percent of the 
costs of eligible activities. Eligible activities will be agreed upon 
annually upon the submission and approval of a workplan and funding 
requirement.
    (2) A cooperative agreement may be entered into with a State or 
Indian tribe, upon request, without a requirement for reimbursement of 
costs by the Department.
    (b) All cooperative agreements under this part are subject to annual 
funding and the availability of appropriations specifically designated 
for the purpose of this part.
    (c) The State or Indian tribe shall submit a voucher for 
reimbursement of eligible costs incurred within 30 days of the end of 
each calendar quarter. The State or Indian tribe must provide the 
Department a summary of costs incurred, for which the State or Indian

[[Page 220]]

tribe is seeking reimbursement, with the voucher.

[49 FR 37348, Sept. 21, 1984, as amended at 56 FR 10512, Mar. 13, 1991]



Sec. 228.107  Eligible cost of activities.

    (a) If a cooperative agreement provides for Federal funding, only 
costs directly associated with eligible activities undertaken by the 
State or Indian tribe under the terms of a cooperative agreement will be 
eligible for reimbursement. Costs of services or activities which cannot 
be directly related to the support of activities specified in the 
agreement will not be eligible for Federal funding or for inclusion in 
the State's share or in the Indian tribe's share of funding that may be 
established in the agreement.
    (b) Eligible costs are the cost of salaries and benefits associated 
with technical, support, and clerical personnel engaged in eligible 
activities; direct cost of travel, rentals, and other normal 
administrative activities in direct support of the project or projects; 
basic and specialized training for State and tribal participants; and 
cost of any contractual services which can be shown to be in direct 
support of the activities covered by the agreement. Each cooperative 
agreement shall contain detailed schedules identifying those activities 
and costs which qualify for funding and the procedures, timing, and 
mechanics for implementing Federal funding.

[49 FR 37348, Sept. 21, 1984, as amended at 56 FR 10512, Mar. 13, 1991]



Sec. 228.108  Deduction of civil penalties accruing to the State or tribe from the Federal share of a cooperative agreement.

    As provided at 30 U.S.C. 1736, 50 percent of any civil penalty 
collected as a result of activities under a cooperative agreement will 
be shared with the State or Indian tribe performing the cooperative 
agreement; however, the amount of the civil penalty shared will be 
deducted from any Federal funding owed under that cooperative agreement. 
MMS shall maintain records of civil penalties collected and distributed 
to the States and tribes involved in cooperative agreements. Each 
quarterly payment of the Federal share of a cooperative agreement will 
be reduced by the amount of the civil penalties paid to the State or 
tribe during the prior quarter.



PART 229--DELEGATION TO STATES--Table of Contents




                      Subpart A--General Provisions

Sec.
229.1  Purpose.
229.2  Policy.
229.3  Limitation on applicability.
229.4  Authority.
229.6  Definitions.
229.10  Information collection requirements.

Subpart B--Oil and Gas, General [Reserved]

                     Subpart C--Oil and Gas, Onshore

                      Administration of Delegations

229.100  Authorities and responsibilities subject to delegation.
229.101  Petition for delegation.
229.102  Fact-finding and hearings.
229.103  Duration of delegations; termination of delegations.
229.104  Terms of delegation of authority.
229.105  Evidence of Indian agreement to delegation.
229.106  Withdrawal of Indian lands from delegated authority.
229.107  Disbursement of revenues.
229.108  Deduction of civil penalties accruing to the State or tribe 
          under the delegation of authority.
229.109  Reimbursement for costs incurred by a State under the 
          delegation of authority.
229.110  Examination of the State activities under delegation.
229.111  Materials furnished to States necessary to perform delegation.

                         Delegation Requirements

229.120  Obtaining regulatory and policy guidance.
229.121  Recordkeeping requirements.
229.122  Coordination of audit activities.
229.123  Standards for audit activities.
229.124  Documentation standards.
229.125  Preparation and issuance of enforcement documents.
229.126  Appeals.
229.127  Reports from States.

    Authority: 30 U.S.C. 1735.



                      Subpart A--General Provisions

    Source: 49 FR 37350, Sept. 21, 1984, unless otherwise noted.

[[Page 221]]



Sec. 229.1  Purpose.

    The purpose of this part is to promote the effective utilization of 
the capabilities of the States in developing and maintaining an 
efficient and effective Federal royalty management system.



Sec. 229.2  Policy.

    It shall be the policy of the Department of the Interior (DOI) to 
honor any properly made petition from the Chief Executive or other 
appopriate official of a State seeking delegation of authority under the 
provisions of 30 U.S.C. 1735 and to make a delegation to conduct audits 
and related investigations when the Secretary finds that the provisions 
of 30 U.S.C. 1735 have been complied with or can be complied with by a 
State seeking the delegation.



Sec. 229.3  Limitation on applicability.

    As of the effective date of this rule, September 11, 1997, this part 
does not apply to Federal lands.

[62 FR 43091, Aug. 12, 1997]



Sec. 229.4  Authority.

    The Secretary of the DOI is authorized under provisons of 30 U.S.C. 
1735 to delegate authority to States to conduct audits and related 
investigations with respect to all Federal lands within a State, and to 
those Indian lands to which a State has received permission from the 
respective Indian tribe(s) or allottee(s) to carry out audit activities 
under a delegation from the Secretary.



Sec. 229.6  Definitions.

    The definitions contained in 30 U.S.C. 1702 and in part 228 of this 
chapter apply to the activities carried out under the provisions of this 
part.



Sec. 229.10  Information collection requirements.

    The information collection requirements contained in this part do 
not require approval by the Office of Management and Budget under 44 
U.S.C. 3501 et seq., because there are fewer than 10 respondents 
annually.

Subpart B--Oil and Gas, General [Reserved]



                     Subpart C--Oil and Gas, Onshore

    Authority: The Federal Oil and Gas Royalty Management Act of 1982 
(30 U.S.C. 1701 et seq.).

                      Administration of Delegations



Sec. 229.100  Authorities and responsibilities subject to delegation.

    (a) All or part of the following authorities and responsibilities of 
the Secretary under the Act may be delegated to a State authority:
    (1) Conduct of audits related to oil and gas royalty payments made 
to the MMS which are attributable to leased Federal or Indian lands 
within the State. Delegations with respect to any Indian lands require 
the written permission, subject to the review of the MMS, of the 
affected Indian tribe or allottee.
    (2) Conduct of investigations related to oil and gas royalty 
payments made to the MMS which are attributable to leased Federal lands 
or Indian lands within the State. Delegation with respect to any Indian 
lands require the written permission, subject to the review of the MMS, 
of the affected Indian tribe or allottee. No investigation will be 
initiated without the specific approval of the MMS or the Secretary's 
designee and in accordance with the Departmental Manual.
    (b) The following authorities and responsibilities are specifically 
reserved to the MMS and are not delegable under these regulations:
    (1) Enforcement actions to assess and collect additional royalties 
identified as a consequence of audits, inspections, and investigations. 
These include all actions related to resolution of royalty obligations 
so identified, and the establishment and maintenance of payment 
performance bonds which may be required during the resolution process.
    (2) Enforcement actions to collect civil penalties and interest 
charges related to findings of audits, inspections, and investigations.
    (3) Administration of all appeals and all actions of the Department 
related to administrative and judicial litigation.
    (4) Issuance of subpoenas.

[[Page 222]]

    (c) The provisions of this section do not limit the authority 
provided to the States by section 204 of the Act.

[49 FR 40026, Oct. 12, 1984]



Sec. 229.101  Petition for delegation.

    (a) The governor or other authorized official of any State which 
contains Federal oil and gas leases, or Indian oil and gas leases where 
the Indian tribe and allottees have given the State an affirmative 
indication of their desire for the State to undertake certain royalty 
management-related activities on their lands, may petition the Secretary 
to assume responsibilities to conduct audits and related investigations 
of royalty related matters affecting Federal or Indian oil and gas 
leases within the State.
    (b) A State may enter into a delegation of authority under this part 
without affecting a State's ability to enter into a cooperative 
agreement under Part 228 of this chapter.
    (c) The Secretary shall carry out all factfinding and hearings he 
may decide are necessary in order to approve or disapprove the petition.
    (d) In the event that the Secretary denies the petition, the 
Secretary must provide the State with the specific reasons for denial of 
the petition. The State will then have 60 days to either contest or 
correct specific deficiencies and to reapply for a delegation of 
authority.

[49 FR 37350, Sept. 21, 1984. Redesignated and amended at 49 FR 40025, 
Oct. 12, 1984]



Sec. 229.102  Fact-finding and hearings.

    (a) Upon receipt of a petition for delegation from a State, the 
Secretary shall appoint a representative to conduct a hearing or 
hearings to carry out factfinding and determine the ability of the 
petitioning State to carry out the delegated responsibilities requested 
in accordance with the provisions of this part.
    (b) The Secretary's representative, after proper notice in the 
Federal Register and other appropriate media within the State, shall 
hold one or more public hearings to determine whether:
    (1) The State has an acceptable plan for carrying out delegated 
responsibilities and if it is likely that the State will provide 
adequate resources to achieve the purposes of this part (30 U.S.C. 
1735);
    (2) The State has the ability to put in place a process within 60 
days of the grant of delegation which will assure the Secretary that the 
functions to be delegated to the State can be effectively carried out;
    (3) The State has demonstrated that it will effectively and 
faithfully administer the rules and regulations of the Secretary in 
accordance with the requirements at 30 U.S.C. 1735;
    (4) The State's plan to carry out the delegated authority will be in 
accordance with the MMS standards; and
    (5) The State's plan to carry out the delegated authority will be 
coordinated with MMS and the Office of Inspector General audit efforts 
to eliminate added burden on any lessee or group of lessees operating 
Federal or Indian oil and gas leases within the State.
    (c) A State petitioning for a delegation of authority shall be given 
the opportunity to present testimony at a public hearing.

[49 FR 37350, Sept. 21, 1984. Redesignated and amended at 49 FR 40025, 
Oct. 12, 1984]



Sec. 229.103  Duration of delegations; termination of delegations.

    (a) Delegations of authority shall be valid for a period of 3 years 
and may be renewable for an additional consecutive 3-year period upon 
request of the State and after the appropriate factfinding required in 
Sec. 229.101. Delegations are subject to annual funding and the 
availability of appropriations specifically designated for the purpose 
of this part.
    (b) A delegation of authority may be terminated at any time and upon 
any terms and conditions as mutually agreed upon by the parties.
    (c) A State may terminate a delegation of authority by giving a 120-
day written notice of intent to terminate.
    (d) The Department may terminate a delegation of authority when it 
is determined, after opportunity for a hearing, that the State has 
failed to substantially comply with the provisions of the delegation of 
authority.
    (e) No action to initiate formal hearing proceedings for termination 
shall

[[Page 223]]

be taken until the Department has notified the State in writing of 
alleged deficiencies and allowed the State 120 days to correct the 
deficiencies.
    (f) Termination of a delegation shall not bar a subsequent request 
by a State to regain a delegation of authority.

[49 FR 37351, Sept. 21, 1984, as amended at 49 FR 40025, Oct. 12, 1984]



Sec. 229.104  Terms of delegation of authority.

    Each delegation of authority under this part shall be in writing, 
shall incorporate all the requirements of this part, and shall 
specifically include:
    (a) Terms obligating the State to conduct audit and investigative 
activities for a specific period of time;
    (b) Terms describing the authorities and responsibilities reserved 
by the MMS, including, but not limited to, those specified under 
Sec. 229.100;
    (c) Terms requiring the State to provide annual audit workplans to 
include the lease universe by company, or by individual lease accounts, 
a description of the audit work product(s) to be delivered, and the 
State resources (staff and otherwise) to be committed to the delegation;
    (d) Terms requiring the State to notify the MMS of any changed 
circumstances which would affect the State's ability to carry out the 
terms of the delegation;
    (e) Terms requiring coordination of delegated activities among the 
State, the MMS, and the land management agencies responsible for 
management of the leases included in the audit universe;
    (f) Terms requiring the State to maintain and make available to the 
MMS all audit workpapers, documents, and information gained or developed 
as a consequence of activities conducted under the delegation;
    (g) Terms obligating the State to adhere to all Federal laws, rules 
and regulations, and Secretarial determinations and orders relating to 
the calculation, reporting, and payment of oil and gas royalties, in all 
activities performed under the delegation.

[49 FR 40026, Oct. 12, 1984]



Sec. 229.105  Evidence of Indian agreement to delegation.

    In the case of a State seeking a delegation of authority for Indian 
lands as well as Federal lands, the State petition to the Secretary must 
be supported by an appropriate resolution or resolutions of tribal 
councils joining the State in petitioning for delegation and evidence of 
the agreement of individual Indian allottees whose lands would be 
involved in a delegation. Such evidence shall specifically speak to 
having the State assume delegated responsibility for specific functions 
related to royalty management activities.

[49 FR 37351, Sept. 21, 1984. Redesignated at 49 FR 40025, Oct. 12, 
1984]



Sec. 229.106  Withdrawal of Indian lands from delegated authority.

    If at any time an Indian tribe or an individual Indian allottee 
determines that it wishes to withdraw from the State delegation of 
authority in relation to its lands, it may do so by sending a petition 
of withdrawal to the State. Once the petition has been received, the 
State shall within 30 days cease all activities being carried out under 
the delegation of authority on the lands covered by the petition for the 
tribe or allottee.

[49 FR 37351, Sept. 21, 1984. Redesignated at 49 FR 40025, Oct. 12, 
1984]



Sec. 229.107  Disbursement of revenues.

    (a) The additional royalties and late payment charges resulting from 
State audit work done under a delegation of authority shall be collected 
by MMS. The State's share of any amounts so collected shall be paid to 
the State in accordance with the provisions of 30 U.S.C. 191 and part 
219 of this chapter.
    (b) Amounts collected for Indian leases shall be transferred to the 
appropriate Indian accounts (designated Treasury accounts) managed by 
the Bureau of Indian Affairs at the earliest practicable date after such 
funds are received, but in no case later than the last business day of 
the month in which such funds are received.
    (c) MMS shall provide to the State on a monthly basis, an accounting 
of collections resulting from audit work and

[[Page 224]]

enforcement actions resulting from a delegation of authority. Such 
accounting will identify collections broken down by royalties, penalties 
and interest paid.

[49 FR 40026, Oct. 12, 1984]



Sec. 229.108  Deduction of civil penalties accruing to the State or tribe under the delegation of authority.

    Fifty percent of any civil penalty resulting from activities under a 
delegation of authority shall be shared with the delegated State. 
However, the amount of the civil penalty shared will be deducted from 
any Federal funding owed under a delegation of authority under the 
provisions of 30 U.S.C. 1735. MMS shall maintain records of civil 
penalties collected and distributed to the States involved in 30 U.S.C. 
1735 delegations. Each quarterly payment will be reduced by the amount 
of the civil penalties paid to the delegated State or tribe during the 
prior quarter.

[49 FR 37351, Sept. 21, 1984. Redesignated at 49 FR 40025, Oct. 12, 
1984]



Sec. 229.109  Reimbursement for costs incurred by a State under the delegation of authority.

    (a) The Department of the Interior (DOI) shall reimburse the State 
for 100 percent of the direct cost associated with the activities 
undertaken under the delegation of authority. The State shall maintain 
books and records in accordance with the standards established by the 
DOI and will provide the DOI, on a quarterly basis, a summary of costs 
incurred for which the State is seeking reimbursement. Only costs as 
defined under the provisions of 30 U.S.C. 1735 are eligible for 
reimbursement.
    (b) The State shall submit a voucher for reimbursement of costs 
incurred within 30 days of the end of each calendar quarter.

[49 FR 37351, Sept. 21, 1984]



Sec. 229.110  Examination of the State activities under delegation.

    (a) The Department will carry out an annual examination of the 
State's delegated activities undertaken under the delegation of 
authority.
    (b) The examination required by this section will consist of a 
management review and a fiscal examination and evaluation to determine--
    (1) That activities being carried out by the State under the 
delegation of authority meet the standards established by the Department 
and in particular the provisions of 30 U.S.C. 1735; and
    (2) That costs incurred by the State under the delegation of 
authority are eligible for reimbursement by the Department.

[49 FR 37351, Sept. 21, 1984. Redesignated at 49 FR 40025, Oct. 12, 
1984]



Sec. 229.111  Materials furnished to States necessary to perform delegation.

    The MMS shall provide to the State all reports, files, and 
supporting materials within its possession necessary to allow the State 
to effectively carry out the terms of the delegation specified in 
Sec. 229.104.

[49 FR 40026, Oct. 12, 1984]

                         Delegation Requirements

    Source: Sections 229.120 through 229.126 appear at 49 FR 40026, Oct. 
12, 1984, unless otherwise noted.



Sec. 229.120  Obtaining regulatory and policy guidance.

    All activities performed by a State under a delegation must be in 
full accord with all Federal laws, rules and regulations, and 
Secretarial and agency determinations and orders relating to the 
calculation, reporting, and payment of oil and gas royalties. In those 
cases when guidance or interpretations are necessary, the State will 
direct written requests for such guidance or interpretation to the 
appropriate MMS officials. All policy and procedural guidance or 
interpretation provided by the MMS shall be in writing and shall be 
binding on the State.



Sec. 229.121  Recordkeeping requirements.

    (a) The State shall maintain in a safe and secure manner all 
records, workpapers, reports, and correspondence gained or developed as 
a consequence of audit or investigative activities conducted under the 
delegation. All such records shall be made

[[Page 225]]

available for review and inspection upon request by representatives of 
the Secretary and the Department's Office of Inspector General (OIG).
    (b) The State must maintain in a confidential manner all data 
obtained from DOI sources or from payor or company sources under the 
delegation which have been deemed ``confidential or proprietary'' by DOI 
or a company or payor. In this regard, the State regulatory authority 
shall be bound by provisions of 30 U.S.C. 1733. MMS shall provide to the 
State guidelines for determining confidential and proprietary material.
    (c) All records subject to the requirements of paragraph (a) must be 
maintained for a 6-year period measured from the end of the calendar 
year in which the records were created. All dispositions or records must 
be with the written approval of the MMS. Upon termination of a 
delegation, the State shall, within 90 days from the date of 
termination, assemble all records specified in subsection (a), complete 
all working paper files in accordance with Sec. 229.124, and transfer 
such records to the MMS.
    (d) The State shall maintain complete cost records for the 
delegation in accordance with generally accepted accounting principles. 
Such records shall be in sufficient detail to demonstrate the total 
actual costs associated with the project and to permit a determination 
by MMS whether delegation funds were used for their intended purpose. 
All such records shall be made available for review and inspection upon 
request by representatives of the Secretary and the Department's Office 
of Inspector General (OGIG).



Sec. 229.122  Coordination of audit activities.

    (a) Each State with a delegation of authority shall submit annually 
to the MMS an audit workplan specifically identifying leases, resources, 
companies, and payors scheduled for audit. This workplan must be 
submitted 120 days prior to the beginning of each fiscal year. A State 
may request changes to its workplan (including the companies and leases 
to be audited) at the end of each quarter of each fiscal year. All 
requested changes are subject to approval by the MMS and must be 
submitted in writing.
    (b) When a State plans to audit leases of a lessee or royalty payor 
for which there is an MMS or OIG resident audit team, all audit 
activities must be coordinated through the MMS or OIG resident 
supervisor. Such activities include, but are not limited to, issuance of 
engagement letters, arranging for entrance conferences, submission of 
data requests, scheduling of audit activities including site visits, 
submission of issue letters, and closeout conferences.
    (c) The State shall consult with the MMS and/or OIG regarding 
resolution of any coordination problems encountered during the conduct 
of delegation activities.



Sec. 229.123  Standards for audit activities.

    (a) All audit activities performed under a delegation of authority 
must be in accordance with the ``Standards for Audit of Governmental 
Organizations, Programs, Activities, and Functions'' as issued by the 
Comptroller General of the United States.
    (b) The following audit standards also shall apply to all audit work 
performed under a delegation of authority.
    (1) General standards--(i) Qualifications. The auditors assigned to 
perform the audit must collectively possess adequate professional 
proficiency for the tasks required, including a knowledge of accounting, 
auditing, agency regulations, and industry operations.
    (ii) Independence. In all matters relating to the audit work, the 
audit organization and the individual auditors must be free from 
personal or external impairments to independence and shall maintain an 
independent attitude and appearance.
    (iii) Due professional care. Due professional care is to be used in 
conducting the audit and in preparing related reports.
    (iv) Quality control. The State governments must institute quality 
control review procedures to ensure that all audits are performed in 
conformity with the standards established herein.
    (2) Examination and evaluation standards--Standards and requirements 
for examination and evaluation. Auditors

[[Page 226]]

should be alert to situations or transactions that could be indicative 
of fraud, abuse, or illegal acts with respect to the program. If such 
evidence exists, auditors should forward this evidence to MMS. The MMS 
will contact the appropriate Federal law enforcement agencies. The scope 
of examinations are to be governed by the principle of a justifiable 
relationship between cost and benefit as determined by the auditor or 
audit supervisor. Audit procedures should reflect the most efficient 
method of obtaining the requisite degree of satisfaction. The auditor 
should determine, to the extent possible, the effect on royalty 
reporting of the non-arms'-length nature of related party transactions, 
such as transfers of oil to refinery units affiliated with the producer. 
A review should be made of compliance with the appropriate laws and 
regulations applicable to program operations. MMS shall issue guidelines 
as to the definition and nature of arms'-length and non-arms'-length 
transactions for use in carrying out delegated audit activities.
    (3) Standards of reporting. (i) Written audit reports are to be 
submitted to the appropriate MMS officials at the end of each field 
examination.
    (ii) A statement in the auditors' report that the examination was 
made in accordance with the generally accepted program audit standards 
(including the applicable General Accounting Office (GAO) standards) for 
royalty compliance audits should be in the appropriate language to 
indicate that the audit was made in accordance with this statement of 
standards.
    (iii) The auditor's report should contain a statement of positive 
assurance on those items tested and negative assurance on those items 
not tested. It should also include all instances of noncompliance and 
instances or indications of fraud, abuse, or illegal acts found during 
or in connection with the audit.
    (iv) The auditor's report should contain any other material 
deficiency identified during the audit not covered in paragraph 
(b)(3)(iii) of this section.
    (v) When factors external to the program and to the auditor restrict 
the audit or interfere with the auditor's ability to form objective 
opinions and conclusions (such as denial of access to information by a 
company), the auditor is to notify the MMS. If the limitation is not 
removed, a description of the matter must be included in the auditor's 
report. MMS will take all legally enforceable steps necessary to seek 
information necessary to complete the audit.
    (vi) If certain information is prohibited from general disclosure, 
the auditor's report should state the nature of the information omitted 
and the requirement that makes the omission necessary.
    (vii) Written audit reports are to be prepared in the format 
prescribed by the MMS.
    (viii) In instances where the extent of the audit findings or the 
amounts involved do not warrant it, a formal audit report need not be 
issued. In lieu of an audit report, a memorandum of audit findings will 
be prepared and placed on the case file.

[49 FR 40026, Oct. 12, 1984, as amended at 58 FR 64903, Dec. 10, 1993]



Sec. 229.124  Documentation standards.

    Every audit performed by a State under a delegation of authority 
must meet certain documentation standards. In particular, detailed 
workpapers must be developed and maintained.
    (a) Workpapers are defined to include all records obtained or 
created in performing an audit.
    (b) Each audit performed varies in scope and detail. As a result, 
the audit team must determine the best presentation of the workpapers 
for a particular audit. The following general standards of workpaper 
preparation are consistent with the goal of achieving proper 
documentation while maintaining sufficient flexibility.
    (1) All relevant information obtained orally must be promptly 
recorded in writing and incorporated in the workpapers.
    (2) Workpapers must be complete and accurate in order to provide 
support for findings and conclusions.
    (3) Workpapers should be clear and understandable without the need 
for supplementary oral explanations. The information they contain must 
be clear, complete, and concise, so that

[[Page 227]]

anyone using the workpapers will be able to readily determine their 
purpose, the nature and scope of the work done, and the conclusions 
drawn.
    (4) Workpapers must be legible and as neat as practicable. They must 
meet standards which allow their use as evidence in judicial and 
administrative proceedings.
    (5) The information contained in workpapers should be restricted to 
matters which are materially important and relevant to the objectives 
established for the assignment.
    (6) Workpapers must be in sufficient detail to permit a subsequent 
independent execution of each audit procedure, assuming the target 
company retains its accounting documentation.



Sec. 229.125  Preparation and issuance of enforcement documents.

    (a) Determinations of additional royalties due resulting from audit 
activities conducted under a delegation of authority must be formally 
communicated by the State, to the companies or other payors by an issue 
letter prior to any enforcement action. The issue letter will serve to 
ensure that all audit findings are accurate and complete by obtaining 
advance comments from officials of the companies or payors audited. 
Issue letters must be prepared in a format specified by the MMS, and 
transmitted to the company or payor. The company or payor shall be given 
30 days from receipt of the letter to respond to the State on the 
findings contained in the letter.
    (b) After evaluating the company or payor's response to the issue 
letter, the State shall draft a demand letter which will be submitted 
with supporting workpaper files to the MMS for appropriate enforcement 
action. Any sustantive revisions to the demand letter will be discussed 
with the State prior to issuance of the letter. Copies of all 
enforcement action documents shall be provided to the State by MMS upon 
their issuance to the company or payor.



Sec. 229.126  Appeals.

    (a) Appeals made pursuant to the rules and procedures at 30 CFR 
parts 243 and 290 related to demand letters issued by officers of the 
MMS for additional royalties identified under a delegation of authority 
shall be filed with the MMS for processing. The State regulatory 
authority shall, upon the request of the MMS, provide competent and 
knowledgeable staff for testimony, as well as any required documentation 
and analyses, in support of the lessor's position during the appeal 
process.
    (b) An affected State, upon the request of the MMS, shall provide 
expert witnesses from their audit staff for testimony as well as 
required documentation and analyses to support the Department's position 
during the litigation of court cases arising from denied appeals. The 
cost of providing expert witnesses including travel and per diem is 
reimbursable under the provisions of a delegation of authority, at the 
Federal Government's existing per diem rates.



Sec. 229.127  Reports from States.

    The State, acting under the authority of the Secretarial delegation, 
shall submit quarterly reports which will summarize activities carried 
out by the State during the preceding quarter of the year under the 
provisions of the delegation. The report shall include:
    (a) A statistical summary of the activities carried out, e.g., 
number of audits performed, accounts reconciled, and other actions 
taken;
    (b) A summary of costs incurred during the previous quarter for 
which the State is seeking reimbursement; and
    (c) A schedule of changes which the State proposes to make from its 
approved plan.

[49 FR 37351, Sept. 21, 1984. Redesignated at 49 FR 40025, Oct. 12, 
1984]

              PART 230--RECOUPMENTS AND REFUNDS [RESERVED]

                 PART 232--INTEREST PAYMENTS [RESERVED]

               PART 233--ESCROW AND INVESTMENTS [RESERVED]

             PART 234--BONDING--PAYMENT LIABILITY [RESERVED]

[[Page 228]]



PART 241--PENALTIES--Table of Contents




Subpart A--General Provisions [Reserved]

     Subpart B--Penalties for Federal and Indian Oil and Gas Leases

                               Definitions

Sec.
241.50  What definitions apply to this subpart?

                   Penalties after a Period To Correct

241.51  What may MMS do if I violate a statute, regulation, order, or 
          lease term relating to a Federal or Indian oil and gas lease?
241.52  What if I correct the violation?
241.53  What if I do not correct the violation?
241.54  How may I request a hearing on the record on a Notice of 
          Noncompliance?
241.55  Does my request for a hearing on the record affect the 
          penalties?
241.56  May I request a hearing on the record regarding the amount of a 
          civil penalty if I did not request a hearing on the Notice of 
          Noncompliance?

                  Penalties Without a Period To Correct

241.60  May I be subject to penalties without prior notice and an 
          opportunity to correct?
241.61  How will MMS inform me of violations without a period to 
          correct?
241.62  How may I request a hearing on the record on a Notice of 
          Noncompliance regarding violations without a period to 
          correct?
241.63  Does my request for a hearing on the record affect the 
          penalties?
241.64  May I request a hearing on the record regarding the amount of a 
          civil penalty if I did not request a hearing on the Notice of 
          Noncompliance?

                           General Provisions

241.70  How does MMS decide what the amount of the penalty should be?
241.71  Does the penalty affect whether I owe interest?
241.72  How will the Office of Hearings and Appeals conduct the hearing 
          on the record?
241.73  How may I appeal the Administrative Law Judge's decision?
241.74  May I seek judicial review of the decision of the Interior Board 
          of Land Appeals?
241.75  When must I pay the penalty?
241.76  Can MMS reduce my penalty once it is assessed?
241.77  How may MMS collect the penalty?

                           Criminal Penalties

241.80  May the United States criminally prosecute me for violations 
          under Federal and Indian oil and gas leases?

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals, General [Reserved]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal [Reserved]

Subpart I--OCS Sulfur [Reserved]

    Authority: 25 U.S.C. 396 et seq., 396a et seq., 2101 et seq.; 30 
U.S.C. 181 et seq., 351 et seq., 1001 et seq., 1701 et seq.; 43 U.S.C. 
1301 et seq., 1331 et seq., 1801 et seq.

Subpart A--General Provisions [Reserved]



     Subpart B--Penalties for Federal and Indian Oil and Gas Leases

    Source: 64 FR 26251, May 13, 1999, unless otherwise noted.

                               Definitions



Sec. 241.50  What definitions apply to this subpart?

    The terms used in this subpart have the same meaning as in 30 U.S.C. 
1702.

                   Penalties After a Period To Correct



Sec. 241.51  What may MMS do if I violate a statute, regulation, order, or lease term relating to a Federal or Indian oil and gas lease?

    (a) If we believe that you have not followed any requirement of a 
statute, regulation, order, or terms of a lease for any Federal or 
Indian oil or gas lease, we may send you a Notice of Noncompliance 
telling you what the violation is and what you need to do to correct it 
to avoid civil penalties under 30 U.S.C. 1719(a) and (b).

[[Page 229]]

    (b) We will send the Notice to your address of record as shown in 
the following table:

----------------------------------------------------------------------------------------------------------------
       For notices of
     noncompliance to--                   The addressee of record is--                          And--
----------------------------------------------------------------------------------------------------------------
(1) A refiner or other       The position title, department name and address, or     The refiner or other party
 party involved in            individual name and address in the executed royalty     must notify MMS in writing
 disposition of Federal       sale contract; or a different position title,           of all addressee changes.
 royalty taken in kind.       department name and address, or individual name and
                              address that the refiner or other party under the
                              executed royalty sale contract identifies in writing
                              for billing purposes; or an agent designated in
                              writing to receive notices of noncompliance.
(2) Any person required to   The most recent position title, department name and     The reporter/payor must
 report oil or gas removed    address, or individual name and address that RMP has    notify RMP, in writing, of
 from Federal or Indian       in its records for the reporter/payor; or an agent      any addressee changes.
 leases to the RMP            designated in writing to receive notices of
 Production Accounting and    noncompliance.
 Auditing System.
(3) A lessee, designee,      The position title, department name and address, or     The lessee, designee,
 reporter or payor whose      individual name and address the lessee, designee,       reporter or payor must
 records are subject to       reporter or payor identifies in writing at the          notify MMS of any
 audit.                       initiation of the audit; or the most recent addressee   addressee changes.
                              that the lessee, designee, reporter or payor
                              specified in writing; or an agent designated in
                              writing to receive notices of noncompliance.
(4) A reporter reporting on  The most recent position title, department name and     The lessee, designee,
 the ``Report of Sales and    address, or individual name and address that the        reporter or payor is
 Royalty Remittance'' (Form   lessee, designee, reporter or payor identifies in       responsible for notifying
 MMS-2014).                   writing; or an agent designated in writing to receive   RMP in writing of any
                              notices of noncompliance.                               addressee changes.
(5) A lessee, designee,      The most recent position title, department name and     The lessee, designee,
 reporter or payor who        address, or individual name and address maintained in   reporter or payor is
 remits rental and bonuses    RMP records; or an agent designated in writing to       responsible for notifying
 from nonproducing Federal    receive notices of noncompliance.                       RMP in writing of any
 leases.                                                                              addressee changes.
----------------------------------------------------------------------------------------------------------------

    (c) We will serve Notices of Noncompliance by using registered mail 
or personal service.



Sec. 241.52  What if I correct the violation?

    The matter will be closed if you correct all of the violations 
identified in the Notice of Noncompliance within 20 days after you 
receive the Notice (or within a longer time period specified in the 
Notice).



Sec. 241.53  What if I do not correct the violation?

    (a) We may send you a Notice of Civil Penalty if you do not correct 
all of the violations identified in the Notice of Noncompliance within 
20 days after you receive the Notice of Noncompliance (or within a 
longer time period specified in that Notice). The Notice of Civil 
Penalty will tell you how much penalty you must pay. The penalty may be 
up to $500 per day, beginning with the date of the Notice of 
Noncompliance, for each violation identified in the Notice of 
Noncompliance for as long as you do not correct the violations.
    (b) If you do not correct all of the violations identified in the 
Notice of Noncompliance within 40 days after you receive the Notice of 
Noncompliance (or 20 days following the expiration of a longer time 
period specified in that Notice), we may increase the penalty to up to 
$5,000 per day, beginning with the date of the Notice of Noncompliance, 
for each violation for as long as you do not correct the violations.



Sec. 241.54  How may I request a hearing on the record on a Notice of Noncompliance?

    You may request a hearing on the record on a Notice of Noncompliance 
by filing a request within 30 days of the date you received the Notice 
of Noncompliance with the Hearings Division (Departmental), Office of 
Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy 
Street, Arlington, Virginia 22203. You may do this regardless of whether 
you correct the

[[Page 230]]

violations identified in the Notice of Noncompliance.

[64 FR 26251, May 13, 1999, as amended at 67 FR 19112, Apr. 18, 2002]



Sec. 241.55  Does my request for a hearing on the record affect the penalties?

    (a) If you do not correct the violations identified in the Notice of 
Noncompliance, the penalties will continue to accrue even if you request 
a hearing on the record.
    (b) You may petition the Hearings Division (Departmental) of the 
Office of Hearings and Appeals, to stay the accrual of penalties pending 
the hearing on the record and a decision by the Administrative Law Judge 
under Sec. 241.72.
    (1) You must file your petition within 45 calendar days of receiving 
the Notice of Noncompliance.
    (2) To stay the accrual of penalties, you must post a bond or other 
surety instrument using the same standards and requirements as 
prescribed in 30 CFR part 243, subpart B, or demonstrate financial 
solvency using the same standards and requirements as prescribed in 30 
CFR part 243, subpart C, for the principal amount of any unpaid amounts 
due that are the subject of the Notice of Noncompliance, including 
interest thereon, plus the amount of any penalties accrued before the 
date a stay becomes effective.
    (3) The Hearings Division will grant or deny the petition under 43 
CFR 4.21(b).



Sec. 241.56  May I request a hearing on the record regarding the amount of a civil penalty if I did not request a hearing on the Notice of Noncompliance?

    (a) You may request a hearing on the record to challenge only the 
amount of a civil penalty when you receive a Notice of Civil Penalty, if 
you did not previously request a hearing on the record under 
Sec. 241.54. If you did not request a hearing on the record on the 
Notice of Noncompliance under Sec. 241.54, you may not contest your 
underlying liability for civil penalties.
    (b) You must file your request within 10 days after you receive the 
Notice of Civil Penalty with the Hearings Division (Departmental), 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 
North Quincy Street, Arlington, Virginia 22203.

[64 FR 26251, May 13, 1999, as amended at 67 FR 19113, Apr. 18, 2002]

                  Penalties Without a Period To Correct



Sec. 241.60  May I be subject to penalties without prior notice and an opportunity to correct?

    The Federal Oil and Gas Royalty Management Act sets out several 
specific violations for which penalties accrue without an opportunity to 
first correct the violation.
    (a) Under 30 U.S.C. 1719(c), you may be subject to penalties of up 
to $10,000 per day per violation for each day the violation continues if 
you:
    (1) Knowingly or willfully fail to make any royalty payment by the 
date specified by statute, regulation, order or terms of the lease;
    (2) Fail or refuse to permit lawful entry, inspection, or audit; or
    (3) Knowingly or willfully fail or refuse to notify the Secretary, 
within 5 business days after any well begins production on a lease site 
or allocated to a lease site, or resumes production in the case of a 
well which has been off production for more than 90 days, of the date on 
which production has begun or resumed.
    (b) Under 30 U.S.C. 1719(d), you may be subject to civil penalties 
of up to $25,000 per day for each day each violation continues if you:
    (1) Knowingly or willfully prepare, maintain, or submit false, 
inaccurate, or misleading reports, notices, affidavits, records, data, 
or other written information;
    (2) Knowingly or willfully take or remove, transport, use or divert 
any oil or gas from any lease site without having valid legal authority 
to do so; or
    (3) Purchase, accept, sell, transport, or convey to another person, 
any oil or gas knowing or having reason to know that such oil or gas was 
stolen or unlawfully removed or diverted.

[[Page 231]]



Sec. 241.61  How will MMS inform me of violations without a period to correct?

    We will inform you of violations without a period to correct by 
issuing a Notice of Noncompliance explaining what the violation is and 
how to correct it. We also will send you a Notice of Civil Penalty 
stating the amount of the penalty. The Notice of Noncompliance and 
Notice of Civil Penalty may be issued simultaneously. We will send the 
Notice of Noncompliance and the Notice of Civil Penalty to your address 
of record under Sec. 241.51(b) using the means of service specified 
under Sec. 241.51(c).



Sec. 241.62  How may I request a hearing on the record on a Notice of Noncompliance regarding violations without a period to correct?

    You may request a hearing on the record of a Notice of Noncompliance 
regarding violations without a period to correct by filing a request 
within 30 days after you receive the Notice of Noncompliance with the 
Hearings Division (Departmental), Office of Hearings and Appeals, U.S. 
Department of the Interior, 801 North Quincy Street, Arlington, Virginia 
22203. You may do this regardless of whether you correct the violations 
identified in the Notice of Noncompliance.

[64 FR 26251, May 13, 1999, as amended at 67 FR 19113, Apr. 18, 2002]



Sec. 241.63  Does my request for a hearing on the record affect the penalties?

    (a) If you do not correct the violations identified in the Notice of 
Noncompliance regarding violations without a period to correct, the 
penalties will continue to accrue even if you request a hearing on the 
record.
    (b) You may ask the Hearings Division (Departmental) to stay the 
accrual of penalties pending the hearing on the record and a decision by 
the Administrative Law Judge under Sec. 241.72.
    (1) You must file your petition within 45 calendar days after you 
receive the Notice of Noncompliance.
    (2) To stay the accrual of penalties, you must post a bond or other 
surety instrument using the same standards and requirements as 
prescribed in 30 CFR part 243, subpart B, or demonstrate financial 
solvency using the same standards and requirements as prescribed in 30 
CFR part 243, subpart C, for the principal amount of any unpaid amounts 
due that are the subject of the Notice of Noncompliance, including 
interest thereon, plus the amount of any penalties accrued before the 
date a stay becomes effective.
    (3) The Hearings Division will grant or deny the petition under 43 
CFR 4.21(b).



Sec. 241.64  May I request a hearing on the record regarding the amount of a civil penalty if I did not request a hearing on the Notice of Noncompliance?

    (a) You may request a hearing on the record to challenge only the 
amount of a civil penalty when you receive a Notice of Civil Penalty 
regarding violations without a period to correct, if you did not 
previously request a hearing on the record under Sec. 241.62. If you did 
not request a hearing on the record on the Notice of Noncompliance under 
Sec. 241.62, you may not contest your underlying liability for civil 
penalties.
    (b) You must file your request within 10 days after you receive 
Notice of Civil Penalty with the Hearings Division (Departmental), 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 
North Quincy Street, Arlington, Virginia 22203.

[64 FR 26251, May 13, 1999, as amended at 67 FR 19113, Apr. 18, 2002]

                           General Provisions



Sec. 241.70  How does MMS decide what the amount of the penalty should be?

    We determine the amount of the penalty by considering the severity 
of the violations, your history of compliance, and if you are a small 
business.



Sec. 241.71  Does the penalty affect whether I owe interest?

    (a) The penalties under this part are in addition to interest you 
may owe on any underlying underpayments or unpaid debt.
    (b) If you do not pay the penalty by the date required under 
Sec. 241.75(d), MMS will assess you late payment interest on the penalty 
amount at the

[[Page 232]]

same rate interest is assessed under 30 CFR 218.54.



Sec. 241.72  How will the Office of Hearings and Appeals conduct the hearing on the record?

    If you request a hearing on the record under Secs. 241.54, 241.56, 
241.62 or 241.64, the hearing will be conducted by a Departmental 
Administrative Law Judge from the Office of Hearings and Appeals. After 
the hearing, the Administrative Law Judge will issue a decision in 
accordance with the evidence presented and applicable law.



Sec. 241.73  How may I appeal the Administrative Law Judge's decision?

    If you are adversely affected by the Administrative Law Judge's 
decision, you may appeal that decision to the Interior Board of Land 
Appeals under 43 CFR part 4, subpart E.



Sec. 241.74  May I seek judicial review of the decision of the Interior Board of Land Appeals?

    Under 30 U.S.C. 1719(j), you may seek judicial review of the 
decision of the Interior Board of Land Appeals. A suit for judicial 
review in the District Court will be barred unless filed within 90 days 
after the final order.



Sec. 241.75  When must I pay the penalty?

    (a) You must pay the amount of the Notice of Civil Penalty issued 
under Secs. 241.53 or 241.61, if you do not request a hearing on the 
record under Sec. 241.54, Sec. 241.56, Sec. 241.62, or Sec. 241.64.
    (b) If you request a hearing on the record under Sec. 241.54, 
Sec. 241.56, Sec. 241.62, or Sec. 241.64, but you do not appeal the 
determination of the Administrative Law Judge to the Interior Board of 
Land Appeals under Sec. 241.73, you must pay the amount assessed by the 
Administrative Law Judge.
    (c) If you appeal the determination of the Administrative Law Judge 
to the Interior Board of Land Appeals, you must pay the amount assessed 
in the IBLA decision.
    (d) You must pay the penalty assessed within 40 days after:
    (1) You received the Notice of Civil Penalty, if you did not request 
a hearing on the record under either Sec. 241.54, Sec. 241.56, 
Sec. 241.62, or Sec. 241.64;
    (2) You received an Administrative Law Judge's decision under 
Sec. 241.72, if you obtained a stay of the accrual of penalties pending 
the hearing on the record under Sec. 241.55(b) or Sec. 241.63(b) and did 
not appeal the Administrative Law Judge's determination to the IBLA 
under Sec. 241.73;
    (3) You received an IBLA decision under Sec. 241.73 if the IBLA 
continued the stay of accrual of penalties pending its decision and you 
did not seek judicial review of the IBLA's decision; or
    (4) A final non-appealable judgment of a court of competent 
jurisdiction is entered, if you sought judicial review of the IBLA's 
decision and the Department or the appropriate court suspended 
compliance with the IBLA's decision pending the adjudication of the 
case.
    (e) If you do not pay, that amount is subject to collection under 
the provisions of Sec. 241.77.



Sec. 241.76  Can MMS reduce my penalty once it is assessed?

    Under 30 U.S.C. 1719(g), the Director or his or her delegate may 
compromise or reduce civil penalties assessed under this part.



Sec. 241.77  How may MMS collect the penalty?

    (a) MMS may use all available means to collect the penalty 
including, but not limited to:
    (1) Requiring the lease surety, for amounts owed by lessees, to pay 
the penalty;
    (2) Deducting the amount of the penalty from any sums the United 
States owes to you; and
    (3) Using judicial process to compel your payment under 30 U.S.C. 
1719(k).
    (b) If the Department uses judicial process, or if you seek judicial 
review under Sec. 241.74 and the court upholds assessment of a penalty, 
the court shall have jurisdiction to award the amount assessed plus 
interest assessed from the date of the expiration of the 90-day period 
referred to in Sec. 241.74. The amount of any penalty, as finally 
determined, may be deducted from any sum owing to you by the United 
States.

[[Page 233]]

                           Criminal Penalties



Sec. 241.80  May the United States criminally prosecute me for violations under Federal and Indian oil and gas leases?

    If you commit an act for which a civil penalty is provided at 30 
U.S.C. 1719(d) and Sec. 241.60(b), the United States may pursue criminal 
penalties as provided at 30 U.S.C. 1720, in addition to any authority 
for prosecution under other statutes.

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals, General [Reserved]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal [Reserved]

Subpart I--OCS Sulfur [Reserved]



PART 242--ORDERS [RESERVED]--Table of Contents






PART 243--SUSPENSIONS PENDING APPEAL AND BONDING--MINERALS REVENUE MANAGEMENT--Table of Contents




                      Subpart A--General Provisions

Sec.
243.1  What is the purpose of this part?
243.2  What leases are subject to this part?
243.3  What definitions apply to this part?
243.4  How do I suspend compliance with an order?
243.5  May another person post a bond or other surety instrument or 
          demonstrate financial solvency on my behalf?
243.6  When must I or another person meet the bonding or financial 
          solvency requirements under this part?
243.7  What must a person do when posting a bond or other surety 
          instrument or demonstrating financial solvency on behalf of an 
          appellant?
243.8  When will MMS suspend my obligation to comply with an order?
243.9  Will MMS continue to suspend my obligation to comply with an 
          order if I seek judicial review in a Federal court?
243.10  When will MMS collect against a bond or other surety instrument 
          or a person demonstrating financial solvency?
243.11  May I appeal the MMS bond-approving officer's determination of 
          my surety amount or financial solvency?
243.12  May I substitute a demonstration of financial solvency for a 
          bond posted before the effective date of this rule?

                     Subpart B--Bonding Requirements

243.100  What standards must my MMS-specified surety instrument meet?
243.101  How will MMS determine the amount of my bond or other surety 
          instrument?

               Subpart C--Financial Solvency Requirements

243.200  How do I demonstrate financial solvency?
243.201  How will MMS determine if I am financially solvent?
243.202  When will MMS monitor my financial solvency?

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq., 396a et 
seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et seq., 
1701 et seq.; 31 U.S.C. 9701; 43 U.S.C. 1301 et seq., 1331 et seq., and 
1801 et seq.

    Source: 64 FR 26254, May 13, 1999, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 243.1  What is the purpose of this part?

    This part applies to you if you are a lessee or recipient of an 
order. This part explains:
    (a) How you may suspend compliance with an order that you (or your 
designee if you are a lessee) have appealed under 30 CFR part 290 in 
effect prior to May 13, 1999 and contained in the 30 CFR, parts 200 to 
699, edition revised as of July 1, 1998, or under 30 CFR part 290, 
subpart b; and
    (b) When you or another person acting on your behalf must submit a 
bond or other surety or demonstrate financial solvency.



Sec. 243.2  What leases are subject to this part?

    This part applies to all Federal mineral leases onshore and on the 
Outer

[[Page 234]]

Continental Shelf (OCS), and to all federally-administered mineral 
leases on Indian tribal and individual Indian mineral owners' lands.



Sec. 243.3  What definitions apply to this part?

    Assessment means any fee or charge levied or imposed by the 
Secretary or a delegated State other than:
    (1) The principal amount of any royalty, minimum royalty, rental, 
bonus, net profit share or proceed of sale;
    (2) Any interest; or
    (3) Any civil or criminal penalty.
    Designee means the person designated by a lessee under Sec. 218.52 
of this chapter to make all or part of the royalty or other payments due 
on a lease on the lessee's behalf.
    Lessee means any person to whom the United States, or the United 
States on behalf of an Indian tribe or individual Indian mineral owner, 
issues a lease, or any person to whom all or part of the lessee's 
interest or operating rights in a lease has been assigned.
    MMS bond-approving officer means the Associate Director for Minerals 
Revenue Management or an official to whom the Associate Director 
delegates that responsibility.
    MMS-specified surety instrument means an MMS-specified 
administrative appeal bond, an MMS-specified irrevocable letter of 
credit, a Treasury book-entry bond or note, or a financial institution 
book-entry certificate of deposit.
    Notice of order means the notice that MMS or a delegated State 
issues to a lessee that informs the lessee that MMS or the delegated 
State has issued an order to the lessee's designee.
    Order means an order appealable under 30 CFR part 290 in effect 
prior to May 13, 1999 and contained in the 30 CFR, parts 200 to 699, 
edition revised as of July 1, 1998, under 30 CFR part 290 subpart B, or 
under 30 CFR part 208.
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture.

[64 FR 26254, May 13, 1999, as amended at 67 FR 19113, Apr. 18, 2002]



Sec. 243.4  How do I suspend compliance with an order?

    (a) If you timely appeal an order, and if that order or portion of 
that order:
    (1) Requires you to make a payment, and you want to suspend 
compliance with that order, you must post a bond or other surety 
instrument or demonstrate financial solvency under this part, except as 
provided in paragraph (b) of this section; or
    (2) Does not require you to make a payment, compliance with that 
order is suspended when you meet all requirements to file that appeal.
    (b) You need not meet the requirements of paragraph (a) of this 
section if:
    (1) The order is an assessment; or
    (2) Another person agrees to fulfill these requirements on your 
behalf under Sec. 243.5.



Sec. 243.5  May another person post a bond or other surety instrument or demonstrate financial solvency on my behalf?

    Any other person, including a designee, payor, or affiliate, may 
post a bond or other surety instrument or demonstrate financial solvency 
under this part on behalf of an appellant required to post a bond or 
other surety instrument under Sec. 243.4(a)(1).



Sec. 243.6  When must I or another person meet the bonding or financial solvency requirements under this part?

    If you must meet the bonding or financial solvency requirements 
under Sec. 243.4(a)(1), or if another person is meeting your bonding or 
financial solvency requirements, then either you or the other person 
must post a bond or other surety instrument or demonstrate financial 
solvency within 60 days after you receive the order or the Notice of 
Order.



Sec. 243.7  What must a person do when posting a bond or other surety instrument or demonstrating financial solvency on behalf of an appellant?

    If you assume an appellant's responsibility to post a bond or other 
surety instrument or demonstrate financial solvency under Sec. 243.5, 
you:

[[Page 235]]

    (a) Must notify MMS in writing at the address specified in 
Sec. 243.200(a) that you are assuming the appellant's responsibility 
under this part;
    (b) May not assert that you are not otherwise liable for royalties 
or other payments under 30 U.S.C. 1712(a), or any other theory, as a 
defense if MMS calls your bond or requires you to pay based on your 
demonstration of financial solvency; and
    (c) May end your voluntarily-assumed responsibility for posting a 
bond or other surety instrument only after the appellant under this part 
either:
    (1) Pays or posts a bond or other surety instrument; or
    (2) Demonstrates financial solvency.



Sec. 243.8  When will MMS suspend my obligation to comply with an order?

    (a) Federal leases.Subject to paragraph (d) of this section, if you 
appeal an order regarding the payment and reporting of royalties and 
other payments due from Federal mineral leases onshore or on the Outer 
Continental Shelf (OCS), and:
    (1) If the amount under appeal is less than $10,000 or does not 
require payment of a specified amount, MMS will suspend your obligation 
to comply with the order. MMS will use the lease surety posted with the 
Bureau of Land Management for onshore leases, and MMS for OCS leases, as 
collateral for the obligation; or
    (2) If the amount under appeal is $10,000 or more, MMS will suspend 
your obligation to comply with that order if you:
    (i) Submit an MMS-specified surety instrument under subpart B of 
this part within a time period MMS prescribes; or
    (ii) Demonstrate financial solvency under subpart C.
    (b) Indian leases.Subject to paragraph (d) of this section, if you 
appeal an order regarding the payment and reporting of royalties and 
other payments due from Indian mineral leases subject to this part, and:
    (1) If the amount under appeal is less than $1,000 or does not 
require payment, MMS will suspend your obligation to comply with the 
order. MMS will use the lease surety posted with the Bureau of Indian 
Affairs as collateral for the obligation; or
    (2) If the amount under appeal is $1,000 or more, MMS will suspend 
your obligation to comply with that order if you submit an MMS-specified 
surety instrument under subpart B of this part within a time period MMS 
prescribes.
    (c) Nothing in this part prohibits you from paying any demanded 
amount or complying with any other requirement pending appeal. However, 
voluntarily paying any demanded amount or otherwise complying with any 
other requirement when suspension of an order is otherwise available 
under these rules does not create judicially reviewable final agency 
action under 5 U.S.C. 704.
    (d) Regardless of the amount under appeal, MMS may inform you that 
it will not suspend your obligation to comply with the order under 
paragraph (a) or (b) of this section because suspension would harm the 
interests of the United States or the Indian lessor.



Sec. 243.9  Will MMS continue to suspend my obligation to comply with an order if I seek judicial review in a Federal court?

    (a) If you seek judicial review of an IBLA decision or other final 
action of the Department of the Interior regarding an order, MMS will 
suspend your obligation to comply with that order pending judicial 
review if you continue to meet the requirements of this part.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
MMS may decide that it will not suspend your obligation to comply with 
an order. MMS will notify you in writing of that decision and the 
reasons for it.



Sec. 243.10  When will MMS collect against a bond or other surety instrument or a person demonstrating financial solvency?

    (a) This section applies to you if, for an appeal of an order under 
this part, you:
    (1) Maintain a bond or an MMS-specified surety instrument on your 
own behalf or for another person; or
    (2) Have demonstrated financial solvency on your own behalf or for 
another person.

[[Page 236]]

    (b) MMS may initiate collection against the bond or other surety 
instrument or the person demonstrating financial solvency:
    (1) If the MMS Director or the Deputy Commissioner of Indian Affairs 
decides your appeal adversely to you and you do not pay the amount due 
or appeal that decision to the IBLA under 43 CFR part 4, subpart E;
    (2) If the IBLA, the Director of the Office of Hearings and Appeals, 
an Assistant Secretary, or the Secretary decides your appeal adversely 
to you, and you do not pay the amount due or pursue judicial review 
within 90 days of the decision;
    (3) If a court of competent jurisdiction issues a final non-
appealable decision adverse to you, and you do not pay the amount due 
within 30 days of the decision;
    (4) If you do not increase the amount of your bond or other surety 
instrument as required under Sec. 243.101(b), or otherwise fail to 
maintain an adequate surety instrument in effect, and you do not pay the 
amount due under the order within 30 days of notice from MMS under 
Sec. 243.101(b);
    (5) If the obligation to comply with an order or decision is not 
suspended under Sec. 243.8 or Sec. 243.9 and you do not pay the amount 
required under the order or decision; or
    (6) If the MMS bond-approving officer determines that you are no 
longer financially solvent under Sec. 243.202(c), and you do not pay the 
order amount or post a bond or other MMS-specified surety instrument 
under subpart B within 30 days of that determination.



Sec. 243.11  May I appeal the MMS bond-approving officer's determination of my surety amount or financial solvency?

    Any decision on your surety amount under subpart B or your financial 
solvency under subpart C is final and is not subject to appeal.



Sec. 243.12  May I substitute a demonstration of financial solvency for a bond posted before the effective date of this rule?

    If you appealed an order before June 14, 1999 and you submitted an 
MMS-specified surety instrument to suspend compliance with that order, 
you may replace the surety with a demonstration of financial solvency 
under this part at an administratively convenient time, such as when the 
surety instrument is due for renewal.



                     Subpart B--Bonding Requirements



Sec. 243.100  What standards must my MMS-specified surety instrument meet?

    (a) An MMS-specified surety instrument must be in a form specified 
in MMS instructions. MMS will give you written information and standard 
forms for MMS-specified surety instrument requirements.
    (b) MMS will use a bank-rating service to determine whether a 
financial institution has an acceptable rating to provide a surety 
instrument adequate to indemnify the lessor from loss or damage.
    (1) Administrative appeal bonds must be issued by a qualified surety 
company which the Department of the Treasury has approved.
    (2) Irrevocable letters of credit or certificates of deposit must be 
from a financial institution acceptable to MMS with a minimum 1-year 
period of coverage subject to automatic renewal up to 5 years.



Sec. 243.101  How will MMS determine the amount of my bond or other surety instrument?

    (a) The MMS bond-approving officer may approve your surety if he or 
she determines that the amount is adequate to guarantee payment. The 
amount of your surety may vary depending on the form of the surety and 
how long the surety is effective.
    (1) The amount of the MMS-specified surety instrument must include 
the principal amount owed under the order plus any accrued interest we 
determine is owed plus projected interest for a 1-year period.
    (2) Treasury book-entry bond or note amounts must be equal to at 
least 120 percent of the required surety amount.
    (b) If your appeal is not decided within 1 year from the filing 
date, you must increase the surety amount to cover additional estimated 
interest for another 1-year period. You must continue to do this 
annually on the date your

[[Page 237]]

appeal was filed. We will determine the additional estimated interest 
and notify you of the amount so you can amend your surety instrument.
    (c) You may submit a single surety instrument that covers multiple 
appeals. You may change the instrument to add new amounts under appeal 
or remove amounts that have been adjudicated in your favor or that you 
have paid if you:
    (1) Amend the single surety instrument annually on the date you 
filed your first appeal; and
    (2) Submit a separate surety instrument for new amounts under appeal 
until you amend the instrument to cover the new appeals.



               Subpart C--Financial Solvency Requirements



Sec. 243.200  How do I demonstrate financial solvency?

    (a) To demonstrate financial solvency under this part, you must 
submit an audited consolidated balance sheet, and, if requested by the 
MMS bond-approving officer, up to 3 years of tax returns to the MMS, 
Debt Collection Section using:
    (1) The U.S. Postal Service or private delivery at P.O. Box 5760, MS 
3031, Denver, CO 80217-5760; or
    (2) Courier or overnight delivery at MS 3031, Denver Federal Center, 
Bldg. 85, Room A-212, Denver, CO 80225-0165.
    (b) You must submit an audited consolidated balance sheet annually, 
and, if requested, additional annual tax returns on the date MMS first 
determined that you demonstrated financial solvency as long as you have 
active appeals, or whenever MMS requests.
    (c) If you demonstrate financial solvency in the current calendar 
year, you are not required to redemonstrate financial solvency for new 
appeals of orders during that calendar year unless you file for 
protection under any provision of the U.S. Bankruptcy Code (Title 11 of 
the United States Code), or MMS notifies you that you must redemonstrate 
financial solvency.



Sec. 243.201  How will MMS determine if I am financially solvent?

    (a) The MMS bond-approving officer will determine your financial 
solvency by examining your total net worth, including, as appropriate, 
the net worth of your affiliated entities.
    (b) If your net worth, minus the amount we would require as surety 
under subpart B for all orders you have appealed is greater than $300 
million, you are presumptively deemed financially solvent, and we will 
not require you to post a bond or other surety instrument.
    (c) If your net worth, minus the amount we would require as surety 
under subpart B for all orders you have appealed is less than $300 
million, you must submit the following to the MMS Debt Collection 
Section by one of the methods in Sec. 243.200(a):
    (1) A written request asking us to consult a business-information, 
or credit-reporting service or program to determine your financial 
solvency; and
    (2) A nonrefundable $50 processing fee:
    (i) You must pay the processing fee to us following the requirements 
for making payments found in 30 CFR 218.51. You are not required to use 
Electronic Funds Transfer (EFT) for these payments;
    (ii) You must submit the fee with your request under paragraph 
(c)(1) of this section, and then annually on the date we first 
determined that you demonstrated financial solvency, as long as you are 
not able to demonstrate financial solvency under paragraph (a) of this 
section and you have active appeals.
    (d) If you request that we consult a business-information or credit-
reporting service or program under paragraph (c) of this section:
    (1) We will use criteria similar to that which a potential creditor 
would use to lend an amount equal to the bond or other surety instrument 
we would require under subpart B;
    (2) For us to consider you financially solvent, the business-
information or credit-reporting service or program must demonstrate your 
degree of risk as low to moderate:
    (i) If our bond-approving officer determines that the business-
information or credit-reporting service or program information 
demonstrates your financial solvency to our satisfaction, our bond-
approving officer will not require

[[Page 238]]

you to post a bond or other surety instrument under subpart B;
    (ii) If our bond-approving officer determines that the business-
information or credit-reporting service or program information does not 
demonstrate your financial solvency to our satisfaction, our bond-
approving officer will require you to post a bond or other surety 
instrument under subpart B or pay the obligation.



Sec. 243.202  When will MMS monitor my financial solvency?

    (a) If you are presumptively financially solvent under 
Sec. 243.201(b), MMS will determine your net worth as described under 
Secs. 243.201(b) and (c) to evaluate your financial solvency at least 
annually on the date we first determined that you demonstrated financial 
solvency as long as you have active appeals and each time you appeal a 
new order.
    (b) If you ask us to consult a business-information or credit-
reporting service or program under Sec. 243.201(c), we will consult a 
service or program annually as long as you have active appeals and each 
time you appeal a new order.
    (c) If our bond-approving officer determines that you are no longer 
financially solvent, you must post a bond or other MMS-specified surety 
instrument under subpart B.

[[Page 239]]



                         SUBCHAPTER B--OFFSHORE





PART 250--OIL AND GAS AND SULPHUR OPERATIONS IN THE OUTER CONTINENTAL SHELF--Table of Contents






                           Subpart A--General

                    Authority and Definition of Terms

Sec.
250.101  Authority and applicability.
250.102   What does this part do?
250.103   Where can I find more information about the requirements in 
          this part?
250.104  How may I appeal a decision made under MMS regulations?
250.105  Definitions.

                          Performance Standards

250.106  What standards will the Director use to regulate lease 
          operations?
250.107  What must I do to protect health, safety, property, and the 
          environment?
250.108  What requirements must I follow for cranes and other material-
          handling equipment?
250.109  What documents must I prepare and maintain related to welding?
250.110  What must I include in my welding plan?
250.111  Who oversees operations under my welding plan?
250.112  What standards must my welding equipment meet?
250.113  What procedures must I follow when welding?
250.114  How must I install and operate electrical equipment?
250.115  How do I determine well producibility?
250.116  How do I determine producibility if my well is in the Gulf of 
          Mexico?
250.117  How does a determination of well producibility affect royalty 
          status?
250.118  Will MMS approve gas injection?
250.119  Will MMS approve subsurface gas storage?
250.120  How does injecting, storing, or treating gas affect my royalty 
          payments?
250.121  What happens when the reservoir contains both original gas in 
          place and injected gas?
250.122  What effect does subsurface storage have on the lease term?
250.123  Will MMS allow gas storage on unleased lands?
250.124  Will MMS approve gas injection into the cap rock containing a 
          sulphur deposit?

                        Inspection of Operations

250.130  Why does MMS conduct inspections?
250.131  Will MMS notify me before conducting an inspection?
250.132  What must I do when MMS conducts an inspection?
250.133  Will MMS reimburse me for my expenses related to inspections?

                            Disqualification

250.135  What will MMS do if my operating performance is unacceptable?
250.136  How will MMS determine if my operating performance is 
          unacceptable?

                       Special Types of Approvals

250.140  When will I receive an oral approval?
250.141  May I ever use alternate procedures or equipment?
250.142  How do I receive approval for departures?
250.143  How do I designate an operator?
250.144  How do I designate a new operator when a designation of 
          operator terminates?
250.145  How do I designate an agent or a local agent?
250.146  Who is responsible for fulfilling leasehold obligations?

  Naming and Identifying Facilities and Wells (Does Not Include MODUs)

250.150  How do I name facilities and wells in the Gulf of Mexico 
          Region?
250.151  How do I name facilities in the Pacific Region?
250.152  How do I name facilities in the Alaska Region?
250.153  Do I have to rename an existing facility or well?
250.154  What identification signs must I display?

                        Right-of-Use and Easement

250.160  When will MMS grant me a right-of-use and easement, and what 
          requirements must I meet?
250.161  What else must I submit with my application?
250.162  May I continue my right-of-use and easement after the 
          termination of any lease on which it is situated?
250.163  If I have a State lease, will MMS grant me a right-of-use and 
          easement?
250.164  If I have a State lease, what conditions apply for a right-of-
          use and easement?
250.165  If I have a State lease, what fees do I have to pay for a 
          right-of-use and easement?
250.166  If I have a State lease, what surety bond must I have for a 
          right-of-use and easement?

[[Page 240]]

                               Suspensions

250.168  May operations or production be suspended?
250.169  What effect does suspension have on my lease?
250.170  How long does a suspension last?
250.171  How do I request a suspension?
250.172  When may the Regional Supervisor grant or direct an SOO or SOP?
250.173  When may the Regional Supervisor direct an SOO or SOP?
250.174  When may the Regional Supervisor grant or direct an SOP?
250.175  When may the Regional Supervisor grant an SOO?
250.176  Does a suspension affect my royalty payment?
250.177  What additional requirements may the Regional Supervisor order 
          for a suspension?

      Primary Lease Requirements, Lease Term Extensions, and Lease 
                              Cancellations

250.180  What am I required to do to keep my lease term in effect?
250.181  When may the Secretary cancel my lease and when am I 
          compensated for cancellation?
250.182  When may the Secretary cancel a lease at the exploration stage?
250.183  When may MMS or the Secretary extend or cancel a lease at the 
          development and production stage?
250.184  What is the amount of compensation for lease cancellation?
250.185  When is there no compensation for a lease cancellation?

                 Information and Reporting Requirements

250.190  What reporting information and report forms must I submit?
250.191  What accident reports must I submit?
250.192  What evacuation statistics must I submit?
250.193  Reports and investigations of apparent violations.
250.194  What archaeological reports and surveys must I submit?
250.195  Reimbursements for reproduction and processing costs.
250.196  Data and information to be made available to the public.

                               References

250.198  Documents incorporated by reference.
250.199  Paperwork Reduction Act statements--information collection.

       Subpart B--Exploration and Development and Production Plans

250.200  General requirements.
250.201  Preliminary activities.
250.202  Well location and spacing.
250.203  Exploration Plan.
250.204  Development and Production Plan.

               Subpart C--Pollution Prevention and Control

250.300  Pollution prevention.
250.301  Inspection of facilities.
250.302  Definitions concerning air quality.
250.303  Facilities described in a new or revised Exploration Plan or 
          Development and Production Plan.
250.304  Existing facilities.

               Subpart D--Oil and Gas Drilling Operations

250.400  Control of wells.
250.401  General requirements.
250.402-250.403  [Reserved]
250.404  Well casing and cementing.
250.405  Pressure testing of casing.
250.406  Blowout preventer systems and system components.
250.407  Blowout preventer (BOP) systems tests, inspections, and 
          maintenance.
250.408  Well-control drills.
250.409  Diverter systems.
250.410  Mud program.
250.411  Securing of wells.
250.412  Field drilling rules.
250.413  Supervision, surveillance, and training.
250.414  Applications for permit to drill.
250.415  Sundry notices and reports on wells.
250.416  Well records.
250.417  Hydrogen sulfide.

            Subpart E--Oil and Gas Well-Completion Operations

250.500  General requirements.
250.501  Definition.
250.502  Equipment movement.
250.503  Emergency shutdown system.
250.504  Hydrogen sulfide.
250.505  Subsea completions.
250.506  Crew instructions.
250.507-250.508  [Reserved]
250.509  Well-completion structures on fixed platforms.
250.510  Diesel engine air intakes.
250.511  Traveling-block safety device.
250.512  Field well-completion rules.
250.513  Approval and reporting of well-completion operations.
250.514  Well-control fluids, equipment, and operations.
250.515  Blowout prevention equipment.
250.516  Blowout preventer system tests, inspections, and maintenance.
250.517  Tubing and wellhead equipment.

             Subpart F--Oil and Gas Well-Workover Operations

250.600  General requirements.
250.601  Definitions.

[[Page 241]]

250.602  Equipment movement.
250.603  Emergency shutdown system.
250.604  Hydrogen sulfide.
250.605  Subsea workovers.
250.606  Crew instructions.
250.607-250.608  [Reserved]
250.609  Well-workover structures on fixed platforms.
250.610  Diesel engine air intakes.
250.611  Traveling-block safety device.
250.612  Field well-workover rules.
250.613  Approval and reporting for well-workover operations.
250.614  Well-control fluids, equipment, and operations.
250.615  Blowout prevention equipment.
250.616  Blowout preventer system testing, records, and drills.
250.617  Tubing and wellhead equipment.
250.618  Wireline operations.

                     Subpart G--Abandonment of Wells

250.700  General requirements.
250.701  Approvals.
250.702  Permanent abandonment.
250.703  Temporary abandonment.
250.704  Site clearance verification.

            Subpart H--Oil and Gas Production Safety Systems

250.800  General requirements.
250.801  Subsurface safety devices.
250.802  Design, installation, and operation of surface production-
          safety systems.
250.803  Additional production system requirements.
250.804  Production safety-system testing and records.
250.805  Safety device training.
250.806  Safety and pollution prevention equipment quality assurance 
          requirements.
250.807  Hydrogen sulfide.

                   Subpart I--Platforms and Structures

250.900  General requirements.
250.901  Application for approval.
250.902  Platform Verification Program requirements.
250.903  Certified Verification Agent duties and nomination.
250.904  Environmental conditions.
250.905  Loads.
250.906  General design requirements.
250.907  Steel platforms.
250.908  Concrete-gravity platforms.
250.909  Foundation.
250.910  Marine operations.
250.911  Inspection during construction.
250.912  Periodic inspection and maintenance.
250.913  Platform removal and location clearance.
250.914  Records.

             Subpart J--Pipelines and Pipeline Rights-of-Way

250.1000  General requirements.
250.1001  Definitions.
250.1002  Design requirements for DOI pipelines.
250.1003  Installation, testing and repair requirements for DOI 
          pipelines.
250.1004  Safety equipment requirements for DOI pipelines.
250.1005  Inspection requirements for DOI pipelines.
250.1006  Abandonment and out-of-service requirements for DOI pipelines.
250.1007  What to include in applications.
250.1008  Reports.
250.1009  General requirements for a pipeline right-of-way grant.
250.1010  Applications for a pipeline right-of-way grant.
250.1011  Granting a pipeline right-of-way.
250.1012  Requirements for construction under a right-of-way grant.
250.1013  Assignment of a right-of-way grant.
250.1014  Relinquishment of a right-of-way grant.

                 Subpart K--Oil and Gas Production Rates

250.1100  Definitions for production rates.
250.1101  General requirements and classification of reservoirs.
250.1102  Oil and gas production rates.
250.1103  Well production testing.
250.1104  Bottomhole pressure survey.
250.1105  Flaring or venting gas and burning liquid hydrocarbons.
250.1106  Downhole commingling.
250.1107  Enhanced oil and gas recovery operations.

Subpart L--Oil and Gas Production Measurement, Surface Commingling, and 
                                Security

250.1200  Question index table.
250.1201  Definitions.
250.1202  Liquid hydrocarbon measurement.
250.1203  Gas measurement.
250.1204  Surface commingling.
250.1205  Site security.

                         Subpart M--Unitization

250.1300  What is the purpose of this subpart?
250.1301  What are the requirements for unitization?
250.1302  What if I have a competitive reservoir on a lease?
250.1303  How do I apply for voluntary unitization?
250.1304  How will MMS require unitization?

[[Page 242]]

        Subpart N--Outer Continental Shelf (OCS) Civil Penalties

250.1400  How does MMS begin the civil penalty process?
250.1401  Index table.
250.1402  Definitions.
250.1403  What is the maximum civil penalty?
250.1404  Which violations will MMS review for potential civil 
          penalties?
250.1405  When is a case file developed?
250.1406  When will MMS notify me and provide penalty information?
250.1407  How do I respond to the letter of notification?
250.1408  When will I be notified of the Reviewing Officer's decision?
250.1409  What are my appeal rights?

         Subpart O--Well Control and Production Safety Training

250.1500  Definitions.
250.1501  What is the goal of my training program?
250.1502  Is there a transition period for complying with the 
          regulations in this subpart?
250.1503  What are my general responsibilities for training?
250.1504  May I use alternative training methods?
250.1505  Where may I get training for my employees?
250.1506  How often must I train my employees?
250.1507  How will MMS measure training results?
250.1508  What must I do when MMS administers written or oral tests?
250.1509  What must I do when MMS administers or requires hands-on, 
          simulator, or other types of testing?
250.1510   What will MMS do if my training program does not comply with 
          this subpart?

                      Subpart P--Sulphur Operations

250.1600  Performance standard.
250.1601  Definitions.
250.1602  Applicability.
250.1603  Determination of sulphur deposit.
250.1604  General requirements.
250.1605  Drilling requirements.
250.1606  Control of wells.
250.1607  Field rules.
250.1608  Well casing and cementing.
250.1609  Pressure testing of casing.
250.1610  Blowout preventer systems and system components.
250.1611  Blowout preventer systems tests, actuations, inspections, and 
          maintenance.
250.1612  Well-control drills.
250.1613  Diverter systems.
250.1614  Mud program.
250.1615  Securing of wells.
250.1616  Supervision, surveillance, and training.
250.1617  Application for permit to drill.
250.1618  Sundry notices and reports on wells.
250.1619  Well records.
250.1620  Well-completion and well-workover requirements.
250.1621  Crew instructions.
250.1622  Approvals and reporting of well-completion and well-workover 
          operations.
250.1623  Well-control fluids, equipment, and operations.
250.1624  Blowout prevention equipment.
250.1625  Blowout preventer system testing, records, and drills.
250.1626  Tubing and wellhead equipment.
250.1627  Production requirements.
250.1628  Design, installation, and operation of production systems.
250.1629  Additional production and fuel gas system requirements.
250.1630  Safety-system testing and records.
250.1631  Safety device training.
250.1632  Production rates.
250.1633  Production measurement.
250.1634  Site security.

                  Subpart Q--Decommissioning Activities

                                 General

250.1700  What do the terms ``decommissioning'', ``obstructions'', and 
          ``facility'' mean?
250.1701  Who must meet the decommissioning obligations in this subpart?
250.1702  When do I accrue decommissioning obligations?
250.1703  What are the general requirements for decommissioning?
250.1704  When must I submit decommissioning applications and reports?

                       Permanently Plugging Wells

250.1710  When must I permanently plug all wells on a lease?
250.1711  When will MMS order me to permanently plug a well?
250.1712  What information must I submit before I permanently plug a 
          well or zone?
250.1713  Must I notify MMS before I begin well plugging operations?
250.1714  What must I accomplish with well plugs?
250.1715  How must I permanently plug a well?
250.1716  To what depth must I remove wellheads and casings?
250.1717  After I permanently plug a well, what information must I 
          submit?

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                       Temporary Plugging of Wells

250.1721  If I temporarily plug a well that I plan to re-enter, what 
          must I do?
250.1722  If I install a subsea protective device, what requirements 
          must I meet?
250.1723  What must I do when it is no longer necessary to maintain a 
          well in temporary abandoned status?

                 Removing Platforms and Other Facilities

250.1725  When do I have to remove platforms and other facilities?
250.1726  When must I submit an initial platform removal application and 
          what must it include?
250.1727  What information must I include in my final application to 
          remove a platform or other facility?
250.1728  To what depth must I remove a platform or other facility?
250.1729  After I remove a platform or other facility, what information 
          must I submit?
250.1730  When might MMS approve partial structure removal or toppling 
          in place?

        Site Clearance for Wells, Platforms, and Other Facilities

250.1740  How must I verify that the site of a permanently plugged well, 
          removed platform, or other removed facility is clear of 
          obstructions?
250.1741  If I drag a trawl across a site, what requirements must I 
          meet?
250.1742  What other methods can I use to verify that a site is clear?
250.1743  How do I certify that a site is clear of obstructions?

                        Pipeline Decommissioning

250.1750  When may I decommission a pipeline in place?
250.1751  How do I decommission a pipeline in place?
250.1752  How do I remove a pipeline?
250.1753  After I decommission a pipeline, what information must I 
          submit?
250.1754  When must I remove a pipeline decommissioned in place?

    Authority: 43 U.S.C. 1331, et seq.

    Source: 53 FR 10690, Apr. 1, 1988, unless otherwise noted. 
Redesignated at 63 FR 29479, May 29, 1998.



                           Subpart A--General

    Source: At 64 FR 72775, Dec. 28, 1999, unless otherwise noted.

                    Authority and Definition of Terms



Sec. 250.101  Authority and applicability.

    The Secretary of the Interior (Secretary) authorized the Minerals 
Management Service (MMS) to regulate oil, gas, and sulphur exploration, 
development, and production operations on the outer Continental Shelf 
(OCS). Under the Secretary's authority, the Director requires that all 
operations:
    (a) Be conducted according to the OCS Lands Act (OCSLA), the 
regulations in this part, MMS orders, the lease or right-of-way, and 
other applicable laws, regulations, and amendments; and
    (b) Conform to sound conservation practice to preserve, protect, and 
develop mineral resources of the OCS to:
    (1) Make resources available to meet the Nation's energy needs;
    (2) Balance orderly energy resource development with protection of 
the human, marine, and coastal environments;
    (3) Ensure the public receives a fair and equitable return on the 
resources of the OCS;
    (4) Preserve and maintain free enterprise competition; and
    (5) Minimize or eliminate conflicts between the exploration, 
development, and production of oil and natural gas and the recovery of 
other resources.



Sec. 250.102  What does this part do?

    (a) 30 CFR part 250 contains the regulations of the MMS Offshore 
program that govern oil, gas, and sulphur exploration, development, and 
production operations on the OCS. When you conduct operations on the 
OCS, you must submit requests, applications, and notices, or provide 
supplemental information for MMS approval.
    (b) The following table of general references shows where to look 
for information about these processes.

       Table--Where To Find Information for Conducting Operations
------------------------------------------------------------------------
            For information about                       Refer to
------------------------------------------------------------------------
 (1) Abandoning wells........................  Sec.  250.701.
 (2) Applications for Permit to Drill........  Sec.  250.414.

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 (3) Development and Production Plans (DPP)..  Sec.  250.204.
 (4) Downhole commingling....................  Sec.  250.1106.
 (5) Exploration Plans (EP)..................  Sec.  250.203.
 (6) Flaring.................................  Sec.  250.1105.
 (7) Gas measurement.........................  Sec.  250.1203.
 (8) Off-lease geological and geophysical      30 CFR 251.
 permits.
 (9) Oil spill financial responsibility        30 CFR 253.
 coverage.
(10) Oil and gas production safety systems...  Sec.  250.802.
(11) Oil spill response plans................  30 CFR 254.
(12) Oil and gas well-completion operations..  Sec.  250.513.
(13) Oil and gas well-workover operations....  Sec.  250.613.
(14) Platforms and structures................  Sec.  250.901.
(15) Pipelines...............................  Sec.  250.1009.
(16) Pipeline right-of-way...................  Sec.  250.1010.
(17) Sulphur operations......................  Sec.  250.1604.
(18) Training................................  Sec.  250.1500.
(19) Unitization.............................  Sec.  250.1300.
------------------------------------------------------------------------


    Effective Date Note: At 67 FR 35405, May 17, 2002, Sec. 250.102 was 
amended in the table in paragraph (b) by removing line 1, redesignating 
lines 2 through 13 as lines 1 through 12, and adding a new line 13, 
effective July 16, 2002. For the convenience of the user, the added text 
is set forth as follows:

Sec. 250.102  What does this part do?

                                * * * * *

    (b) * * *

       Table.--Where To Find Information for Conducting Operations
------------------------------------------------------------------------
           For information about--                     Refer to--
------------------------------------------------------------------------
 
                  *        *        *        *        *
(13) Permanently plugging wells..............  Sec.  250.1710
 
                  *        *        *        *        *
------------------------------------------------------------------------



Sec. 250.103  Where can I find more information about the requirements in this part?

    MMS may issue Notices to Lessees and Operators (NTLs) that clarify, 
supplement, or provide more detail about certain requirements. NTLs may 
also outline what you must provide as required information in your 
various submissions to MMS.



Sec. 250.104  How may I appeal a decision made under MMS regulations?

    To appeal orders or decisions issued under MMS regulations in 30 CFR 
parts 250 to 282, follow the procedures in 30 CFR part 290.



Sec. 250.105  Definitions.

    Terms used in this part will have the meanings given in the Act and 
as defined in this section:
    Act means the OCS Lands Act, as amended (43 U.S.C. 1331 et seq.).
    Affected State means with respect to any program, plan, lease sale, 
or other activity proposed, conducted, or approved under the provisions 
of the Act, any State:
    (1) The laws of which are declared, under section 4(a)(2) of the 
Act, to be the law of the United States for the portion of the OCS on 
which such activity is, or is proposed to be, conducted;
    (2) Which is, or is proposed to be, directly connected by 
transportation facilities to any artificial island or installation or 
other device permanently or temporarily attached to the seabed;
    (3) Which is receiving, or according to the proposed activity, will 
receive oil for processing, refining, or transshipment that was 
extracted from the OCS and transported directly to such

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State by means of vessels or by a combination of means including 
vessels;
    (4) Which is designated by the Secretary as a State in which there 
is a substantial probability of significant impact on or damage to the 
coastal, marine, or human environment, or a State in which there will be 
significant changes in the social, governmental, or economic 
infrastructure, resulting from the exploration, development, and 
production of oil and gas anywhere on the OCS; or
    (5) In which the Secretary finds that because of such activity there 
is, or will be, a significant risk of serious damage, due to factors 
such as prevailing winds and currents to the marine or coastal 
environment in the event of any oil spill, blowout, or release of oil or 
gas from vessels, pipelines, or other transshipment facilities.
    Air pollutant means any airborne agent or combination of agents for 
which the Environmental Protection Agency (EPA) has established, under 
section 109 of the Clean Air Act, national primary or secondary ambient 
air quality standards.
    Analyzed geological information means data collected under a permit 
or a lease that have been analyzed. Analysis may include, but is not 
limited to, identification of lithologic and fossil content, core 
analysis, laboratory analyses of physical and chemical properties, well 
logs or charts, results from formation fluid tests, and descriptions of 
hydrocarbon occurrences or hazardous conditions.
    Archaeological interest means capable of providing scientific or 
humanistic understanding of past human behavior, cultural adaptation, 
and related topics through the application of scientific or scholarly 
techniques, such as controlled observation, contextual measurement, 
controlled collection, analysis, interpretation, and explanation.
    Archaeological resource means any material remains of human life or 
activities that are at least 50 years of age and that are of 
archaeological interest.
    Attainment area means, for any air pollutant, an area that is shown 
by monitored data or that is calculated by air quality modeling (or 
other methods determined by the Administrator of EPA to be reliable) not 
to exceed any primary or secondary ambient air quality standards 
established by EPA.
    Best available and safest technology (BAST) means the best available 
and safest technologies that the Director determines to be economically 
feasible wherever failure of equipment would have a significant effect 
on safety, health, or the environment.
    Best available control technology (BACT) means an emission 
limitation based on the maximum degree of reduction for each air 
pollutant subject to regulation, taking into account energy, 
environmental and economic impacts, and other costs. The Regional 
Director will verify the BACT on a case-by-case basis, and it may 
include reductions achieved through the application of processes, 
systems, and techniques for the control of each air pollutant.
    Coastal environment means the physical, atmospheric, and biological 
components, conditions, and factors that interactively determine the 
productivity, state, condition, and quality of the terrestrial ecosystem 
from the shoreline inward to the boundaries of the coastal zone.
    Coastal zone means the coastal waters (including the lands therein 
and thereunder) and the adjacent shorelands (including the waters 
therein and thereunder) strongly influenced by each other and in 
proximity to the shorelands of the several coastal States. The coastal 
zone includes islands, transition and intertidal areas, salt marshes, 
wetlands, and beaches. The coastal zone extends seaward to the outer 
limit of the U.S. territorial sea and extends inland from the shorelines 
to the extent necessary to control shorelands, the uses of which have a 
direct and significant impact on the coastal waters, and the inward 
boundaries of which may be identified by the several coastal States, 
under the authority in section 305(b)(1) of the Coastal Zone Management 
Act (CZMA) of 1972.
    Competitive reservoir means a reservoir in which there are one or 
more producible or producing well completions on each of two or more 
leases or portions of leases, with different lease operating interests, 
from which the lessees plan future production.

[[Page 246]]

    Correlative rights when used with respect to lessees of adjacent 
leases, means the right of each lessee to be afforded an equal 
opportunity to explore for, develop, and produce, without waste, 
minerals from a common source.
    Data means facts and statistics, measurements, or samples that have 
not been analyzed, processed, or interpreted.
    Departures means approvals granted by the appropriate MMS 
representative for operating requirements/procedures other than those 
specified in the regulations found in this part. These requirements/
procedures may be necessary to control a well; properly develop a lease; 
conserve natural resources, or protect life, property, or the marine, 
coastal, or human environment.
    Development means those activities that take place following 
discovery of minerals in paying quantities, including but not limited to 
geophysical activity, drilling, platform construction, and operation of 
all directly related onshore support facilities, and which are for the 
purpose of producing the minerals discovered.
    Director means the Director of MMS of the U.S. Department of the 
Interior, or an official authorized to act on the Director's behalf.
    District Supervisor means the MMS officer with authority and 
responsibility for operations or other designated program functions for 
a district within an MMS Region.
    Easement means an authorization for a nonpossessory, nonexclusive 
interest in a portion of the OCS, whether leased or unleased, which 
specifies the rights of the holder to use the area embraced in the 
easement in a manner consistent with the terms and conditions of the 
granting authority.
    Eastern Gulf of Mexico means all OCS areas of the Gulf of Mexico the 
Director decides are adjacent to the State of Florida. The Eastern Gulf 
of Mexico is not the same as the Eastern Planning Area, an area 
established for OCS lease sales.
    Emission offsets means emission reductions obtained from facilities, 
either onshore or offshore, other than the facility or facilities 
covered by the proposed Exploration Plan (EP) or Development and 
Production Plan (DPP).
    Enhanced recovery operations means pressure maintenance operations, 
secondary and tertiary recovery, cycling, and similar recovery 
operations that alter the natural forces in a reservoir to increase the 
ultimate recovery of oil or gas.
    Existing facility, as used in Sec. 250.303, means an OCS facility 
described in an Exploration Plan or a Development and Production Plan 
approved before June 2, 1980.
    Exploration means the commercial search for oil, gas, or sulphur. 
Activities classified as exploration include but are not limited to:
    (1) Geophysical and geological (G&G) surveys using magnetic, 
gravity, seismic reflection, seismic refraction, gas sniffers, coring, 
or other systems to detect or imply the presence of oil, gas, or 
sulphur; and
    (2) Any drilling conducted for the purpose of searching for 
commercial quantities of oil, gas, and sulphur, including the drilling 
of any additional well needed to delineate any reservoir to enable the 
lessee to decide whether to proceed with development and production.
    Facility means:
    (1) As used in Sec. 250.130, any installation permanently or 
temporarily attached to the seabed on the OCS (including manmade islands 
and bottom-sitting structures). It includes mobile offshore drilling 
units (MODUs) or other vessels engaged in drilling or downhole 
operations, used for oil, gas, or sulphur drilling, production, or 
related activities. It also includes facilities for product measurement 
and royalty determination (e.g., Lease Automatic Custody Transfer units, 
gas meters) of OCS production on installations not on the OCS. Any group 
of OCS installations interconnected with walkways, or any group of 
installations that includes a central or primary installation with 
processing equipment and one or more satellite or secondary 
installations is a single facility. The Regional Supervisor may decide 
that the complexity of the individual installations justifies their 
classification as separate facilities.

[[Page 247]]

    (2) As used in Sec. 250.303, means any installation or device 
permanently or temporarily attached to the seabed. It includes mobile 
offshore drilling units (MODUs), even while operating in the ``tender 
assist'' mode (i.e. with skid-off drilling units) or other vessels 
engaged in drilling or downhole operations. They are used for 
exploration, development, and production activities for oil, gas, or 
sulphur and emit or have the potential to emit any air pollutant from 
one or more sources. During production, multiple installations or 
devices are a single facility if the installations or devices are at a 
single site. Any vessel used to transfer production from an offshore 
facility is part of the facility while it is physically attached to the 
facility.
    (3) As used in Sec. 250.417(b), means a vessel, a structure, or an 
artificial island used for drilling, well-completion, well-workover, 
and/or production operations.
    Gas reservoir means a reservoir that contains hydrocarbons 
predominantly in a gaseous (single-phase) state.
    Gas-well completion means a well completed in a gas reservoir or in 
the associated gas-cap of an oil reservoir.
    Governor means the Governor of a State, or the person or entity 
designated by, or under, State law to exercise the powers granted to 
such Governor under the Act.
    H2S absent means:
    (1) Drilling, logging, coring, testing, or producing operations have 
confirmed the absence of H2S in concentrations that could 
potentially result in atmospheric concentrations of 20 ppm or more of 
H2S; or
    (2) Drilling in the surrounding areas and correlation of geological 
and seismic data with equivalent stratigraphic units have confirmed an 
absence of H2S throughout the area to be drilled.
    H2S present means drilling, logging, coring, testing, or 
producing operations have confirmed the presence of H2S in 
concentrations and volumes that could potentially result in atmospheric 
concentrations of 20 ppm or more of H2S.
    H2S unknown means the designation of a zone or geologic 
formation where neither the presence nor absence of H2S has 
been confirmed.
    Human environment means the physical, social, and economic 
components, conditions, and factors that interactively determine the 
state, condition, and quality of living conditions, employment, and 
health of those affected, directly or indirectly, by activities 
occurring on the OCS.
    Interpreted geological information means geological knowledge, often 
in the form of schematic cross sections, 3-dimensional representations, 
and maps, developed by determining the geological significance of data 
and analyzed geological information.
    Interpreted geophysical information means geophysical knowledge, 
often in the form of schematic cross sections, 3-dimensional 
representations, and maps, developed by determining the geological 
significance of geophysical data and analyzed geophysical information.
    Lease means an agreement that is issued under section 8 or 
maintained under section 6 of the Act and that authorizes exploration 
for, and development and production of, minerals. The term also means 
the area covered by that authorization, whichever the context requires.
    Lease term pipelines means those pipelines owned and operated by a 
lessee or operator that are completely contained within the boundaries 
of a single lease, unit, or contiguous (not cornering) leases of that 
lessee or operator.
    Lessee means a person who has entered into a lease with the United 
States to explore for, develop, and produce the leased minerals. The 
term lessee also includes the MMS-approved assignee of the lease, and 
the owner or the MMS-approved assignee of operating rights for the 
lease.
    Major Federal action means any action or proposal by the Secretary 
that is subject to the provisions of section 102(2)(C) of the National 
Environmental Policy Act of 1969, 42 U.S.C. (2)(C) (i.e., an action that 
will have a significant impact on the quality of the human environment 
requiring preparation of an environmental impact statement under section 
102(2)(C) of the National Environmental Policy Act).
    Marine environment means the physical, atmospheric, and biological 
components, conditions, and factors that

[[Page 248]]

interactively determine the productivity, state, condition, and quality 
of the marine ecosystem. These include the waters of the high seas, the 
contiguous zone, transitional and intertidal areas, salt marshes, and 
wetlands within the coastal zone and on the OCS.
    Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location, or context 
in which such evidence is situated.
    Maximum efficient rate (MER) means the maximum sustainable daily oil 
or gas withdrawal rate from a reservoir that will permit economic 
development and depletion of that reservoir without detriment to 
ultimate recovery.
    Maximum production rate (MPR) means the approved maximum daily rate 
at which oil or gas may be produced from a specified oil-well or gas-
well completion.
    Minerals includes oil, gas, sulphur, geopressured-geothermal and 
associated resources, and all other minerals that are authorized by an 
Act of Congress to be produced.
    Natural resources includes, without limiting the generality thereof, 
oil, gas, and all other minerals, and fish, shrimp, oysters, clams, 
crabs, lobsters, sponges, kelp, and other marine animal and plant life 
but does not include water power or the use of water for the production 
of power.
    Nonattainment area means, for any air pollutant, an area that is 
shown by monitored data or that is calculated by air quality modeling 
(or other methods determined by the Administrator of EPA to be reliable) 
to exceed any primary or secondary ambient air quality standard 
established by EPA.
    Nonsensitive reservoir means a reservoir in which ultimate recovery 
is not decreased by high reservoir production rates.
    Oil reservoir means a reservoir that contains hydrocarbons 
predominantly in a liquid (single-phase) state.
    Oil reservoir with an associated gas cap means a reservoir that 
contains hydrocarbons in both a