Locatable Minerals Operations, 15694-15716 [E8-5746]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 73, Number 58 (Tuesday, March 25, 2008)]
[Proposed Rules]
[Pages 15694-15716]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-5746]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Parts 223, 228, 261, 292, and 293

RIN 0596-AB98


Locatable Minerals Operations

AGENCY: Forest Service, USDA.

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would revise the regulations for locatable 
minerals operations conducted on National Forest System lands. The 
revised rule would apply to prospecting, exploration, development, 
mining and processing operations, and reclamation under the Mining Law 
of May 10, 1872, as amended. The Forest Service invites written 
comments on this proposed rule.

DATES: Comments must be received by May 27, 2008. Pursuant to the 
Paperwork Reduction Act, comments on the information collection burden 
that would result from this proposal must be received by May 27, 2008.

ADDRESSES: Send written comments to Forest Service, USDA, Attn: 
Director, Minerals and Geology Management (MGM) Staff, (2810), Mail 
Stop 1126, Washington, DC 20250-1125; by electronic mail to 
36cfr228a@fs.fed.us; by fax to (703) 605-1575; or by the electronic 
process available at Federal eRulemaking portal at https://
www.regulations.gov. If comments are sent by electronic mail or by fax, 
the public is requested not to send duplicate written comments via 
regular mail. Please confine written comments to issues pertinent to 
the proposed rule; explain the reasons for any recommended changes; 
and, where possible, reference the specific wording being addressed. 
All comments, including names and addresses when provided, will be 
placed in the record and will be available for public inspection and 
copying. The public may inspect comments received on the proposed rule 
in the Office of the Director, MGM Staff, 5th Floor, Rosslyn Plaza 
Central, 1601 North Kent Street, Arlington, Virginia, on business days 
between the hours of 8:30 a.m. and 4 p.m. Those wishing to inspect 
comments are encouraged to call ahead at (703) 605-4646 to facilitate 
entry into the building.
    Comments concerning the information collection requirements 
contained in this action should reference OMB No. 0596-New, the docket 
number, date, and page number of this issue of the Federal Register. 
Comments should be sent to the address listed in the above paragraph.

FOR FURTHER INFORMATION CONTACT: Mike Doran, Minerals and Geology 
Management Staff, (208) 373-4132. Individuals who use telecommunication 
devices for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern 
Daylight Time, Monday through Friday.

SUPPLEMENTARY INFORMATION: 

Background and Need for Proposed Rule

    Locatable mineral operations on National Forest System (NFS) lands 
have been regulated under the rules now at 36 CFR part 228, subpart A, 
since 1974. Under these rules, the Forest Service requires operators 
proposing to conduct such operations to file with the agency a notice 
of intent, or a plan of operation, or to amend a plan of operation, as 
appropriate, whenever the

[[Page 15695]]

proposed mineral operations might or would likely cause significant 
disturbance of surface resources.
    The regulations at 36 CFR part 228, subpart A, apply to all 
prospecting, exploration, and mining operations, whether within or 
outside the boundaries of a mining claim, conducted under the Mining 
Law of May 10, 1872, as amended. These regulations were originally 
promulgated in 1974 as 36 CFR part 252, and were based on the Forest 
Service's authority under the Organic Administration Act of 1897. The 
rules were redesignated as 36 CFR part 228, subpart A, in 1981. In 
2005, a final rule clarifying when a plan of operations is required 
(Sec.  228.4(a)) also was adopted. However, the regulations have not 
been significantly revised since 1974.
    The Forest Service recognizes that prospectors and miners have a 
statutory right, not a mere privilege, under the Mining Law of May 10, 
1872, the Surface Resources Act of 1955, 30 U.S.C. 611-615 (sometimes 
referred to as the Multiple Use Mining Act of 1955 or as Public Law 
167), and the Organic Administration Act of 1897, to go upon certain 
National Forest System lands for the purposes of locatable mineral 
exploration, development, and production. The Forest Service may not 
unreasonably restrict the exercise of that right. Under the revised 
regulation, Forest Service administrators would at all times apply the 
test of reasonableness, in that the regulations and their 
administration cannot extend beyond what is needed to preserve and 
protect the National Forests from needless surface resource damage. 
Particular consideration would be given to the economics of operations, 
the stage of the operations, along with other factors in applying the 
test of reasonableness.
    The regulations at 36 CFR part 228, subpart A, have served the 
Forest Service fairly well in bonding and otherwise administering 
exploration, mining, and processing operations on National Forest 
System lands. However, since 1974, several inefficiencies and problems 
associated with these regulations have become apparent and field 
managers are asking that the regulations be revised and updated.
    This proposed rule would implement recommendations contained in the 
1999 National Research Council (NRC) publication ``Hard Rock Mining on 
Federal Lands.'' This publication resulted when Congress asked the NRC 
to assess the adequacy of the regulatory framework for locatable 
mineral operations on Federal lands. In September 1999, the NRC 
published its conclusions and recommendations. Although the report 
concluded that the overall regulatory structure for locatable mineral 
operations on Federal lands is effective, the report recommended 
revision of several aspects of the Forest Service's regulations. Some 
of the concerns identified by the NRC are the same concerns the Forest 
Service has about the existing regulations, specifically, revising the 
regulations to improve the process for modifying and suspending 
injurious operations and adjusting reclamation bonds. The report also 
recommended major changes in the way the Forest Service approves 
exploratory operations causing less than 5 acres of surface resource 
disturbance. In response to this recommendation, the Forest Service 
proposes to adopt regulations similar to the Bureau of Land 
Management's (BLM) regulations governing notice level operations set 
forth in 43 CFR subpart 3809.
    The Forest Service contacted representatives of the mining industry 
about its effort to revise 36 CFR part 228, subpart A. The Forest 
Service briefed those representatives as to what the agency then saw as 
its six main concerns with its current locatable mineral operations. 
These were:
    (a) New provisions that essentially formalize the current process 
for, reviewing and approving proposed plans of operations;
    (b) Streamlining the process for approving short-term, low impact 
operations;
    (c) New provisions that improve the process and criteria for 
modification of an approved plan of operations;
    (d) Providing additional detail with respect to the process the 
Forest Service uses to inspect operations and to remedy the operator's 
or the operations' noncompliance with applicable requirements;
    (e) A new provision that explains the Forest Service's and the 
operator's responsibilities under the Clean Water Act in connection 
with the review and approval of proposed plans of operations; and
    (f) Providing additional detail with respect to the process the 
Forest Service uses to review and adjust reclamation bonds to ensure 
that those bonds cover the full cost of reclaiming National Forest 
System lands.

Description of Substantive Proposed Changes by Section

PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER

Section 223.14 Where Timber May Be Cut
    Section 223.14(d) would be amended to add a citation to 36 CFR part 
228, subpart A, to permit certain cutting of timber on a mining claim 
pursuant to a bonded notice as well as a plan of operations, and to 
otherwise reflect 36 CFR part 228, subpart A, as it would be revised by 
this proposed rule.

PART 228--MINERALS

Subpart A--Locatable Minerals
Section 228.3 Definitions
    Eleven new terms would be added to the definitions section. 
Definitions of the terms ``occupancy,'' ``permanent structure'', and 
``residence'' would be set forth in Sec.  228.3 to provide consistent 
interpretations for the public and for Forest Service personnel. These 
definitions would help reduce confusion about the propriety of proposed 
occupancy and residence on National Forest System lands in connection 
with locatable mineral operations, part of which has resulted from 
imprecise language in some Federal court decisions concerning such 
occupancy and residence. The three new definitions also would make the 
Forest Service regulations more consistent with the BLM Occupancy and 
Use regulations for Locatable minerals, 43 CFR subpart 3715. In 
addition, these definitions would be consistent with amendments to 36 
CFR part 261, subpart A, proposed by this proposed rule.
    The term ``reasonably incident'' would be defined to clarify that, 
by law, mineral operators are restricted to using only reasonable 
methods of surface disturbance that are appropriate to their stage of 
operations regardless of the validity of any mining claim on which the 
operations take place. This clarification is warranted by case law 
(such as United States v. Richardson, 599 F. 2d 290 (1979); cert. 
denied, 444 U.S. 1014 (1980)) and the Surface Resources Act of 1955 (30 
U.S.C. 612). Reasonable and necessary uses of the National Forest 
System lands must employ sound and accepted practices to avoid or 
minimize adverse environmental impacts. These uses also must employ 
sound, accepted operational methods appropriate for the applicable 
stage of mining operations, including prospecting, exploration, 
production (mining and processing), or

[[Page 15696]]

reclamation. The Forest Service General Technical Report INT-35, 
Anatomy of a Mine, from Prospect to Production (section 10-7), 
describes and gives examples of the reasonable stages of a mining 
operation.
    The proposed term ``reclamation'' would be redefined to include 
seasonal and interim measures and long-term treatment after mineral 
operations have ceased.
    The term ``reclamation bond'' would be included to clarify that 
interest earning escrow accounts may be used to cover the costs of 
long-term reclamation measures.
    The term ``significant disturbance of surface resources'' would be 
defined at Sec.  228.3(n) of the proposed rule to provide general 
criteria for evaluating the significance of the disturbance of surface 
resources. However, as discussed in a portion of the June 6, 2005, 
Federal Register notice for the final rule amending 36 CFR 228.4(a) (70 
FR 32713) quoted below, it is impossible to define this term 
definitively given the variability of National Forest System lands.
    ``Questions and Answers developed by the Forest Service when the 
1974 rule was originally adopted explained that a definition cannot be 
given that would apply to all lands subject to these regulations. 
Disturbance by a particular type of operation on flat ground covered by 
sagebrush, for example, might not be considered significant. But that 
same sort of operation in a high alpine meadow or near a stream could 
cause highly significant surface resource disturbance. The 
determination of what is significant thus depends on a case-by-case 
evaluation of proposed operations and the kinds of lands and other 
surface resources involved. In general, operations using mechanized 
earthmoving equipment would be expected to cause significant 
disturbance. Pick and shovel operations normally would not. Nor would 
explosives used underground, unless caving to the surface could be 
expected. Use of explosives on the surface would generally be 
considered to cause significant disturbance. Almost without exception, 
road and trail construction and tree clearing operations would cause 
significant surface disturbance. The Department continues to believe 
that a universal definition of the term `significant disturbance' 
cannot be established for NFS lands. The lands within the NFS subject 
to the United States mining laws stretch from Alaska on the north, the 
Mississippi River on the east, the border with Mexico on the south, and 
the Pacific Ocean on the west. NFS lands within that large area occur 
in widely diverse climates, hydrogeologic conditions, landforms, and 
vegetative types. Due to the great variability of NFS ecosystems, 
identical operations could cause significant disturbance in one 
situation and insignificant disturbance in another.
    However, the record for the 1974 rulemaking at 36 CFR part 228, 
subpart A, does identify tests that are of use in deciding whether 
proposed disturbance of NFS resources constitutes `significant 
disturbance' for purposes of that rule. A March 28, 1974, letter from 
Forest Service Chief John McGuire to Senator Ted Stevens in response to 
Senator Stevens' comments on the rule proposed in 1973 explains that 
`significant disturbance' refers to operations 'for which reclamation 
upon completion of [that operation] could reasonably be required,' and 
to operations that could cause impacts on NFS resources that reasonably 
can be prevented or mitigated.''
    Nonetheless, locatable mineral operations that fall within the 
criteria set forth in proposed Sec.  228.3(n) would be judged as likely 
to cause a significant disturbance of surface resources absent unusual 
circumstances. It also should be understood that an operation not 
meeting these criteria might nonetheless be likely to cause 
``significant disturbance of surface resources'' given the nature of 
the lands and surface resources that would be affected by proposed 
operations. Thus, even when proposed operations would not be judged as 
likely to cause significant disturbance of surface resources under the 
general criteria set forth in Sec.  228.3(n), individualized evaluation 
of proposed operations might reveal that those operations indeed would 
be likely to cause ``significant disturbance of surface resources.''
    The Federal Register notice for the final rule amending 36 CFR 
Sec.  228.4(a) further notes that the March 28, 1974, letter from 
Forest Service Chief John McGuire ``also emphatically makes the point 
that the Forest Service's locatable mineral regulations do not use the 
term `significant' in the same manner as that term is used in the 
National Environmental Policy Act.'' It continues to be necessary to 
distinguish between ``significant'' disturbance of National Forest 
System surface resources and ``significant'' effects on the quality of 
the human environment. The Forest Service does not interpret a 
determination that locatable mineral operations are likely to cause 
significant disturbance of surface resources as an automatic invocation 
of Section 102(2) (C) of the National Environmental Policy Act of 1969, 
thus requiring preparation of an environmental impact statement (or an 
environmental assessment). This was never intended when what is now 36 
CFR part 228, subpart A, was originally promulgated nor is it intended 
now.
    As the Federal Register notice for the final rule amending 36 CFR 
228.4(a) additionally observed, ``Judicial decisions rendered in the 30 
years since the rule at 36 CFR part 228, subpart A was promulgated also 
give context to the meaning of the term `significant disturbance [of 
surface resources].' For example, it is well established that the 
construction or maintenance of structures, such as cabins, mill 
buildings, showers, tool sheds, and outhouses on NFS lands, constitutes 
a significant disturbance of NFS resources. United States v. Brunskill, 
792 F.2d 938, 941 (9th Cir. 1986); United States v. Burnett, 750 F. 
Supp. 1029, 1035 (D. Idaho 1990).'' These decisions demonstrate the 
erroneousness of equating a ``significant'' disturbance of National 
Forest System surface resources and a ``significant'' effect on the 
quality of the human environment. It is extremely unlikely that the 
maintenance, or even the construction, of such structures standing 
alone would require preparation of either an environmental impact 
statement or an environmental assessment unless the National Forest 
System lands at issue possess some noteworthy status such as being part 
of a proclaimed wilderness or the designated habitat for a threatened 
or an endangered species.
    Of course, some operations that would be likely to cause 
significant disturbance of National Forest System surface resources 
also would be likely to cause significant effects on the quality of the 
human environment. Thus, some few, by no means all, proposed operations 
would be expected to require preparation of environmental impact 
statements. More frequently, but not uniformly or even regularly, 
proposed operations that would be likely to cause significant 
disturbance of National Forest System surface resources would trigger 
preparation of an environmental assessment, which might or might not be 
the basis for a Finding of No Significant Impact. (Whenever an 
environmental assessment or environmental impact statement would be 
required, it would be prepared by the Forest Service.)
    The Forest Service requests comments on the adequacy of the 
proposed definition of ``significant disturbance of surface resources'' 
and its discussion set forth above in drawing the distinction between 
significant disturbance of

[[Page 15697]]

National Forest System surface resources and significant effects on the 
quality of the human environment.
    The proposed term ``surface use determination'' describes a 
management tool currently used by the authorized officer to determine 
if a proposed or ongoing use is reasonably incident. The inquiry would 
consist of an examination and a report completed by a certified mineral 
examiner that would provide information, conclusions and 
recommendations to the authorized officer regarding whether a proposed 
or existing use is logically sequenced, reasonably incident, and 
otherwise consistent with existing laws and regulations.
    This proposed rule defines the term ``United States mining laws'' 
as the Mining Law of May 10, 1872, as amended and supplemented. This 
definition reflects the fact that the 1872 Act has since been affected 
by many other laws. One such law, the Organic Administration Act of 
1897, is specifically mentioned for two reasons. It reapplied the 
United States mining laws to National Forest System lands following 
their reservation from the public domain and it provides the Forest 
Service with authority to promulgate these regulations. Another cited 
law, the Surface Resources Act of 1955, is specifically mentioned 
because it confirms requirements implicit in the 1872 Act itself. One 
such requirement is that operators must use reasonable methods of 
surface disturbance that are appropriate given the warranted stage of 
locatable mineral operations.
Section 228.4 Submission of Notices of Intent To Operate, Bonded 
Notices, and Plans of Operation
    This section would be sequentially reorganized to first address 
operations that would cause little or no disturbance of surface 
resources, then operations that might cause significant disturbance of 
surface resources, and finally operations that are likely to cause 
significant disturbance of surface resources.
    An operator would not be required to contact the Forest Service 
before beginning operations that would cause little or no disturbance 
of surface resources.
    An operator would be required to submit a notice of intent to 
operate before beginning operations that might cause significant 
disturbance of surface resources. Among the operations that would 
require a notice of intent to operate are those that would involve 
occupancy of National Forest System lands lasting longer than the local 
forest stay limit and those involving motorized use of closed roads. 
Submission of a notice of intent for occupancy exceeding the local 
forest stay limit would be required because such occupancy along with 
the related mining operations might cause significant disturbance of 
surface resources. Submission of a notice of intent for motorized use 
of closed roads similarly would be required because such use along with 
the related mining operations might cause significant disturbance of 
surface resources. The notice of intent to operate also would provide 
an efficient means of evaluating, and when reasonably necessary, 
regulating occupancy that would exceed local forest stay limits and 
motorized use of closed roads.
    An operator would be required to have either a complete bonded 
notice then in effect or an approved plan of operations then in effect 
before beginning operations likely to cause significant disturbance of 
surface resources. The criteria for deciding which of these instruments 
the operator would be required to have would be based upon the duration 
and the extent of the likely significant disturbance of surface 
resources. The subset of proposed operations likely to cause 
significant disturbance of surface resources which the rule addresses 
by means of a complete bonded notice, rather than an approved plan of 
operations, are those that would neither so disturb more than 5 acres 
at any point in time nor last more than 2 years. This proposed rule 
requires an operator to have an approved plan of operations before 
beginning other operations likely to cause significant disturbance of 
surface resources which do not satisfy both of these criteria.
    The new bonded notice category of operations that this proposed 
rule creates is similar to the BLM's ``notice'' category of operations. 
However, the bonded notice category of operations would differ in one 
respect from the BLM's notice category of operations. The BLM restricts 
use of a notice to exploratory operations. The Forest Service proposes 
to allow use of a bonded notice for all short-term, low impact 
operations. As the rule is proposed, it is conceivable that some small 
mining operations would actually progress to the removal of the 
valuable locatable mineral deposit and the completion of reclamation 
under the terms of one or more bonded notices.
Section 228.5 Bonded Notice--Completeness Review
    The proposed rule would provide that upon receipt of a bonded 
notice, the authorized officer, who usually would be the District 
Ranger, would perform a completeness review to determine whether the 
proposed operations satisfy the environmental protection requirements 
in Sec.  228.9, assuming that the proposed operations do not require an 
approved plan of operations, and respond to the operator within 15 
days.
    The proposed rule generally provides that when a proposed bonded 
notice is found to be complete and to meet the requirements of Sec.  
228.9, the District Ranger would inform the operator that the notice 
would take effect upon receipt of an adequate reclamation bond. 
However, Sec.  228.5(a)(5) of the proposed rule would provide that in 
cases where an operator has established a pattern of noncompliance with 
requirements applicable to past or ongoing operations, the operator may 
be required to have an approved plan of operations rather than a 
complete bonded notice. A process, which would require the authorized 
officer to seek the operator's input, would be established by the 
proposed rule to decide whether it would be appropriate to require the 
operator to obtain an approved plan of operations. The Forest Service 
specifically requests comment on the inclusion and formulation of Sec.  
228.5(a)(5) in the final rulemaking.
    Under the proposed rule, once a bonded notice takes effect, the 
operator would be able to begin the proposed operations.
    The proposed rule provides that when the authorized officer 
determines that operations being conducted in accordance with a 
complete bonded notice are resulting in significant disturbance of 
surface resources not fully described by that notice, the operator 
would be required to obtain a new complete bonded notice or an approved 
plan of operations, whichever would be appropriate.
    Adopting the new bonded notice category of operations would meet 
recommendations contained in the NRC's 1999 report ``Hard Rock Mining 
on Federal Lands.'' One of these recommendations is that: ``Forest 
Service regulations should allow exploration disturbing less than 5 
acres to be approved or denied expeditiously, similar to notice-level 
exploration activities on BLM lands.'' (pg. 97). Another of these 
recommendations is that: ``The BLM and the Forest Service should plan 
for and implement a more timely permitting process, while still 
protecting the environment.'' (pg. 122).
    Currently, an approved plan of operations is required for 
operations that would be subject to a bonded notice under the proposed 
rule. The existing approval process for a plan of

[[Page 15698]]

operations often takes several months to two years. Adopting the bonded 
notice category of operations would shorten the Forest Service's review 
of identical low impact, short-term operations freeing up specialists 
needed to process more complex proposed plans of operations and to 
administer locatable mineral operations on the ground.
    While the bonded notice category of operations would streamline the 
permitting process for less impactive short-term, operations, the 
proposed rule also ensures that any adverse impacts that operations 
conducted under a bonded notice might have on National Forest System 
lands would be minimized. All operations that would be conducted under 
a bonded notice would have to meet the environmental protection 
requirements set forth in Sec.  228.9. All operations that would be 
conducted under a bonded notice also would have to be properly bonded.
Section 228.6 Plan of Operations--Approval
    The procedures for the Forest Service's review of and response to a 
proposed plan of operations would be very similar to those that would 
be applicable to a proposed bonded notice.
    Section 228.6(h) would include substantially different standards 
for requiring modification of a plan of operations than those set forth 
in the current rule. These changes are necessary because the provisions 
of the current rule governing modification of an approved plan of 
operations have been interpreted inconsistently. Questions have also 
been raised as to when incidental changes of operations authorized by 
the Forest Service rise to the level of requiring modification of the 
approved plan of operations. The current rule also contains limited and 
often ineffective criteria for requiring modification of an approved 
plan of operations. The NRC recognized the existence of such problems 
and recommended that: ``The BLM and the Forest Service should revise 
their regulations to provide more effective criteria for modifications 
to plans of operation, where necessary, to protect the federal lands.'' 
(pg. 99). The proposed rule would address the NRC's recommendation by 
correcting these shortcomings.
    Currently, 36 CFR part 228, subpart A, contains criteria for 
requiring modification of a plan of operations that look backward to 
focus on what should have been ``foreseen'' when the plan of operations 
was approved. In this proposed rule, the criteria for requiring 
modification of a plan of operations allows for a correction of 
problems manifested after the approval of the plan of operations and 
would keep approved operations abreast of changed circumstances. These 
criteria would draw upon those adopted by the Forest Service almost a 
decade ago in regulations governing locatable mineral operations within 
the Smith River National Recreation Area, 36 CFR part 292, subpart G. 
Under the proposed rule, modification of an approved plan of operations 
might be required to reflect advances in predictive capability, 
technical capacity, and mining technology. Modification of an approved 
plan of operations also might be required to address uses of National 
Forest System land that are no longer, or have become, reasonably 
incident.
    The proposed rule also would reflect the Forest Service's 
conclusion that it is not reasonable for an operator to continue to 
conduct any aspect of locatable mineral operations that is causing 
irreparable or unnecessary injury, loss or damage to National Forest 
System surface resources even if that aspect of the operations was 
previously approved by the authorized officer. Thus, the proposed rule 
would allow the authorized officer to require an operator to suspend 
any aspect of operations that is causing such injury, loss or damage 
while the process of modifying the approved plan of operations is 
ongoing.
    Section 228.6(i) would note the Clean Water Act (CWA) obligations 
that an operator or the Forest Service itself must meet in connection 
with the approval of a plan of operations. In 2006, a Federal District 
Court held that the Forest Service cannot approve a proposed plan of 
operations that may result in a discharge to navigable waters until the 
operator has obtained a proper 401 CWA certification and presented it 
to the authorized officer unless the certification requirement has been 
properly waived. The proposed rule would alert operators and authorized 
officers to the applicability of this requirement. (The Forest Service 
Manual has also been amended to include direction for complying with 
the CWA (FSM 2817.23a)).
Section 228.8 Inspecting Operations and Remedying Noncompliance
    The Forest Service has experienced some difficulty in enforcing 
compliance with the current regulations. A consistent and clearly 
understood response to noncompliance is needed. The NRC report stated: 
``* * * the committee is persuaded that more consistent and accessible 
procedures for deciding when to refer apparent violations to other 
agencies and the ability to issue reasonable administrative penalties, 
subject to the appropriate due process, would improve the efficiency of 
agency operations and enhance the protection of then environment.'' 
(pgs.102-103).
    This section would list enforcement steps the authorized officer 
can take if the operator fails to comply with a notice of 
noncompliance. This proposed rule notes, as is true today, that the 
authorized officer may initiate a civil action, issue a Violation 
Notice under 36 CFR part 261, or use the reclamation bond to take all 
necessary measures to protect the environment specified by the notice 
of noncompliance.
Section 228.9 Environmental Protection Requirements
    This proposed rule would update and revise the environmental 
protection requirements applicable to locatable mineral operations. A 
new paragraph, Sec.  228.9(e), would reference the requirements of the 
Endangered Species Act (ESA). This change would be made because some 
people have asserted that the ESA does not apply to locatable mineral 
operations given that the ESA is not mentioned in the currently 
applicable requirements for environmental protection.
    Some operators also do not understand that the Forest Service may 
require bond coverage that includes the cost of removing any abandoned 
equipment or other property from National Forest System lands. Some 
have argued that since the current regulations do not specifically 
state that removal of equipment is part of reclamation, the operator 
cannot be required to post a bond for the removal of that equipment. As 
in the current rule, a separate section of this proposed rule (Sec.  
228.11) would require removal of structures and equipment upon the 
cessation of operations. However, to prevent further confusion, a new 
paragraph, Sec.  228.9(i), would be included in the proposed rule to 
make it clear that a required element of reclamation is the removal of 
structures and equipment from National Forest System lands. Section 
228.13(c)(1), would govern reclamation bonding and also would specify 
that the cost of complying with proposed Sec.  228.9(i) would be 
factored into a reclamation bond's required coverage.
    This section also would be revised to make the environmental 
protection requirements applicable to bonded notices as well as plans 
of operations.

[[Page 15699]]

Section 228.10 Reasonably Incident Uses
    This new section would allow an authorized officer to require an 
operator to cease uses of National Forest System lands that are not 
reasonably incident to locatable mineral prospecting, exploration, 
development, mining, processing, or reclamation. This proposed rule 
would establish a process for evaluating the reasonableness of 
operations or incidental uses, and to initiate a surface use 
determination.
    Uses such as occupancy and in particular, residence, would be 
evaluated under this section to determine whether those uses are 
necessary based on the nature or stage of ongoing or proposed 
operations. These proposed requirements and requirements proposed 
elsewhere in this proposed rule are modeled upon the BLM's parallel 
rule (43 CFR subpart 3715) governing occupancy and reasonably incident 
uses and operations on the public lands.
Section 228.11 Cessation of Operations
    This section would be revised to give the authorized officer a 
clearly stated process and criteria to use when responding to a 
proposed or actual cessation or temporary closure of operations. The 
Forest Service has noticed inappropriate characterizations of closures 
or cessations of operations as ``temporary.'' These characterizations 
sometimes appear to be attempts to delay or avoid taking appropriate 
interim or final actions to clean up and otherwise close and reclaim 
completed or abandoned operations. These changes would address any such 
abuse.
Section 228.12 Access for Operations
    This section would be revised to clarify that all access must be 
reasonable. A clarification also would be added stating that the Forest 
Service may elect to regulate access on National Forest System lands 
for associated work on lands patented under the United States mining 
laws pursuant to 36 CFR part 228, subpart A. The vehicle for regulating 
such access would be either a complete bonded notice or an approved 
plan of operations.
Section 228.13 Reclamation Bonds for Bonded Notices and Plans of 
Operation
    The revisions in this section would clearly identify the different 
types of financial instruments that can be used as a reclamation bond. 
This proposed rule would retain the use of statewide or nationwide 
blanket bonds while including a new mechanism to insure the adequacy of 
any blanket bond.
    The current regulations do not contain an appropriately detailed 
process for the administration of reclamation bonds, which results in 
inconsistent administration of such bonds. As it would be revised, this 
section would lay out a clear process and definitive standards for 
administering reclamation bonds. This would facilitate consistent 
administration of reclamation bonds by Forest Service authorized 
officers.
    Questions have been raised as to whether the authorized officer has 
authority to require periodic reviews of reclamation bonds, and to 
require appropriate adjustments of reclamation bonds based upon those 
reviews. To forestall such questions in the future, the proposed rule 
would be expanded to set forth detailed language providing criteria and 
a process for the authorized officer's review of reclamation bonds. The 
proposed rule would permit review of a reclamation bond's adequacy 
whenever the authorized officer believes it is necessary. However, the 
proposed rule would require the authorized officer to seek input from 
the operator before requiring any adjustment of the bond.
    The proposed rule would provide that value should not be attributed 
to any property that an operator places or creates on National Forest 
System lands for purposes of determining the cost to fully reclaim such 
lands in accordance with Sec.  228.13(c). Any other approach would not 
be reasonable. The operator not only is entitled, but would be 
required, to remove such property in accordance with Sec.  228.9(i) of 
the proposed rule. The value of any property impermissibly abandoned on 
the area of operations also could not be determined in advance. An 
operator might not own property placed or constructed on National 
Forest System lands. Even if the operator owned such property 
initially, ownership of it could pass to another person during the 
course of the operations voluntarily by sale or involuntarily by 
bankruptcy. When operations are lengthy, property that was initially 
valuable may be worth less than the cost to remove it when the 
operations cease or are concluded. Liability could also be associated 
with any such abandoned property that the United States would not 
accept.
    This proposed rule would require mandatory bonding for all bonded 
notices as well as all newly approved plans of operation.
    Under current practice, few, if any, operations requiring an 
approved plan of operations are authorized today without reclamation 
bond coverage given serious problems that have arisen with respect to 
previously approved operations for which a bond was not required. 
However, approved plans of operations are in effect for which a 
reclamation bond was not required. This proposed rule would require an 
operator to furnish a bond complying with the requirements of the 
proposed rule for all existing operations subject to an approved plan 
of operations, including those for which a reclamation bond initially 
was not required. Operators would be given 180 days after the effective 
date of the final rule to furnish such a bond. The BLM also required 
bonds for existing operations subject to an approved plan of operations 
to be brought into compliance with the bonding requirements of its 
revised 43 CFR subpart 3809 regulations within 180 days of that rule's 
effective date.
    As it would be revised, this proposed rule would provide for use of 
escrow accounts to cover long-term monitoring, maintenance, or 
treatment measures to prevent or otherwise minimize on-site or off-site 
damage. The BLM has successfully used this kind of financial instrument 
to bond such obligations as long-term water treatment (see 43 CFR 
3809.556).
    This proposed rule also would be expanded to set forth specific 
criteria and a formal process that the authorized officer must use in 
deciding whether to permit the release of a reclamation bond or to 
require the replacement or forfeiture of a reclamation bond. The 
authorized officer also would be obligated to seek the operator's input 
before requiring the replacement or forfeiture of a reclamation bond.
Section 228.14 Operations on Withdrawn or Segregated National Forest 
System Lands Including National Forest Wilderness
    The provisions in the current rule governing operations in National 
Forest Wilderness are reorganized for clarity. Another clarification is 
made concerning information gathering about any type of mineral as 
authorized by the Wilderness Act on lands which that Act has withdrawn 
from appropriation under the United States mining laws. Although the 
United States mining laws do not govern such information gathering, 
this proposed rule would make the procedures set forth in this subpart 
applicable to that work given the similar methods by which such 
information is gathered.
    Proposed paragraphs (f) through (i) of this section would establish 
the requirements for conducting locatable mineral operations on all 
National Forest System lands segregated or withdrawn from the operation 
of the

[[Page 15700]]

United States mining laws. National Forest System lands are withdrawn 
or segregated pursuant to many authorities and there is no logical 
reason to distinguish between lands segregated or withdrawn from 
appropriation under one versus another authority.
    These proposed provisions specify that operations generally are 
allowable on all National Forest System lands segregated or withdrawn 
from the mining laws only to the extent that a person has valid 
existing rights to proceed, regardless of whether the operations may 
proceed under a complete bonded notice or an approved plan of 
operations. Thus, the proposed rule allows the Forest Service to 
protect genuine valid existing rights (by requiring a determination 
that such rights exist) while at the same time protecting areas that 
have been withdrawn or are being proposed to be withdrawn from 
operation of the mining laws. However, these proposed provisions 
specify that the Forest Service may allow limited activities before the 
existence of valid existing rights is established or disproven, 
including certain limited sampling and limited annual assessment work.
    Proposed paragraph (f) of this section would require the Forest 
Service to prepare a mineral examination report before approving a plan 
of operations for proposed operations on National Forest System lands 
withdrawn from the operation of the mining laws. Additionally, this 
section would grant the Forest Service the discretion to prepare a 
mineral examination report before confirming that a bonded notice is 
complete or approving a plan of operations for proposed operations on 
National Forest System lands that have been segregated under section 
204 of FLPMA (43 U.S.C. 1714) for consideration of a withdrawal. This 
section also would provide that when a mineral examination report finds 
that a mining claim is invalid but the operator declines to alter the 
proposed operations to avoid the segregated or withdrawn National 
Forest System lands in question, the Forest Service will request that 
the BLM promptly initiate contest proceedings to determine the validity 
of all such mining claims.
    However, in specified limited circumstances proposed paragraph (g) 
would allow the Forest Service to approve a plan of operations before a 
mineral examination report for a claim located on withdrawn lands has 
been prepared. Specifically, the Forest Service may allow operations to 
take samples to confirm or corroborate mineral exposures that were 
physically disclosed and existing on the mining claim before the 
segregation or withdrawal date, whichever is earlier; and to perform 
any minimum necessary annual assessment work under 43 CFR 3851.1. This 
section also would permit an operator to conduct the same limited 
operations on segregated lands under either a bonded notice that the 
Forest Service has confirmed is complete or a plan of operations that 
the Forest Service has approved.
    Proposed paragraph (h) allows the Forest Service to suspend the 
time limit the agency would take for final action on a proposed plan of 
operations until the existence of valid existing rights is finally 
established or disproven pursuant to paragraph (f) of this section, 
whether by virtue of the mineral examination report, a mineral contest, 
or federal court proceedings. The section also provides for the 
suspension of the time limit for the Forest Service to confirm that a 
proposed bonded is complete under identical terms.
    Proposed paragraph (i) requires an operator to cease all 
operations, except required reclamation, when the absence of valid 
existing rights is finally established pursuant to paragraph (f) of 
this section, whether by virtue of the mineral examination report, a 
mineral contest, or federal court proceedings.
Section 228.16 Applicability of This Subpart
    This section would specify how the revised rule would apply to 
classes of operations such as approved and ongoing operations, 
preexisting proposed plans of operation, preexisting unapproved 
modifications of approved plans, and other preexisting operations. This 
section would directly parallel the applicability of the BLM's revised 
43 CFR subpart 3809 regulations to the same classes of ongoing or 
proposed locatable mineral operations.

PART 261--PROHIBITIONS

Section 261.2 Definitions
    The definition of ``operating plans'' set forth in this section 
would be revised to include bonded notices within its scope. A new 
definition of ``residence,'' patterned upon the definition of 
``residence'' which would be set forth at 36 CFR part 228.3(m), also 
would be added to this section.
Section 261.10 Occupancy and Use
    Paragraphs (a), (b) and (l) of this section would be revised to 
apply to bonded notices as well as to plans of operation. This change 
has no substantive effect. These paragraphs presently apply to 
operations requiring an approved plan of operations. Operations that 
would be conducted under a complete bonded notice should the proposed 
rule be adopted, presently require an approved plan of operations under 
36 CFR part 228, subpart A. Thus, whether or not the proposed rule is 
ultimately adopted, the same operations would be subject to these three 
paragraphs.
    New paragraphs (p) and (q) also would be added to this section. 
Paragraph (p) would prohibit the use or occupancy of National Forest 
System land or facilities without a complete bonded notice or an 
approved plan of operations when the operations require such a bonded 
notice or plan of operations. Paragraph (q) would prohibit the use of 
National Forest System land as storage sites without a complete bonded 
notice or an approved plan of operations when the operations would 
require such a bonded notice or an approved plan of operations.

PART 292--NATIONAL RECREATION AREAS

Subpart D--Sawtooth Natural Recreation Area--Federal Lands
Section 292.17 General Provisions
    This section would be amended to add a citation to 36 CFR part 228, 
subpart A.
Subpart G--Smith River National Recreation Area
Section 292.63 Plan of Operations--Supplementary Requirements
    This section would be amended to reflect the revised requirements 
that would be set forth at proposed 36 CFR part 228.4(f)(1) through 
(f)(4) and proposed 36 CFR part 228.9. This section also would be 
revised to employ the same terminology that would be set forth at 36 
CFR part 228, subpart A.

PART 293--WILDERNESS--PRIMITIVE AREAS

Section 293.2 Objectives
    This section would be amended to add a citation to 36 CFR part 228, 
subpart A.
Section 293.15 Gathering Information About Resources Other Than 
Minerals
    This section would be amended to add a citation to 36 CFR part 228, 
subpart A.

Regulatory Certifications

Regulatory Planning and Review

    This proposed rule has been reviewed under USDA procedures and 
Executive Order 12866, amended by Executive Order 13422, Regulatory 
Planning and

[[Page 15701]]

Review. It has been determined that this proposed rule is not 
significant. This proposed rule will not have an annual effect of $100 
million or more on the economy nor adversely affect productivity, 
competition, jobs, the environment, public health or safety, nor State 
or local governments. This proposed rule would not interfere with an 
action taken or planned by another agency nor raise new legal or policy 
issues. Finally, this action will not alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients of such programs. Accordingly, this proposed 
rule is not subject to OMB review under Executive Order 12866.
    Moreover, this proposed rule has been considered in light of the 
Executive Order 13272 regarding proper consideration of small entities 
and the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.). An initial small entities flexibility assessment has been made 
and it has been determined that this action will not have a significant 
economic impact on a substantial number of small entities as defined by 
SBRFEA. Therefore, a regulatory flexibility analysis is not required.

Environmental Impacts

    This proposed rule revises and updates the regulations for 
locatable mineral operations on the National Forests. Section 31.1b of 
Forest Service Handbook 1909.15 (57 FR 43168; September 18, 1992) 
excludes from documentation in an environmental assessment or impact 
statement ``rules, regulations, or policies to establish servicewide 
administrative procedures, program processes, or instruction.'' This 
proposed rule clearly falls within this category of actions and no 
extraordinary circumstances exist which would require preparation of an 
environmental assessment or an environmental impact statement. A final 
determination will be made simultaneously with the adoption of the 
final rule.

Energy Effects

    This proposed rule has been reviewed under Executive Order 13211 of 
May 18, 2001, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use. It has been determined that this 
proposed rule does not constitute a significant energy action as 
defined in the Executive order.

Controlling Paperwork Burdens on the Public

    In accordance with the Paperwork Reduction Act of 1995 [44 U.S.C. 
Chapter 35], FS announces its intention to request an approval of a new 
information collection (and recordkeeping requirements--if applicable). 
Upon OMB approval, this collection will be merged into 0596-0022.
    Title: Proposed Revision of 36 CFR part 228, Subpart A--Locatable 
Minerals.
    OMB Number: 0596-New.
    Expiration Date of Approval: 3 years from approval date.
    Type of Request: New information collection.
    Abstract: The United States General Mining Laws, as amended, govern 
prospecting for and appropriation of metallic and most nonmetallic 
minerals on approximately 122 million acres of National Forest set up 
by proclamation from the public domain. These laws give individuals the 
right to search for and extract valuable mineral deposits, and secure 
title to the lands involved. A prospector may locate a mining claim 
upon the discovery of a valuable mineral deposit. Recording that claim 
in the local county courthouse and with the appropriate BLM State 
Office affords protection to the mining claimant from subsequent 
locators. A mining claimant is entitled to reasonable access to the 
claim for further prospecting, mining, or necessary related activities, 
subject to other applicable laws and regulations. Locatable mineral 
regulations are specific rules and procedures for use of the surface of 
National Forest System lands, in connection with mineral operations 
authorized by the United States mining laws, to minimize adverse 
environmental impacts to surface resources.
    The information collection required for: a notice of intent to 
operate; proposed initial, modified, or supplemental plan of 
operations; and cessation of operations, is approved and assigned 
Office of Management and Budget Control (OMB) No. 0596-0022. The 
information collection required for a proposed bonded notice in this 
proposed rule has been submitted to OMB as a new collection.
    Estimated Number of Respondents: 100.
    Estimated Number of Responses per Respondent: 1.
    Estimated Number of Total Annual Responses: 100.
    Estimated Total Annual Burden on Respondents: 600 hours.
    Comments: Comments are invited on: (1) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (2) the accuracy of the agency's estimate of 
the burden of the proposed collection of information, including the 
validity of the methodology and assumptions used; (3) ways to enhance 
the quality, utility, and clarity of the information to be collected; 
and (4) ways to minimize the burden of the collection of information on 
those who are to respond, including the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.

Federalism

    The agency has considered this proposed rule under the requirements 
of Executive order 13132, Federalism. The agency has made a preliminary 
assessment that this proposed rule conforms with the federalism 
principles set out in this Executive order; would not impose any 
compliance costs on the States; and would not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Based on 
comments received on this proposed rule, the agency will consider if 
any additional consultations will be needed with the State and local 
governments prior to adopting a final rule.

Consultation and Coordination With Indian Tribal Governments

    This proposed rule does not have tribal implications as defined by 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, and, therefore, advance consultation with tribes is not 
required.

No Takings Implications

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12630, and it has 
been determined that the proposed rule does not pose the risk of a 
taking of private property.

Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. The agency has not identified any State or local 
laws or regulations that are in conflict with this proposed regulation 
or that would impede full implementation of this proposed rule. 
Nevertheless, in the event that such a conflict were to be identified, 
the proposed rule, if implemented, would preempt the State or local 
laws or regulations found to be in conflict. However, in that case, (1) 
no retroactive effect would be given to this proposed rule; and (2) the 
Department

[[Page 15702]]

would not require the use of administrative proceedings before parties 
may file suit in court challenging its provisions.

Unfunded Mandates

    Pursuant to title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), which the President signed into law on March 22, 
1995, the agency has assessed the effects of this proposed rule on 
State, local, and tribal governments and the private sector. This 
proposed rule would not compel the expenditure of $100 million or more 
by any State, local, or tribal government or anyone in the private 
sector. Therefore, a statement under section 202 of the act is not be 
required.

List of Subjects

36 CFR Part 223

    Administrative practice and procedure, Exports, Forests and forest 
products, Government contracts, National Forests, Reporting and 
recordkeeping requirements.

36 CFR Part 228

    Environmental protection, Mines, Miners, National Forests, Natural 
resources, Oil and gas exploration, Public lands--mineral resources, 
Public lands-rights-of-way, Reclamation, Reporting and recordkeeping 
requirements, Surety bonds, Wilderness areas.

36 CFR Part 261

    Law enforcement, National Forests.

36 CFR Part 292

    Mineral resources, Recreation and recreation areas.

36 CFR Part 293

    National Forests, Wilderness areas.

    Therefore, for the reasons set forth in the preamble, the United 
States Department of Agriculture proposes to amend 36 CFR chapter II to 
read as follows:

PART 223--SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16 
U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620j, unless otherwise 
noted.

    2. Revise paragraph (d) of Sec.  223.14 to read as follows:


Sec.  223.14  Where timber may be cut.

* * * * *
    (d) Timber on an unpatented mining claim may be cut by the claimant 
only for the actual development of the claim or for uses consistent 
with the purposes for which the claim was entered. Any severance or 
removal of timber, other than severance or removal to provide 
clearance, must be in accordance with a complete bonded notice then in 
effect or an approved plan of operations then in effect as provided by 
part 228, subpart A of this chapter, and with sound principles of 
forest management.
* * * * *

PART 228--MINERALS

    3. Revise the authority citation for part 228 to read as follows:

    Authority: 30 Stat. 35 and 36, as amended (16 U.S.C. 478, 482, 
551); 41 Stat. 437, as amended, sec. 5102(d), 101 Stat. 1330-256 (30 
U.S.C. 226); 61 Stat. 681, as amended (30 U.S.C. 601); 61 Stat. 914, 
as amended (30 U.S.C. 352); 69 Stat. 368, as amended (30 U.S.C. 
611); and 94 Stat. 2400.

    4. Revise Subpart A to read as follows:
Subpart A--Locatable Minerals
Sec.
228.1 Purpose.
228.2 Scope.
228.3 Definitions.
228.4 Submission of notices of intent to operate, bonded notices, 
and plans of operations.
228.5 Bonded notice--completeness review.
228.6 Plan of operations--approval.
228.7 Availability of information to the public.
228.8 Inspecting operations and remedying noncompliance.
228.9 Environmental protection requirements.
228.10 Reasonably incident uses.
228.11 Cessation of operations.
228.12 Access for operations.
228.13 Reclamation bonds for bonded notices and plans of operation.
228.14 Operations on withdrawn or segregated National Forest System 
lands including National Forest Wilderness.
228.15 Administrative appeals.
228.16 Applicability of this subpart.

Subpart A--Locatable Minerals


Sec.  228.1  Purpose.

    It is the purpose of the regulations in this subpart to set forth 
rules and procedures under which use of the surface of National Forest 
System lands for operations authorized by the United States mining laws 
must be conducted so as to minimize adverse environmental impacts on 
National Forest System surface resources. The United States mining 
laws, which confer a statutory right to enter upon certain Federal 
lands to search for locatable minerals, apply to National Forest System 
lands reserved from the public domain pursuant to the Creative Act of 
1891, Sec. 24, 26 Stat. 1095, 1103 (1891), by virtue of the Organic 
Administration Act of 1897, 16 U.S.C. 482. It is not the purpose of the 
regulations in this subpart to provide for the management of mineral 
resources; the responsibility for managing such resources is in the 
Secretary of the Interior.


Sec.  228.2  Scope.

    (a) This subpart applies to operations hereafter conducted on 
National Forest System lands under the United States mining laws as 
they affect surface resources on such lands which are under the 
jurisdiction of the Secretary of Agriculture: Provided, however, That 
any area of National Forest System lands covered by a special act of 
Congress (16 U.S.C. 482a-482q) is subject to the provisions of this 
subpart and the provisions of the special act, and in the case of 
conflict the provisions of the special act will apply.
    (b) Certification or other approval issued by State agencies or 
other Federal agencies of compliance with laws and regulations relating 
to locatable mining operations the authorized officer determines are 
similar or parallel to requirements of this subpart will be accepted as 
compliance with the applicable requirements of this subpart.


Sec.  228.3  Definitions.

    For the purposes of this subpart the following terms, respectively, 
mean:
    (a) Authorized officer. The Forest Service officer to whom 
authority to review and approve a plan of operations has been 
delegated.
    (b) Day. For purposes of computing time periods, the term ``day'' 
refers to Mondays through Fridays, beginning the next one of these days 
after the event from which the time computation period begins to run. 
However, when the time computation period ends on a day a Federal 
holiday appointed by the President or the Congress of the United States 
is observed, the period is extended to the end of the next day not a 
Federal holiday.
    (c) Minimize. Limiting operations conducted to those reasonably 
incident and, where practical, preventing or reducing the adverse 
impact of reasonably incident operations.
    (d) Mining claim. Any unpatented mining claim or unpatented mill 
site authorized by the United States mining laws.
    (e) Occupancy. Being present on or employing National Forest System 
lands for any of the following activities or purposes:
    (1) The construction, maintenance, placement, protection, repair, 
retention or use of a residence as defined by

[[Page 15703]]

Sec.  228.3(m) for any purpose: Provided, however, That a temporary 
structure or a temporary shelter supplying living or sleeping quarters 
for any person camping in connection with locatable mineral operation 
is not occupancy unless such camping will exceed any stay limit 
applicable to the National Forest System lands on which such temporary 
structure or temporary shelter is situated;
    (2) Regular use of any area, whether or not enclosed or covered in 
any way, for the storage of equipment, machinery, parts, process 
materials, spent materials, supplies, tools and vehicles;
    (3) The construction, maintenance, placement, repair, retention or 
use of any barrier to access, including but not limited to, enclosures, 
fences, gates and signs;
    (4) Use of a caretaker, guard or watchman to monitor, protect, or 
safeguard property, objects, workings, facilities, or the public; and
    (5) Use of a means of transportation on a road or another access 
facility the Forest Service has closed to such use.
    (f) Operations. All functions, work, and activities in connection 
with prospecting, exploration, development, mining or processing of 
locatable mineral resources, reclamation and closure, and all uses 
reasonably incident thereto, including roads, other means of access and 
occupancy, on National Forest System lands subject to the regulations 
in this subpart, regardless of whether said operations take place 
within or outside the boundaries of a mining claim.
    (g) Operator. A person conducting or proposing to conduct 
operations.
    (h) Permanent structure. Structures fixed to the ground by any of 
the various types of foundations, slabs, piers, poles, and other means 
and structures placed on the ground that can only be moved through 
disassembly of the structure into its component parts or by techniques 
commonly used in moving houses. Tents and lean-tos are temporary, not 
permanent, structures.
    (i) Person. Any individual, partnership, corporation, association, 
or other legal entity.
    (j) Reasonably incident. A shorthand reference to the statutory 
standard ``prospecting, mining or processing operations and uses 
reasonably incident thereto'' (30 U.S.C. 612(a)).
    (1) Reasonably incident includes those actions or expenditures of 
labor and resources by a person of ordinary prudence to prospect, 
explore, define, develop, mine, or beneficiate a valuable locatable 
mineral deposit, and reclamation of lands affected by such actions or 
expenditures of labor, using work, activities, functions, practices, 
facilities, structures, and equipment appropriate to the geological 
terrain, mineral deposit, and stage of development and reasonably 
related activities.
    (2) Uses not reasonably incident include, but are not limited to, 
all uses not: Allowed pursuant to the United States mining laws or 
other applicable laws; necessary or reasonable on National Forest 
System lands; realistically calculated to lead to the extraction and 
beneficiation of valuable locatable minerals; required for the 
applicable stage of prospecting, exploration, development, mining or 
processing operations; warranted given the extent of available 
information on the mineral deposit; or warranted given the extent, or 
lack, of ongoing operations.
    (k) Reclamation. Measures taken to, where practical, prevent or 
otherwise minimize onsite and off-site damage to the environment and 
National Forest System surface resources. It includes concurrent, 
seasonal, interim, and ultimate actions, including, if necessary, 
monitoring, maintenance and long-term treatment after mineral 
operations have ceased. These measures must shape, stabilize, 
revegetate, or otherwise treat lands affected by operations in order to 
achieve a safe and environmentally stable condition.
    (l) Reclamation bond. Surety bonds, cash, negotiable securities of 
the United States, or escrow accounts posted by an operator to cover 
the